UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case No. 08-20585

v. Hon. Gerald E. Rosen

PETER HENDRICKSON,

Defendant.

______________________________/

ORDER TO SHOW CAUSE

REGARDING FORTHCOMING RESENTENCING HEARING

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on April 5, 2012 

PRESENT: Honorable Gerald E. Rosen

Chief Judge, United States District Court

In a judgment entered on May 25, 2010, Defendant Peter Hendrickson was

sentenced to a 33-month term of imprisonment for each of the ten counts of conviction,

with these 33-month terms to be served concurrently. Defendant then pursued an appeal

from his conviction and sentence, but also filed an April 14, 2011 motion with this Court

seeking to vacate, set aside, or correct his conviction and sentence. This motion stated on

its face that it was signed, filed, and served by Jack R. Hendrickson, Jr., Defendant’s

brother, who was one of the three attorneys who represented Defendant at trial. (See

Defendant’s 4/14/2011 Motion at 20.) In addition, the motion was accompanied by a

sworn affidavit purportedly executed by attorney Jack Hendrickson, in which he spoke of

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In a telephone call to the Court’s case manager shortly after Defendant filed his April

14, 2011 motion, Jack Hendrickson made similar assertions that he was not involved in the

preparation of the motion, and that it was filed without his knowledge or assistance.

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the “confusion” exhibited by his co-counsel, Mark Lane, at various “key moments”

during Defendant’s trial, with Mr. Hendrickson concluding in this affidavit that

Defendant’s “constitutional right to a fair trial was utterly compromised” as a result of

Mr. Lane’s performance. (Defendant’s 4/14/2011 Motion, Ex. D, Jack Hendrickson

Affidavit.)

By order dated April 21, 2011, the Court dismissed Defendant’s motion without

prejudice as premature in light of Defendant’s pending Sixth Circuit appeal. Shortly

thereafter, attorney Jack Hendrickson wrote to the Court, stating in a June 2, 2011 letter

that Defendant “entirely wrote and filed [the April 14, 2011] motion under my name [and]

using my password” to gain access to the Court’s electronic filing system, contrary to

Jack Hendrickson’s “mistaken understanding . . . that [Defendant] was filing it pro se.” 

(Jack Hendrickson 6/2/2011 Letter to Court at 1.)1

 This letter further expressed Jack

Hendrickson’s view that his co-counsel, Mr. Lane, “presented the case professionally” at

Defendant’s trial, and he sought more generally in his letter to “clear any damage to Mark

Lane which may have been caused by” the motion filed by Defendant. (Id. at 1-2.) 

Plainly, this letter, when juxtaposed against Defendant’s April 14, 2011 motion, raises a

number of troubling issues.

Defendant’s Sixth Circuit appeal has now been resolved, with the Court of

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Counsel will be provided with copies of Jack Hendrickson’s June 2, 2011 letter in

advance of the resentencing hearing.

The Court notes that, as of the date of this order, there remains an outstanding question as

to who will represent Defendant at the resentencing hearing. The Court understands that

Defendant might not wish to be represented at this proceeding by Mark Lane or by Mark

Cedrone, another member of Defendant’s team of trial counsel. It also is clear, in light of the

developments discussed in this order, that it would not be appropriate for Jack Hendrickson to

represent Defendant at the resentencing hearing. Accordingly, in a notice issued on April 4,

2012, Defendant and his existing trial counsel have been directed to resolve this issue, and the

Court has adjourned the resentencing hearing without date until it has been advised as to who

will represent Defendant at this hearing. 

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Appeals issuing a February 8, 2012 ruling in which it affirmed Defendant’s convictions

but vacated his sentence and remanded for resentencing. Accordingly, the case has now

returned to this Court for a forthcoming resentencing hearing. Upon reviewing

Defendant’s April 14, 2011 motion in light of the June 2, 2011 letter sent to the Court by

attorney Jack Hendrickson, the Court has determined that the concerns raised by

Defendant’s motion should be addressed at Defendant’s resentencing hearing, and that the

parties and their counsel should be placed on notice so that they will be prepared to

discuss these concerns at the forthcoming hearing.2

In particular, under § 3C1.1 of the United States Sentencing Guidelines, a

defendant is subject to a two-level increase in his offense level if “the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of justice

with respect to the investigation, prosecution, or sentencing of the instant offense of

conviction.” As examples of obstructive conduct covered by § 3C1.1, the accompanying

application notes cite the production of “a false, altered, or counterfeit document or

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record during a[] . . . judicial proceeding,” as well as the submission of “materially false

information to a judge.” U.S. Sentencing Guidelines § 3C1.1, cmt. n.4(C),(F).

The misrepresentations contained or otherwise embodied in Defendant’s April 14,

2011 motion arguably qualify as obstructive conduct within the meaning of § 3C1.1 and

its application notes. This motion purports on its face to have been written, signed, and

filed by an attorney, Jack Hendrickson, who has stated in a communication to Court that

he did not, in fact, perform these tasks. In addition, the motion is accompanied by a

sworn affidavit purportedly executed by Jack Hendrickson, but Mr. Hendrickson’s June 2,

2011 letter to the Court certainly suggests, if it does not state outright, that he did not

make and does not attest to the statements attributed to him in this affidavit. The motion

and affidavit, then, appear to be false or counterfeit documents that have been produced

during judicial proceedings in this case, and their filing seemingly constitutes the

submission of materially false information to the Court. Alternatively, to the extent that

Defendant’s submission of the April 14, 2011 motion and accompanying affidavit of Jack

Hendrickson would not trigger a two-level increase under § 3C1.1 of the Sentencing

Guidelines, the Court nonetheless may consider Defendant’s post-sentencing conduct at

the forthcoming resentencing hearing, as part of the Court’s overarching task of

determining an appropriate sentence under 18 U.S.C. § 3553. See, e.g., Pepper v. United

States, 131 S. Ct. 1229, 1249 (2011); Wasman v. United States, 468 U.S. 559, 572, 104 S.

Ct. 3217, 3225 (1984).

Accordingly, for these reasons,

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NOW, THEREFORE, IT IS HEREBY ORDERED that at Defendant’s

forthcoming resentencing hearing, Defendant and his counsel shall be prepared to address

the question whether Defendant’s offense level and resulting sentencing range under the

U.S. Sentencing Guidelines should reflect a two-level increase under § 3C1.1 of the

Guidelines for conduct that constituted a willful obstruction or attempted obstruction of

the administration of justice. IT IS FURTHER ORDERED that Defendant and his

counsel shall also be prepared to address the question whether, in the absence of a twolevel increase under § 3C1.1 of the Sentencing Guidelines, Defendant’s post-sentencing

conduct should nonetheless be considered in the Court’s determination of an appropriate

sentence under 18 U.S.C. § 3553.

SO ORDERED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: April 5, 2012

I hereby certify that a copy of the foregoing document was served upon counsel of record

on April 5, 2012, by electronic and/or ordinary mail.

s/Ruth A. Gunther 

Case Manager

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