A federal judge Wednesday took the blame for a mistake at a March jury trial over synthetic marijuana sales at a Lincoln head shop, but he found it wasn't enough to warrant a new trial.
"A fundamental error occurred in this case in that we had a trial on a crime that does not exist," defense attorney Kory Reiman said.
At the end of a 14-count complaint, the government had accused Allen Peithman of violating the supervised release he was on for a previous drug case at the time of the conspiracy.
In March, he and his mother, Sharon Elder, the former owners of Lincoln head shops Dirt Cheap and Island Smokes, went on trial in U.S. District Court for a conspiracy to sell drug paraphernalia and packets of potpourri containing federally controlled substances, and other related charges.
Over three weeks, the government and the defense laid out their cases.
But it was only after the jury came back finding them guilty of six of 14 counts, as Senior U.S. District Judge Richard Kopf was preparing for sentencing, that the judge noticed an issue: Violation of supervised release, it appeared, isn't a separate offense but rather an enhancement for sentencing.
Last month, after consulting with the attorneys, Kopf vacated the jury's guilty verdict on the count.
But Reiman argued that Peithman should get a new trial on the other six charges, because jurors learned information at trial about Peithman that he otherwise could have fought to keep them from knowing. Namely, that Peithman had previously gone to prison and was on supervised release.
As it was, the information was relevant to count 14, so he didn't, Reiman said.
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At a hearing Wednesday on the motion, he tried to share in the blame for what happened, but Kopf stopped him.
"It's my fault, not your fault, not the government's fault," the judge said. "But in good conscience, I don't see how there was any prejudice to your guy at all."
Regardless, Reiman said he would have tried the case differently.
But, Kopf said, Peithman himself made 18 references in voluntary statements, after he was given Miranda warnings, to being in prison or on supervised release as his reason for not being part of the business. Elder gave that as a reason, too, he said.
Then there were the calls between them talking about business while Peithman was in prison, Kopf said.
Assistant U.S. Attorney Sarah Fullerton said it absolutely would have been part of her case in chief.
Reiman said at least it would've been an option for him to try to keep that out.
In the end, Kopf said he felt horrible about what happened, but found that neither Peithman nor Elder suffered any prejudice as a result of count 14, which has been vacated.
"There certainly was an error. It was my fault. But I find and conclude that the error was harmless," he said.
Sentencing is set for June.