Mimesis Law
19 September 2021

Mo’ Money, Mo’ Problems (But Not In Nebraska)

May 19, 2016 (Mimesis Law) — Erik Felsheim of Minnesota was recently acquitted of two felonies in Nebraska:

On Oct. 24, 2014, a Lancaster County Sheriff’s deputy stopped Erik J. Felsheim for following too closely on Interstate 80 west of Lincoln. Felsheim said he was headed to Colorado and admitted he was nervous.

Deputy Jason Henkel asked if he had any drugs or large amounts of cash in the rental car, and Felsheim said no.

Henkel asked if he could search the car, and Felsheim paused but eventually agreed. In the trunk, deputies found $40,000 in a gym bag and $25,000 more in a duffle bag, according to court records.

(As an aside, let’s just pause here to reiterate, once again, that you should NEVER, EVER, consent to a search of your car, your house, your person, or anything else. A good rule of thumb is that if the police had probable cause to search, they wouldn’t be asking. They might search it anyway, but it will be much easier to defend against any resulting charges, and your lawyer will thank you. Now back to our regularly scheduled blog post.)

Felsheim admitted he was going to Golden, Colorado, to buy 10 pounds of pot to sell in Mankato, where he went to college. He said the rest of the cash belonged to passenger James Atkinson, who planned to buy 7½ pounds.

Deputies arrested them both, and prosecutors charged Felsheim, of Waseca, with two felonies: possession of money intended to be used to facilitate a drug violation and aiding the consummation of delivery of a controlled substance.

Atkinson pled to reduced charges, and got a year in the clink, though he got out in about six months. Felsheim opted for a bench trial, and was acquitted of both felonies. His lawyer, Tim Sullivan, did a good piece of work, and dug up a case called State v. Karsten, which dealt with conspiracies to commit crimes in other states. The money quote:

It is also a fundamental rule that criminal and penal laws are essentially local in character. Ordinarily, no penalty can be incurred under the law of this state except for transactions occurring within this state, and our state law has no extraterritorial effect. A conspiracy in this state to do something in another state which is lawful in that state is not a crime in this state. A conspiracy in Nebraska to gamble in Nevada is a convenient illustration of that principle. (Citations omitted.)

Despite being 40 years old, Karsten applies perfectly to Felsheim’s case. Buying weed in Colorado isn’t illegal, and neither is having the money to buy it. Looking at it another way, the text of the statutes that Felsheim was charged with violating read:

NRS 28-416: (1) Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance;

(17) A person knowingly or intentionally in possession of money used or intended to be used to facilitate a violation of subsection (1) of this section shall be guilty of a Class IV felony.

and

NRS 28-205:  (1) A person is guilty of aiding consummation of felony if he intentionally aids another to secrete, disguise, or convert the proceeds of a felony or otherwise profit from a felony.

What Karsten does is clarify the meaning of the statutes by pointing out the implicit element of “in Nebraska.” The Karsten court went on to explain:

The problem that is presented by this case is one that can be solved by legislation.

Fortunately for Felsheim, the nation’s only unicameral legislature[1] never got around changing the law, so he walks.  The prosecution’s argument was that

it was logical to infer Felsheim intended to bring drugs into Nebraska [presumably on the return trip]. But Strong found no evidence of that.

In the age of Google Maps, it’s a relatively trivial exercise to plot a course from Colorado to Minnesota without going through Nebraska. Apparently Felsheim was either smart enough not to admit to that or (more likely) the police didn’t think to ask that question.

Regular viewers of Nancy Grace will no doubt scream that the judge “let the defendant off on a technicalities.” As with Oklahoma’s forcible sodomy law, “you can’t convict a defendant for something the law doesn’t prohibit” is not a technicality. That’s a basis of the rule of law.

[1] Unicamerality has nothing to do with the case, but it’s one of those things one is statutorily required to point out when writing about the Nebraska legislature.

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  • JoAnne
    19 May 2016 at 9:47 am - Reply

    Adding Karstan to my database post haste