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United States v. Elder

United States District Court, D. Nebraska

February 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SHARON A. ELDER, et al., Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on two motions in limine filed by the government to preclude Sharon Elder and other defendants from raising affirmative defenses of public authority or entrapment by estoppel (Filing Nos. 102, 168) and on a motion in limine filed by Ms. Elder to preclude the government from introducing hearsay evidence (Filing No. 110). For the reasons discussed below, the government's motions will be granted and Ms. Elder's motion will be denied.

         Background

         The indictment, filed on August 19, 2015, charges Ms. Elder and co-defendants Jacie Sanne, Allen Peithman, AEP Properties LLC, and Cornerstone Plaza, Inc., with conspiracy to distribute Schedule I controlled substances between October 1, 2013, and April 23, 2015, plus related offenses (Filing No. 1). Ms. Sanne has entered a plea of guilty to one count of distributing a controlled substance (Filing Nos. 84, 92).

         On May 18, 2016, Ms. Elder filed a “Notice of Public Authority Defense” which states:

Defendant gives notice pursuant to Rule 12.3 of the Federal Rules of Criminal Procedure Rules she intends to assert a defense of actual or believed exercise of public authority on behalf of a law enforcement agency, namely, the Lincoln Police Department (LPD), Lincoln, Nebraska. Specifically, Defendant was contacted by telephone prior to and during the time presented in the indictment by a senior officer of LPD who said potpourri was legal in Lincoln and could be sold because the Legislature in session failed to act as expected to prohibit such substances and future derivatives. Further, a letter from Lincoln City Attorney Jeffrey Kirkpatrick to vendors of potpourri prior to, during or after the time present in the indictment said the definitive legal status of potpourri was unclear, uncertain and vague and vendors would not be prosecuted if it signed an agreement not to sale substances. Defendant signed the letter and conformed to its terms. Defendant believes and therefore alleges that such actions were pursued by and through then LPD Chief Peschong, Safety Superintendent T. Casady in cooperation with representative(s) of the United States Government or its agencies. As provided in Rule 12.3(e) of the Federal Rules of Criminal Procedure if this notice is later withdrawn the same is not admissible.

(Filing No. 87).

         The government responded by filing a motion in limine on July 19, 2016, “to prohibit the Defendants from mentioning or presenting evidence regarding defenses of public authority and/or entrapment by estoppel ... for the reason that the Defendants cannot show by a preponderance of the evidence that either defense is applicable in this case” (Filing No. 102).[1] Evidence submitted by the government includes letters that City Attorney Kirkpatrick sent to Ms. Elder on April 28, 2015, together with agreements that were Dated: June 6, 2015, by Ms. Elder, as the owner of businesses known as “Dirt Cheap” and “Island Smokes, ” and that were signed on June 11, 2015, by Mr. Kirkpatrick.

         The content of the April 28, 2015 letters is identical:

Dear Ms. Elder:
Your business has been identified by the Lincoln Police Department as a retail establishment which currently or in the recent past has marketed a product known generically as K2. Employees of your business have previously been informed that K2 is being ingested by your customers despite the warnings on packaging. Due to the recent increase of medical emergencies caused by the smoking or ingestion of K2 products in Lincoln and other Nebraska communities, the Lincoln City Law Department considers the sale, distribution, and use of K2 products is a public nuisance and a health and safety threat.
I am writing to ask you to voluntarily sign a community protection agreement with the City of Lincoln. That agreement will be a commitment that you and your business will cease and desist from the practice of selling or distributing K2 products within Lincoln's city limits.
The City will be taking legal action in the very near future against businesses who refuse to voluntarily sign our community agreement. It is my goal to have community protection agreements signed with all of the Lincoln retail establishments that have marketed K2 by May 15, 2015.
Please call me at your convenience so that we can discuss whether you will be able to work ...

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