v. Nevelik

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 11, 2021
2021COA30
No. 18CA0783, People v. Nevelik — Crimes — Money
Laundering; Courts and Court Procedure — Jurisdiction of
Courts — Subject Matter Jurisdiction
A division of the court of appeals holds that the State of
Colorado lacks jurisdiction over a defendant accused of money
laundering in an internet scam when there is no record evidence
that he had any contact with the victims in Colorado, either
physically or electronically. Because nothing in the record shows or
suggests that the defendant knew of any connection with the State
of Colorado, the district court lacked jurisdiction over him and its
judgment is vacated.
COLORADO COURT OF APPEALS 2021COA30
Court of Appeals No. 18CA0783
El Paso County District Court No. 17CR4502
Honorable Barbara L. Hughes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Steven Michael Nevelik,
Defendant-Appellant.
JUDGMENT VACATED
Division III
Opinion by JUDGE FREYRE
Furman and Johnson, JJ., concur
Announced March 11, 2021
Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Steven Michael Nevelik, appeals the judgment of
conviction entered after a jury found him guilty of money
laundering. The jury convicted him based on his participation as a
“money mule” in an internet scam. Nevelik has been, and remains,
a resident of Texas, and no record evidence shows that he had any
contact with the Colorado victims, either physically or
electronically, as part of this scam. He challenges his conviction on
three grounds: (1) the State of Colorado lacks jurisdiction over him
because all of the acts related to the money laundering scam
occurred in Texas; (2) the prosecution failed to prove that he acted
with the requisite mental state; and (3) the trial court erroneously
ordered him to pay restitution. We agree with his first contention
and conclude that the trial court lacked subject-matter jurisdiction.
Accordingly, we vacate the judgment of conviction and the
restitution order and need not address his remaining contentions.
I. Background
¶2 The victims, a Colorado Springs couple, hired a real estate
agent in Mexico to find a retirement home for them to purchase.
The home they decided to buy required a down payment of $22,500.
The real estate agent instructed the victims, by email, to deposit the
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down payment into the agent’s Mexican personal checking account,
via a wire transfer.
¶3 The next day, the victims received another email, purportedly
from the agent’s email account, that directed them to wire the
deposit to a United States bank, Regions Bank, to avoid any delays.
In accordance with these new instructions, the victims wired money
to the Regions Bank account.
¶4 Several days later, the real estate agent informed the victims
that he had never received their deposit. The victims then
contacted the police, who later discovered that someone had hacked
the real estate agent’s email and had altered the wire transfer
instructions. The hacker’s identity was never determined, and the
victims’ money was never recovered.
¶5 Colorado Detective Tremaine White obtained a search warrant
to identify the Regions Bank accountholder to whom the funds had
been transferred. Bank records revealed that Nevelik had opened
the account a few weeks before the transfer, and that the account
was a business checking account for Nevelik’s lawn mowing
business in Texas. The bank statements showed a wire transfer of
$22,500 from the victims’ account into Nevelik’s account, a $700
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ATM withdrawal and $10,500 withdrawal from Regions Bank and
subsequent deposit into Mark London’s account at Chicago Bank of
America the next day, and a $9,900 wire transfer to Ayorinde
Bosun two days after the wire transfer.1 The bank records also
contained copies of checks made out to Nevelik’s lawn mowing
company that had been deposited into the account.
¶6 At Detective White’s request, Texas authorities arrested and
extradited Nevelik to Colorado. Detective White interviewed Nevelik
twice. During the first interview — which Detective White recorded
and the prosecution introduced at trial — Nevelik told Detective
White that he received an email from a Richard Wooten, who
claimed that Nevelik could receive up to $10.5 million and a trip to
London if he accepted funds into his bank account and then
transferred the money to different accounts at Wooten’s direction.
Nevelik offered to provide his emails with Wooten to Detective
White.
¶7 Nevelik admitted that he was suspicious of Wooten and the
scheme to fly him to London, so he opened a separate account at
1Law enforcement never identified or located Mark London or
Ayorinde Bosun.
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Regions Bank in case Wooten “transferred bad money” to that
account. He also told Wooten on one occasion that the
arrangement did not seem legal. Nevelik denied knowing or having
any contact with the Colorado victims or knowing anything about
Wooten’s scheme. Detective White and Nevelik met again and
attempted to contact Wooten, but they were unsuccessful.
Detective White never conducted any further investigation into
Wooten, nor did he investigate Wooten’s emails that Nevelik had
offered to share with him.
¶8 The prosecution charged Nevelik with one count of theft and
one count of money laundering. The jury acquitted Nevelik of theft,
but it convicted him of money laundering. The trial court sentenced
Nevelik to two years supervised probation and ordered him to pay
$24,300 in restitution and interest.
II. Jurisdiction
¶9 Nevelik contends that the State of Colorado did not have
subject-matter jurisdiction to charge him with money laundering
based on acts that solely occurred in Texas. Because we agree, we
vacate the judgment of conviction.
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A. Standard of Review and Relevant Law
¶ 10 Jurisdiction is a question of law that we review de novo. See
People v. Efferson, 122 P.3d 1038, 1040 (Colo. App. 2005). A
challenge to a court’s jurisdiction may be raised on appeal even
when not raised in the district court. People v. Gardner, 250 P.3d
1262, 1269 (Colo. App. 2010).
¶ 11 Colorado law provides that a person may be prosecuted in
Colorado if the “conduct constitutes an offense and is committed
either wholly or partly within the state.” § 18-1-201(1)(a), C.R.S.
2020. “An offense is committed partly within this state if conduct
occurs in this state which is an element of an offense or if the result
of conduct in this state is such an element.” § 18-1-201(2).
¶ 12 As relevant here, section 18-5-309(1)(a)(I), C.R.S. 2020
provides:
(1) A person commits money laundering if he or
she:
(a) Conducts or attempts to conduct a
financial transaction that involves money
or any other thing of value that he or she
knows or believes to be the proceeds, in
any form, of a criminal offense:
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(I) With the intent to promote the
commission of a criminal
offense . . . .
¶ 13 The statute also defines “conducts or attempts to conduct a
financial transaction” as including, but not limited to, “initiating,
concluding, or participating in the initiation or conclusion of a
transaction.” § 18-5-309(3)(a).
B. Application
¶ 14 We agree with Nevelik that Colorado lacks jurisdiction over the
money laundering count under section 18-1-201(1)(a). The
undisputed evidence shows that Nevelik committed all money
movements in the State of Texas. He never traveled to, emailed,
telephoned, or had any other contact with anyone in Colorado, nor
did he commit any of the acts in furtherance of a money laundering
offense in Colorado. Further, the victims did not know Nevelik, nor
did he know them, and nothing in Nevelik’s correspondence with
Wooten suggests that Wooten initiated the scheme in Colorado or
ever informed Nevelik of any Colorado connections.
¶ 15 We find People v. Tinkle, 714 P.2d 919 (Colo. App. 1985),
instructive in reaching this conclusion. In Tinkle, the defendant
entered into an oral agreement in Colorado with the victim. They
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agreed that the defendant would sell the victim’s merchandise in
Texas and send the victim a portion of the proceeds. Id. at 920.
Unable to sell the merchandise in Texas, the defendant then
traveled to Arizona, sold the merchandise, but failed to pay any
portion of the proceeds to the victim. Id. The defendant was
subsequently charged and convicted of theft in Colorado. Id. On
appeal, he argued that no element of the crime was committed in
Colorado and that the trial court lacked jurisdiction over him. A
division of this court agreed and reversed his conviction. Id. The
division rejected the People’s argument that the oral agreement,
made in Colorado, resulted in thefts that occurred outside Colorado
and, thus, conferred jurisdiction under section 18-1-201(2)’s
language “being committed partly within this state.” Id. at 920-21.
Instead, it reasoned that the crucial elements of theft — an intent to
permanently deprive and the actual deprivation — occurred outside
Colorado and that, therefore, Colorado lacked jurisdiction over this
crime. Id.¶ 16 As in Tinkle, the essential elements of money laundering
occurred outside of Colorado. Nevelik opened an account in Texas,
received the funds in Texas, and never solicited the Colorado
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victims to wire the funds to Texas. Thereafter, Nevelik initiated wire
transfers to other non-Colorado bank accounts and withdrew cash
from the Texas account. No part of Nevelik’s conduct in either
initiating or concluding any financial transaction occurred in
Colorado.
¶ 17 We are not persuaded otherwise by the People’s reliance on
People v. Chase, 2013 COA 27, to argue that the Colorado victims’
wiring of funds from Colorado was sufficient to confer jurisdiction
under the statute. In Chase, the defendant, a Colorado resident
angry over an eviction notice that the Colorado resident victims
posted on his door, sent threatening emails from Boston to the
victims, who opened those emails while in Baltimore. Id. at ¶¶ 4-7,
24, 27-29. He was convicted of stalking in Colorado. Id. at ¶ 25.
He challenged the court’s jurisdiction on appeal and argued that
because the emails were initiated and opened outside of Colorado,
the court lacked jurisdiction. The division concluded, however, that
the essential element of “causing a reasonable person to be in fear
for his or her safety” (credible threat element) partly occurred in
Colorado because the defendant and the victims were Colorado
residents, the defendant was unaware the victims were out-of-state
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when he sent the email, the defendant knew where the victims
lived, the victims knew they would return to Colorado, and the
eviction notice that prompted the conduct was posted in Colorado.
Id. at ¶ 26. The division reasoned that the defendant should not
benefit from the mere coincidence that the victims were physically
in Baltimore when they read the threatening emails. Id. at ¶ 30.
¶ 18 Contrary to Chase, Nevelik did not know the victims before the
offense, never had contact with the victims, and never performed
any act of money laundering, either in whole or in part, in Colorado.
¶ 19 We acknowledge that money laundering requires a person to
“know[] or believe[]” the money constituted “the proceeds, in any
form, of a criminal offense” and that any transaction involving that
money be conducted “[w]ith the intent to promote the commission
of a criminal offense.” § 18-5-309(1)(a)(I). And we acknowledge that
the proceeds wired to Nevelik’s bank account resulted in a theft of
the victims’ funds in Colorado. However, contrary to the People’s
assertion, no record evidence showed that Nevelik knew or believed
the wired funds came from Colorado or that he possessed the intent
to promote the commission of a theft involving the Colorado victims.
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Indeed, nothing in the record shows or even suggests that Nevelik
knew of any connection with the State of Colorado.
¶ 20 Likewise, the United States Supreme Court’s decision in
Strassheim v. Daily, 221 U.S. 280 (1911), cited by the People, does
not compel a different conclusion. In that case, Michigan
authorities sought to extradite the defendant from Illinois to stand
trial for participating in a scheme to obtain money from Michigan
by false pretenses. Id. at 281. The defendant was accused of
colluding with his company’s secretary and with a Michigan state
official to sell used machinery for the price of new machinery. Id. at
282. The Supreme Court concluded that the defendant had
committed a crime under the laws of Michigan, though he was not
in Michigan at the time of the offense. Id. at 285. The Court
explained that “[a]cts done outside a jurisdiction, but intended to
produce and producing detrimental effects within it, justify a state
in punishing the cause of the harm as if he had been present at the
effect, if the state should succeed in getting him within its power.”
Id. at 285.
¶ 21 While Nevelik committed the acts outside of Colorado and may
have been suspicious of Wooten and his promise of $10.5 million
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and a trip to London, the prosecution presented no evidence that
Nevelik was aware or intended to promote a theft in Colorado.
Thus, Strassheim is distinguishable.
¶ 22 Accordingly, we conclude that the trial court lacked
subject-matter jurisdiction over the money laundering count and
vacate the judgment of conviction.
III. Conclusion
¶ 23 The judgment is vacated.
JUDGE FURMAN and JUDGE JOHNSON concur.
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