FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JEFFREY FORTENBERRY, 

Defendant-Appellant.

No. 22-50144 

D.C. No. 2:21-cr00491-SB-1 

OPINION

Appeal from the United States District Court

for the Central District of California

Stanley Blumenfeld, Jr., District Judge, Presiding

Argued and Submitted July 11, 2023

Pasadena, California

Filed December 26, 2023

Before: Gabriel P. Sanchez and Salvador Mendoza, Jr., 

Circuit Judges, and James Donato,* District Judge.

Opinion by Judge Donato

* The Honorable James Donato, United States District Judge for the 

Northern District of California, sitting by designation.
2 USA V. FORTENBERRY

SUMMARY**

Criminal Law

The panel 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.

Federal agents interviewed Fortenberry at his home in 

Lincoln, Nebraska, and his lawyer’s office in Washington, 

D.C., in connection with an investigation into illegal 

campaign contributions made by a foreign national through 

conduit donors. At the time, Fortenberry was a member of 

the House of Representatives from Nebraska. The federal 

agents were based in Los Angeles, California, where the 

illegal contribution activity was said to have occurred. At 

the end of the investigation, Fortenberry was charged with 

making false statements during the interviews in violation of 

Section 1001, but not with a violation of the federal election 

laws. He was tried and convicted by a federal jury in Los 

Angeles.

Fortenberry contended that the district court incorrectly 

denied his motion to dismiss the case because venue was 

improper in the Central District of California. The district 

court determined 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. The panel concluded that 

an effects-based test for venue of a Section 1001 offense has 

no support in the Constitution, the text of the statute, or 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
USA V. FORTENBERRY 3 

historical practice. The panel therefore reversed 

Fortenberry’s conviction without prejudice to retrial in a 

proper venue. The panel did not reach Fortenberry’s 

contention of instructional error. 

COUNSEL

Kannon K. Shanmugam (argued), William T. Marks, and 

Matteo Godi, Paul Weiss Rifkind Wharton & Garrison LLP, 

Washington, D.C.; Jing Yan, Paul Weiss Rifkind Wharton 

& Garrison LLP , New York, New York; Glen E. Summers, 

Bartlit Beck LLP, Denver, Colorado; John L. Littrell, Jr., 

Bienert Katzman Littrell Williams LLP, San Clemente, 

California; Ryan V. Fraser, Bienert Katzman Littrell 

Williams LLP, Los Angeles, California; for DefendantAppellant. 

Alexander P. Robbins (argued), Assistant United States 

Attorney, Criminal Appeals Section; James J. Buxton and 

Susan Har, Assistant United States Attorneys, Public 

Corruption and Civil Rights Section; Bram M. Alden, 

Assistant United States Attorney, Criminal Appeals Section 

Chief; Mack E. Jenkins, Assistant United States Attorney, 

Criminal Division Chief; E. Martin Estrada, United States 

Attorney; United States Attorney’s Office, Los Angeles, 

California; for Plaintiff-Appellee.
4 USA V. FORTENBERRY

OPINION

DONATO, District Judge:

Federal agents interviewed Jeffrey Fortenberry at his 

home in Lincoln, Nebraska, and his lawyer’s office in 

Washington, D.C., in connection with an investigation into 

illegal campaign contributions made by a foreign national 

through conduit donors. At the time, Fortenberry was a 

member of the House of Representatives elected to multiple 

terms by voters in Nebraska’s 1st congressional district. The 

federal agents were based in Los Angeles, California, where 

the illegal contribution activity was said to have occurred. 

At the end of the investigation, Fortenberry was charged 

with making false statements during the interviews in 

violation of 18 U.S.C. § 1001, but not with a violation of the 

federal election laws. He was tried and convicted by a 

federal jury in Los Angeles. 

Fortenberry appeals his conviction on two grounds. He 

contends that the district court incorrectly denied his motion 

to dismiss the case because venue was improper in the 

Central District of California. He also appeals a declined 

jury instruction as error. 

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.
USA V. FORTENBERRY 5

BACKGROUND

Former congressman Jeffrey Fortenberry is a Nebraskan 

who spent decades in elective office. A resident of Lincoln, 

Nebraska, he served on the Lincoln City Council. Beginning 

in 2004, he was elected to several terms in Congress, 

representing Nebraska’s 1st district.

In October 2015, the Federal Bureau of Investigation

(FBI), in conjunction with other federal agencies, began 

investigating a foreign national suspected of improperly 

financing several U.S. political campaigns.1 This multiagency investigation was run by the FBI’s Los Angeles field 

office, located in the Central District of California. 

Over the course of the investigation, the FBI came to 

believe that the foreign national had made conduit 

contributions to Fortenberry’s campaign, namely at a 

fundraiser held for Fortenberry in Los Angeles in 2016. In 

June 2018, a cooperating witness placed a telephone call to

Fortenberry with an FBI agent secretly listening in. The 

witness told Fortenberry that the foreign national was 

probably the source of $30,000 of donations that Fortenberry 

had received at the fundraiser.

About nine months later, in March 2019, two federal

agents from Los Angeles traveled to Lincoln, Nebraska, and 

interviewed Fortenberry in his home there. During the

interview, Fortenberry, who did not have a lawyer present,

denied awareness of any foreign or conduit contributions to 

his campaign. After the interview, Fortenberry retained an 

attorney who contacted the FBI and was referred to the U.S. 

1 Federal election law prohibits foreign nationals from contributing 

directly or indirectly to a campaign for federal, state, or local office. See

52 U.S.C. § 30121.
6 USA V. FORTENBERRY

Attorney’s Office for the Central District of California. The 

attorney set up a second meeting between Fortenberry and 

federal investigators that occurred in July 2019 in 

Washington, D.C. During the meeting, Fortenberry said

again that he was not aware of any illegal contributions to 

his campaign.

On October 19, 2021, Fortenberry was indicted in the 

Central District of California on one count of scheming to 

falsify and conceal material facts in violation of 18 U.S.C. 

§1001(a)(1), and two counts of making false statements in 

violation of 18 U.S.C. § 1001(a)(2). Fortenberry moved to 

dismiss the case for improper venue; the district court denied

his motion. The case went to a jury trial, and Fortenberry 

was found guilty on all counts. The jury found that 

Fortenberry had made false statements in the March 2019 

interview in Nebraska and the July 2019 interview in 

Washington, D.C. The district court sentenced Fortenberry 

to two years of probation, 320 hours of community service, 

and a $25,000 fine. Fortenberry resigned his seat in 

Congress.

DISCUSSION

I. Venue, Vicinage, and Section 1001 Essential Conduct

Fortenberry’s main contention on appeal is that venue 

was improper in the Central District of California and the 

district court should have granted his motion to dismiss on 

that ground. We review de novo the legal basis of the district 

court’s venue decision. See United States v. Hui Hsiung, 778 

F.3d 738, 745 (9th Cir. 2015); United States v. Corona, 34 

F.3d 876, 878 (9th Cir. 1994). 

“Questions of venue in criminal cases . . . are not merely 

matters of formal legal procedure.” United States v. 
USA V. FORTENBERRY 7

Johnson, 323 U.S. 273, 276 (1944). They present policy 

concerns deeply rooted in the Constitution. “Aware of the 

unfairness and hardship to which trial in an environment 

alien to the accused exposes him,” id. at 275, the Framers 

drafted the Venue Clause, which “mandates that the ‘Trial of 

all Crimes . . . shall be held in the State where the . . . Crimes 

shall have been committed.’” Smith v. United States, 599 

U.S. 236, 242–43 (2023) (quoting U.S. Const. art. III, § 2, 

cl. 3). This command is reinforced by the Vicinage Clause 

of the Sixth Amendment, which “guarantees ‘the right 

to . . . an impartial jury of the State and district wherein the 

crime shall have been committed.’” Id. at 244–45 (quoting 

U.S. Const. amend. VI). 

Congress did not expressly designate the venue of a 

Section 1001 offense, and so the “locus delicti,” the location 

of the crime, “must be determined from the nature of the 

crime alleged and the location of the act or acts constituting 

it.” United States v. Anderson, 328 U.S. 699, 703 (1946) 

(internal citations omitted); see also United States v. 

Rodriguez-Moreno, 526 U.S. 275, 279 (1999) (“[A] court 

must initially identify the conduct constituting the offense 

(the nature of the crime) and then discern the location of the 

commission of the criminal acts.”). “To determine the 

nature of the crime, we look to the essential conduct 

elements of the offense.” United States v. Lukashov, 694 

F.3d 1107, 1120 (9th Cir. 2012) (internal quotations and 

citation omitted).

Section 1001 of Title 18 imposes criminal liability on 

“whoever, in any matter within the jurisdiction of the 

executive, legislative, or judicial branch of the Government 

of the United States, knowingly and willfully . . . (1) falsifies, 

conceals, or covers up by any trick, scheme, or device a 

material fact” or “(2) makes any materially false, fictitious, 
8 USA V. FORTENBERRY

or fraudulent statement or representation.” 18 U.S.C. 

§ 1001(a). “A conviction under § 1001 requires the 

government to prove beyond a reasonable doubt that the 

defendant: 1) made a statement, 2) that was false, and 3) 

material, 4) with specific intent, 5) in a matter within the 

agency’s jurisdiction.” United States v. Selby, 557 F.3d 968, 

977 (9th Cir. 2009). 

The question of venue in this case is answered by 

determining which of these statutory elements is the 

essential conduct of a Section 1001 offense, and which is a 

“circumstance element” that is necessary for a conviction but 

not a factor in deciding the location of the offense for venue 

purposes. Rodriguez-Moreno, 526 U.S. at 280 n.4. To 

illustrate, in a money laundering case, trial was proper where 

the laundering alleged in the indictment had occurred, but 

not where the criminal activity generating the illicit currency 

(i.e., the unlawful distribution of cocaine) had taken place, 

because the relevant statutes “interdict[ed] only the financial 

transactions . . . [and] not the anterior criminal conduct that 

yielded the funds allegedly laundered.” United States v. 

Cabrales, 524 U.S. 1, 3–4, 7 (1998). In other words, “[t]he 

existence of criminally generated proceeds was a 

circumstance element of the offense but the proscribed 

conduct—defendant’s money laundering activity—occurred 

‘“after the fact” of an offense begun and completed by 

others.’” Rodriguez-Moreno, 526 U.S. at 280 n.4 (quoting 

Cabrales, 524 U.S. at 7). In drawing this distinction between 

essential conduct elements and circumstance elements here, 

our reading of Section 1001 is guided, but not limited, by the 

principle that the verb or verbs used in a criminal statute have 
USA V. FORTENBERRY 9

“value as an interpretive tool” to “determine the nature of the 

substantive offense.” Id. at 280. 2 

The text of the statute plainly identifies the essential 

conduct of a Section 1001 offense to be the making of a false 

statement. As the Tenth Circuit has observed, Section 

1001(a)(2) “does not contain a venue clause, nor is there any 

language suggesting any ‘essential conduct element’ other 

than making a false statement.” United States v. Smith, 641 

F.3d 1200, 1207 (10th Cir. 2011) (quoting RodriguezMoreno, 526 U.S. at 280). It is the act of uttering a false 

statement that is the criminal behavior essential to liability 

under Section 1001. 

The district court, citing United States v. Salinas, 373 

F.3d 161, 166–67 (1st Cir. 2004), and United States v. 

Coplan, 703 F.3d 46, 79 (2d Cir. 2012), went a step further 

to hold that materiality was also an essential conduct 

element. It concluded that venue could properly include any 

“district in which the effects of the false statement [were]

felt.” Salinas, 373 F.3d at 167. This was because 

materiality, in the district court’s view, necessarily depends 

on how a listener would perceive the utterance, wherever the 

listener might be located. 

The government urges the same analysis here. It argues 

that the district court was right to hold that materiality is an 

“essential conduct element” of Section 1001, and because

conduct is “often defined by its effects,” there is “nothing 

anomalous about prosecuting a false statement based on the 

2 Neither party has suggested that the venue analysis under Section 

1001(a)(2) differs from the analysis under Section 1001(a)(1), at least 

with respect to the facts presented in this case. For the purposes of 

resolving this appeal, the Section 1001(a)(2) analysis is dispositive. 
10 USA V. FORTENBERRY

location of the government action that the statement could 

potentially influence.’”

This argument misses the mark. It is certainly true that 

Congress did not intend to criminalize trivial falsehoods 

under Section 1001, which the materiality requirement 

addresses. Materiality is a key element of the statutory 

definition of the crime that prosecutors must prove, with all 

the other elements, to obtain a conviction. See Mathis v. 

United States, 579 U.S. 500, 504 (2016) (“‘Elements’ are the 

‘constituent parts’ of a crime’s legal definition—the things 

the ‘prosecution must prove to sustain a conviction.’”) 

(quoting Black’s Law Dictionary 634 (10th ed. 2014)). 

But the inquiry that determines venue is different. It 

turns on the action by the defendant that is essential to the 

offense, and where that specific action took place. 

Materiality is not conduct because it does not require 

anything to actually happen. We have previously held that 

materiality requires only that a statement have the capacity 

to influence a federal agency. As we stated:

[T]he materiality requirement of a § 1001 

violation is satisfied if the statement is 

capable of influencing or affecting a federal 

agency. The false statement need not have 

actually influenced the agency, and the 

agency need not rely on the information in 

fact for it to be material. In other words, the 

“test is the intrinsic capabilities of the false 

statement itself, rather than the possibility of 
USA V. FORTENBERRY 11

the actual attainment of its end as measured 

by collateral circumstances.”

United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 

1998) (internal citations omitted) (emphasis in original). 

We have made a similar point in other Section 1001 

cases. See United States v. King, 735 F.3d 1098, 1108 (9th 

Cir. 2013) (“A misstatement need not actually influence the 

agency decision in order to be material; propensity to 

influence is enough.”); see also United States v. Green, 745 

F.2d 1205, 1208 (9th Cir. 1984) (“Under section 1001, the 

false statement need not be made directly to the government 

agency; it is only necessary that the statement relate to a 

matter in which a federal agency has power to act.”); United 

States v. King, 660 F.3d 1071, 1081 (9th Cir. 2011) (“A false 

statement need not be made to a federal agent to support a 

conviction under § 1001(a)(2).”). The upshot of our prior 

holdings is that the false statement offense is complete when 

the statement is made. It does not depend on subsequent 

events or circumstances, or whether the recipient of the false 

statement was in fact affected by it in any way. 

Consequently, materiality is not an essential conduct 

element of a Section 1001 violation. The Supreme Court’s 

holding in Rodriguez-Moreno does not compel a different 

result. There, the Court vacated on venue grounds a 

conviction under 18 U.S.C. § 924(c)(1) for using or carrying 

a firearm “during and in relation to any crime of violence.” 

The crime of violence in that case was a kidnapping, and the 

Third Circuit had determined that venue was proper only in 

the district where the defendant used or carried a firearm, 

and not in the districts where the kidnapping occurred. 

Rodriguez-Moreno, 526 U.S. at 278. The Supreme Court 

reversed. It concluded that using and carrying a firearm, as 
12 USA V. FORTENBERRY

well as the related crime of violence, i.e., the kidnapping,

were both essential conduct elements of Section 924(c)(1). 

Id. at 280–81 (“Section 924(c)(1) criminalized a defendant’s 

use of a firearm ‘during and in relation to’ a crime of 

violence; in doing so, Congress proscribed both the use of 

the firearm and the commission of acts that constitute a 

violent crime.” (emphasis in original)).

Section 1001 is different. It proscribes the act of making 

a materially false statement. Materiality is not separate 

conduct akin to kidnapping or another action by a criminal 

defendant, and so cannot play a role in determining the locus 

delicti for purposes of venue.

II. Decisions of Other Circuits

The government says there is a “wall” of circuit authority 

in its favor, to the effect that “the essential conduct 

prohibited by § 1001(a)(2) is the making of a materially

false, fictitious, or fraudulent statement.” Coplan, 703 F.3d 

46, 79 (2d Cir. 2012) (emphasis added); see also United 

States v. Oceanpro Indus., Ltd., 674 F.3d 323, 329 (4th Cir. 

2012); United States v. Ringer, 300 F.3d 788, 791 (7th Cir. 

2002). These courts concluded that, because “the essential 

conduct constituting the offense inherently references the 

effects of that conduct,” Oceanpro, 674 F.3d at 329, venue 

is proper where the effects of the false statements may be 

felt, namely wherever the relevant investigation or official 

proceeding is located. 

This “wall” is less imposing than the government would 

have it because the Tenth and Eleventh Circuits have 

reached the same result we reach here. Smith, 641 F.3d at 

1207; United States v. John, 477 F. App’x. 570, 572 (11th 

Cir. 2012) (unpub.). It is also the case that the Supreme 

Court has left open the broader questions of whether and 
USA V. FORTENBERRY 13

when an effects-based venue might be permissible. See 

Rodriguez-Moreno, 526 U.S. at 279 n.2 (“The government 

argues that venue also may permissibly be based upon the 

effects of a defendant’s conduct in a district other than the 

one in which the defendant performs the acts constituting the 

offense. . . . [W]e express no opinion as to whether the 

Government’s assertion is correct.”).

The logic of the circuit cases cited by the government is 

questionable for all the reasons already discussed. The 

Second Circuit upheld venue in New York for false 

statements made in Tennessee because “[p]roving the 

materiality of [the defendant’s] false statements in 

Tennessee necessarily requires evidence that those 

statements were conveyed to or had an effect on the IRS 

investigators working in the Southern District of New 

York.” Coplan, 703 F.3d at 79 (citing Oceanpro, 674 F.3d 

at 329). Why that is “necessarily” so is left unsaid, other 

than a passing remark to the effect that it just makes sense. 

Id. Coplan is also in tension with United States v. Rodgers, 

466 U.S. 475 (1984), which held that a false statement to the 

FBI need not affect an existing investigation to run afoul of

Section 1001. In addition, while the Second Circuit in 

Coplan recognized that a defendant’s liability under Section 

1001 depended on the “capacity of [his] statements to 

influence the decisionmaking body at issue,” 703 F.3d at 79, 

it nonetheless thought that proof of actual effect would be 

required. We have concluded otherwise in Service Deli, 151 

F.3d at 941, and similar cases. 

In Oceanpro ̧ the Fourth Circuit analogized Section 1001 

to the Hobbs Act and obstruction-of-justice statutes to affirm 

a Section 1001 conviction in Maryland for false statements 

made in the District of Columbia. See Oceanpro, 674 F.3d 

at 329–30. The court stated that, “just as Congress defined 
14 USA V. FORTENBERRY

the effects of conduct in the Hobbs Act and 18 U.S.C. 

§ 1503, it defined the effects in § 1001 to include the element 

of materiality,” and that “proving materiality necessarily 

requires evidence of the existence of the federal 

investigation in Maryland and the potential effects of [the 

defendant’s] statement on that investigation.” Id. at 329. 

The court determined that venue was proper because “the 

District of Maryland had a substantial connection to [the 

defendant’s] conduct and to the charges based on that 

conduct against him.” Id.

This discussion is not persuasive. The analogy of 

Section 1001(a)(2) to the Hobbs Act or obstruction of justice 

is doubtful. For example, “in a prosecution under the Hobbs 

Act, venue is proper in any district where commerce is 

affected because the terms of the statute itself forbid 

affecting commerce in particular ways.” United States v. 

Bowens, 224 F.3d 302, 313 (4th Cir. 2000) (citing 18 U.S.C. 

§ 1951(a) (punishing anyone who “in any way or degree 

obstructs, delays, or affects commerce” by robbery)). In a 

similar vein, the obstruction of justice statute expressly 

prohibits “endeavors to influence, obstruct, or impede, the 

due administration of justice,” 18 U.S.C. § 1503(a), and so 

venue might be proper in the jurisdiction where the affected 

judicial proceeding is being held, see United States v. Smith, 

22 F.4th 1236, 1243–44 (11th Cir. 2022) (discussing United 

States v. Barham, 666 F.2d 521 (11th Cir. 1982)).

To be sure, Section 1001, the Hobbs Act, and the 

obstruction statute contemplate that the proscribed conduct 

might have an effect on something else (a matter within the 

jurisdiction of the executive, legislative, or judicial 

branches; interstate commerce; the administration of 

justice). But that is where the similarities end. The Hobbs 

Act expressly forbids conduct affecting commerce in 
USA V. FORTENBERRY 15

particular ways, and the obstruction statute conduct affecting 

court cases. Section 1001, by contrast, proscribes making 

materially false statements—not actually affecting or 

interfering with a federal agency’s investigation through the 

making of the statements.

The likelihood of highly problematic venue outcomes is 

another reason to decline the government’s effects test. 

Consider the facts here. An investigation was staffed by 

agents in California. In connection with the investigation, 

the agents traveled to Nebraska and Washington, D.C. to 

interview Fortenberry, who made false statements in those 

locations. The only connection between Fortenberry and the 

Central District of California, where he was tried and 

convicted, was that the agents worked in a Los Angeles 

office. What if the investigation had been conducted by 

federal agents in Los Angeles and Oklahoma? What if the 

government had transferred the investigation to agents in 

Massachusetts? What if an investigating agent simply 

moved from Los Angeles to Hawaii for personal reasons but 

maintained a lead role in prosecuting the case? What if the 

government chose to base every single Section 1001 

investigation in Washington, D.C., where federal agencies 

are headquartered? The government’s effect test would say 

that venue is proper in any one of those locations, 

irrespective of where the false statement was actually made. 

This would be an odd and troubling result for an offense that 

does not require an actual effect on the investigators.

This outlandish outcome cannot be squared with the 

Constitution. The Venue and Vicinage Clauses command 

that a trial be held where the crime was committed. This is 

not necessarily a boon to a defendant. Even though the 

“most convenient trial venue for a defendant would 

presumably be where he lives, the Venue Clause is keyed to 
16 USA V. FORTENBERRY

the location of the alleged ‘Crimes,’” and “does not allow 

variation for the convenience of the accused.” Smith, 599 

U.S. at 243 (cleaned up). But the clauses equally “preclude

trial” in a locale where the crime did not occur. Id. at 244 

(emphasis in original). 

The Venue and Vicinage Clauses may not be disregarded 

simply because it suits the convenience of federal 

prosecutors. The government emphasizes that 

(1) Fortenberry’s fundraiser where the conduit contributions 

were made was held in Los Angeles, and (2) he knew when 

his counsel set up the meeting in Washington, D.C. that the 

investigation was being conducted by the U.S. Attorney’s 

Office in the Central District of California. But the location 

of investigators in the Central District, or the presence there 

of witnesses to the campaign contribution events, do not 

speak to the locus delicti of Fortenberry’s Section 1001 

offenses. 

So too of the fact that Fortenberry was aware, at the time 

of his interview in Washington, D.C., that his statements 

would be taken back to and analyzed by the U.S. Attorney’s 

Office in the Central District of California. We are not at 

liberty to create a new temporal element for Section 1001—

tied to defendant’s awareness at the time the statement at 

issue was made—that is not evident in the plain text of the 

statute. Moreover, a complex case may involve investigators 

spread across several jurisdictions. To take again the Los 

Angeles and Oklahoma scenario, adding a temporal element 

would still have permitted Fortenberry to be tried in 

Oklahoma simply because an investigator based there 

happened to be sitting in Fortenberry’s living room in 

Nebraska when he spoke to the agents. 
USA V. FORTENBERRY 17

III. Continuing Offenses

As an alternative approach, the government suggests that 

venue was proper in the Central District of California under 

18 U.S.C. § 3237(a), because communications can be 

prosecuted as “continuing offenses” that “span space and 

time.” We disagree.

3

To start, the government’s reliance on Section 3237

simply begs the question of venue under Section 1001. 

Section 3237 permits the prosecution of “any offense against 

the United States begun in one district and completed in 

another, or committed in more than one district . . . in any 

district in which such offense was begun, continued, or 

completed.” 18 U.S.C. § 3237(a). This text says nothing 

about where a Section 1001 defendant like Fortenberry 

began or completed the offense. It merely invites the next 

step of determining the essential conduct of a Section 1001 

crime. As discussed, this analysis does not come out in favor 

of the effects test the government advocates here. 

The government’s heavy reliance on our decision in 

United States v. Angotti, 105 F.3d 539 (9th Cir. 1997), is also 

misplaced. The district court did not cite Angotti, but it is a 

centerpiece of the government’s case on appeal. Angotti 

involved an appeal, on venue grounds, of a conviction under 

18 U.S.C. § 1014, “which punishes anyone who ‘knowingly 

makes any false statement . . . for the purpose of influencing 

. . . the action’ of a federally insured institution.” Id. at 542. 

The defendant made false statements to a financial 

institution through an agent in the Northern District of 

California, but was tried and convicted in the Central District 

3 The district court did not reach the question whether venue was proper 

under the government’s continuing offense theory.
18 USA V. FORTENBERRY

of California where the institution was located. Id. at 541. 

The panel concluded that a false statement under Section 

1014 was a continuing offense because “the act of making”

the false statement continued until the statements were 

received by the person whom they were ultimately intended 

to influence. Id. at 543.

Angotti is readily distinguishable from the circumstances 

here. Section 1014 expressly contemplates the effect of 

influencing the action of a financial institution. No such

language is used in Section 1001. To determine whether a 

statement is misleading in a material way, we probe the 

“intrinsic capabilities of the false statement itself, rather than 

the possibility of the actual attainment of its end as measured 

by collateral circumstances.” Serv. Deli Inc., 151 F.3d at 

941 (citing United States v. Salinas-Ceron, 731 F.2d 1375, 

1377 (9th Cir. 1984), vacated on other grounds by 755 F.2d 

726 (9th Cir. 1985)). Further, we have distinguished Angotti 

for this reason in other criminal venue cases involving 

conceptually similar statutes. See, e.g., United States v. 

Marsh, 144 F.3d 1229, 1242 (9th Cir. 1998) (“The problem 

with Angotti as analogy is that the crime of endeavoring to 

impede the IRS is complete when the endeavor is made.”). 

As the government points out, there certainly are crimes 

that may be prosecuted where their effects are felt. See, e.g., 

Palliser v. United States, 136 U.S. 257, 265–66 (1890) (“It 

is universally admitted that, where a shot fired in one 

jurisdiction strikes a person in another jurisdiction, the 

offender may be tried where the shot takes effect, and the 

only doubt is whether he can be tried where the shot is 

fired.”); 18 U.S.C. § 3236 (“In all cases of murder or 

manslaughter, the offense shall be deemed to have been 

committed at the place where the injury was inflicted, or the 

poison administered or other means employed which caused 
USA V. FORTENBERRY 19

the death, without regard to the place where the death 

occurs.”). But those situations are markedly different from 

a Section 1001 offense, for which no statute nor universal 

recognition permits a prosecution where the effects of a 

statement are felt, and serve only to illustrate that Congress 

is well equipped to identify the circumstances in which an 

effects-based venue rule is appropriate. Congress did not 

deem Section 1001 to be such a situation.

IV. Historical Practices and Traditions

Our holding today is in line with our national historical 

practices and traditions with respect to venue. See United 

States v. Gaudin, 515 U.S. 506, 515 (1995) (“We do not 

doubt that historical practice is relevant to what the 

Constitution means by such concepts as trial by jury.”). 

The Supreme Court recently examined the history of the 

Venue and Vicinage Clauses, and that discussion is relevant 

here. As the Court stated:

[T]he relevant starting point . . . is the 

common-law “vicinage” right, which 

presumptively entitled defendants to a jury of 

the “neighbourhood” where the crime was 

allegedly committed. 4 W. Blackstone, 

Commentaries on the Laws of England 344 

(1769) (Blackstone). As a practical matter, 

this right imposed a venue requirement: trials 

needed to be held at the location where “the 

matter of fact issuable” allegedly occurred to 

allow the “Inhabitants whereof” to serve on 
20 USA V. FORTENBERRY

the jury. 1 E. Coke, Institutes of the Laws of 

England § 193, at 125 (1628) (Coke).

...

There is no question that the founding 

generation enthusiastically embraced the 

vicinage right and wielded it “as a political 

argument of the Revolution.” Prior to the 

Revolution, Parliament enacted measures to 

circumvent local trials before colonial juries, 

most notably by authorizing trials in England 

for both British soldiers charged with 

murdering colonists and colonists accused of 

treason. The Continental Congress and 

colonial legislatures forcefully objected to 

trials in England before loyalist juries, 

characterizing the practice as an affront to the 

existing “common law of England, and more 

especially to the great and inestimable 

privilege of being tried by . . . peers of the 

vicinage.” The Declaration of Independence 

also denounced these laws, under which, it 

said, British soldiers were “protect[ed] . . . by 

a mock Trial” and colonists were 

“transport[ed] . . . beyond the Seas to be tried 

for pretended offences.” 

Smith, 599 U.S. at 246–47 (footnotes omitted). Justice Story 

also noted that the Venue Clause operates to protect criminal 

defendants from being “dragged to a trial in some distant 

state” that bears little or no connection to a controversy and 

then “subjected to the verdict of mere strangers.” 3 J. Story, 

Commentaries on the Constitution of the United States 

§ 1775, at 654 (1st ed. 1833). 
USA V. FORTENBERRY 21

Relevant historical practices in perjury prosecutions 

supply useful insights in a context close to Section 1001. By 

statute and at common law, perjury prohibits material false 

statements. See Bronston v. United States, 409 U.S. 352, 357 

(1973) (“The words of the statute confine the offense to the 

witness who ‘willfully . . . states . . . any material matter 

which he does not believe to be true.’”) (quoting 18 U.S.C. 

§ 1621(1)); Anonymous, 1 F. Cas. 1032, 1036 (Washington, 

Circuit Justice, C.C.D. Pa. 1084) (No. 475) (“[T]he common 

law description of perjury is, a false oath taken in some 

judicial proceeding in a matter material to the issue.”). The 

prevailing rule is “that the crime of perjury in an affidavit is 

complete the moment the oath is taken with the necessary 

intent. It is immaterial and irrelevant that the false affidavit 

is never used.” Steinberg v. United States, 14 F.2d 564, 567 

(2d Cir. 1926); see also United States v. Noveck, 273 U.S. 

202, 206 (1927) (“The crime of perjury is complete when the 

oath is taken with the necessary intent, although the false 

affidavit is never used.”); Commonwealth v. Carel, 105 

Mass. 582, 586 (1870) (“The perjury is complete when the 

oath is taken, whether the criminal effects his purpose or 

not.”).

Sir Lloyd Kenyon, Lord Chief Justice of the King’s 

Bench, reached similar conclusions in 1797: 

The affidavit, on which the perjury is 

assigned, might have been sworn in a distant 

part of the kingdom; it might have been sent 

up by the post, and detained in the hands of 

any person here for some time; and according 

to the doctrine urged on behalf of the 

defendant, the guilt or innocence of the 

person making the affidavit in the country is 
22 USA V. FORTENBERRY

to depend on the circumstance of the person 

into whose hands it comes, bringing it 

forward. But surely the guilt of the party 

cannot depend on the act of another person, 

when all that he had to do has been already 

consummated. In the instance of making an 

affidavit in the country the party is not to be 

indicted here where the affidavit may happen 

to be used, but in the county where the 

offence was complete by making the false 

oath. 

R v. Crossley (1797) 101 Eng. Rep. 994, 996; 7 T.R. 315 

(KB) 318–19 (Lord Kenyon CJ).

Consequently, history 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. 

V. Materiality Jury Instructions

Fortenberry contends that the district court erred by 

declining to adopt his additional proposed instruction to the 

jury that “a false statement is not material merely because it 

causes the government to investigate the veracity, truth, or 

falsehood of the statement itself.” Because we hold that 
USA V. FORTENBERRY 23

Fortenberry was tried in an improper venue, we do not reach 

this contention of instructional error.

CONCLUSION

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.

REVERSED.