Nebraska Drug Warriors Lose Bust Thanks To Jurisdictional Limits On Criminal Conspiracy Charges

from the defendant-screwed-everything-up-but-his-choice-of-representation dept

The legalization of marijuana in a few states has led to some interesting law enforcement problems. To date, most of the "solution" appears to be camping out on the borders and seizing drugs from travelers headed out of the state. The lack of legalization on a federal level inflates drug bust stats but doesn't do much for visitors to pot-friendly states whose purchases are completely legal, but their possession -- once crossing the border into a neighboring state -- suddenly isn't.

The legality of the transaction at the point of purchase also makes for some rather unusual court decisions, like the one highlighted by Noel Erinjeri of Fault Lines. Two Minnesota natives were traveling to Colorado to purchase some weed when they were stopped by Lancaster County (NE) Sheriff's deputies, resulting in their arrest and seizure of the cash they were carrying.

In a Friday stop, the department seized $67,007 from 21-year-old James Milton Atkinson of Mankato, Minnesota, and 22-year-old Erik Joseph Felsheim of Waseca, Minnesota.

Prosecutors charged Atkinson and Felsheim Tuesday, and each posted the $2,500 they needed to get out jail.

Some more details on the arrest:

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.

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.

Seems fairly open-and-shut, what with the pair freely admitting they were going to take legally purchased drugs and sell them in a state where marijuana is illegal. It certainly must have seemed that way to James Atkinson, who pleaded no contest and spent 6 months in jail. However, Felsheim decided to roll the dice on a trial… and won.

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.

Sullivan kept Felsheim from a jail sentence with this:

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.

The pot purchase would be legal, even if the resale in Minnesota wasn't. In between lies the route taken by the pair: the state of Nebraska. If someone says they're headed somewhere to purchase pot legally, Nebraska law enforcement can do nothing about it.

The prosecutor tried to salvage the case by saying it was "logical to infer" the pair planned to bring their marijuana back through Nebraska on their way to Minnesota -- that the conspiracy to commit an illegal act in Minnesota would manifest itself as illegal possession en route to that state. As Fault Line's Erinjeri points out, there's not a ton of logic in that inference.

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.

As the court noted, if this "loophole" is going to be closed, it's up to the state's legislature, not the court system. And Felsheim can no more be prosecuted under statutes yet to be created than he can for a conspiracy taking place entirely outside of Nebraska's borders and whose first step involves a completely legal purchase.

Unfortunately for Felsheim, a law the legislature did change arrived far too late to be of any assistance on the cash front. His share of the $67,000 is as good as gone, despite him being cleared by the court. Nebraska became one of the few states to require a conviction to seize assets, but that didn't go into effect until earlier this year. His open admission that the money was going to used to fund illegal drug sales is far, far more than any law enforcement agency would need to stake a claim on the cash, much less justify its seizure in the first place.

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Filed Under: colorado, drug busts, jurisdiction, nebraska

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  1. icon
    freedomfan (profile), 27 May 2016 @ 6:46pm

    They are really more interested in the money anyway

    The legalization of marijuana in a few states has led to some interesting law enforcement problems. To date, most of the "solution" appears to be camping out on the borders and seizing drugs from travelers headed out of the state.

    Out of the state? I would be curious what fraction of people targeted for this scam are people headed into Colorado, as was the case here. Probably the majority. Why? Because the travelers have the cash on the way in and have the much-harder-for-LEOs-to-turn-into-cash pot on the way out. If the deputies were targeting people on the way out (that is to say, the motorists most likely to have drugs instead of cash), they probably would have gotten a legit bust. But, since they are after the cash, they will have to come up with a different ruse.

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