Fortenberry lawyers ask judge to toss conviction, say not every lie is a crime

LINCOLN (Nebraska Examiner) — Lawyers for former Rep. Jeff Fortenberry have asked a judge to throw out his conviction, after a weeklong jury trial and three guilty verdicts for lying to federal investigators.

In their request for acquittal, Fortenberry’s lawyers charged that federal prosecutors failed to show that the Nebraska congressman’s false statements were “material” and had an impact on the overall federal investigation.

That probe was about illegal “conduit” political contributions from a foreign national, a Nigerian-Lebanese billionaire named Gilbert Chagoury.

The attorneys also said the federal statute on materiality was unconstitutionally vague and should be thrown out.

“The law does not criminalize every false statement that is made to the government. Nor does it criminalize any act of concealment from the government,” defense attorney Glen E. Summers said in a 23-page pleading.

Only false statements that are a “materially false, fictitious, or fraudulent statement or representation” are criminal, he wrote.

Summers cited a ruling by late U.S. Supreme Court Justice Ruth Bader Ginsburg in another false statement case.

She wrote that “the function of law enforcement … is the prevention of crime and the apprehension of criminals” and not “the manufacturing of crime.”

A spokesman for the U.S. Attorney’s Office in the Central District of California, which prosecuted the case, said Wednesday that prosecutors will respond with their own court filing.

The judge at the trial, U.S. District Judge Stanley Blumenfeld, rejected defense motions to throw out the case because of a lack of materiality.

And the jury, in its unanimous verdict, ruled that Fortenberry’s actions were material and criminal.

Whether Fortenberry’s statements to FBI agents were material to their overall investigation was a key issue in the congressman’s trial in March in Los Angeles.

Fortenberry’s attorneys maintained that agents had already determined the extent of Chagoury’s donations to U.S. politicians before they first interviewed the congressman at his Lincoln home in March 2019.

Thus, they argued, his statements, even if false, had no impact and were not “material” to the investigation.

They maintained that investigators were only continuing to investigate whether Fortenberry’s statements – that he was unaware that he had received any illegal donations – were false.

FBI agents called as witnesses, meanwhile, said they continued to investigate to determine whether the funds Fortenberry received resulted in any official actions.

In February 2016, a group of Lebanese-Americans gave Fortenberry $30,000 in campaign donations at a fundraiser in Los Angeles.

The money came from Chagoury, who lives in Paris. He had an associate in Washington, D.C., Toufic Baaklini, deliver the money in a paper sack to the host of the fundraiser, Dr. Elias Ayoub.

All three men were involved in a group called In Defense of Christians, which had been working with Fortenberry on resolutions to condemn persecution of Christians and other religious minorities in the Middle East. Fortenberry delivered a speech at the group’s inaugural gala.

In 2018, the FBI had Ayoub — by then cooperating with investigators — return a call to Fortenberry, who was seeking a second fundraiser in L.A.

During the call, Ayoub told the congressman at least three times that the 2016 donations originated with Chagoury, making them illegal.

When Fortenberry was interviewed twice by the FBI in 2019, he denied knowledge of that.

Fortenberry did not testify at his trial, but prosecutors played a 10-minute recording of the call with Ayoub four times.

The congressman’s defense team offered several explanations for why Fortenberry didn’t get the message, ranging from a bad cellphone connection to him taking phone calls “on autopilot.”

Fortenberry was the only one of the Republican politicians who received money from Chagoury who didn’t quickly “disgorge” the contributions after hearing from federal officials.

The congressman, who had represented Nebraska’s 1st Congressional District since 2005, was convicted of two counts of lying to investigators and one count of trying to conceal it by failing to amend his federal campaign finance report.

Fortenberry, 61, faces up to five years in prison on each of the counts. He resigned his seat two days after the guilty verdicts, and a special election has been set for June 28 to fill the vacancy.

June 28 is also the date Blumenfeld is set to pronounce a sentence. He also set that day for hearing the acquittal motion filed by Fortenberry’s attorneys.