United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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.
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.
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Criminal Procedure if this notice is later withdrawn the same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).
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). 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.
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
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 ...