United States of America,

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1 United States District Court For the Eastern District of Michigan Southern Division United States of America, v. Peter Hendrickson Plaintiff, Defendant. Criminal No.08-CR Judge Gerald E. Rosen Motion for Disclosure of Grand Jury Material Pursuant to Rule 6(e)(3)(E)(i) and (ii) Michael C. Leibson (P-24092) United States Attorneys Office Attorney for Plaintiff 211 W. Fort St. #2001 Detroit, Michigan Telephone: Ellen Dennis (P-24400) Law Office of Ellen Dennis Attorney for Defendant 101 S. Ann Arbor St., Ste. 203A Saline, Michigan Telephone: Mark F. Daly, MA Bar No United States Department of Justice, Tax Division Attorney for Plaintiff P.O. Box 972 Washington, D.C Telephone: Lyle D. Russell, Jr. (P-27039) Russell & Stoychoff, P.C. Attorney for Defendant 4468 W. Walton Blvd. Waterford, MI Telephone: Motion for Disclosure of Grand Jury Material Pursuant to Rule 6(e)(3)(E)(i) and (ii) Now comes Peter Hendrickson, Defendant herein, by and through his counsel, Ellen Dennis and Lyle D. Russell, Jr., and files this Motion for Disclosure of Grand Jury Material Pursuant to Rule 6(e)(3)(E)(i) and (ii). Defendant states as follows: 1. Concurrence with this motion was sought from Department of Justice Attorney Mark F. Daly by counsel for Defendant on April 21, Concurrence was denied by letter dated April 21, See attached letter.

2 2. Defendant is charged in ten counts as follows: (1) Counts One through Four charge that Defendant willfully filed a false IRS form 1040 for the calendar years 2000, 2002, 2003, 2004, in violation of 26 U.S.C. 7601(1). (2) Counts Five through Ten charge Defendant with willfully filing a false IRS form 4852 for calendar years 2000, 2002, 2003, 2004, 2005, 2006; in violation of 26 U.S.C. 7206(1). 3. Rule 6(e)(3)(E)(i) and (ii), Federal Rules of Criminal Procedure provide in pertinent part as follows: The court may authorize disclosure at a time, in a manner, and subject to any other conditions that it directs of a grand jury matter: (i) preliminarily to or in connection with a judicial proceeding; (ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury; 4. In a Motion to Dismiss Indictment for Violation of Rule 7 and Rule 12(b), Federal Rules of Criminal Procedure, and the Fifth and Sixth Amendments to the Constitution of the United States, filed contemporaneously with this Motion for Disclosure of Grand Jury Materials, the defendant argued that the indictment is insufficient for failure to allege each and every element of the crime charged and that it did not, therefore, appear that the Grand Jury had found probable cause as to each and every element of the crime charged. 5. In the Motion to Dismiss Indictment for Violation of Rule 7 and Rule 12(b), Federal Rules of Criminal Procedure, and the Fifth and Sixth Amendments to the Constitution of the United States, the defendant also argued that it did not appear that the Assistant United States Attorney had properly instructed the Grand Jury as to each and every element of the offense charged. 6. In the Motion to Dismiss Indictment, filed January 15, 2009, and still pending, the defendant argued that the indictment should be dismissed as a Fifth Amendment denial of due process 2

3 and as a violation of the First Amendment protections of free speech because it represents a selective and vindictive prosecution motivated by a desire on the part of the government to end the distribution of a book written by Defendant in 2003, entitled Cracking the Code The Fascinating Truth About Taxation in America, and because it represents an attempt to chill Defendant s right to contradict the statement made by the entity which has paid him money as to the character of that money, i.e. that it is wages as defined in the tax laws, or to express an honest disagreement with representatives of the United States as to his legal obligations under the tax laws of the United States. 7. Following the return of a true bill from the Grand Jury, on November 6, 2008, the United States moved to seal the indictment, claiming that the defendant was a flight risk and a danger to witnesses. Defendant was arrested at his home on November 12, 2008, and arraigned on November 12, On that date, the indictment was unsealed. The government did not seek to hold a detention hearing, and the defendant was given a personal recognizance bond. 8. The Grand Jury proceedings may contain evidence that will support the pending motions to dismiss the indictment, and there may be evidence that the Grand Jury was told, improperly and without basis, that the defendant was a flight risk and a danger to witnesses. 9. Having demonstrated that grounds may exist to dismiss the indictment, the defendant is entitled to disclosure of Grand Jury material under Rule 6(e)(3)(E)(i) and (ii), Federal Rules of Criminal procedure. 10. For these reasons, the defendant is entitled to disclosure of the following (1) Testimony of all witnesses; (2) Statements made to the Grand Jury by the Assistant United States Attorney presenting the case, including his/her instructions to the Grand Jury as to the elements of the 3

4 offense charged; (3) Any colloquy between the Assistant United States Attorney and members of the Grand Jury or between members of the Grand Jury and any witness, including any questions posed by members of the Grand jury and the answers given to the questions. Wherefore, Defendant asks that he be provided disclosure of Grand Jury material as follows: (1) Testimony of all witnesses; (2) Statements made to the Grand Jury by the Assistant United States Attorney presenting the case, including his/her instructions to the Grand Jury as to the elements of the offense charged; (3) Any colloquy between the Assistant United States Attorney and members of the Grand Jury or between members of the Grand Jury and any witness, including any questions posed by members of the Grand jury and the answers given to the questions. Respectfully submitted, /s/ellen Dennis (P-24400) Law Office of Ellen Dennis 101 S. Ann Arbor St., Ste. 203A Saline, Michigan Dated: May 5, 2009 /s/lyle D. Russell, Jr. ((P-27039) Russell & Stoychoff, P.C W. Walton Blvd. Waterford, MI Telephone:

5 Index of Authorities Cases: United States v. Broyles, 37 F. 3d 1314 (8 th Cir. 1994) United States v. Moten, 582 F. 2d 654 (2d Cir. 1978) United States v. Naegele, 474 F. Supp. 2d 9 (D.D.C. 2007) United States v. Puglia, 8 F. 3d 478 (7 th Cir. 1993) Constitutional Provisions: First Amendment to the United States Constitution Fifth Amendment to the United States Constitution Sixth Amendment to the United States Constitution Statutes: 26 U.S.C Rules: Rule 6(e)(3)(E)(i), Federal Rules of Criminal Procedure , 2 Rule 6(e)(3)(E)(ii), Federal Rules of Criminal Procedure , 2, 6 Rule 7, Federal Rules of Criminal Procedure Rule 12 (b), Federal Rules of Criminal Procedure Books: Hendrickson, Peter Eric, Cracking the Code The Fascinating Truth About Taxation in America

6 Brief in Support of Motion for Disclosure of Grand Jury Material Pursuant to Rule 6(e)(3)(E)(i) and (ii) To obtain disclosure of grand jury materials under Rule 6(e)(3)(E)(ii), a defendant must demonstrate a particularized need for such materials. United States v. Moten, 582 F. 2d 654, 662 (2d Cir. 1978); United States v. Broyles, 37 F. 3d 1314, 1318 (8 th Cir. 1994); United States v. Puglia, 8 F. 3d 478, 480 (7 th Cir. 1993); United States v. Naegele, 474 F. Supp. 2d 9 (D.D.C. 2007). The decision is left to the sound discretion of the court. Broyles, supra, at The allegations set forth in the pending motions to dismiss indictment that the Grand Jury was not properly instructed as to the elements of the offense, that the Grand Jury failed to find probable cause as to all elements of the offense, that the indictment was insufficient because it did not allege every element of the offense, that the returning of a true bill violated the First and Fifth Amendments, that the Grand Jury may have been told, improperly and without basis, that the defendant was a flight risk and a danger to witnesses--- all as set out in the motion, do demonstrate a particularized need for the requested Grand Jury materials. Wherefore, Defendant asks that he be provided disclosure of Grand Jury material as follows: (1) Testimony of all witnesses; (2) Statements made to the Grand Jury by the Assistant United States Attorney presenting the case, including his/her instructions to the Grand Jury as to 6

7 the elements of the offense charged; (3) Any colloquy between the Assistant United States Attorney and members of the Grand Jury or between members of the Grand Jury and any witness, including any questions posed by members of the Grand jury and the answers given to the questions. Respectfully submitted, /s/ellen Dennis (P-24400) Law Office of Ellen Dennis 101 S. Ann Arbor St., Ste. 203A Saline, Michigan Dated: May 5, 2009 /s/lyle D. Russell, Jr. ((P-27039) Russell & Stoychoff, P.C W. Walton Blvd. Waterford, MI Telephone: