Judges: Revisit Mann sentence

Bomber’s main verdicts upheld

— Randeep Mann, a former Russellville physician convicted of orchestrating a grenade explosion that permanently injured the chairman of the Arkansas State Medical Board, saw his main convictions upheld Thursday by a panel of the 8th U.S. Circuit Court of Appeals at St. Louis. But Mann was granted a new sentencing hearing that his attorney said could undo his life sentence.

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Chief U.S. District Judge Brian Miller handed down the life sentence for Mann, 54, on Feb. 28, 2011, after a five-week jury trial in Little Rock in the summer of 2010. The jury convicted the doctor on seven of eight counts he faced, acquitting him of possessing an unregistered shotgun.

The charges stemmed from an investigation into a grenade explosion in West Memphis on the morning of Feb. 4, 2009, that severely injured Dr. Trent Pierce in his driveway.

The charges on which the jury convicted Mann were conspiring to use a weapon of mass destruction, for which he received the life sentence; aiding and abetting the destruction of a vehicle by means of an explosive, for which he received a concurrent 30 years; three firearmpossession charges, for which he was jointly sentenced to a concurrent 10 years; and two charges of conspiring with his wife to obstruct the investigation and to conceal documents, which together added a concurrent five years.

One of the firearm charges concerned 98 40mm highexplosive grenades found buried near Mann’s house in London, near Russellville, a month after the explosion.

The other two charges concerned the same machine gun, which the 8th Circuit panel said constituted double jeopardy, which is unconstitutional. Saying one of the machine-gun charges should have been presented to jurors as a lesser version of the same offense, instead of as a separate charge, the panel directed Miller to throw out one of the gun convictions but left it to Miller to decide which one.

The panel also directed resentencing on all the charges except the two involving Mann’s wife, Sangeeta “Sue” Mann, whose final appeal of her conviction on the obstruction and concealment charges was rejected by the U.S. Supreme Court last week, prompting Miller to order her to begin her yearlong sentence on Jan. 7.

The appellate judges — Lavenski Smith and Bobby Shepherd of Arkansas, and Duane Benton of Kansas City, Mo. — ordered a re-sentencing because they said Miller erred in calculating Mann’s penalty range under federal sentencing guidelines by applying three enhancements that should not have applied.

The panel cited a twolevel obstruction-of-justice enhancement that Miller applied against Mann for directing an assault of a federal inmate, which the panel said wasn’t proven at trial.

They also negated a penalty enhancement that Miller applied because he determined that some of the confiscated grenades found buried near Mann’s home contained altered serial numbers. The panel noted that despite testimony that lot numbers and manufacturing dates had been scraped off some of the grenades, a government witness testified that grenades don’t have serial numbers.

“The sentencing enhancement applies only to firearms which once possessed a serial number which has been removed; it does not apply to firearms that were never equipped with a serial number,” the panel said.

In addition, the panel said Miller should not have applied a “stolen firearms” enhancement for the grenades, because no evidence was presented that the grenades were stolen. Two witnesses had testified only that many military grenades are stolen and end up in civilian hands, but another witness testified that he sold Mann grenades that had been purchased from the National Guard.

“The government conceded prior to sentencing that it had not proven the grenades were stolen; nevertheless, the district court applied the enhancement,” the appellate panel said, noting pointedly that the enhancement was “not harmless.”

On the other hand, the panel upheld Miller’s application of a penalty enhancement on the two main convictions. The judges said Miller could reasonably find that the explosion was intended to kill Pierce, making the offense tantamount to attempted first-degree murder.

The appellate panel also upheld Miller’s application of a six-level enhancement that applies to victims who are considered “a government officer or employee.”

The state Medical Board, of which Pierce was chairman, isn’t financed by the state but carries out the work of the state, making its members “officials” of state government, the panel said.

While U.S. Attorney Chris Thyer touted the appellate court’s affirmation of most of Mann’s convictions, particularly those directly related to the bombing, defense attorney Blake Hendrix of Little Rock said a resentencing may do away with Mann’s life sentence.

“I would anticipate it being something less than the life sentence,” said Hendrix, who, along with attorney Erin Cassinelli, represented Mann at trial and in the appeal.

Hendrix said he took heart in the panel’s finding that the firearms and grenade-possession charges were improperly joined with the bombing and obstruction charges in an indictment against the Manns, even though the panel found that the improper joining didn’t cause unfair prejudice, so they didn’t reverse Miller on that point.

In a 60-page opinion authored by Shepherd, the panel said, “We fail to see how the possession of unregistered grenades that were purchased at least seven years prior to the bombing and were not the type used in the bombing could be considered part of a common scheme or plan to bomb Dr. Pierce.”

The grenades found buried near the Manns’ home were M406 grenades, which require a launching device. The grenade that exploded in Pierce’s driveway, injuring him, was an MK342 hand grenade.

The appellate panel added, “Similarly, Mann’s possession of an unregistered machine gun was entirely unrelated to the bombing and the arson. The indictment did not allege, and the government did not prove, any connection between Mann’s possession of the machine gun and the commission of the bombing.”

The arson refers to the destruction of Pierce’s vehicle during the grenade explosion.

“I anticipate we will be filing a petition asking the full [8th Circuit] court to rehear the issues that were not favorable to us,” Hendrix said Thursday.

The rehearing request and a possible appeal to the U.S. Supreme Court will probably delay a resentencing until spring, he said.

Hendrix said that some “very novel and complicated” issues in the case would make a petition for a writ of certiorari “very likely” to be heard by the Supreme Court.

He was referring to issues about “interstate commerce,” which one panelist, Lavenski Smith, raised in his written dissent from the majority decision to affirm Count 2 — the arson count involving Pierce’s vehicle.

“The government failed to introduce sufficient evidence to convict Mann of maliciously damaging a vehicle used in interstate commerce,” Smith wrote.

Pierce, then 54, was preparing to drive to his clinic in West Memphis, and later to a Medical Board meeting in Little Rock, when he moved a tire that someone had propped against the bumper of his vehicle overnight. The tire was surreptitiously positioned to hold in a pin on the grenade, and the movement of the tire caused the grenade to explode, throwing Pierce into the air and severely damaging his vehicle.

As a result of the explosion, Pierce lost one eye and lost his hearing in one ear, among other injuries. He was hospitalized for months but eventually returned to his medical practice and to his chairmanship of the Medical Board.

In addition to the prison terms imposed on the Manns, Miller ordered Randeep Mann to pay a $100,000 fine and Sue Mann to pay a $50,000 fine. He also ordered Randeep Mann to pay restitution of more than $1 million to cover lost income and medical expenses that Pierce incurred as a result of the bombing.

At the time of the bombing, the board was beginning a new investigation of Mann that threatened to permanently strip him of his medical license. He had already had several run-ins with the board over the prescribing of narcotics to patients who overdosed, and as a result had lost his privilege to prescribe narcotics, which greatly reduced his pain-management practice and, accordingly, his income.

Front Section, Pages 1 on 12/07/2012

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