Mann Vs Pierce

_____________________________________________________________
CV 15-595
IN THE COURT OF APPEALS OF ARKANSAS
_____________________________________________________________
RANDEEP S. MANN, M.D.,
APPELLANT,
versus
TRENT PIERCE, M.D., et ux.,
APPELLEES.
_____________________________________________________________
ON APPEAL FROM
THE SECOND JUDICIAL CIRCUIT, FIRST DIVISION
CRITTENDEN COUNTY, ARKANSAS
THE HONORABLE PAMELA HONEYCUTT
PRESIDING JUDGE
_____________________________________________________________
ABSTRACT, ADDENDUM, AND BRIEF OF APPELLANT
_____________________________________________________________
Drake Mann, Arkansas Bar number 87108

Christopher L. Travis, Arkansas Bar number 97093
GILL RAGON OWEN, P.A.
425 West Capitol Avenue, Suite 3800
Little Rock, Arkansas 72201
(501) 376-3800
_____________________________________________________________
CV 15-595
IN THE COURT OF APPEALS OF ARKANSAS
_____________________________________________________________
RANDEEP S. MANN, M.D.,
APPELLANT,
versus
TRENT PIERCE, M.D., et ux.,
APPELLEES.
_____________________________________________________________
ON APPEAL FROM
THE SECOND JUDICIAL CIRCUIT, FIRST DIVISION
CRITTENDEN COUNTY, ARKANSAS
THE HONORABLE PAMELA HONEYCUTT
PRESIDING JUDGE
_____________________________________________________________
ABSTRACT, ADDENDUM, AND BRIEF OF APPELLANT
_____________________________________________________________
Drake Mann, Arkansas Bar number 87108

Christopher L. Travis, Arkansas Bar number 97093
GILL RAGON OWEN, P.A.
425 West Capitol Avenue, Suite 3800
Little Rock, Arkansas 72201
(501) 376-3800
TABLE OF CONTENTS
INFORMATIONAL STATEMENT ............................................... vi
JURISDICTIONAL STATEMENT .............................................. viii
POINTS ON APPEAL AND PRINCIPAL AUTHORITIES ........... ix
TABLE OF AUTHORITIES ........................................................... xi
ABSTRACT ................................................................................. Ab 1
STATEMENT OF THE CASE .................................................. SoC 1
ARGUMENT ............................................................................. Arg 1
CONCLUSION........................................................................ Arg 20
CERTIFICATE OF SERVICE ....................................................... xii
CERTIFICATE OF COMPLIANCE ............................................. xiii
ADDENDUM ..................................................................................xv
Complaint (Record R. 12-24) ............................................. Add 001
Second Amended and Substituted Answer (Randeep
Mann) (R. 901-910) ..................................................... Add 014
Order (5th Motion for Ext of Time to Serve
Defendants) (R. 65) ...................................................... Add 024
Motion for Summary Judgment as to Liability for
Compensatory and Punitive Damages (R. 83-85) ....... Add 025
Brief in Support of Motion for Summary Judgment as

to Liability for Compensatory and Punitive
Damages (R. 86-97) ...................................................... Add 028
Exhibit - 1 - Second Superseding Indictment
from U S District Court - Eastern Dist. W. Div.
(R. 101-108) .................................................................. Add 043
Exhibit - 2 - Judgment in Criminal Case
from U S District Court (R. 109-115) .......................... Add 051
Exhibit - 3 - U S Court of Appeals Circuit (R.
116 - 175)...................................................................... Add 058
Exhibit - 4 - Transcript of Jury Trial
Volume 16 (R. 176-182) ............................................... Add 118
Exhibit - 5 - Restitution Order (R. 183-186) ............... Add 119
Exhibit - 6 - Affidavit of Trent Pierce (R. 187188)...................................................................... Add 123
Response in Opposition to Motion for Summary
Judgment as to Liability for Compensatory and
Punitive Damages (R. 194-209) ................................... Add 125
Declaration of Drake Mann in Support of R S
ii
Mann's Response in Opposition to Plaintiff s

Motion for Summary Judgment or Liability
for Compensatory and Punitive Damages (R.
210-211) ................................................................... Add 141
Exhibit - A - Transcript of Jury Trial - Volume 1
(R. 212-216) .......................................................... Add 143
Exhibit - B - Transcript of Jury Trial - Volume
19 (R. 217) ............................................................ Add 144
Exhibit - C - Petition for Rehearing and
Rehearing En Banc (R. 221-239) ......................... Add 145
Reply to Randeep Mann's Response to Motion for
Summary Judgment as to Liability for
Compensatory and Punitive Damages (R. 363376)............................................................................... Add 164
Exhibit - 1 - Transcript of Jury Trial - Volume 2
(R. 377) ................................................................ Add 178
Exhibit - 2 - Order filed in U S
Court of Appeals 8thCircuit (R. 381)........................ Add 179
Sur- Response in Opposition to Motion for Summary
iii

Punitive Damages (R. 385) .......................................... Add 180
Declaration of Drake Mann in Support of Defendants'
Sur - Response in Opposition to Motion for
Compensatory and Punitive Damages (R. 393394)............................................................................... Add 188
Exhibit - 3 - Transcript of Jury Trial Volume 16 (R. 565-591) ...................................... Add 190
Exhibit - 7 - Transcript of Jury Trial Volume 1 (R. 626-634) ........................................ Add 191
Transcript of Summary Judgment Hearing (R.
930-955) (Ab 42-57) ...................................................... Add 192
Letter from Judge Honeycutt dated November
13, 2013 (R. 651-655) ................................................... Add 193
Order (R. 656-661) ................................................................ Add 198
Judgment (R. 919-920) ......................................................... Add 204
Exhibit - -1 - Verdict Form for Compensatory
Damages (R. 921-924) .................................................. Add 206
iv
Notice of Appeal (R. 925-928) ...................................... Add 210
INFORMATIONAL STATEMENT
I.
ANY RELATED OR PRIOR APPEAL (Identify)? NONE
II.
BASIS OF SUPREME COURT JURISDICTION (see Rule 12(a))

( X ) Check here if no basis for Supreme Court
Jurisdiction is being asserted, or check below all applicable
grounds on which Supreme Court Jurisdiction is asserted.
(1) ___ Construction of Constitution of Arkansas
(2) ___ Death penalty, life imprisonment
(3) ___ Extraordinary writs
(4) ___ Elections and election procedures
(5) ___ Discipline of attorneys
(6) ___ Discipline and disability of judges
(7) ___ Previous appeal in Supreme Court
(8) ___ Appeal to Supreme Court by law
III.
NATURE OF APPEAL
(1) ___ Administrative or regulatory action
(2) ___ Rule 37
(3) ___ Rule on Clerk
(4) ___ Interlocutory appeal
(5) ___ Usury
(6) ___ Products liability
(7) ___ Oil, gas, or mineral rights
(8) _X_ Torts
(9) ___ Construction of deed or will
(10) ___ Contract
(11)___ Criminal
IV. IS THE ONLY ISSUE ON APPEAL WHETHER THE

EVIDENCE IS SUFFICIENT TO SUPPORT THE JUDGMENT?
No.
vi
V.
EXTRAORDINARY ISSUES. (Check if applicable, and
discuss in PARAGRAPH 2 of the Jurisdictional Statement.)
(__) appeal presents issue of first impression,
(__) appeal involves issue upon which there is a perceived
inconsistency in the decisions of the Court of Appeals
or Supreme Court,
(__) appeal involves federal constitutional interpretation,
(__) appeal is of substantial public interest,
(__) appeal involves significant issue needing clarification
or development of the law, or overruling of precedent,
(__) appeal
involves
significant
issue
concerning
construction of statute, ordinance, rule, or regulation.
VI.
CONFIDENTIAL INFORMATION.
(1)
Does the appeal involve confidential information as

defined by Sections III(A)(11) and VII(A) of
Administrative Order 19?
______Yes
(2)
No
If the answer is yes, then does this brief comply with

Rule 4-1(d)?
_____ Yes _____ No
vii
POINTS ON APPEAL
I.
WHETHER THE TRIAL COURT ERRED BY
GRANTING THE PLAINTIFFS MOTION FOR SUMMARY

JUDGMENT ON THE ISSUE OF LIABILITY BY
EXPANDING THE DOCTRINE OF OFFENSIVE
COLLATERAL ESTOPPEL?
A. The facts determined in Dr. Manns prior
conviction are not the same as the facts the Pierces
must prove.
Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999).
B. The Application of offensive collateral estoppel
deprived Dr. Mann of procedures that were
unavailable in the first action that may lead to a
different result in the Pierces civil action.
Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331
(1979).
ix
C. The application of offensive collateral estoppel is

premature because the underlying case remains
subject to reversal.
Williamson v. General Dynamics Corp., 208 F.3d 1144
(9th. Cir. 2000).
TABLE OF AUTHORITIES
Cases
Bradley Ventures, Inc. v. Farm Bureau, 371 Ark. 229,
237, 264 S.W.3d 485, 492 (2007) ........................................ Arg 7, 13
Gurlen v. Henry Management, Inc., 2010 Ark. App.
855 ............................................................................................. Arg 2
Johnson v. Union Pacific R.R., 352 Ark. 534, 104
S.W.3d 745 (2003) ......................................................... Arg 5, 6, 7, 8
Lipsey v. Giles, 2014 Ark. 309, 439 S.W.3d 13 ............................ Arg 2
Mann v. United States, No. 4:09-cr-00099-01 Doc. 395
(filed Oct. 20, 2014) ..................................................... SoC 2, Arg 19
Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543
(1969)....................................................................................... Arg 12
Palmer v. Arkansas Council on Econ. Educ., 344 Ark.
461, 40 S.W.3d 784 (2001) ........................................................ Arg 7
Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331
(1979).................................................................................. ix, Arg 15
Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996) ....................... Arg 14
United States v. Mann, 701 F.3d 274 (8th Cir.
2012) ...................................................................... SoC 2, Arg 10, 17
xi
Washington Natl Ins. Co. v. Clement, 192 Ark. 371 ................... Arg 3
Watkins v. Southern Farm Bureau Cas. Ins. Co., 2009
Ark. App. 693 ............................................................................ Arg 7
Williamson v. General Dynamics Corp., 208 F.3d 1144
(9th. Cir. 2000) .................................................................... x, Arg 18
Winrock Grass Farm, Inc. v. Affiliated Real Estate
Appraisers of Ark., Inc., 2010 Ark. App. 279............................ Arg 2
Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737
(1999)....................................................... viii, ix, Arg 3, 4, 5, 7, 9, 19
Other Authorities
AMI 417 (2013) ................................................................ Arg 9, 11, 13
AMI 418 (2013) ................................................................ Arg 9, 11, 13
AMI 714 (2013) ................................................................................. 14
Rules
Fed. R. Cr. P. 16(a)(1)(E) ........................................................... Arg 17
Fed. R. Crim. P. 15(a)(1) ............................................................ Arg 15
xii
ABSTRACT
A. EXHIBIT 4 TO PIERCE BRIEF IN SUPPORT OF MOTION
FOR PARTIAL SUMMARY JUDGMENT (FEDERAL
COURTS JURY INSTRUCTIONS) (R. 176-182) (Add 118)
"The crime of knowingly using or conspiring to use a weapon
of mass destruction against a person or property has three
essential elements, which are:
"One, from about February 2008 until on or about February
4, 2009, in the Eastern District of Arkansas, Dr. Randeep Mann
knowingly used or conspired to use a weapon of mass destruction
without lawful authority.
"Two, Dr. Randeep Mann knowingly did so against a person
or property within the United States.
"And three, the offense, or the results of the offense affected
interstate commerce.
"If all of the elements have been proved beyond a reasonable
doubt as to Randeep Mann, then you must find Randeep Mann
guilty of the crime charged under Count 1. Otherwise, you must
find Randeep Mann not guilty of the crime under Count 1.
Ab 1
(Page 3249 of the trial transcript is missing from the

Record; it should appear between pages 178 and 179 in the
Record, where this exhibit may be found. The complete
transcript of the federal judges jury instructions, however,
was put in the Record as Exhibit 3 to Declaration in
Support of Manns Sur-Response in Opposition to
Plaintiffs Motion for Partial Summary Judgment (Trial
Courts Closing Instructions) (R. 565-591), and the missing
page was abstracted, below, on Ab 13-15.)
"In order to have aided and abetted the commission of the
crime of use of a weapon of mass destruction, a person must,
before or at the time the crime was committed:
"One, have known the crime of use of a weapon of mass
destruction was being committed or going to be committed, and,
two, have knowingly acted in some way for the purpose of causing,
encouraging or aiding the commission of the crime.
"For you to find the defendant guilty of use of a weapon of
mass destruction by reason of aiding and abetting, the
government must prove beyond a reasonable doubt that all of the
Ab 2
essential elements of use of a weapon of mass destruction were

committed by some person or persons and that the defendant
aided and abetted the commission of that crime.
"You should understand that merely being present at the
scene of an event, or merely acting in the same way as others or
merely associating with others, does not prove that a person has
become an aider and abettor. A person who has no knowledge that
a crime is being committed or about to be committed, but who
happens to act in a way which advances some offense, does not
thereby become an aider and abettor. R. 179.
"The crime of damaging or destroying a vehicle by means of
an explosive, as charged in Count 2 of the indictment, has three
elements, which are:
"One, the defendant damaged or destroyed a vehicle as
described in the indictment, by means of an explosive.
"Two, the defendant did so maliciously.
"And three, the vehicle that was damaged or destroyed by
the defendant', was used in interstate commerce or in an activity
affecting interstate commerce.
Ab 3
"'Explosive' means gun powders, powders used for blasting,

all forms of high explosives, blasting materials, other explosive or
incendiary devices, including grenades.
"The term 'maliciously' as used in this instruction means to
intentionally cause damage without just cause or reason. R. 180.
"If all of these essential elements have been proved beyond a
reasonable doubt as to Randeep Mann, then you must find
Randeep Mann guilty of the crime charged under Count 2.
Otherwise, you must find Randeep Mann not guilty of the crime
under Count 2.
"A person may also be found guilty of damaging or
destroying a vehicle by means of an explosive even if he personally
did not do every act constituting the offense charged, if he aided
and abetted the commission of damaging or destroying a vehicle
by means of an explosive.
crime of damaging or destroying a vehicle by means of an
explosive, a person must, before or at the time the crime was
committed:
Ab 4
"One, have known the crime of damaging or destroying a

vehicle by means of an explosive was being committed or going to
be committed; and, two, have knowingly acted in some way for the
purpose of causing, encouraging, or aiding the commission of the
crime. R. 181.
"For you to find the defendant guilty of damaging or
destroying a vehicle by means of an explosive by reason of aiding
and abetting, the government must prove beyond a reasonable
doubt that all of the essential elements of damaging or destroying
a vehicle by means of an explosive were committed by some person
or persons and that the defendant aided and abetted the
commission of that crime.
Ab 5
B. EXHIBIT A TO DECLARATION IN SUPPORT OF MANNS

RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR
PARTIAL SUMMARY JUDGMENT (EXCERPT OF
GOVERNMENTS OPENING STATEMENT BY KAREN
WHATLEY) (R. 212-216) (Add 143)
Let's talk about the bombing. Lets talk about what you will
hear and what you won't hear. First, what you won't hear. I'll go
ahead and tell you, you won't hear any person say that they saw
the defendant, Randeep Mann, at the scene of the bombing either
the night before or the morning of. You wont hear any forensic
evidence linking him to the bombing. The government is not
alleging that he planted the bomb, but that doesn't mean that he
is not guilty of aiding and abetting or conspiring to commit the
bombing. It doesn't mean he didn't know about it, and it doesn't
mean he didn't do things to help cause it. So what will you hear
about the bombing? R. 215.
Ab 6
C. EXHIBIT B TO DECLARATION IN SUPPORT OF MANNS

RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR
PARTIAL SUMMARY JUDGMENT (EXCERPT OF FEDERAL
JURY VERDICTS) (R. 217) (Add 144)
And, We, the jury in the above entitled and numbered case,
find the defendant, Randeep Mann, conspired to use and aided
and abetted the use of a weapon of mass destruction. And it is
dated August the 9th, 2010, by the foreperson, can't read your
writing, [Juror No. 7] -- [Juror No. 7).
Verdict form No. 2 states, We, the jury in the above entitled
and numbered case, find the defendant, Randeep Mann, guilty of
the crime charged in Count Two of the Indictment. We, the jury in
the above entitled and numbered case, find beyond a reasonable
doubt that the personal injury to another person did occur as a
result of this offense. And its checked, Yes. And its dated
August the 9th, 2010, by [Juror No. 7]
Ab 7
D. EXHIBIT 1 TO PIERCES REPLY TO MANNS RESPONSE

TO MOTION FOR SUMMARY JUDGMENT (EXCERPT OF
TESTIMONY OF MELISSA PIERCE) (R. 377) (Add 178)
Yes, that's the view from that window.
No, I never turned to look at the transformer because I saw
Trent's red sweater laying in the flowerbed. When I saw a sweater
in the flowerbed, I took off running. I went out the front doors, not
the keeping (sic) room doors. I took off running to get to Dr. Pierce
When I got to him, I pulled him up, and Trent sat up just
like an Indian with crossed legs. And he was absolutely charred. I
pulled him to me, and he said in a very quiet voice, "Get my wife.
She's inside." And I said, "Trent, it's Melissa. I'm here. I've got it."
R. 378.
He smelled like singed hair. He had bags of blood hanging
from his eyes. I wasn't sure Trent had a nose, in fact, I was sure
he did not have a nose. He was absolutely charred. I pulled him to
me, and I slipped his wedding ring off and I slipped his watch off
because I knew we were in bad trouble. I put them both on my
hand. And I told him, "Trent, I'm taking your ring off and your
Ab 8
watch off." And he's just sitting like an Indian, completely upright,
just with folded legs. He had -- it looked like -- he had on a pair of
little tweed pants, and it just it looked like a hobo blows out of
them. His leg was exposed. You could see muscle and tendon
insertion in his knees. He was missing flesh and muscle, and I
could see bone in his left thigh. And -- he was charred. He was just
charred all over. He was just -- his hands, he was charred. He was
charred all over.
It was ten till eight in the morning, and everybody started
stopping and asking what they could do, and some woman ran up
behind me and asked what could she do, and I told her to run
inside and get a quilt. I knew that he had enough injury that he
needed [it]. It was cold. It was real cold. And I knew he needed to
be wrapped up so he wouldn't get shocky. And so she took off
running, and some other person in a red truck pulled up on the
end of the driveway and was running at me. Seemed almost as if
they were floating toward me asking what could they do, and I
said, "Give me your cell phone." And, of course, I was yelling to the
Ab 9
people in the intersection I still had Trent in my arms. I told them

to call 911, and they said we've called 911. R. 379.
Ab 10
E. EXHIBIT 3 TO DECLARATION IN SUPPORT OF MANNS

SUR-RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION
FOR PARTIAL SUMMARY JUDGMENT (FEDERAL
COURTS CLOSING JURY INSTRUCTIONS) (R. 565-591)
(Add 190)
THE COURT
"Members of the jury, the instructions I gave you at the
beginning of the trial and during the trial remain in effect. I now
give you some additional instructions.
You must, of course, continue to follow the instructions I
gave you earlier, as well as those I give you now. You must not
single out some instructions and ignore others, because all are
important. This is true even though some of those I gave you at
the beginning of and during trial are not repeated here.
"The instructions I am about to give you now as well as those
I gave you earlier are in writing and will be available to you in the
jury room. I emphasize, however, that this does not mean they're
more important than the earlier instructions that I gave you.
Ab 11
Again, all instructions, whenever given and whether in writing or

not, must be followed. R. 567.
"It is your duty to find from the evidence what the facts. are.
You will then apply the law, as I give it to you, to those facts. You
must follow my instructions on the law, even if you thought the
law was different or should be different.
*** (Most of R. 568 omitted as irrelevant)
"The charges in this case are as follows: R. 569
"Under Count 1, the indictment charges that defendant
Randeep Mann committed the crime of aiding and abetting the
use of a weapon of mass destruction
"Under Count 2, the indictment charges that Randeep Mann
committed the crime of aiding and abetting the malicious damage
or destruction of a vehicle by means of an explosive.
"Under Counts 3 through 5, the indictment charges that
defendant Randeep Mann committed the crime of possessing
unregistered firearms.
Ab 12

Randeep Mann committed the crime of possessing a machine gun.
R. 569
"Under Count 7, the indictment charges that defendants
Randeep Mann and Sangeeta Mann committed the crime of
conspiracy to obstruct justice.
"Under Count 8, the indictment charges that defendants
Randeep Mann and Sangeeta Mann committed the crime of aiding
and abetting the concealment or attempted concealment of objects
with the intent to impair the documents' use in an official
proceeding.
Sangeeta Mann committed the crime of making a false declaration
before the grand jury. R. 570.
"Each defendant has pleaded not guilty to each crime with
which he or she is charged.
*** (The bottom of R. 570 to the top of R. 574 is omitted as
irrelevant)
Ab 13
"The crime of knowingly using or conspiring to use a weapon

of mass destruction against a person or property has three
essential elements, which are: R. 574.
"One, from about February 2008 until on or about February
4, 2009, in the Eastern District of Arkansas, Dr. Randeep Mann
without lawful authority.
"Two, Dr. Randeep Mann knowingly did so against a person
or property within the United States.
"And three, the offense, or the results of the offense affected
interstate commerce.
doubt as to Randeep Mann, then you must find Randeep Mann
guilty of the crime charged under Count 1. Otherwise, you must
find Randeep Mann not guilty of the crime under Count 1.
"Definitions: 'Weapon of mass destruction' includes a
destructive device, such as an explosive grenade.
Ab 14
"The term 'interstate commerce' includes commerce between

one state, territory, possession, or the District of Colombia and
another state, territory, possession, or the District of Columbia.
"A person may be found guilty of conspiring if:
"One, he reached an agreement or came to an understanding
with another person or persons to use a weapon of mass
destruction against a person or property.
"Two, he voluntarily and intentionally joined in the
agreement or understanding. R. 575.
"And three, at the time he joined the agreement or
understanding he knew the purpose of the agreement or
understanding.
"The government must prove that the defendant reached an
agreement or understanding with at least one other person.
It makes no difference whether the person is a defendant or
named in the indictment.
"The agreement or understanding need not be an express or
formal agreement or be in writing or cover all the details of how it
is to be carried out. Nor is it necessary that the members have
Ab 15
directly stated between themselves the details or purposes of the

scheme.
scene of any event, or merely acting in the same way as others, or
joined in an agreement or understanding. A person who has no
knowledge of a conspiracy but who happens to act in a way which
advances some purpose of one, does not thereby become a member.
R. 576.
"But a person may join in an agreement or understanding,
as required by this element, without knowing all the details of the
agreement or understanding, and without knowing who all the
other members are. Further it is not necessary that a person agree
to play any particular part in carrying out the agreement or
understanding. A person may become a member of a conspiracy
even if that person agrees to play only a minor part in the
conspiracy, as long as that person has an understanding of the
unlawful nature of the plan and voluntarily and intentionally
joins in it.
Ab 16
"You must decide, after considering all of the evidence,

whether the conspiracy alleged in Count 1 of the indictment
existed. If you find that the alleged conspiracy did exist, you must
also decide whether Dr. Randeep Mann voluntarily and
intentionally joined the conspiracy, either at the time it was first
formed or at some later time while it was still in effect. In making
that decision, you must consider only evidence of the defendant's
own actions and statements. You may not consider actions and
pretrial statements of others except to the extent that pretrial
statements of others describe something that had been said or
done by the defendant.
"A person may also be found guilty of use of a weapon of
mass destruction, even if he personally did not do every act
constituting the offense charged, if he aided and abetted the
commission of use of a weapon of mass destruction. R. 577.
crime of use of a weapon of mass destruction, a person must,
before or at the time the crime was committed:
Ab 17
"One, have known the crime of use of a weapon of mass

destruction was being committed or going to be committed, and,
two, have knowingly acted in some way for the purpose of causing,
encouraging or aiding the, commission of the crime.
"For you to find the defendant guilty of use of a weapon of
mass destruction by reason of aiding and abetting, the
government must prove beyond a reasonable doubt that all of the
essential elements of use of a weapon of mass destruction were
committed by some person or persons and that the defendant
aided .and abetted the commission of that crime.
become an .aider and abettor. A person who has no knowledge
that a crime is being committed or about to be committed, but who
happens to act in a way whi.ch advances some offense, does not
thereby become an aider and abettor.
Ab 18
"The crime of damaging or destroying a vehicle by means of

an explosive, as charged in Count 2 of the indictment, has three
"One, the defendant damaged or destroyed a vehicle as
described in the indictment, by means of an explosive.
"Two, the defendant did so maliciously.
"And three, the vehicle that was damaged or destroyed by
the defendant, was used in interstate commerce or in an activity
affecting interstate commerce.
"'Explosive' means gun powders, powders used for blasting,
all forms of high explosives, blasting materials, other explosive or
incendiary devices, including grenades.
"The term 'maliciously' as used in this instruction means to
intentionally cause damage without just cause or reason.
"The term 'used in an activity affecting interstate commerce'
means active use of the property for commercial purposes and not
a passive, passing or past connection to commerce. R. 578.
"'Interstate commerce' refers to commercial activity between
places in different states, and it must be proved that the vehicle
Ab 19
described in the indictment was actually used for a function that

either involved interstate commerce or directly affected such
commerce.
"If all of these essential elements have been proved beyond a
reasonable doubt as to Randeep Mann, then you must find
Randeep Mann guilty of the crime charged under Count 2.
Otherwise, you must find Randeep Mann not guilty of the crime
under Count 2.
A person may also be found guilty of damaging or
destroying a vehicle by means of an explosive even if he personally
did not do every act constituting the offense charged, if he aided
and abetted the commission of damaging or destroying a vehicle
by means of an explosive.
crime of damaging or destroying a vehicle by means of an
explosive, a person must, before or at the time the crime was
committed:
"One, have known the crime of damaging or destroying a
vehicle by means of an explosive was being committed or going to
Ab 20
be committed; and, two, have knowingly acted in some way for the
purpose of causing, encouraging., or aiding the commission of the
crime.
"For you to find the defendant guilty of damaging or
destroying a vehicle by means of an explosive by reason of aiding
and abetting, the government must prove beyond a reasonable
doubt that all of the essential elements of damaging or destroying
a vehicle by means of an explosive were committed by some person
or persons and that the defendant aided and abetted the
commission of that crime. R. 579.
Ab 21
The crime of possession of an unregistered firearm, as

Charged in Count 3 of the indictment, has three elements, which
are:
"One, the defendant knew that he had the firearm, that's the
98 40-millimeter HE M406 grenades in his possession.
"Two, the defendant knew the firearms were grenades.
"And three, the fire arms or grenades were not registered to
the defendant in the National Firearms Registration and Transfer
Record.
doubt as to Dr. Randeep Mann, then you must find Dr. Randeep
Mann guilty of the crime charged under Count 3. Otherwise, you
must find Dr. Randeep Mann not guilty of the crime under Count
3.
"Definitions: The National Firearms Act defines 'firearm' to
include machine guns and destructive devices. R. 580.
"The National Firearms Act defines 'destructive device' to
include, one, any explosive or incendiary grenade, and two, any
type of weapon by whatever name known which will, or which
Ab 22
may be readily converted to, expel a projectile by the action of an

explosive or other propellant, the barrel or barrels of which have a
bore of more than one-half inch in diameter, except a shotgun or
shotgun shell which the Secretary finds is generally recognized as
particularly suitable for sporting purposes.
"You are instructed to use the above definitions when those
terms are .used in my instructions for Counts 3, 4, and 5.
"The crime of possession of an unregistered firearm, as
charged in Count 4 of the indictment has four elements:
"One, the defendant knew he had the firearm, and that's
Interord Model USAS 12-gauge shotgun, serial number A
00020895A, in his possession.
"Two, the defendant knew the firearm was a shotgun
classified as a destructive device.
"Three, the firearm was capable of operating as designed. R.
581.
"And four, the firearm was not registered to the defendant
in the National Firearms Registration and Transfer Record.
Ab 23

4.
4.
"It is a defense to Count 4 of the indictment charging
possession of an unregistered shotgun if an official assured Dr.
Randeep Mann that possession was legal and Dr. Randeep Mann
relied on that advice in: continuing to possess the shotgun.
"The crime of possession of an unregistered firearm, as
charged in Count 5 of the indictment, has four essential elements,
which are: R. 582.
"One, the defendant knew he had the firearm, a 7.62-caliber
machine gun, bearing serial number BM-0834, in his possession.
Ab 24
"Two, the defendant knew the firearm was a machine gun.

"Three, the firearm was capable of operating as designed.
"And four, the firearm was not registered to defendant in the
National Firearms Registration and Transfer Record.
"In order to convict the defendant of a violation of the
National Firearms Act, the government must prove beyond a
reasonable doubt that the defendant had knowledge of the
characteristics of the weapon that brought it within the definition
of 'firearm' under the act. Thus, in Count 5, the government must
prove beyond a reasonable doubt that the defendant knew the
firearm was designed to fire automatically more than one shot,
without manual reloading, by a single function of the trigger. You
may consider any statements made and acts done by the
defendant, and all the facts and circumstances in evidence which
may aid in a determination of defendant's knowledge.
"For you to find the defendant Randeep Mann guilty of the
crime charged in Count 5, the government must prove all of the
essential elements beyond a reasoned doubt. Otherwise, you must
Ab 25
find the defendant Randeep .Mann not guilty of the crime charged
in Count 5. R. 583.
"The crime of possession of a machine gun, as charged in
Count 6 of the indictment, has three essential elements, which
are:
"One, the defendant knew he had the firearm, a 7.62-caliber
machine gun, bearing serial number BM-0834, in his possession
"Two, the defendant knew the firearm was a machine gun or
had the characteristics of a machine gun.
"And three, the firearm was capable of operating as
designed. "The term 'firearm means any weapon which will or is
designed to or may be readily converted to expel a projectile by the
action of an explosive.
"The term 'machine gun' means any weapon which shoots,
is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a
single function of the trigger.
"For you to find the defendant Randeep Mann guilty of the
crime charged in Count 6, the government must prove all of the
Ab 26
essential elements of that crime beyond a reasonable doubt.

Otherwise, you must find the defendant Randeep Mann not guilty
of the crime charged in Count 6.
"Lawful possession is a complete defense to the .crime of
possession of a machine gun, as charged in Count 7 of the
indictment. A person is in lawful possession of a machine gun
manufactured after 1986 if that person is a Class 3 dealer and the
machine gun is properly registered in the National Firearms
Registration and Transfer Record. If the 7.62-caliber machine gun
bearing serial number BM-0834 was properly registered to
Randeep Mann in the National Firearms Registration and
Transfer Record, then he was in lawful possession of it, and you
must find him not guilty of Count 7 of the indictment. R. 584.
"The law recognizes several kinds of possession. A person
may have actual possession or constructive possession. A person:
may have sole or joint possession.
"A person who knowingly has direct physical control over a
thing at a given time is then in actual possession of it.
Ab 27
"A person who, although not in actual possession, has both

the power and the intention at a given time to exercise dominion
or control over a thing, either directly or through another person
or persons, is then in constructive possession of it.
"If one person alone has actual or constructive possession of
a thing, possession is sole. If two or more persons share actual or
constructive possession of a thing, possession is joint.
"Whenever the word 'possession' has been used in these
instructions, it includes actual as well as constructive possession
and also sole as well as joint possession.
"The crime of conspiracy to obstruct an official proceeding, as
charged in Count 7 of the indictment, has three essential
"One, that on or about the dates alleged in the indictment,
an official proceeding was either pending, or was about to begin,
or was reasonably foreseeable.
Two, that two or more persons corruptly entered into an
agreement to corruptly obstruct, influence, or impede an official
proceeding. The defendants must have specifically contemplated
Ab 28
some particular official proceeding in which the documents or

testimony might be material.
"Three, that the defendant knowingly and intentionally,
became a member of the conspiracy to do such acts.
"Let me discuss these elements in more detail with you. R.
585.
"The first element of the conspiracy count requires the
government to prove beyond a reasonable doubt that, on or about
the dates alleged in the indictment, an official proceeding was
pending or was about to begin or was reasonably foreseeable.
"The second element of the conspiracy count requires the
government to prove that two or more persons entered .into an
unlawful agreement. In other words, one cannot commit the crime
of conspiracy by oneself. Rather, the proof must convince you that
at least two persons had joined together in a common criminal
scheme.
"The government must prove that the defendants reached an
agreement or understanding with at least one other person. It
Ab 29
makes no difference whether the person is a defendant or named

in the indictment.
"The agreement or understanding need not be an express or
formal agreement or be in writing or cover all the details of how it
is to be carried out. Nor is it necessary that the members have
directly stated between themselves the details or purpose of the
scheme You should understand that merely being present at the
joined in an agreement or understanding. A person who has no
knowledge of a conspiracy but who happens to act in a way which
advances some purpose of one, does not thereby become a member.
"But a person may join in an agreement or understanding,
as required by this element, without knowing all the details of the
agreement or understanding, and without knowing who all the
other members are. Further it is not necessary that a person agree
to play any particular part in carrying out the agreement or
understanding. A person may become a member of a conspiracy
even if that person agrees to play only a minor part in the
Ab 30
conspiracy, as long as that person has an understanding of the

unlawful nature of the pl.an and voluntarily and intentionally
joins in it.
"You must decide, after considering all of the evidence,
whether the conspiracy alleged in Count 7 of the indictment.
existed. If you find that the alleged conspiracy did exist, you must
also decide whether Dr. Randeep Mann or Sangeeta Mann
voluntarily or intentionally joined the conspiracy, either at the
time it was first formed or at some later time while.it was still in
effect. In making that decision, you must consider only evidence of
the defendant's own actions and statements~ You may not
consider actions and pretrial statements of others except to the
extent that pretrial statements of others describe something that
had been said or done by the defendants. R. 587.
"'Corruptly' defined: To act corruptly means to act with
consciousness of wrongdoing.
"'Official proceeding' defined: As used in these instructions,
the term 'official proceeding' includes, a proceeding before a judge
or court of the United States, a United States magistrate judge, or
Ab 31
a federal grand jury. An official proceeding need not be pending or

about to be instituted at the time of the offense, but the defendant
must have contemplated the proceeding.
"'Knowingly' defined: An act is done knowingly if done
voluntarily and intentionally, and not because of mistake or
accident or other innocent reason. The purpose of adding the word
'knowingly' is to ensure that no one will be convicted for an act
done because of mistake or accident or other innocent reason.
"'Willfully' defined: The word 'willfully' means that the .act
was committed voluntarily and purposely, with the specific intent
to do something the law forbids. That is to say, with bad purpose
either to disobey or disregard the law.
"The crime of concealing an object from use in an official
proceeding, as charged in Count 8 of the indictment, has four
essential .elements, which are:
"One, that on or about the dates alleged in the indictment,
an official proceeding was pending, was about to begin or was
reasonably foreseeable.
Ab 32
"Two, that the defendant corruptly concealed or attempted to

corruptly conceal one or more of the following documents, to wit, a
special power of attorney, a general power of attorney and
presigned blank checks and other financial documents or objects
related to a bank account ending in the numbers 8796. R. 588.
"Three, that the defendant acted knowingly and
intentionally.
"And four, the natural and probable effect of defendants'
conduct would be the interference with the due administration of
justice.
"'For you to find the defendant Randeep Mann or the
defendant Sangeeta Mann guilty of the crime charged in Count 8,
the government must prove all of the essential elements of the
crime beyond a reasonable doubt as to each defendant. Otherwise,
you must find the defendant Randeep Mann or the defendant
Sangeeta Mann not guilty of the crime charged in Count 8.
"A person may also be found guilty of concealing an object
from use in an official proceeding even if he personally did not do
Ab 33
every act constituting the offense charged, if he aided and abetted

the commission of concealing evidence.
crime of concealing an object from use in an official proceeding, a
person must, before or at the time the crime was committed, (1),
have known the crime of concealing an object from use in an
official proceeding was being committed or going to be committed;
and (2), have knowingly acted in some way for the purpose of
causing, encouraging, or aiding the commission of the crime. R.
589.
"For you to find a defendant guilty of concealing an object
from use in an official proceeding by reason of aiding and abetting,
the government must prove beyond a reasonable doubt that all of
the essential elements of concealing an object from use in an
official proceeding were committed by some person or persons and
that the defendant aided and abetted the commission of that
crime.
scene of an event, or merely acting in the same way as others, or
Ab 34
merely associating with others does not prove that a person has
"The crime charged in Count 8 of the indictment includes an
attempt to conceal .an object from use in an official proceeding. A
person may be found guilty of an attempt if he or she intended to
corruptly conceal documents and voluntarily and intentionally
carried out some act which was a substantial step toward that
concealment, and if successful, the concealment would have the
natural and probable effect of interfering with the due
administration of justice.
"The crime of making a false declaration, as charged in
Count 9 of the indictment, has four essential elements, which are:
"One, the defendant testified under oath or affirmation
before a grand jury that the. only reason she removed items from
the clinic was because she thought they would be safer.
"Two, such testimony was false in whole or in part.
Ab 35
"Three, at the time she so testified, the defendant knew her

testimony was false.
"And four, the false testimony was material. R. 590.
Ab 36
F. EXHIBIT 7 TO DECLARATION IN SUPPORT OF MANNS

SUR-RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR
PARTIAL SUMMARY JUDGMENT (FEDERAL COURTS
OPENING JURY INSTRUCTIONS) (R. 626-634) (Add 191)
THE COURT
Before we get started with the panel that we've selected,
those of you who were not selected, would you please stand.
All right. I'm going to let you go. Your jury service is
concluded. R. 628.
Ladies and gentlemen, I'll take a few moments now to give
you some initial instructions about the case and about your duties
as jurors. At the end of the trial, I'll give you further instructions.
I may also give you instructions during the trial. Now, unless I
specifically tell you otherwise, all such instructions, both those I
give you now and those I give you later are equally binding on you
and must be followed.
As you probably already know, this is a criminal case
brought against Dr. Randeep Mann and Sangeeta Mann by the
United States government. The charges are set forth against them
Ab 37
in the second superseding indictment which I'll read again to you.

I read this to you on the first day, but I feel like I should read it
again. This indictment was handed down on January 6, 2010, and
it is the second superseding indictment, and it reads as follows:
Count 1, from in or about February 2008 until on or about
February 4, 2009 in the Eastern District of Arkansas, the
defendant, Randeep Mann, aided and abetted by a person or
persons unknown to the grand jury, did, without lawful authority,
knowingly use and attempt to conspire to use a weapon of mass
destruction against a person or property within the United
States, and the offense and the results of the offense affected
interstate commerce. That's all in violation of Title 18, United
States Code Section 2332(a). R. 629.
Count 2, on or about February 4, 2009, in the Eastern
District of Arkansas, the defendant, Randeep Mann, aided and
abetted by a person and persons unknown to the grand jury, did
maliciously damage destroy and attempt to damage and destroy
by means of an explosive, a vehicle, to wit: A white 2005 Lexus
VIN JTJHW31U 982853031, used in interstate commerce and in
Ab 38
an activity affecting interstate commerce, and such conduct

directly and proximately resulted in personal injury to a person
known to the grand jury, all in violation of Title 18, United States
Code., Section 844(i).
Count 3, from a date unknown to the grand jury until on or
about March 3, 2009, in the Eastern District of Arkansas, the
defendant, Randeep Mann, did knowingly possess one or more
firearms as defined in Title 26, United States Code, Section
5845, to wit: Approximately 98 40-millimeter HE M406 grenades
which were not registered to him in the National Firearms
Registration and Transfer Record, all in violation of Title 26,
United States Code, Section 586l(d).
Count 4, on or about March 4, 2009, in the Eastern District
of Arkansas, the defendant, Randeep Mann, did knowingly
possess a firearm as defined in Title 26 United States Code,
Section 5845, to wit.: An Interord Corporation Model USAS-12 12gauge shotgun, serial number A002089 SA, which was not
registered to him in the National Firearms Registration and
Ab 39
Transfer Record, all in violation of Title 26, United States Code,

Section 5861(d).
possess a firearm as defined in Title 26, United States Code
Section 5845, to wit: A 7.62 caliber machine gun, serial number
BM-0834, which was not registered to him in the National
Firearms Registration and Transfer Record, all in violation of
Title 26, United States Code, Section 586l(d). R. 630.
possess a machine gun as defined in Title 26, United States Code,
Section 5845(b), to wit: A 7.62 caliber machine gun, serial number
BM-0834, all in violation of Title 2 8, United States Code, Section
922(0)(1).
Count 7, from on or about March 4, 2009, until on or about
August 6, 2009, in the Eastern District of Arkansas, the
defendant, Randeep Mann, and Sangeeta Mann, a/k/a Sue Mann,
did conspire with each other to corruptly instruct, influence, and
Ab 40
impede an official proceeding in violation of Title 18, United

States Code, Section 1512(c)(2).
Count 8, from on or about March 4, 2009, until on or about
May 5, 2009, in the Eastern District of Arkansas, the defendants
Randeep Mann and Sangeeta Mann, a/k/a Sue Mann, aiding and
abetting one another did corruptly conceal and attempt to
corruptly conceal one or more of the following documents and
objects, to wit: A special power of attorney, a general power of
attorney, and pre-signed blank checks and other financial
documents or objects related to a bank account ending in account
numbers 8796 with the intent to impair the document's and other
object's availability for us-e in an official proceeding, all in
violation of Title 18, United States Code, Sections 1512(c) (1) and
(2).
Count 9, on or about April 8, 2009, in the Eastern District of
Arkansas, the defendant, Sangeeta Mann, a/k/ a Sue Mann, while
under oath in a proceeding before the grand jury of the United
States in the Eastern District of Arkansas knowingly made a false
material declaration. R. 631.
Ab 41
That is to say, 2, in the time and place aforesaid, the grand

jury was conducting an investigation of Randeep Mann, the
husband of Sangeeta Mann, a/k/a Sue Mann, for violations
regarding possession of unregistered firearms. At the time of the
grand jury proceeding, Randeep Mann had been incarcerated for a
period of time and the actions and directives of Randeep Mann
during his incarceration were material to a proper matter of
inquiry for a grand jury; 3, at the time and place alleged, Sangeeta
Mann, a/k/a Sue Mann, appearing as a witness under oath at a
proceeding before the grand jury, knowingly made the following
declarations in response to questions with respect to the material
matter alleged in paragraph 2 as follows: "Question: D.id you
remove anything else .f-rom the clinic? Answer: No. Question.:
Specifically did you take anything out of your husband's desk and
take it to Tim, or Mr. Gulu? Answer: You asked me about -- well,
you asked me about two things in the office and I was thinking
more in terms of, you know, mail, bills, records, things like that,
but then when you said my husband's desk, 'I did remember, and I
apologize, it just slipped my mind that my brother-in-law had
Ab 42
some checks that had left with my husband and they were in his
desk, and I apologize. It completely slipped my mind, but I did
take those, because, you know, the office, the clinic is empty.
There's nobody in there and I just didn't feel that that would be a
safe place, so I did bring those home. Question: What did you do
with those checks when you took them out? Answer: They' re at
home. Question: So you still have them? Answer: Yes. I just
thought it would be safer. Question: So you removed something
because you thought it would be safer? Answer: Yes. Question: Is
that the only reason you removed them? Answer: Yes. Yes." Four,
the aforesaid underscored testimony of Sangeeta Mann, a/k/a Sue
Mann, is she then and there well knew and believed was false and
that the checks had not been removed from the clinic because she
thought it would be safer but because she had been instructed by
Randeep Mann to remove the items, all in violation of Title 18,
United States Code, Section 1623. Now, there are a number of
forfeiture allegations, but I won't read those to you again. R. 633.
Ab 43
G. SUMMARY JUDGMENT HEARING BEFORE CIRCUIT

COURT OF CRITTENDEN COUNTY (R. 930-955) (Add 192)
MR. MANN
As a preliminary matter, we would ask the court to take up
and rule on Dr. Manns motion to file supplemental materials. R.
932 Im wanting to supplement something new that was raised in
their response. What the Plaintiffs are asking the Court to do,
namely, use a criminal conviction for collateral estoppel in a civil
case has been allowed by the Arkansas Supreme Court in only one
instance, and thats when its a conviction for murder. R. 933. This
was not a conviction for murder. If the Court is going to make new
law and expand that doctrine beyond murder, then the Defendant
should have every opportunity to put everything that he feels is
necessary in front of the Court to weigh the fairness of that. Im
aware of no prejudice that the Plaintiffs have offered that says
there will be something hurtful or unfair or prejudicial about the
Court receiving this additional material.
MR. CEARLEY
Ab 44
This is the third time that Dr. Mann has offered this same
material to the Court in response to a motion for summary
judgment.
The only new issue addressed in the Plaintiffs reply brief is
there is a brief affidavit or a brief excerpt of the testimony of
Melissa Pierce as to Dr. Pierces condition when she came to his
aid after the bombing. Theres not anything that is really new
thats brought to the surface for the first time in the Plaintiffs
reply brief. R. 934.
Secondly, the notion or the suggestion that this case is
unique because theres only one Arkansas Supreme Court case
that finds a defendant collaterally estopped from re-litigating
issues is this murder case in Zinger versus Terrell is somewhat
misleading, in that shortly after changing decades of common law
in Zinger versus Terrell, the Court had occasion to revisit that
issue in Johnson versus Union Pacific Railroad. In that case,
Judge, the Court said they adopted the reasoning of the United
States Supreme Court in a case, Parklane Hosiery Company, Inc.
versus Shore. They concluded their evaluation of that case by
Ab 45
saying, We agree with the Courts holding that the offensive use of
collateral estoppel, which is what this is, should be available only
in limited cases and that the trial court -- this court -- should be
given broad discretion to determine if it should be applied.
We further agree that mutuality of the parties is not
necessary. A criminal conviction could be used to collaterally estop
re-litigating issues in a civil case as it is by its very definition an
attempt by a plaintiff to preclude a defendant from litigating an
issue that the defendant has previously litigated unsuccessfully in
an action with another party. That is now the law in Arkansas. R.
935.
In rejecting an argument that was made in Johnson versus
Union Pacific Railroad, the Supreme Court said this Courts
holding in Zinger did not approve of the offensive use of collateral
estoppel. Rather, that case merely carved out a narrow exception
to the long-standing law that a judgment in a criminal case is
neither a bar to a subsequent civil proceeding founded on the
same facts, nor proof of anything except its rendition. The
exception recognized in Zinger was that a prior criminal conviction
Ab 46
for murder acts as a bar to re-litigating the same issue for the
same defendant in a civil court. Beyond that, this Court did not
address the issue of collateral estoppel for other criminal
convictions.
Then in Johnson versus Union Pacific Railroad, it opened
the door by stating expressly that trial courts should be given
broad discretion to determine if it should be applied. R. 936.
MR. MANN
The Johnson case does affirm that the Court has discretion,
but the Johnson case is a civil case and there is still only Zinger
that says a criminal conviction is good only for murder conviction.
R. 938. So if this Court is going to use a criminal conviction to
offensively collaterally estop Dr. Mann from defending himself,
then there are other considerations that have to be made in
weighing that exercise of discretion.
One of those key factors
that arises from a case -- Parklane Hosiery, its a Supreme Court

case; thats what the Johnson case relied on in saying the Court
should have discretion -- is fairness.
Ab 47
Mr. Cearley pointed out that among the things that Dr.
Mann has put in front of the Court are the briefs that he filed in
his criminal appeal. Although, the 8th Circuit ruled against him,
he still has a pending petition for a writ of certiorari to the
Supreme Court. So in that sense, his criminal convictions are still
not resolved. There is some authority saying that that doesnt
keep the Court from doing from what it wants to do in terms of
collateral estoppel here. I would ask the Court in considering the
panoply considerations that its lack of finality in that sense a
factor. But his briefs on appeal are an efficient way to show the
Court problems, substantial material problems that he and his
wife, who was tried with him, raise as grounds and raise here as
grounds for saying that it would be unfair to extend the rule
beyond murder convictions only, that if youre going to expand it
in this case, this is not the case to do it.
There are extensive
briefs. R. 939.
Indeed, Mr. Cearley is correct. Adjudicated facts are what
the Court must decide on. The only adjudicated facts are the
judgments of conviction in this case. In the same way the
Ab 48
Plaintiffs attached to their motion for summary judgment, the 8th

Circuits opinion which recites things and makes statements about
them, that 8th Circuit opinion is not an adjudicated fact. So their
briefs are put in front of you, along with other substantive bits of
trial testimony, for the Court to weigh the fairness in expanding
this doctrine beyond murder, a murder conviction.
Thats why we think its fair for the Court to hear them, that
they arent such scary or awful things that the Court should not
have them in exercising its discretion to expand this doctrine for
the first time here.
THE COURT
Im going to allow you to file your supplemental information.
I dont see there is any prejudice. Im going to allow that. R. 940.
Now well go to the summary judgment motion.
MR. CEARLEY
Because the underlying criminal case is one of some
notar[iet]y, Im just assuming the Court has some familiarity with
it.
THE COURT
Ab 49
I actually dont know much about the case, but I know about
the incident.
MR. CEARLEY:
The incident was in February of 2009. Dr. Pierce was leaving
his home and approached his car in his own driveway and saw a
strange spare tire leaning against the front end of it.
He
reached to remove the tire, and a booby trapped bomb exploded

and caused him severe and serious permanent injury. He lost an
eye. He got scarring to his face and burns over most of his body.
He lost most of his hearing in one ear, and it was touch and go for
a while whether or not he would survive. R. 941.
After an investigation, Dr. Randeep Mann was charged with
conspiring and aiding and abetting in the use of an instrument of
mass destruction against a person and property, and that person
and property were the person and property of Dr. Pierce and his
wife and in causing an explosion with the intent to damage or
injure personal property, destroy personal property. Again, that
was the property of Doctor and Mrs. Pierce.
Ab 50
After a five-week trial, Dr. Mann was convicted on seven of

eight counts and a judgment of conviction was entered. Dr. Mann
was subsequently sentenced to a term of life imprisonment and
ordered to make restitution in an amount in excess of a million
dollars to Dr. Pierce for his physical injuries and his medical
expenses and his loss of past and future income, property damage
as well.
An appeal was taken by Dr. Mann and in December of 2012,
the 8th Circuit Court of Appeals affirmed the two convictions that
are important in this matter before this Court; that is, those
convictions arising out of Counts 1 and 2 in the operative
indictment, that alleged use of a weapon of mass destruction and
an explosive device.
As the matters are presented to this Court, the historical
record and the law in Arkansas is that for generations there was
no offensive use of collateral estoppel. You couldnt take a criminal
conviction and preclude re-litigating those issues in civil court.
Zinger versus Terrell changed that in that one instance of a
murder conviction. R. 942.
Ab 51
But the more important thing is that after Zinger versus

Terrell, this case of Johnson versus Union Pacific Railroad came
up that I explained to the Court earlier.
The factors that are of considerable importance in deciding
whether or not to apply the doctrine or the offensive use of
collateral estoppel are these: The Court should consider whether
or not it may be unfair for the Defendant in the first action is sued
for nominal damages and may not have had great incentive to
defend vigorously. That wouldnt apply here because Dr. Mann
was charged with criminal offenses that could send him to prison
for life. So he had ample reason to defend vigorously and did.
Secondly, where the judgment was relied upon as a basis for
collateral estoppel is itself inconsistent with one or more previous
judgments in favor of the Defendant. That has no application here
either. There are no other judgments dealing with this.
Number three is where the second action affords the
Defendant procedural opportunities unavailable in the first action
that could cause a different result.
Ab 52
Mr. Mann, Mr. Drake Mann here on behalf of his client, has
suggested that there are all kinds of procedural advantages in
civil court that were unavailing in criminal court and that it
would be unfair for that reason to preclude re-litigation of these
issues here. R. 943.
Our response to that, Your Honor, is that Dr. Mann has had
two years to engage in discovery in this court and has not.
If he
wanted to avail himself of better procedural tools to discover the

truth, there are things that he could have done that he simply has
not even attempted to do.
So whether or not the elements of
collateral estoppel argued here in favor of its application or

against its application is for you. We submit that on this record in
this court with these parties that theres nothing unfair about
using it offensively to bar re-litigating these issues, because the
charge of conspiring to or aiding and abetting in the use of a
weapon of mass destruction could cause injury to person or
property overlaps every element that we have to prove in order to
establish our case for civil conspiracy and assault and battery and
punitive damages all involve elements of intent, of malice, of
Ab 53
knowledge, in conspiring to use and aiding and abetting the use of

a weapon of mass destruction.
Dr. Mann, in being convicted of that, was found to have
knowingly and intentionally participated in a scheme with the
purpose of causing damage or injury to a person or property, that
being the person of Trent Pierce. The same is true with regard to
the second claim of use of an explosive device that resulted in
damage to injury or property. R. 944.
There are elements of intent, knowledge, malice that are all
common to the definitions as found in AMI of the civil causes of
action for assault and battery. To commit an assault, one need
only have the intent or act with the intent to put another person
in fear or apprehension of injury resulting in that person being in
fear or apprehension of injury. In order to complete a battery, one
need not be found guilty of actually laying hands on another
person. It is enough that with the intention to do that, one causes
a sense of apprehension or fear in the mind of the object of that
intent.
Ab 54
I think that when the Court sees how these criminal offenses
and these civil violations overlap, the Court wont have any
trouble in understanding that absolutely every element necessary
to prove the civil claims was not only brought up but was fully
litigated in the criminal trial.
In the first round of briefing, Judge, the Defendants
response was that this is a case of stare decisis and the Court
should not act at all because Zinger versus Terrell is the only case
that the Supreme Court has ever announced where this kind of
use of collateral estoppel was allowed. R. 945.
But I think Mr. Drake Mann here would have to agree with
me that the landscape changed with Johnson versus Union Pacific
Railroad, and this is a matter within the discretion of this Court.
MR. MANN
The case really begins and ends with the Zinger case and its
limited application. So as the Court reviews our briefs, I would
ask Your Honor to pay particular attention to the strength and
clarity of the Zinger and narrowness of the Zinger opinion. R. 947.
Ab 55
If the Court is to be persuaded that Your Honor can look

beyond the clear dictate of Zinger and use these convictions in
Federal Court to keep Dr. Mann from defending himself at trial,
then please pay particular attention to the charges and the jurys
findings because he was not charged with a criminal assault and
battery. That would be a tiny set of charges and a jurys factfinding on the same elements.
But that is not even close to what happened here.
He was charged in two counts. Count 1 was use of a weapon
of mass destruction against a person or property. Heres where the
record is a little bit odd. Because the indictment says person and
property but the record reflects that the only thing that went to
the jury was an instruction that said against a person or property,
that means that the record, the issues to be precluded are whether
he used a weapon of mass destruction against a person or against
property. The jury, in other words, could have found that he
knowingly used the weapon against only the property.
The Plaintiffs can make whatever arguments about
inferences from that. But if we are to collaterally estop the issues,
Ab 56
having it in the disjunctive deprives the Plaintiffs of that

certainty, that clarity of issue preclusion that is necessary,
particularly if were going to stray beyond the confines of the
Zinger case. R. 948.
In addition -- were still on Count 1, the use of a weapon of
mass destruction -- the jury instruction in that case said that he
against a person or property. Knowingly was what a jury was
instructed to find.
Assault and battery, AMI 417, says that it be intended to be
a harmful or offensive contact upon the person. Thats what the
prior judgment -- thats the issue that the prior judgment needs to
preclude, and the prior judgment had a lower mental state and
had the alternate person or property. So Count 1 cannot be used.
Count 2, likewise, was that the Defendant maliciously -undefined in the record -- damaged a vehicle and injury to a
person resulted. The mental state is directed towards a vehicle
and there was consequent injury to a person. That cannot be used
to preclude the issue of intending a harmful or offensive touching
Ab 57
against the person or thing against Dr. Pierce. It simply does not
meet those elements. Likewise, with the assault, there needs to
have been an intent to create the apprehension of some hard-floor
offensive contact with a person, AMI 418. The prior convictions do
not supply that element.
R. 949.
I would ask the Court to return where we began, which is at

the Zinger case that said that we have recently said that
precedent governs until it gives a result so patently wrong, so
manifestly unjust that a break becomes unavoidable. Thats not
the case here. The Court went on to say, While we do have the
power to overrule a previous decision, it is not necessary as a
matter of public policy to it is necessary, rather.
It is necessary
as a matter of public policy to uphold prior decisions unless great

injury or injustice would result.
What would be the result here if the Court follows precedent
and confines Zinger to murder cases? The result would be a trial
of the issues. No great injustice would occur.It would simply give
Dr. Mann an opportunity to present a defense. R. 950.
MR. CEARLEY
Ab 58
I dont think it is correct to suggest that by exercising your

broad discretion conferred by Johnson versus Union Pacific that
you are treading on the toes of stare decisis. That was done by the
Supreme Court first in Zinger versus Terrell and then second in
the Johnson case. Stare decisis is no longer a consideration in the
issues before this Court because the Supreme Court has opened
the door and granted you broad discretion to do this if these
considerations outlined in the Parklane Hosiery U.S. Supreme
Court case are considered. So I dont think weve come full circle
back to Zinger versus Terrell.
There are cases cited in our response to that argument that
stand for the proposition that the civil claims need not match
letter per letter to the criminal charges, that it is enough if the
issues are the same so that it would not be unfair to apply
collateral estoppel.
I will submit to you, Judge, that it is beyond folly to suggest
that someone who knowingly and intentionally participates in a
scheme to booby trap a car with a car bomb didnt intend to cause
either personal injury or apprehension of personal injury. Thats
Ab 59
what car bombs do.
Thats what I think people who plant them
intend them to do, and thats what happened in this case. R. 952.
MR. MANN
The record will reflect that the device that has just been
referred to as a car bomb, the evidence will reflect that it was a
concussion grenade that is designed for knocking out, something
short of being a car bomb. The focus is on the narrowness of
Zinger and the impropriety for expanding in this case.
Ab 60
H. ORDER GRANTING PLAINTIFFS MOTION FOR PARTIAL

SUMMARY JUDGMENT (R. 656-661) (Add 198-203)
On June 30, 2013 came on for hearing before the Court,
Plaintiffs' Motion For Summary Judgment As To Liability For
Compensatory and Punitive Damages.
This is an action seeking damages for assault and battery,
civil conspiracy, and punitive damages. The primary issue for this
Court to decide is whether the plaintiffs in this civil action should
be allowed to use "offensive collateral estoppel" to preclude
Separate Defendant Randeep Mann from re litigating the issues of
whether he conspired to and thereby intentionally caused bodily
injury to Dr. Pierce.
Dr. Mann argues that according to Zinger v. Terrell, 336 Ark
423, 985 S.W. 2d 737 (1999), offensive use of collateral estoppel is
only allowed in a murder case and therefore, should not be
allowed in this instance, where the convictions were for conspiracy
to use a weapon of mass destruction against a person and property
and aiding and abetting a person(s) by maliciously damaging,
destroying or attempting to damage and destroy, by means of an
Ab 61
explosive vehicle, also resulting in personal injury. Dr. Mann also

cites Johnson v. Union Pacific Railroad, 352 Ark 534, 104 S.W. 3d
745 (2003) for the proposition that Zinger allows offensive use of
collateral estoppel only where the underlying criminal conviction
is for murder. But, the Johnson court distinguished Zinger, and
then addressed how a trial court must determine when the
offensive use of collateral estoppel should be allowed calling the
question (offensive use of collateral estoppel in other than a
murder case) one of first impression in Arkansas.
The Johnson court adopted the test from Parklane Hosiery
Co., Inc. v. Shore, 439 U.S. 322 (1979).
We agree that offensive collateral estoppel should be
available in limited cases, and that the court should be given
broad discretion to determine if it should be applied. The Court
indicated the offensive used collateral estoppel should not be
allowed if one of the following factors precluded it: (1) the
defendant in the first action is sued for small or nominal damages
and thus may not have had great incentive to defend vigorously,
(2) where the judgments relied upon as a basis for estoppel is itself
Ab 62
inconsistent with one or more previous judgments in favor of the

defendant, and (3) where the second action affords the defendant
procedural opportunities unavailable in the first action that could
cause a different result.
Following Johnson, the Arkansas Court of Appeals then
upheld the offensive use of collateral estoppel in Watkins v.
Southern Farm Bureau, 2009 Ark App. 693, 370 S.W. 3d 848
(2009) to bar re-litigation of a claim of self-defense. The Court
there followed the Parklane Hosiery and Johnson cases.
The Court then referred to the three elements cited in the
Johnson and Parklane Hosiery Therefore, in determining whether
it would be unfair to Dr. Mann for this civil court to bar the re
litigation of issues decided in his criminal case, this Court must
consider the three factors set out in the Parklane Hosiery, Johnson
and Watkins cases.
First, whether the defendant in the first action is sued for
nominal damages and thus may not have great incentive to defend
vigorously. Dr. Mann's criminal conviction involved more than
nominal damages. He faced a possible life term if convicted and
Ab 63
was ordered to pay restitution in the amount of $1,136,355.00,

($697,608.28) of which was payable directly to Dr. Pierce.
Therefore, this factor does not preclude the use of collateral
estoppel.
Second, whether the judgment relied upon as a basis for
collateral estoppel is itself inconsistent with one or more previous
judgments in favor of the defendant. This Court is not aware of
any prior judgments in Dr. Mann's favor and therefore, this factor
does not preclude the use of offensive collateral estoppel.
Third, whether the second action affords the defendant
procedural opportunities unavailable in the first action that could
cause a different result. Dr. Mann argues that "many crucial and
powerful procedural opportunities exist" in the civil case that he
did not have in the criminal trial. However, the procedural
differences he listed apply to every criminal case - including one
for murder, as in Zinger.
Dr. Mann, in this case, was found guilty on counts I and II
after a five week jury trial requiring a higher standard of proof,
beyond a reasonable doubt. This factor appears to be more
Ab 64
applicable where, the first proceeding was a negotiated plea or a

settlement, where the parties did not have the opportunity to
utilize discovery or to gain information through an actual trial,
which is not the situation in this case.
Same Issues
Dr. Mann argues that the issues in the two cases are not the
same, because the jury in his criminal trial may have only found
he damaged property as opposed to "person." However, the charge
on which Dr. Mann was convicted was that he aided and abetted
by a person and persons unknown to the grand jury, did without
lawful authority, knowingly use .... a weapon of mass destruction
against a person and property. It would be nonsensical for the jury
to have believed or for this Court to believe that Dr. Mann did not
intend to harm Dr. Pierce when the vehicle damaged was Dr.
Pierce's vehicle, which was parked directly in front of his home,
with a booby-trapped tire in the path of his vehicle, with an
explosive device designed to detonate when it was moved. Dr.
Pierce moved the device blocking his path and was injured.
Ab 65
Additionally, others in the criminal case testified regarding Dr.

Mann's desire to harm Dr. Pierce.
Mental State
Dr. Mann argues the convictions do not establish that he had
the requisite mental state, to preclude re-litigation of whether Dr.
Mann intended to create apprehension of, or to cause personal
injury. In confirming the conviction on count II the Eighth Circuit
Court of Appeals stated, " ... there was ample evidence presented
to support the inferences drawn by the jury that Mann possessed
a weapon of mass destruction and supplied it to another knowing
it would be used to harm Pierce." This Court believes the proof
supporting the convictions on Count I and Count II contain all of
the essential elements of civil conspiracy and assault and battery,
in this case.
The Court finds no merit in Dr. Mann's other arguments.
Dr. Mann had a full opportunity to litigate the issues in
question and those issues were essential to the judgments of
conviction and restitution in the criminal case. Dr. Mann had a
five (5) week criminal trial with a standard of proof more stringent
Ab 66
than that required in this case. He appealed his convictions and

they were affirmed as to Counts I and II. His petition for
rehearing was denied.
The plaintiffs' motion for summary judgment as to liability is
granted leaving the issue of damages for trial.
IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED that Plaintiffs' Motion For Summary Judgment As To
Liability For Compensatory and Punitive Damages against
Separate Defendant Randeep Mann is granted.
Ab 67
I. JUDGMENT IN THE CIRCUIT COURT OF CRITTENDEN

COUNTY (R. 919-924) (Add 204-205)
On March 16, 2015, this action came on for trial before the
Court and a jury of twelve persons.
Pursuant to this Courts December 16, 2013 Order granting
partial summary judgment as to liability in this action, the sole
remaining issue of damages was tried upon the pleadings,
exhibits, testimony of witnesses, and statements and arguments of
counsel.
The jury . . . rendered its verdicts finding in favor of
Plaintiffs and against Defendant and awarding damages as
follows:
As to Plaintiff Trent P. Pierce
Compensatory damages
Punitive damages
$12,500,000
$100,000,000
As to Plaintiff Melissa Pierced

Compensatory damages
$5,000,000
Punitive damages
$5,000,000
Ab 68
The executed verdict forms were filed of record on March 17,

2015, and are attached . . . .
IT IS THEREFORE ORDERED AND ADJUDGED that
Plaintiff Trent Pierce have and recover from Defendant Randeep
Mann on his claims of assault and battery and civil conspiracy the
sum of $112,500,00; and that Plaintiff Melissa Pierce have of and
recover from Randeep Mann the sum of $10,000,000 on her claim
of loss of consortium.
Ab 69
STATEMENT OF THE CASE

On the morning of February 4, 2009, Trent Pierce, M.D., was
badly injured when a device, which had been placed on or near his
car, exploded. R. 12, Add 2.
The United States indicted Randeep Mann, M.D., and his
wife (Add 43) and in July and August of 2010 tried them on a tencount indictment that included, among others, charges related to
the explosion that injured Dr. Pierce. R. 101, Add 43. A federal
jury in Little Rock convicted Dr. Mann on seven counts. Among
those counts, two are relevant to this appeal: Count One was
knowingly using, and attempting and conspiring to use, a weapon
of mass destruction against a person and property; Count Two
was, aided and abetted by a person and persons unknown,
maliciously damaging, destroying, and attempting to damage and
destroy, by means of an explosive, a vehicle, which conduct
resulted in personal injury. R. 109, Add 51.
Dr. Mann and his wife appealed on several grounds. Add 58.
At the Eighth Circuit, the Court of Appeals agreed that several of
Dr. Manns charges, had been mis-joined, but that the error was
SoC 1
not prejudicial. Add. 58, 74-82; United States v. Mann, 701 F.3d
274 (2012). Dr. Mann asks the Court to take judicial notice that he
(i) exhausted his direct appeals (Mann v. United States, 134 S. Ct.
470 (2013)) and (ii) has filed a petition for post-conviction relief,
which is pending (Mann v. United States, No. 4:09-cr-00099-01,
Doc. 395 (filed Oct. 20, 2014)).
Before Dr. Mann was charged with these crimes, on January
27, 2010, Dr. Pierce and his wife sued Dr. Mann and three
unnamed John Doe defendants in the Circuit Court of
Crittenden County, seeking compensatory and punitive damages
for the torts of assault and battery and a derivative civil
conspiracy to commit assault and battery, under Arkansas
common law. R. 12, Add 1.
On December 26, 2012, the Pierces moved for partial
summary judgment on the issue of liability. R. 83, Add 25. Using
the convictions on Count One and Count Two, the Pierces argued
for the offensive use of the doctrine of collateral estoppel to
determine Dr. Manns liability for assault and battery and civil
conspiracy. R. 84, Add 26.
SoC 2
On December 6, 2013, the trial court granted the Pierces

motion. R. 651-661, Add 198. On March 16, 2015, the case
proceeded to a jury trial on only the issue of the Pierces
compensatory and punitive damages. R. 919, Add 204.
On March 17, 2015, a Crittenden County jury returned a
$122,500,000 verdict against Randeep Mann. R. 919, Add 204-09.
The jury had heard no evidence on the issue of Dr. Manns
liability.
Dr. Mann appealed. R. 925, Add 210.
SoC 3
ARGUMENT
One of the most-basic premises of our civil courts is this: a
plaintiff must prove a defendants liability. Offensive collateral
estoppel relieves the plaintiff of that burden while simultaneously
denying the defendant the ability to defend himself.
The circuit court granted the Pierces motion for partial
summary judgment, using the doctrine of offensive collateral
estoppel based on Dr. Manns prior criminal conviction on two
fact-specific federal crimes. Add 198. Dr. Mann asks this Court to
enforce existing Arkansas law to require the Pierces to prove their
case. A reversal neither limits the Pierces rights nor insulates Dr.
Mann from liability. A reversal will allow our adversarial system
to operatethe Pierces will offer evidence, Dr. Mann will defend,
and a jury will decide if he is liable.
Standard of Review
Dr. Mann appeals the circuit courts partial summary
judgment on the issue of liability. Add 198. This Court must
decide whether: (1) there are any genuine issues as to any
material fact and (2) Plaintiffs are entitled to judgment as a
Arg 1
matter of law. Lipsey v. Giles, 2014 Ark. 309, 439 S.W.3d 13.
[W]hen the issues on appeal do not involve factual questions but
rather the application of a legal doctrine such as [offensive
collateral estoppel], [the Court] simply determine[s] whether the
appellees were entitled to judgment as a matter of law. Winrock
Grass Farm, Inc. v. Affiliated Real Estate Appraisers of Ark., Inc.,
2010 Ark. App. 279, at 6, 373 S.W.3d 907, 912. A trial courts
conclusion on a question of law is given no deference on appeal,
and questions of law are reviewed de novo. Gurlen v. Henry
Management, Inc., 2010 Ark. App. 855, at 3.
Summary
Offensive collateral estoppel should not be applied here for
four reasons. First, the circuit court inappropriately expanded the
Zinger exception by allowing a prior non-murder conviction to
serve as evidence of facts underlying the conviction. Second, Dr.
Manns criminal trial did not determine the same facts as the
Pierces must prove in their civil trial. Third, offensive collateral
estoppel deprived Dr. Mann of vital civil procedures, including
discovery, which were wholly unavailable at his criminal trial and
Arg 2
which would almost certainly render a different result in the civil

trial. Fourth, while Dr. Manns underlying criminal conviction
remains subject to reversal, which this conviction certainly is,
application of offensive collateral estoppel is premature, and,
therefore, inappropriate.
I. WHETHER
THE
TRIAL
COURT
ERRED
BY
GRANTING THE PLAINTIFFS MOTION FOR SUMMARY

JUDGMENT
EXPANDING
ON
THE
THE
ISSUE
DOCTRINE
OF
LIABILITY
OF
BY
OFFENSIVE
COLLATERAL ESTOPPEL?
Arkansas law on the evidentiary value of facts related to a
prior criminal conviction in a subsequent civil action is longstanding and clear:
A judgment in a criminal prosecution is
neither a bar . . . nor proof of anything except its rendition.

Washington Natl Ins. Co. v. Clement, 192 Ark. 371, 373, 91
S.W.2d 265, 266 (1936). The general rule is: A plaintiff may not
establish a defendants civil liability by using the defendants prior
criminal conviction as evidence of facts in the subsequent civil
suit. There is a single, clear-cut exception to that rule: a prior
Arg 3
murder conviction that has survived direct appeal and collateral

attack and appeal can estop the murderer from re-litigating her
culpability for the victims death in the murderers subsequent
civil claim for the murder victims life insurance proceeds. Zinger
v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999). Nikki Zinger was
convicted of her mothers murder; she appealed and lost; she
petitioned for post-conviction relief, lost, appealed, and lost that
appeal. Nikki was a beneficiary of her mothers life insurance
policies. The life insurance companies interpled the life insurance
proceeds. Her mothers estate moved for summary judgment to
prohibit Nikki from receiving the proceeds.
The Zinger court acknowledged Arkansass long-held rule,
and left it intact, but reluctantly created one narrow, bright-line
exception: a defendant who has been adjudged guilty of
murdering a person is collaterally estopped from re-litigating that
same issue in a later civil proceeding to inherit or take the victim's
property. Zinger, 336 Ark. at 430, 985 S.W.2d at 741. While
approving the use of offensive collateral estoppel in a civil context,
the supreme court has refused to expand the Zinger exception
Arg 4
farther than a prior murder conviction used as a bar to collect the

victims life insurance proceeds: [T]his court's holding in Zinger
did not approve of the offensive use of collateral estoppel. Rather,
that case merely carved out a narrow exception to the longstanding law that a judgment in a criminal case is neither a bar to
a subsequent civil proceeding founded on the same facts nor proof
of anything except its rendition. The exception recognized in
Zinger was that a prior criminal conviction for murder acts as a
bar to relitigating the same issue for the same defendant in civil
court. Beyond that, this court did not address the issue of
collateral estoppel for other criminal convictions. Johnson v.
Union Pac. Railroad, 352 Ark. 534, 545, 104 S.W.3d 745, 751, fn. 4
(2003) (Emphasis in original, and citation omitted).
The circuit court recognized it was stepping into uncharted
territory, stating in its Order (Add 203):
To allow the offensive use of collateral estoppel
pursuant to a murder conviction but, not on a
conviction
of
using
weapon
of
mass
destruction (a bobby trapped tire placed in the
Arg 5
path of a vehicle) which caused permanent

serious physical injury and could have caused
death, simply because it is not murder
conviction is not sensible, and to the extent the
doctrine has not already been expanded, this is
a case in which it should be.
Dr. Mann was not convicted of murder. The Zinger exception
does not apply in this case. The Pierces may not use Dr. Manns
prior criminal convictions to prove the facts underlying those
convictions. Arkansas law does not support the circuit courts
decision. The circuit court erroneously expanded the Zinger
exception. This Court should reverse. If this Court affirms this
expansion of the Zinger exception, the result will be a slippery
slope
with
case-by-case
extensions
using
other
criminal
convictions, an explosion in litigation, and certain uncertainty,

leading to inconsistent, emotion-driven judgments.
Even if the doctrine of offensive collateral estoppel applies in
this case, this Court should also reverse the circuit court because
Arg 6
the Pierces proposed use Dr. Manns prior conviction does not
satisfy the elements of offensive collateral estoppel.
Conventional collateral estoppel bars the litigation of
identical issues of fact or law that were previously litigated.
Palmer v. Arkansas Council on Econ. Educ., 344 Ark. 461, 40
S.W.3d 784 (2001); it is ordinarily used defensively. But a plaintiff
may offensively use the doctrine to estop a defendant from relitigating the same issues the defendant previously lost in other
litigation. Offensive collateral estoppel is controversial. It should
only be available in limited cases. Bradley Ventures, Inc. v. Farm
Bureau Mut. Ins. Co. of Ark., 371 Ark. 229, 236, 269 S.W.3d 486,
491 (2007). A trial court should not allow the application of
offensive collateral estoppel if it would be unfair to the defendant.
Watkins v. Southern Farm Bureau Cas. Ins. Co., 2009 Ark. App.
693, at 12, 370 S.W.3d 848, 855 (citing Johnson v. Union Pacific
R.R., 352 Ark. 534, 104 S.W.3d 745 (2003)).
Offensive collateral estoppel requires a plaintiff to show: (1)
the issue sought to be precluded must be the same as that involved
in the prior litigation; (2) the issue must have been actually
Arg 7
litigated; (3) the issue must have been determined by a final and
valid judgment; and (4) the issue must have been essential to the
judgment. Johnson v. Union Pacific R.R., 352 Ark. 534, 544, 104
S.W.3d 745, 750 (2003) (emphasis added).
Allowing the Pierces to use offensive collateral estoppel is
inappropriate and fundamentally unfair because: (a) the jurys
convictions in the first trial were not based on the same facts
needed to prove the torts in the Pierces civil action; (b) a civil trial
would afford Dr. Mann vital civil procedural tools that were
unavailable in his criminal trial and that may well lead to a
different result; and (c) the application of offensive collateral
estoppel is premature because the underlying criminal conviction
remains subject to reversal.
A. The facts determined in Dr. Manns prior conviction
are not the same as the facts the Pierces must prove.
A federal jury convicted Dr. Mann of crimes related to Dr.
Pierces injuries, which lends emotional appeal to the Pierces
argument. However, the Pierces logic cannot withstand a careful
analysis of (i) the facts the Pierces must prove to establish Dr.
Arg 8
Manns tort liability for assault or battery and (ii) the actual facts
determined by the jury in Dr. Manns criminal trial. The Pierces
cannot use offensive collateral estoppel because they fail the first
element of collateral estoppel: The facts actually litigated and
determined by the prior judgment are not the same as the facts
the Pierces must prove in their civil case. Zinger v. Terrell, 336
Ark. 423, 985 S.W.2d 737 (1999).
The civil tort of assault requires the Pierces to prove Dr.
Mann acted in such a manner as to create a reasonable
apprehension of immediate harmful or offensive contact upon the
person of Dr. Pierce and that Dr. Mann intended to cause that
apprehension. Add 34-35; AMI 417 (2013) (emphasis added). The
civil tort of battery requires the Pierces to prove Dr. Mann acted
with the intent to cause some harmful or offensive contact with a
person, or [acted] with the intent to create the apprehension of
some harmful or offensive contact with a person. Add 35; AMI
418 (2013) (emphasis added). To prove Dr. Mann liable for the
torts of assault and battery the Pierces must prove Dr. Mann
Arg 9
himself intended harmful contact with a person or apprehension of

harmful contact with a person.
Dr. Manns prior criminal conviction did not determine those
facts and therefore cannot supply that proof for the Pierces.
i.
Count One did not determine the same facts as
the Pierces must prove to establish the Pierces tort claims

or civil conspiracy claim.
In Dr. Manns criminal trial, the district courts instruction
on Count One allowed the jury to find the defendant knowingly
us[ed] or conspir[ed] to use a weapon of mass destruction against a
person or property. Ab 7-8, Add 144 (emphasis added). The jury
did not find that Dr. Mann knowingly, much less intentionally,
used a weapon of mass destruction. The jury instead found Dr.
Mann conspired to use and aided and abetted the use of a
weapon of mass destruction. United States v. Mann, 701 F.3d 274,
294 n. 11 (8th Cir. 2012). The jurys verdict on Count One is silent
as to Dr. Manns mental state. To prove their civil tort claims, the
Pierces must prove Dr. Mann acted intentionally against Dr.
Arg 10
Pierce. Dr. Manns conviction in Count One did not determine that
fact.
The torts for which the Pierces sued Dr. Mann require the
Pierces to prove Dr. Mann intended to contact or create the
apprehension of contact with a person, not property. Add 34-35;
AMI 417, 418 (2013). Because the jury in deciding Count One
could have convicted Dr. Mann regarding damage to property
only, Dr. Manns conviction on Count One did not determine that
the object of the harmful contact was Dr. Pierce (as opposed to his
vehicle). The facts determined by Count One of Dr. Manns
conviction are not the same as the facts the Pierces must prove to
support their torts claims, making offensive collateral estoppel
inappropriate. The ambiguity in the facts underlying Dr. Manns
conviction in Count One precluded the use of offensive collateral
estoppel and should have prevented summary judgment.
Because the record of Dr. Manns conviction on Count One
cannot be used to establish Dr. Manns liability for the civil torts
of assault and battery, it also cannot establish liability for civil
conspiracy to commit those torts. Civil conspiracy is a derivative
Arg 11
claim, and therefore is not actionable in and of itself. Mason v.

Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969).
ii.
Count Two did not determine the same facts as
the Pierces must prove to establish the Pierces tort claims

or civil conspiracy claim.
The judgment on Count Two charges only that Dr. Mann,
aided and abetted by a person and persons unknown to the Grand
Jury, did maliciously damage, destroy and attempt to damage and
destroy, by means of an explosive a vehicle and such conduct
directly and proximately resulted in personal injury to a person
known to the Grand Jury. Ab 7-8, Add 144 (emphasis added).
Count Two, like Count One, does not charge Dr. Mann with
damaging the vehicle himself, and the government conceded as
much. Ab 6, Add 143. Count Two related to actions of another
person (who the jury found Dr. Mann only aided and abetted). To
prove their tort claims against Dr. Mann, the Pierces must prove
that Dr. Mann himself intended to commit the torts. In Count
Two, as in Count One, the jury found that someone else performed
Arg 12
the intentional act. Therefore, Count Two, like Count One, does
not determine the fact of Dr. Manns intent.
Another error in relying on Count Two is that the torts of
assault and battery require that the tortfeasor intended contact or
apprehension of contact with a person. Add 34-35, AMI 417 & 418
(2013). The crime charged in Count Two related only to damage to
. . . a vehicle and such conduct directly and proximately
resulted in personal injury to a person known to the grand jury.
Ab 7-8, Add 144 . The jurys verdict on Count Two determined the
fact that someone (other than Dr. Mann) intended harmful contact
with a vehicle, not a person. Therefore, the issue of whether Dr.
Mann intended contact or apprehension of contact with a person
has not been actually litigated, and offensive collateral estoppel is
not appropriate. Bradley Ventures, Inc. v. Farm Bureau, 371 Ark.
229, 237, 264 S.W.3d 485, 492 (2007) (holding that summary
judgment is not appropriate when the issue of intent was not
actually litigated).
Count Two fails to establish facts supporting the Pierces
civil conspiracy claim in the same way as Count One fails to do so.
Arg 13
The Pierces civil conspiracy claim, however, suffers additional

defects. First, the Pierces are not seeking judgment against the
actual tortfeasors. The Pierces initially sought extensions of time
to serve John Doe defendants. They ceased doing so as of January
17, 2012. Add 24, R. 65. Therefore, because the Pierces are no
longer seeking judgment against another party in the suit for the
underlying tort, their claim for civil conspiracy should not be
allowed against Dr. Mann. See, Comment, AMI 714 (2013) (citing
Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996)). Second, the
Pierces only proof of the underlying torts is Dr. Manns conviction
on Counts One and Two. Given the prior criminal convictions
ambiguity about the person-or-property object of the act, a
genuine issue of material fact exists on the assault and battery
claims (and the civil conspiracy claim based on them).
B. The
application
of
offensive
collateral
estoppel
deprived Dr. Mann of procedures that were unavailable in

the first action that may lead to a different result in the
Pierces civil action.
Arg 14
The circuit courts decision to apply offensive collateral

estoppel deprived Dr. Mann of civil procedures that were not
available in his criminal trialprocedures that will enable him to
show a jury he had nothing to do with Dr. Pierces injuries. The
general rule should be that . . . where . . . the application of
offensive collateral estoppel would be unfair to a defendant, a trial
judge should not allow the use of offensive collateral estoppel.
Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331 (1979). The
United States Supreme Court offered as an example of the unfair
use of offensive collateral estoppel where the second action
affords the defendant procedural opportunities unavailable in the
first action that could readily cause a different result. Id. at 331.
Before his criminal trial, Dr. Mann only had the right to
depose witnesses to preserve testimony for trial, and then, only
upon motiona motion the court will grant only in exceptional
circumstances. Fed. R. Crim. P. 15(a)(1), Add 128. Thus unable to
take any depositions, Dr. Mann could only examine witnesses and
assess their demeanor or challenge their credibility oncewhile
the jury watched.
Arg 15
Because the Pierces were not parties to the previous

criminal prosecution, Dr. Mann could not ask them any written
questions or ask them to make any admissions or produce any
tangible evidence, except by a subpoena duces tecum to appear at
triala procedure that would have exposed Dr. Mann to the
unfairness of first-time witness examination before a live jury
except that, in this case, the witness is a grossly wounded, violentcrime victim who would naturally arouse the jurys deepest
sympathies. Add 128.
Dr. Mann, therefore, has never had any procedural right or
ability to explore what proof the Pierces might have of his
liability, and, more importantly, what proof they may have that he
is actually not liablefor example, what proof do they have of
others liability or what knowledge do they have of weaknesses in
the proof adduced at the criminal trial, none of which could have
effectively been discovered before, during, or after his criminal
trial.
The only written discovery available to Dr. Mann as a
federal criminal defendant was the right to inspect and copy
Arg 16
tangible things that were material to preparing his defense or that

the government intended to use at trial or that came from him.
Fed. R. Cr. P. 16(a)(1)(E). Dr. Mann had no right to discover before
his criminal trial what evidence these plaintiffs have of his
liability.
In his criminal trial, Dr. Mann lacked the ability or right to
challenge misjoinder of provocative, highly prejudicial allegations
unrelated to any issues here. Indeed, the Eighth Circuit Court of
Appeals held Dr. Mann was subjected to the improper joinder of
several counts, stating: Accordingly, the joinder of Counts 3, 5,
and 6 with the bombing and arson charges was improper. Add 74;
United States v. Mann, 701 F.3d 274, 290 (8th Cir. 2012). If the
Pierces are allowed to use offensive collateral estoppel to prove
their case, the improper joinder of those issues will harm Dr.
Mann yet again.
Any item among this non-exhaustive list of procedural
opportunities, which would be available to him in the Pierces civil
proceeding, but were not available at Dr. Manns criminal trial,
could easily have led to a different result. Because the Pierces
Arg 17
civil trial affords Dr. Mann procedural opportunities unavailable

in the first actionprocedures that would likely lead to a different
resultoffensive collateral estoppel is simply not fair.
C.
The application of offensive collateral estoppel is
premature because the underlying case remains subject to

reversal.
Because offensive collateral estoppel substitutes one jurys
fact findings for a second jurys fact findings, granting the Pierces
motion for summary judgment on the basis of offensive collateral
estoppel is premature as long as Dr. Manns prior judgment may
be reversed. In Williamson v. General Dynamics Corp., the court
of appeals held that the district court should issue a stay in a
current case until an outcome is final in the prior case. Williamson
v. General Dynamics Corp., 208 F.3d 1144 (9th. Cir. 2000). The
Williamson Court further held that [o]nce [the prior case] has
become final, the parties can litigate the collateral estoppel
issues. Williamson, 208 F.3d at 1157. In Zinger, the defendant
had filed a post-conviction petition for Rule 37 relief that was
denied and affirmed. Here, the defendant has filed a substantial
Arg 18
and richly documented motion for post-conviction relief; it has not

been decided or, if necessary, appealed. Mann v. United States,
No. 4:09-cr-00099-01, Doc. 395 (filed Oct. 20, 2014). Therefore,
offensive collateral estoppel remains premature.
CONCLUSION
The circuit court erred by (i) expanding the Zinger exception
and (ii) using a federal jurys criminal verdict to estop Dr. Mann
from defending himself, even though the facts found by that jury
did not prove the elements of the Pierces civil torts.
Dr. and Mrs. Pierce will lose nothing if this Court reverses
the circuit court. They will have every freedom and opportunity to
produce evidence that Dr. Mann or one or more of his confederates
caused their injuries. This Court should not lift the Pierces
burdenthe same burden any other civil litigant would bearby
using imprecise facts determined by a different jury in a different
court for different wrongs with different elements to estop Dr.
Mann from defending himself.
This case is not a good case in which to write new law.
Arg 19
ADDENDUM
Document
Addendum Page
Complaint (Record R. 12-24) ............................................... Add 001

Second Amended and Substituted Answer (Randeep
Mann) (R. 901-910) ....................................................... Add 014
Order (5th Motion for Ext of Time to Serve Defendants)
(R. 65) ............................................................................. Add 024
Motion for Summary Judgment as to Liability for
Compensatory and Punitive Damages (R. 83-85) ......... Add 025
Brief in Support of Motion for Summary Judgment as
to Liability for Compensatory and Punitive
Damages (R. 86-97) ........................................................ Add 028
Exhibit - 1 - Second Superseding Indictment from U S District
Court - Eastern Dist. W. Div. (R. 101-108) .......... Add 043
Exhibit - 2 - Judgment in Criminal Case from U S District
Court (R. 109-115) ................................................ Add 051
Exhibit - 3 - U S Court of Appeals Circuit (R. 116
- 175) ..................................................................... Add 058
(R. 176-182) ........................................................... Add 118
xv
Exhibit - 5 - Restitution Order (R. 183-186) ................. Add 119

Exhibit - 6 - Affidavit of Trent Pierce (R. 187-188) ....... Add 123
Response in Opposition to Motion for Summary
Punitive Damages (R. 194-209) ..................................... Add 125
Declaration of Drake Mann in Support of R S
Mann's Response in Opposition to Plaintiff s
Motion for Summary Judgment or Liability for
Compensatory and Punitive Damages (R. 210211) ............................................................................ Add 141
Exhibit - A - Transcript of Jury Trial - Volume 1
(R. 212-216) ............................................................ Add 143
Exhibit - B - Transcript of Jury Trial - Volume 19
(R. 217) ................................................................... Add 144
Exhibit - C - Petition for Rehearing and
Rehearing En Banc (R. 221-239) ........................... Add 145
Reply to Randeep Mann's Response to Motion for
Compensatory and Punitive Damages (R. 363376)................................................................................. Add 164
xvi

(R. 377) .................................................................. Add 178
Exhibit - 2 - Order filed in U S Court of Appeals 8thCircuit
(R. 381) .................................................................. Add 179
Sur- Response in Opposition to Motion for Summary
Punitive Damages (R. 385) ............................................ Add 180
Declaration of Drake Mann in Support of Defendants'
Sur - Response in Opposition to Motion for
Compensatory and Punitive Damages (R. 393394)................................................................................. Add 188
Exhibit - 3 - Transcript of Jury Trial Volume 16 (R. 565-591) ........................................ Add 190
Exhibit - 7 - Transcript of Jury Trial Volume 1 (R. 626-634) .......................................... Add 191
Transcript of Summary Judgment Hearing (R.
930-955) (Ab 42-57) ........................................................ Add 192
Letter from Judge Honeycutt dated November 13,
2013 (R. 651-655) ........................................................... Add 193
xvii
Order (R. 656-661) .................................................................. Add 198

Judgment (R. 919-920) ........................................................... Add 204
Exhibit - -1 - Verdict Form for Compensatory Damages (R.
921-924) ................................................................ Add 206
Notice of Appeal (R. 925-928) ................................................. Add 210
xviii
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Mann Vs Pierce

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Mann Vs Pierce

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_____________________________________________________________

Drake Mann, Arkansas Bar number 87108

Drake Mann, Arkansas Bar number 87108

Brief in Support of Motion for Summary Judgment as

Mann's Response in Opposition to Plaintiff s

Judgment as to Liability for Compensatory and

Notice of Appeal (R. 925-928) ...................................... Add 210

ANY RELATED OR PRIOR APPEAL (Identify)? NONE

BASIS OF SUPREME COURT JURISDICTION (see Rule 12(a))

IV. IS THE ONLY ISSUE ON APPEAL WHETHER THE

Does the appeal involve confidential information as

If the answer is yes, then does this brief comply with

WHETHER THE TRIAL COURT ERRED BY

GRANTING THE PLAINTIFFS MOTION FOR SUMMARY

C. The application of offensive collateral estoppel is

(Page 3249 of the trial transcript is missing from the

essential elements of use of a weapon of mass destruction were

"'Explosive' means gun powders, powders used for blasting,

"One, have known the crime of damaging or destroying a

B. EXHIBIT A TO DECLARATION IN SUPPORT OF MANNS

C. EXHIBIT B TO DECLARATION IN SUPPORT OF MANNS

D. EXHIBIT 1 TO PIERCES REPLY TO MANNS RESPONSE

people in the intersection I still had Trent in my arms. I told them

E. EXHIBIT 3 TO DECLARATION IN SUPPORT OF MANNS

Again, all instructions, whenever given and whether in writing or

"Under Count 6, the indictment charges that defendant

"The crime of knowingly using or conspiring to use a weapon

"The term 'interstate commerce' includes commerce between

directly stated between themselves the details or purposes of the

"You must decide, after considering all of the evidence,

"One, have known the crime of use of a weapon of mass

"The crime of damaging or destroying a vehicle by means of

described in the indictment was actually used for a function that

The crime of possession of an unregistered firearm, as

may be readily converted to, expel a projectile by the action of an

"If all of the elements have been proved beyond a reasonable

"Two, the defendant knew the firearm was a machine gun.

essential elements of that crime beyond a reasonable doubt.

"A person who, although not in actual possession, has both

some particular official proceeding in which the documents or

makes no difference whether the person is a defendant or named

conspiracy, as long as that person has an understanding of the

a federal grand jury. An official proceeding need not be pending or

"Two, that the defendant corruptly concealed or attempted to

every act constituting the offense charged, if he aided and abetted

"Three, at the time she so testified, the defendant knew her

F. EXHIBIT 7 TO DECLARATION IN SUPPORT OF MANNS

in the second superseding indictment which I'll read again to you.

an activity affecting interstate commerce, and such conduct

Transfer Record, all in violation of Title 26, United States Code,

impede an official proceeding in violation of Title 18, United

That is to say, 2, in the time and place aforesaid, the grand

G. SUMMARY JUDGMENT HEARING BEFORE CIRCUIT

One of those key factors

that arises from a case -- Parklane Hosiery, its a Supreme Court

There are extensive

Plaintiffs attached to their motion for summary judgment, the 8th

reached to remove the tire, and a booby trapped bomb exploded

After a five-week trial, Dr. Mann was convicted on seven of

But the more important thing is that after Zinger versus

wanted to avail himself of better procedural tools to discover the

So whether or not the elements of