The day after Christmas brings us two decisions
First, in United States v. Fortenberry, --- F.4th ---, No. 22-50144 (9th Cir. 2023), the Court reversed former congressman Jeffrey Fortenberry’s conviction for making false statements, in violation of 18 U.S.C. § 1001(a)(2), without prejudice to retrial in a proper venue, and remanded.
"The Constitution plainly requires that a criminal defendant be tried in the place where the criminal conduct occurred. The district court determined, and the government urges on appeal, that a Section 1001 violation occurs not only where a false statement is made but also where it has an effect on a federal investigation. We conclude that an effects-based test for venue of a Section 1001 offense has no support in the Constitution, the text of the statute, or historical practice. Consequently, we reverse Fortenberry’s conviction without prejudice to retrial in a proper venue."
"[H]istory confirms what the Constitution commands. The founding generation had a deep and abiding antipathy to letting the government arbitrarily choose a venue in criminal prosecutions. Implying an effects-based test for venue in Section 1001 cases, when Congress has not so specified, would allow just that, in derogation of our historical principles. Because a Section 1001 offense is complete at the time the false statement is uttered, and because no actual effect on federal authorities is necessary to sustain a conviction, the location of the crime must be understood to be the place where the defendant makes the statement."
"Fortenberry’s trial took place in a state where no charged crime was committed, and before a jury drawn from the vicinage of the federal agencies that investigated the defendant. The Constitution does not permit this. Fortenberry’s convictions are reversed so that he may be retried, if at all, in a proper venue. See Smith, 599 U.S. 236. The case is remanded for further proceedings that are consistent with this decision."
Next, in United States v. De Leon Guerrero, --- F.4th ---, No. 22-10042 (9th Cir. 2023), the Court affirmed De Leon Guerrero's convictions on two counts of attempted enticement of a minor, but reversed, vacated, and remanded as to three special conditions of supervised release.
This case arose from a sting in Guam created by federal agents to identify individuals “with access to Andersen Air Force Base who were willing to engage in sexual conversation or attempt to meet a minor for sexual contact.” The Court determined that it was bound by its prior opinion in United States v. Lopez, 4 F.4th 706 (9th Cir. 2021).
The Court also vacated certain conditions of supervised release related to sex offenders.
