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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