- Associated Press - Friday, June 27, 2014

OMAHA, Neb. (AP) - The Nebraska Supreme Court on Friday again ordered a new trial for a Wyoming man accused of posing as a licensed car dealer. This time, the high court took the blame, saying it erred in telling the lower court how to instruct the trial jury.

Thomas Merchant, 54, of Cheyenne, Wyoming, has twice been convicted of being an unlicensed dealer. Prosecutors said Merchant bought 19 vehicles from the Nebraska Auto Auction in June 2011, and according to the business, the checks Merchant wrote for the vehicles bounced and a fake dealer’s license number on paperwork also indicated Merchant was a “wholesale” dealer.

The state’s high court threw out Merchant’s first conviction, saying that the Lancaster County District Court should not have allowed William Jackson, director of the Nebraska Motor Vehicle Industry Licensing Board, to testify for the prosecution and interpret the state’s car dealer licensing requirements.

The court also found that the trial judge in Merchant’s first trial gave the jury misleading and confusing instruction that prevented it from determining whether Merchant’s conduct of wholesaling vehicles violated the law. In ordering a new trial, the high court directed the lower court to instruct the jury to determine whether Merchant “bought, sold, exchanged, caused the sale of, or offered or attempted to sell new or used motor vehicles on or around June 1, 2011.”

Merchant was again tried and convicted and sentenced in September to 12 to 26 years in prison.

But on Friday, the Nebraska high court vacated his second conviction, citing its own faulty jury instruction.

Nebraska law requires that to qualify as a motor vehicle dealer, a person “must be actively and regularly engaged in the business of conducting an auction for the sale of motor vehicles.” But the instructions given at Merchant’s second trial wrongly omitted that language, the high court noted.

“(W)e wish to make clear that this decision is based upon our own error in (the first appeal),” the high court wrote. “The district court did nothing but faithfully follow our direction in instructing the jury at Merchant’s second trial.”

The lower court will craft jury instructions for the new trial, the high court said, adding that it will not “tie the hands of the trial judge.”

All seven justices concurred in the decision.

Merchant’s attorney, Mark Porto of Grand Island, said he will ask the trial judge to allow Merchant to be freed on bond pending his third trial, noting that Merchant has been behind bars since July 2011 and has already served the maximum for the most serious felony charge against him.

Lancaster County Attorney Joe Kelly did not immediately returne a phone message Friday seeking comment.

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