Thread by @meghanncuniff

It’s the final day of testimony in the criminal trial of Nebraska Congressman Jeff Fortenberry, accused of lying to federal agents about illegal foreign campaign donations. Will Fortenberry testify? Follow this thread for updates from the Los Angeles federal courthouse.
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Fortenberry's wife, Celeste, testified this morning, as @bayleybischof reports. She just got off the stand.

https://twitter.com/bayleybischof/status/1507028366574063617

The court is on a longer-than-usual break, which means Fortenberry right now is talking with his lawyers about whether he should take the stand. I've heard the Lincoln police chief is now not going to testify, so Fortenberry himself could be the only remaining defense witness.

Fortenberry’s lawyer John Littrell just said he’s resting, so Fortenberry will NOT be testifying. Judge Blumenfeld said to the congressman that he wanted to “make sure since your counsel’s going to rest, that means you’re not testifying?”

I couldn’t hear Fortenberry’s reply from the overflow room, but Blumenfeld said, “Alright. And that is your decision. No one has pressured or forced you?” And that’s that. Sounds like prosecutors want to bring rebuttal evidence, but closing arguments should be today.

“You don’t have to be much of a lawyer to be in Congress.”

Here’s my full @lawdotcom article on former U.S. Rep. Trey Gowdy’s testimony in defense of @JeffFortenberry. bit.ly/3qAwynn

I just realized I misidentified Fortenberry's chief of staff in previous tweets, so I deleted those and will be re-doing them now. I apologize for the confusion. Chief is Andrew Braner, not Reyn Archer.

Braner took the stand after Trey Gowdy, and he testified that Fortenberry is “one of what I would call ‘the last great statesmen.’”

“He carries himself in a very dignified way, and he demands excellence” in his staff, work products and communications. “He demands that we take care of the people in Nebraska. So he’s on top of all the issues,” Braner testified Wednesday.

Then we got into what’s basically become a sport in this trial: Exams being completely screwed up through sustained objections, on both sides. “How would you describe the way the congressman thinks? asked Fortenberry’s Kally Ann Kingery.
Objection sustained.

“From what you’ve observed, is it difficult to keep the congressman on track?” Kingery asked.
Objection sustained.

Soon Braner was able to answer, “He’s got big ideas. He’s a visionary, and often with visionaries it’s difficult to execute those things.” Braner said his “gift” is he’s “an executor, an operations guy” so he and Fortenberry make a great team.

After more sustained objections, Blumenfeld directed Kingery: “Let’s try to get more focused on the issues, please.”
“Is the congressman busy?” Kingery asked.
Objection overruled.
“In short, of course. Yes,” Braner said, describing Fortenberry’s duties.

Kingery then went over Fortenberry’s schedule with Braner, noting a trip to Helsinki and Fortenberry “looking at U.S.-Russian relationships around Ukraine.”

Braner said Fortenberry’s obligations are “usually extensive” and he is considered to have “high integrity” from “both sides of the aisle.”
“Is it your opinion he’s honest and follows the rules to the letter?” Kingery asked.

“Yes, he follows the rules to the letter,” Braner answered.
Speaking of letter, Braner recalled Fortenberry asking him to mail a letter for him, so Braner got a stamp from the office supplies.

When Fortenberry found out, he insisted on using a personal stamp and said, “We do not allow taxpayers to pay for my personal mail.” (We didn’t hear anything more about the fact that Braner was apparently on work time when he mailed that personal letter.)

“Is the congressman a man of integrity?” Kingery asked.
“Yes,” Braner answered.

Braner also described arranging a room for a panel discussion for Egyptians who were meeting with President Trump, and one of them pulling him aside and offering him an envelope of cash.

Braner said he and the staffer assigned to Fortenberry’s foreign affairs committee work weren’t sure if Fortenberry needed to know, but when they told him a day or two later, “He was irate.”

“Within an hour, we had the sergeant at arms, the FBI and the Capitol police in the office to interview us,” Braner said.
Braner said Fortenberry “was quick to make sure that never happened again.”

In cross, AUSA Jamari Buxton asked Braner if, when Fortenberry became “irate” about the attempted cash payment, Braner knew that a couple months earlier, the FBI had showed up at Fortenberry’s home in Lincoln to ask him about illegal campaign donations. Braner said no, he didn’t.

Buxton also worked to show that Braner has huge loyalty to Fortenberry. Braner went from his unpaid intern to his chief of staff.
“You look up to the defendant, is that right?” Buxton asked.
“Yes, sir,” Braner answered.

“He means a lot to you?” Buxton asked.
“Of course,” Braner answered.
“You share the same beliefs?” Buxton asked.
“Yes. We argue a lot. We disagree a lot. We agree a lot.”

Buxton ended his cross by asking Braner if he “would ever lie for the congressman?”
Braner seemed at least a little offended and answered slowly, “I wouldn't have this job if I lied to the congressman or for the congressman.”

Closing arguments are cruising along, with Fortenberry's lawyer John Littrell at the lectern now. AUSA Susan Har did the closing for prosecutors. Amazingly, jurors heard the word "sucks" twice - once when Har said if your service is bad you say, "My cell service sucks." ....

...Then again when Littrell brought it up in the defense closing in a pretty obvious attempt to shame prosecutors and remind jurors of the 'sucks' comment. (I know of at least one judge who would sanction lawyers for saying "sucks" in front of a jury.)

Closings are over and the jury is beginning deliberations. After they left, Judge Blumenfeld pretty pointedly brought up what he said is a major concern to him: Fortenberry's lawyer John Littrell commenting in his closing on why Fortenberry didn’t testify. The judge is upset.

This is something for #lawtwitter to chew on. It’s the angriest I’ve seen Judge Blumenfeld. He started by asking Littrell to “provide the court with your authority for the propriety of actually commenting upon a decision not testify.”

Blumenfeld asked what says it’s OK for Littrell to basically say, "'Well, he actually did testify,' and then to suggest to them the reason why he declined to testify, knowing there is a constitutional impediment on the part of the government…they could not possibly respond."

An exasperated Blumenfeld asked Littrell, “Did you hear how strongly and sternly” he twice warned the jury not to consider Fortenberry’s lack of testimony.
“Would you acknowledge that that was a particularly stern admonishment that the court provided?" the judge asked.

Blumenfeld said it’s counsel’s role to make sure they’re protecting constitutional rights, “and yet you either potentially invited [name of case law they were referring to] by allowing a fair response, or you were being unfair” because you knew prosecutors couldn't respond.

Littrell replied that he “certainly didn’t” mean anything wrong but knows jurors “have a real problem with” defendants not testifying. “Jurors really struggle with that, so i feel some obligation to say something about it. If I’ve gone too far…I certainly apologize.”

Blumenfeld said he’s going to “reflect further about what if anything is appropriate for the court to do at this point.” He tells jury not to consider lack of defendant testimony “because the court understanding the legitimate concern and temptation” by jurors to consider it.

So he makes it “very clear how inappropriate it would be for the jury to let that issue enter into their mind.” Blumenfeld was really just on a rift, going off on Littrell about he was so experienced he should know better.

"Yet it seems to the court, what you’ve done is you’ve commented and provided the actual reasons why your client opted not to testify," Blumenfeld said. "At the same time, you necessarily precluded the government from responding."
"I’m very concerned.”

The question is, as Judge Blumenfeld made clear, what can be done here? The jury is back in deliberation room. The trial is over. I don't see how this will change any of that, but maybe the judge is considering sanctions against the attorneys for it. We may find out more later.

Not a good sign for a verdict any time soon: The jury *still* doesn't have the exhibits. Attorneys are actually arguing about some of them. before Blumenfeld now. "They are anxious, I think, to get going," Blumenfeld said of the jury.

(This is why Judge Carter makes trial attorneys stay until 1 a.m. getting stuff done.)

Well that was fast. The jury has reached a verdict in the criminal trial of Nebraska U.S. Rep. Jeff Fortenberry. It has not yet been read, but everyone is gathering in the courtroom right now to hear it.

The jury has convicted U.S. Rep. Jeff Fortenberry on count 1.

And the jury has convicted Fortenberry on the second count. (The charges are two counts of false statements and one count of concealing.)

Fortenberry is sitting at the defense table looking at the clerk as she reads the verdict form, which as a lot of questions for jury to answer. (None of their answers are in Fortenberry’s favor.)

It’s official: A federal jury in Los Angeles has convicted U.S. Rep. Jeff Fortenberry on all three felony charges for lying to federal agents about illegal campaign donations.

Fortenberry’s wife and two of his daughters are in the gallery, along with his future son-in-law. His wife has her arm around one of the daughters, and the other is being comforted by her fiancé.

It’s a sad scene for the family. One of the daughters is so upset that her future brother-in-law moved over to sit next to her and hug her.

After the jury was polled and dismissed, Fortenberry walked over and hugged his wife and daughters all at once. There are audible sobs from the family.

Judge Blumenfeld said he doesn’t believe Fortenberry is a flight risk, so he’ll be allowed to stay out of custody until sentencing.

Fortenberry and his wife embraced in the courtroom and kissed, then they went with family into a conference room just outside the courtroom.

And after all that hoopla over electronics restrictions, things just went full-on lawless as the verdict was being read and people had their phones out all over the place. I stepped out to tweet then realized everyone else was doing it in court and judge wasn’t saying anything.

Judge Blumenfeld scheduled @JeffFortenberry’s sentencing for June 28. Here’s a message from the reporter group text.

Rep. Fortenberry’s spokesman just told reporters he won’t be answering questions in the courthouse but will be going outside…eventually. He said it won’t be three hours, but it probably won’t be five minutes either.

Here’s the scene outside the courthouse right now. Nebraska press waiting for Rep. Fortenberry, their nine-term congressman who was just convicted of three federal felonies.

Here’s Rep. Jeff Fortenberry leaving the courthouse with his wife, Celeste. He briefly spoke to reporters, including reading aloud a supportive text he just received from one of his daughters. I’ve got some (bad) video that I’ll post soon. Prosecutors are coming down to talk soon

Prosecutor Mack Jenkins, chief of @USAO_LosAngeles’ public corruption and civil rights section, talks to reporters after a jury convicted U.S. Rep. Jeff Fortenberry of three felonies for lying about illegal campaign donations.

Here’s the second part of the video of prosecutors’ press conference.

Fortenberry began, “Thank you all for coming out here. This is important to Nebraska.” He read aloud a daughter’s supportive text. “You’ll hear my phone continuing to go off all through this. I’m getting so many beautiful messages from people literally all around the world.”

Fortenberry said, "We always had concerns about the fairness of the process."
"This appeal starts immediately."
And based on how upset Judge Blumenfeld was about Fortenberry's lawyer talking in closing about his decision not to testify, there are definitely issues to explore.

Here’s the official @USAO_LosAngeles news release on Rep. Jeff Fortenberry’s convictions for lying to federal agents about illegal campaign donations. bit.ly/3Iy4wip

ICYMI, here's my @lawdotcom article on Trey Gowdy's testimony in Jeff Fortenberry's trial.

"You don’t have to be much of a lawyer to be in Congress." bit.ly/3qAwynn

Here’s my article on a federal jury in Los Angeles convicting U.S. Rep. Jeff Fortenberry of three felonies for lying to federal agents about illegal campaign donations. Look for more coverage later of the 6th Amendment issue that came up in closings. bit.ly/3iRuenX

Here’s today’s thread on U.S. Rep. Jeff Fortenberry’s trial and convictions, all in one place. bit.ly/3qBBrwp

Regarding Judge Blumenfeld taking issue with @JeffFortenberry’s lawyer discussing in his closing why Fortenberry didn’t testify, the case cited is 1976 SCOTUS decision Doyle v. Ohio. But the remedy here seems to be…nothing? bit.ly/35eDnUg

I got this take from an experienced criminal defense lawyer, and it seems like a reasonable one. She said the judge is right that it’s not OK, but it’s “definitely not reversible when defense created the issue.” (That gets into a legal issue known as “invited error.”)

In Fortenberry’s case, John Littrell, one of his four lawyers, said in his closing that jurors may ask themselves, can’t the congressman just explain this, but “the answer is no” because he does’t remember the 2018 call with Dr. Ayoub.

Littrell also said that Fortenberry DID testify, through the interviews with FBI agents. “His memory’s not better today than it was in 2019.” He really got into this near the end of closing, but prosecutors objected and Blumenfeld told the jury to disregard what Littrell said.

Then after the jury left, the judge really laid into Littrell about this.

https://twitter.com/meghanncuniff/status/1507129544695640072?s=20&t=Te7rjfKMsBm_KAaYHF6QoQ

There was another point in the trial where I thought Fortenberry’s lack of taking the stand really stuck out, and it was when his wife, Celeste, testified yesterday. As seen in this video, Fortenberry praised her courage on the stand after he was convicted.

But the testimony seemed to offer little for his defense, and it opened a door for prosecutors because it was about, in part, what she thought Fortenberry was doing when he was talking to the fundraiser organizer, Elias Ayoub, in the 2nd covertly recorded phone call.

Celeste Fortenberry's direct exam was handled by Glen Summers, and it involved Summers asking her about sounds on the recording that she said indicated he was cooking, with a teapot and “the cast-iron skillet being put on the stove.”

“Do you have a belief as to where your husband was during that call?” Summers asked.
“I believe he was in the kitchen,” Fortenberry answered.
“What do you think he was doing?” Summers asked.
“Cooking” Fortenberry answered.

And this went on and on in a methodical fashion. Summers asked her what he cooks (fried eggs, toast, coffee, french press). At one point, Celeste Fortenberry said regarding whether he was in the kitchen cooking, "It’s a very real possibility. I would say a high probability."

All of this had to have made at least some jurors, who were seated across the room facing Jeff Fortenberry while this was happening, think to themselves: "Gee, if only there was someone in this courtroom who could clear this up for us."

Someone who has firsthand knowledge of what, exactly, the congressman was doing during that call and how, exactly, that cast-iron skillet was being used. Maybe the congressman himself?

All this also allowed AUSA Susan Har to bring up key prosecution evidence during her cross exam of Celeste Fortenberry: The actual recording of this phone call between Jeff Fortenberry and the 2016 fundraiser organizer who was secretly working with the FBI.

Har played for jurors the entire recording, uninterrupted, the one where Dr. Ayoub tells Fortenberry the $30k was funneled through conduits by Toufic Baaklini and "probably" came from foreign billionaire Chagoury but that can't happen again this year.

("There's no problem," Fortenberry replies, later adding: "It's just really hard to raise money.")
Celeste even said afterward that it was only the third time she's ever heard that phone call. (The first two being previously in trial, I think.) Jurors, too!

This is the phone call in which the defense says Jeff Fortenberry didn't hearing part about the $30k and Chagoury, because of bad cell service and being distracted. After the recording ended, Har asked Celeste about her belief her husband was in the kitchen.

I heard all of this from overflow room, where sound is good but maybe not as clear as courtroom, and call doesn't appear to be marred by anything, and Har was trying to drive this point home by asking Celeste after the recording played more about her belief he was in the kitchen.

"It's impossible to be absolutely sure," Celeste Fortenberry testified, regarding whether her husband was in the kitchen during the phone call. (Again, that could have reminded jurors that the guy who may have been in the kitchen is sitting right there and could clear this up.)

Fortenberry's lawyer Glen Summers responded to this in re-direct by playing the snippets of the recording in which the alleged water in a teapot *might* be heard, and in which "something metallic" like a teapot or cast-iron skillet *might* be being placed on the stove.

Summers then tried to drive home that Jeff Fortenberry is often distracted and doesn't listen to people. He asked Celeste if she's ever been talking to her husband and knows he's not listening but he keeps with the conversation, anyway, and she said yes.

AUSA Har objected to the exchange as speculation, and judge sustained and ordered jury to disregard Celeste Fortenberry's answer. So legally, jury was not allowed to consider in their deliberations Celeste's testimony that she knows her husband sometimes doesn't listen to her.

Summers also asked Celeste Fortenberry about cell service in their kitchen - she said they get “one or two” bars and then actually asked her about the lighting in the room where the FBI agents first interviewed Fortenberry (and where his first lying charges stem from).

The lighting talk is when Judge Blumenfeld actually interrupted Celeste’s answer and said that if there’s an objection to this testimony, it’s sustained. So the prosecutors objected and it was sustained.

Summers then tried to ask how this has affected her life, but the objection was sustained, as were objections to questions such as if there’s any chance her husband would have lied.

Summers *was* able to successfully get in an exchange beginning with “would he ever” deceive members of the government, to which Celeste Fortenberry answered no.

Summers also focused Fortenberry's cell phone service, with Celeste testifying to the LA jury, "We live in Nebraska. The state has kind of lousy cell phone service." She referenced "roadtripping on Highway 2" talking to her mother and losing service.

Celeste referenced "roadtripping on Highway 2" talking to her mother and losing service. Fortenberry's lawyer adjusted this for the LA jury in his closing by mentioning service cutting out while driving on "the 405," because that Saturday Night Live skit is a real thing.

Earlier, Summers played the recording of @FBI’s initial visit to Fortenberry home in Lincoln, and Celeste testified the experience was “suspicious” and “very frightening.” When agents returned that night and met with her husband “I didn’t understand what was going on.”

Fortenberry had been out all day meeting with mayors and touring bomb cyclone damage in tows and rural areas in his district. He was tired. Celeste said she listened for a bit, then “went to take care of our children and the dog.”

She also described how Fortenberry is often doing other things while on phone, working in the yard, walking the dog, or "doing the honey-do list." (There was a group of uninvolved AUSAs in the overflow for this, and one woman in particular was deeply amused by this testimony.)

In closings Littrell really focused on how unfair it would be to judge Fortenberry based on "whether or not he was paying to attention to Dr. Ayoub," and how people “certainly shouldn’t be judged” for not paying attention “to every word” that is spoken to us.

“We don’t know what he heard on that call,” Littrell said. He spoke of poor cell service and referenced a @TMobileHelp Super Bowl advertisement that shows how phone conversations change when calls cut out.

Littrell did try to level with the jury about his client U.S. Rep. Jeff Fortenberry: “He is a flawed man. He talks to much. He doesn’t listen enough. He should have paid more attention to his fundraisers.” But that’s not a crime.

In her closing AUSA Susan Har played excerpts from the recordings and went over reasons why jurors can conclude Fortenberry heard what Ayoub said. She drew attention to Fortenberry trying to deflect during his FBI interviews, and getting defensive...

...and denying any knowledge of Baaklini making conduit contributions to his campaign. That includes Fortenberry telling agent it’d be “horrifying” to learn from Ayoub that Baaklini had used conduits to donate him money, and Gilbert Chagoury was involved.

Mack Jenkins, the chief of @USAO_LosAngeles' public corruption and civil rights unit (and pictured here), did the rebuttal. He told jurors they're not to render a verdict on Fortenberry's career, his family, his faith. He said "common sense and the facts" show what happened here.

“Really, it’s an all too familiar and simple story of a politician caught up in a system, caught up in cycle of power and money. He lost his way,” AUSA Mack Jenkins said of Republican Nebraska U.S. Rep. Jeff Fortenberry.

Jenkins went over reasons why people lie, including truth being inconvenient, they let someone down, and said all apply here.
"This case isn't about $30,000," Jenkins said.
He said Fortenberry was worried what the truth could do to his career and future fundraisers.

One other thing Jenkins reminded jurors of in his rebuttal: Fortenberry "injected" himself into the investigation, which was not a failure and resulted in $4 million in fines. This @USAO_LosAngeles release links to four deferred prosecution agreements: bit.ly/3izy4BO

Part of Fortenberry's defense was trying to establish that he strongly believed in In Defense of Christians. Prosecutors showed jurors a text Fortenberry sent about his questioning of @JohnKerry during a House Foreign Affairs Committee about religious persecution overseas.

Fortenberry asked Baaklini or Ayoub to show video to Gilbert, meaning billionaire who secretly donated $30k. That text was easy for prosecutors to get into evidence. But defense then wanted to play the @JohnKerry video for jury, and the judge said no. bit.ly/36MSvZc

Here are prosecutors Mack Jenkins, Jamari Buxton and Susan Har after the verdict, with @FBI agent Edward Choe. (For the LA crowd, Buxton and Har are prosecuting the criminal cases in the @LADWP @CityAttorneyLA scandal over the sham class action.)

Regarding what Fortenberry could be sentenced to, there appears to be a debate between prosecutors and defense about the offense level for false statements under U.S. code 1001. 14 or 6. That's according to this trial court case out DC: govinfo.gov/content/pkg/US…

In that case, the judge sided with prosecutors and concluded the offense level was 14. It appears the same obstruction of justice reasoning would apply in Fortenberry's case.

For Fortenberry, an offense level of 14 would bring a standard range of 15-21 months in prison, according to U.S. sentencing guidelines. An offense level of 6 would bring 0-6 months. This is what lawyers will file briefs about before June 28 sentencing. bit.ly/3tFpGHb