Defense attorneys for indicted U.S. Rep. Jeff Fortenberry are seeking to call an expert on memory to testify that the 60-year-old congressman didn’t recall the origin of some 2016 campaign contributions because of his age and because of “repetitive” questioning by federal agents.
In court filings Thursday, prosecutors and Fortenberry’s attorneys also spatted over whether any evidence would be presented during the trial about the alleged political motivations of the lead U.S. attorney prosecuting the case.
The congressman’s attorneys maintain that he was targeted because he’s a Republican; prosecutors say such claims are false and an attempt to divert attention away from his alleged crimes.
Fortenberry, who has represented eastern Nebraska’s 1st District since 2005, stands accused of lying to federal investigators probing illegal “conduit” campaign donations in 2016 that originated from a Nigerian billionaire.
Prosecutors allege that Fortenberry repeatedly lied to investigators about his knowledge that the gifts came from Gilbert Chagoury, a Nigerian with Lebanese roots who lived in Paris.
It is illegal for foreigners to donate to U.S. political campaigns either directly or, as in this case, through others.
Fortenberry’s defense attorneys have maintained that he didn’t recall all the details of a 2018 phone call in which he was told that the $30,000 in contributions “probably” came from Chagoury.
The congressman is scheduled to stand trial Feb. 15 in U.S. District Court in Los Angeles on three felony counts for allegedly lying to federal investigators probing illegal campaign contributions from a foreigner. But both prosecutors and Fortenberry’s lawyers have asked that proceedings be delayed to March 15 because of COVID-19 related concerns that have suspended trials this month in California.
The defense request to call an expert witness on memory was among the revelations in a flurry of pre-trial court documents filed Thursday to determine which evidence would be admitted. The documents open a window into the planned legal strategies of both the prosecution and the defense.
Defense attorneys are asking to call an expert witness, Dr. Alan Castel, to testify about “cognitive aging” and how memories “can be fallible.”
Fortenberry, who has pleaded not guilty, has maintained that he was “set up” by FBI agents as he tried to assist their investigation. The congressman was questioned twice by investigators in 2019, once at his Lincoln home and a second time, along with his attorney, in Washington, D.C.
He contends that he didn’t recollect a 2018 conversation with the person who set up the California fundraiser. In that conversation, the person — by then, cooperating with the FBI — told Fortenberry that the earlier donations “probably” originated with Chagoury, who shared Fortenberry’s interest in Christians being persecuted in the Middle East.
Prosecutors, meanwhile, argued in court documents Thursday that Dr. Castel should be blocked from testifying.
They maintain “the average juror” is already aware that memories can be mistaken and argue that his testimony would be a waste of time. Moreover, prosecutors maintain that whether or not Fortenberry’s memory failed him is a matter for the jury to decide.
U.S. attorneys, according to court documents, also want to present evidence that Fortenberry’s motive for lying to federal investigators was to conceal his potentially embarrassing relationship with Chagoury.
Chagoury has a controversial past. At one time, he was alleged to be supporting a terrorist group and was placed on an American “no-fly” list, a decision that was later reversed. Chagoury’s donation of more than $1 million to the Clinton Foundation, while legal, sparked widespread news coverage during Hillary Clinton’s 2016 presidential race.
Fortenberry had met several times with Chagoury and had dined with him in Paris, according to prosecutors. They contend the congressman sought to conceal his conduit contributions to avoid public scandal and damage to his political image.
Fortenberry’s attorneys, in a written response, dispute that. They argue that such “motive” evidence should not be admitted during the trial, saying it was hearsay and irrelevant and could be unfairly prejudicial.
The defense also hopes to introduce evidence that Fortenberry was targeted by “Biden’s FBI” and that the lead prosecutor, Mack Jenkins, had made political contributions to Democrats.
“The personal bias and political affiliation of the prosecutors are relevant to explain why Congressman Fortenberry was set up by the government,” argued Fortenberry’s lawyers.
Prosecutors slammed that contention, saying the claim was part of Fortenberry’s “ongoing campaign to deflect and distract from his own crimes” and instead “put the government on trial and politicize and personalize the charges.”
A pretrial conference in the case is scheduled for Tuesday before U.S. District Judge Stanley Blumenfeld in which the motions will be argued.
Fortenberry is running for re-election. He is being challenged for the Republican nomination by State Sen. Mike Flood of Norfolk.
Flood cited the uncertainty surrounding Fortenberry’s legal troubles as among the reasons he entered the race. That uncertainty was also cited by Gov. Pete Ricketts and former Gov. Dave Heineman in their recent endorsement of Flood, who runs a chain of TV and radio stations.
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