UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, Case 2:08-cr-20585-GER-DAS 

 v. 

PETER HENDRICKSON, VIO: 26 U.S.C. 7206(1) 

DEFENDANT’S MOTION IN LIMINE

TO EXCLUDE DEFENDANT’S PRIOR CONVICTIONS AND

PRIOR CRIMINAL CONDUCT AND CORRESPONDENCE

WITH A STATE AGENCY

 For the reasons set forth more fully in the brief submitted herewith in support of this 

motion, Defendant Peter Hendrickson, by and through counsel, requests that the government be 

precluded from raising at trial any of the issues described in the brief. 

Respectfully submitted, 

_________/s/________ 

Mark Lane 

Counsel for the Defendant 

4 Old Farm Road 

Charlottesville, VA 22903 

Tel: (434) 293-2349 

Fax: (434) 293-9013 

Mlane777@cs.com

Dated: August 28, 2009 

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Case 2:08-cr-20585-GER-DAS Document 56 Filed 08/28/2009 Page 1 of 9
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, Case 2:08-cr-20585-GER-DAS 

 v. 

PETER HENDRICKSON, VIO: 26 U.S.C. 7206(1) 

DEFENDANT’S MEMORANDUM IN SUPPORT OF

THE MOTION IN LIMINE

TO EXCLUDE DEFENDANT’S PRIOR CONVICTIONS AND

PRIOR CRIMINAL CONDUCT AND CORRESPONDENCE

WITH A STATE AGENCY

FACTUAL BACKGROUND

 The government has filed a notice of intent to introduce evidence under F.R.E. 

404(b). It intends to offer evidence regarding the defendant’s previous conviction during 1991, 

asserting that his conduct there is inextricably linked to the issues in this case. The government 

also wishes to introduce defendant’s correspondence with a state agency and the documents 

involved in that matter. In fact, the government, finding itself in a difficult and embarrassing 

position, is trying to extricate itself by introducing evidence so prejudicial and so unrelated to 

any issue in this case that it would deny to the defendant a fair trial. 

 Very likely the defendant was indicted due to the fact that he had published a book 

entitled “Cracking the Code,” twelve years after the conviction and that the government “began 

to observe taxpayers filing form 1040 tax returns which reported ‘zero’ or no income.” That 

statement was made by Shauna Henline, “a Technical Advisor for the Frivolous Return program 

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at the IRS’s Ogden Compliance Services campus in Ogden, Utah.” Ms Henline submitted a 

Declaration with that information under oath in a civil action brought by the government against 

Mr. Hendrickson in the United States District Court, Eastern District of Michigan, Southern 

Division. Her declaration was executed on May 19, 2006. 

 The government was embarrassed because the special division it had established to look 

into frivolous returns had apparently looked into Mr. Hendrickson’s returns for two years and 

had sent refunds to him. Mr. Hendrickson had made no fraudulent statement in his application. 

He utilized the form provided by the IRS and informed the IRS that taxes had been withheld and 

that it was his belief that they should be returned to him. 

 Rather than try this case on the merits, the government wishes to so demonize the 

defendant that the jury will be unable to separate the facts surrounding a previous conviction 

from the underlying issue in this case and to confuse the jury with irrelevant state agency 

correspondence. 

 Should the Court permit the government to present evidence of this highly prejudicial 

episode, one that bears no relationship to the evolved concept applied by Mr. Hendrickson 

almost two decades later, it would require the trial of three cases. The government wishes to 

show a vast amount of information to the jury regarding an event that took place on April 16, 

1991, nearly two decades ago. 

 While the defendant did plead guilty, the evidence reveals that he had withdrawn from 

the conspiracy to place the little devise, about the size of a tea bag, which primarily gave off 

smoke. The evidence will show that Mr. Hendrickson agreed to plead guilty because the 

government had threatened to indict his wife. The evidence will show that Mr. Hendrickson 

cooperated with the government by providing information against the person who was 

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responsible for the smoke bomb. The evidence will show that the small smoke bomb was part of 

a demonstration at which dozens of people were present when the act was committed. For that 

evidence to be presented to a jury in this case, a great deal of time will be required by both the 

government and the defendant. The defendant alone will be required to place approximately one 

dozen witnesses on the stand. On the other hand, counsel for the Department of Justice, Mark F. 

Daly, the trial attorney in this case, has informed Mr. Lane, counsel for Mr. Hendrickson, that he 

expects the case to last a very short period of time. In other words, it appears that more time will 

be spent, and therefore more emphasis placed, upon an irrelevant and highly prejudicial act, 

which occurred long ago and which represents nothing regarding the defendant’s position 

regarding tax law for the entire relevant period for this case. 

 In short, the government wishes to extricate itself from its embarrassing position by 

trying a case different from the one set forth in the indictment. However, a reasonable observer 

can easily distinguish between any position that Mr. Hendrickson might have taken in 1991 and 

the position that he has taken since then. His book, “Cracking the Code,” published in 2003, 

begins: 

Let’s get this said loud and clear right at the outset: IF YOU HAVE TAXABLE 

INCOME, YOU ARE SUBJECT TO THE INCOME TAX. Section 1(a) of the 

Internal Revenue Code says: “there is hereby imposed a taxable income of ... [a 

tax of varying percentages].” 

The Law

 Pursuant to Federal Rule of Evidence Rule 404(b), evidence of a defendant's prior bad 

acts is inadmissible for propensity purposes. However, such evidence may be admissible "as 

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident." Fed. R. Evid. 404(b). Prior to admitting Rule 404(b) evidence, the district 

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court must: (1) make a preliminary finding as to whether sufficient evidence exists that the prior 

act occurred; (2) determine that the other act is admissible for one of the proper purposes 

outlined in Rule 404(b); and (3) apply Rule 403 balancing to determine whether the evidence's 

probative value is substantially outweighed by the danger of unfair prejudice or the other 

concerns embodied in Rule 403. United States v. Mack, 258 F.3d 548, 553 (6th Cir. 2001). 

 In addition to being offered for a proper purpose, to be admissible under Rule 404(b) a 

prior bad act must be "substantially similar and reasonably near in time to the offenses for which 

the defendant is being tried." United States v. Carney, 387 F.3d 436, 451 (6th Cir. 2004). 

In an overt attempt to inflame the jury, the government attempts to introduce a conspiracy 

regarding a tax protest and the willful failure to file a return. The present case regards solely the 

filing of a false statement. A tax protest and a complete failure to file cannot meet the 

"substantially similar" requirement, when the prior bad acts evidence is being offered for the 

purpose of showing intent, since they are not sufficiently analogous to support an inference of 

criminal intent since the defendant has filed a statement in this case. United States v. Benton, 852 

F.2d 1456, 1468 (6th Cir. 1988). There simply is no logical nexus linking the prior conviction 

evidence to the proposition the government claims the evidence tends to prove. Because the 

evidence is not relevant to prove the proposition for which it was offered, it cannot be admitted. 

More importantly, the previous conviction flows from an act nearly two decades ago. Although 

there is no set cut-off point in the rule, the further back in time that the acts were committed 

makes it less likely that they will met the threshold to allow admission. Counsel is unaware of 

any ruling in this circuit that has allowed a prior conviction of this length to be determined 

“reasonably near.” Carney, 387 F.3d 436, at 451. 

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The defendant’s conviction should not be admitted because the nearly two decade gap 

between it and the current charge renders it too temporally remote. 

Next, it is necessary to consider whether the defendant’s prior conviction is rendered 

inadmissible by the considerations set forth in Federal Rule of Evidence 403. See Mack, 258 F.3d 

at 553. Pursuant to Rule 403, a prior bad act that complies with Rule 404(b) is admissible unless 

"its probative value is substantially outweighed by the danger of unfair prejudice, confusion of 

the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless 

presentation of cumulative evidence." Fed. R. Evid. 403. A quick perusal of the government’s 

“factual background” in its Notice of Intent shows the grave risk of prejudice that would occur if 

the defendant’s prior conviction is admitted. According to the government, the defendant 

“participated in the preparation of a destructive device... as a form of violent anti-tax protest. A 

postal employee was injured by the devise.” Government’s Notice of Intent to Introduce 

Evidence Under FRE 404(b), p.2. One can imagine the rhetoric that would flow to a jury, 

inflaming their imaginations with images of an Oklahoma City- type bombing. The jurors would 

hear the word “bomb” and nothing else would register except the images of death and 

destruction that did not occur in that case. Defense cannot think of anything more inflammatory 

with the danger of unfair prejudice, confusion of the issues, and the misleading of the jury than 

the introduction of this extremely remote conviction. Combined with the vast remoteness of the 

conviction, this evidence should not be admitted under a fair balancing required by the rule. 

Further, evidence of his prior conviction would be unnecessarily cumulative. As the 

Seventh Circuit has explained: “Evidence is ‘cumulative’ when it adds very little to the probative 

force of the other evidence in the case, so that if it were admitted its contribution to the 

determination of truth would be outweighed by its contribution to the length of the trial, with all 

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the potential for confusion, as well as prejudice to other litigants, who must wait longer for their 

trial, that a long trial creates. United States v. Williams, 81 F.3d 1434, 1443 (7th Cir. 1996). 

This case is very specific and uncomplicated. The defendant is charged with submitting 

false documents. The government is attempting to obfuscate the determination of the truth of 

defendant’s action by cloaking it in extraneous, unrelated tales of decades past. Indeed, by 

allowing the admission of the previous conviction, this trial would actually become two trials. 

One, straight forward and on the facts regarding the filing of false documents; the other a circus 

of inflammatory rhetoric that would involve many more witnesses and the presentation of more 

extensive evidence than for the matter on which the defendant was indicted. The potential for 

confusion of the jurors is alarmingly high since the instant matter would be obscured by the trial 

of the past conviction. 

Given the length of this trial should the prior conviction testimony be admitted, there 

would be obvious prejudice to other litigants, who must wait longer for their trial. 

Further, no prejudicial effect resulting from the admission of such prior bad acts evidence 

may be reduced by the use of a strong cautionary instruction pursuant to Federal Rule of 

Evidence 105. There would be no way for a jury to compartmentalize the testimony of a “violent 

anti-tax protest,” in the government’s own words, to a non-violent submission of a purportedly 

false document. 

Regarding the second issue raised by the Government, the defendant, through counsel, 

replies that the effort to transform a series of hearsay letters and opinions from a state agency 

about a state tax issue into “evidence of other crimes, wrongs or acts” is an effort to extend Rule 

404(b) into something the rule never contemplated. It too would create prejudice and confusion 

and would introduce a sub-trial about all of the irrelevant rulings and documents the state agency 

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considered. The government wishes to introduce into a case alleging false filing in a federal case 

those irrelevant conclusions of a state agency. If permitted, it would require a response by the 

defendant, including proof that the state never collected any sum and apparently eventually 

backed away each time the defendant asserted a legal argument. In other words, there could be a 

sub-trial even longer than the time the government had projected for the trial of the relevant 

issues. Again, admission of these issues would be so possessed of a propensity to prejudice as to 

outweigh any arguably probative value. 

For all of the foregoing reasons, defendant respectfully requests that his prior conviction 

and prior criminal conduct not be admitted for a proper purpose under Rule 404(b) and that its 

probative value was not substantially outweighed by the considerations set forth in Rule 403 and 

that the government be precluded from raising at trial any of the issues discussed and described 

herein. The defendant further respectfully requests that correspondence and filings with a state 

agency and documents related to that issue not be admitted and that the government be precluded 

from raising at trial any of those issues discussed and described herein. 

In ruling upon this Motion in Limine, the defendant requests that this Court conduct its 

Rule 404 and 403 balancing on the record. 

Respectfully submitted, 

_________/s/________ 

Mark Lane 

Counsel for the Defendant 

4 Old Farm Road 

Charlottesville, VA 22903 

Tel: (434) 293-2349 

Fax: (434) 293-9013 

Mlane777@cs.com

Dated: August 28, 2009 

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CERTIFICATE OF SERVICE

 This is to certify that on August, 28, 2009, an original copy of the foregoing Defendant’s 

Motion in Limine and Brief in Support therein was filed with the U.S. District Court for the 

Eastern District of Michigan and served on counsel for the government by filing the same with 

the Electronic Case Filing system. 

__________/s/__________ 

Mark Lane 

Trial Attorney 

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