UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 v. 

PETER HENDRICKSON, 

 Defendant 

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

VIO: 26 U.S.C. 7206(1) 

 

 

DEFENDANT’S RESPONSE TO GOVERNMENT’S MOTION TO STRIKE 

DEFENDANT’S PROPOSED WITNESSES

 The Government’s Motion to Strike the Defendant’s Proposed Witnesses is fatally 

flawed both procedurally and substantively as set forth more fully below in the 

Defendant’s Brief in Response to Government’s Motion to Strike Defendant’s Proposed 

Witnesses. 

 Therefore, for the reasons set forth in the attached Brief, the Defendant 

respectfully requests that the Court deny Government’s Motion to Strike Defendant’s 

Proposed Witnesses. 

 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: September 16, 2009 

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Case 2:08-cr-20585-GER-DAS Document 68 Filed 09/16/2009 Page 1 of 9
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 v. 

PETER HENDRICKSON, 

 Defendant 

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

VIO: 26 U.S.C. 7206(1) 

 

 

DEFENDANT’S BRIEF IN SUPPORT OF DEFENDANT’S RESPONSE TO 

GOVERNMENT’S MOTION TO STRIKE DEFENDANT’S PROPOSED 

WITNESSES

Brief Summary:

 The government’s motion does not present any evidence or suggestion upon 

which the Court may act. It merely states that the testimony of the proposed witnesses 

“may be cumulative” or that the testimony of the proposed witnesses “may not be 

relevant.” It also states that in its view, “there is no need for the defendant to call 

witnesses who would present evidence” about an incident. It also inaccurately states that 

the defendant intends to present evidence that “does not concern an issue of fact, but an 

issue of law.” 

 Of course, the Court will decide during the progress of a trial if testimony is 

relevant or whether or not it is cumulative. For that reason, at most trials, there are 

numerous motions to exclude proffered testimony because one party or the other 

considers it to be irrelevant or cumulative. 

 The belief of the defendant that he did not make a statement known to him to be 

false is an issue of fact to be determined by the jury, not an issue of law to be determined 

by the Court. 

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 Of less significance and likely not dispositive is the fact that the government 

violated LR 7.1 Motion Practice in that it submitted a Brief (which it identified as a 

Memorandum of Law) which did not contain a concise statement of the issues and did 

not on the following page set forth the controlling or most appropriate authority for the 

relief sought as specifically required by L.R. 7.1 (c) (2). 

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LIST OF AUTHORITIES

• Order of this Court dated June 24, 2009 

• Local Rule 7.1 Motion Practice (c) (2) Briefs 

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Case 2:08-cr-20585-GER-DAS Document 68 Filed 09/16/2009 Page 4 of 9
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 v. 

PETER HENDRICKSON, 

 Defendant 

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

VIO: 26 U.S.C. 7206(1) 

 

 

DEFENDANT’S BRIEF IN SUPPORT OF DEFENDANT’S RESPONSE TO 

GOVERNMENT’S MOTION TO STRIKE DEFENDANT’S PROPOSED 

WITNESSES

FACTUAL BACKGROUND

 The Defendant, in a timely manner, sent to the government a list of its proposed 

witnesses in this case pursuant to the Order of the Court dated June 24, 2009. The 

government requested additional information about the witnesses although the 

government had provided to the defendant only the names of its proposed witnesses, their 

occupation and the city and state of their residence. In response to the government’s 

request, counsel for the defendant, stating that he was providing information on the 

grounds that it would be reciprocated by the government, sent to the government, in 

addition to the name of each proposed witness, the witness’s occupation and the city and 

state of residence of the witness and a brief summary of the testimony that each witness 

would provide at trial. 

 The government offers no statement of fact upon which the Court may preclude 

testimony or strike proposed defendant’s witnesses. Instead, the government speculates 

that some evidence “may not be relevant” or that some evidence “may be cumulative.” 

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(Government’s Motion to Strike, page 1, Government’s Memorandum of Law, page 2). 

 All parties are aware of the fact that during trial both parties will almost certainly 

make objections to proposed testimony claiming that it is irrelevant or cumulative. No 

doubt, the Court will on occasion grant some of those motions. In other words, testimony 

by witnesses for the defendant and for the government may be considered at some time 

during trial to be irrelevant by the Court. Similarly, testimony by witnesses for the 

defendant and for the government may at some time during trial be considered to be 

cumulative by the Court. 

 The government’s generalized speculation as to what may or not happen during 

trial provides no basis for a motion to strike witnesses. Indeed, it reveals that the 

government’s motion is frivolous. 

 Previously, Mark F. Daly, the Department of Justice Trial Attorney assigned to 

this case, wrote to Mark Lane, Counsel for the Defendant, and stated that “the 

government will move to strike all of the witnesses identified on your witness list.” 

(Letter dated September 9, 2009) The reason then offered by Mr. Daly was that “Given 

the abstruse descriptions of the proposed testimony, the government is incapable of fully 

assessing whether the testimony would be relevant or cumulative.” This letter reveals that 

the government, while originally refusing to provide any description of the testimony its 

witnesses would offer in its filed and stricken pleading, is now bemused by the 

description by the defendant of the testimony of its proposed witnesses. It is difficult to 

understand why the government asserts that it is difficult for it to understand the 

descriptions of proposed testimony provided by the defendant. For example, the 

government has asked the Court for permission to provide evidence about a conviction of 

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the defendant which took place almost two decades ago. The defendant has opposed that 

effort in its Motion in Limine and has suggested that should the Court grant that motion, 

the defendant would be obligated to present testimony about that matter. Regarding 

witnesses who would testify about that matter the defendant wrote to the government 

stating that each such witness “will provide evidence regarding the smoke bomb incident 

referred to in government’s FRE 404(b) Notice.” That is a simple and straight forward 

assertion, not an “abstruse description” one, as defined as a description “difficult to 

understand.” 

 In its present motion the government has now stated that the defendant should be 

barred from responding to the government’s proposed evidence since in the government’s 

view, “there is no need for the defendant to call witnesses who would present evidence 

regarding that incident.” Apparently the government now does understand the 

description, which so confused it on September 9, 2009, but has decided that it, not the 

defendant, will determine which witnesses the defendant might “need” to present. 

 The government, stating that only the Court can decide the law, asserts that, 

therefore, the defendant must be denied the right to present evidence that he did not 

believe that his filings were untruthful or false when he made them. In fact, that is a 

matter of fact for the jury to determine and the basis for the defendant’s belief is of 

paramount concern in this case. The government, now finding the defendant’s 

explanation about those witnesses to be no longer abstruse, has formulated another, 

although equally frivolous, theory about why the defendant should be precluded from 

presenting his case, including the basis for his belief, the central issue in this case. 

 And finally, the government has fabricated an oxymoron of magnificent 

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proportions so absurd that it defies reasonable understanding by proposing that the Court 

preclude the testimony of all witnesses on the supposition that they may all be cumulative 

of each other. All but three, perhaps, or even all but one, could be wrong headed as well 

as premature, but not absolutely self-contradictory. The proposal leaves abstruse far 

behind since its logic is not difficult, but impossible, to fathom. 

 For the reasons set forth above, the defendant respectfully requests that the 

government’s frivolous motion based upon shifting and equally unstable shifting 

grounds, be denied and that the Court take whatever further action it deems to be just. 

 

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: September 16, 2009 

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CERTIFICATE OF SERVICE

 

 This is to certify that on September 16, 2009, an original copy of the foregoing 

Defendant’s Response to Government’s Motion to Strike Defendant’s Proposed 

Witnesses 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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