Robbing a bank is a crime, of course, and there's a solid chance you will go to prison if you are convicted. Add a machine gun into the scheme and the potential punishment jumps to a 30-year mandatory-minimum stint behind bars.
With that amount of time on the line, should prosecutors be required to convince jurors that a robber knew the gun was capable of automatic firing?
The full U.S. Court of Appeals for the D.C. Circuit today took up the issue. One judge, Brett Kavanaugh, called the mandatory-minimum term for a machine gun “fairly extraordinary.”
The eight active D.C. Circuit judges, who sat today in a rare full-court session, are studying the high-profile prosecution of a man named Bryan Burwell.
Earlier, a three-judge panel ruled against Burwell’s challenge of the firearm component of his conviction. At issue is whether the gun provision in question should be treated as a sentence enhancement or whether the crime is a separate offense that requires proof of a defendant's knowledge.
Burwell, who participated in a series of armed robberies in the District of Columbia in 2004, was convicted in U.S. District Court for the District of Columbia and sentenced to more than 40 years in prison. The bulk of his imprisonment stems from the automatic firearm he used in a hold-up.
Prosecutors said Burwell armed himself with a fully automatic, foreign-made AK-47 (pictured at left) during one of the robberies. With the flip of a switch, prosecutors said, a user could turn the weapon into an automatic.
A lawyer for Burwell, Washington solo practitioner Robert Becker, argued today that Congress wanted prosecutors to prove a defendant’s knowledge about firearms. Burwell, Becker also said, did not know the gun was capable of machine gun fire. Another member of the robbery team, Becker said, first acquired the firearm.
Becker tried to convince the court that it should apply the strong presumption against "strict liability" crimes--offenses that do not require prosecutors to prove a defendant's knowledge. He urged the panel to vacate Burwell’s conviction. Burwell, he said, would likely still face a 10-year mandatory minimum sentence.
An assistant U.S. attorney, Stratton Strand, said Congress never intended to force prosecutors to convince jurors that a defendant knew a particular firearm was an automatic weapon. Strand said in court the word “knowingly” doesn’t appear the statute. He insisted the law does not punish innocent conduct.
Congress, he said, wanted to place the burden on a would-be defendant who decides to bring a gun to a robbery. There's always a risk, Stratton said, that the gun used in a robbery is an automatic firearm. Whether or not the robber knows it.
The District of Columbia federal public defender’s office and the National Association of Criminal Defense Lawyers, represented by Brown Rudnick and Miller & Chevalier, supported Burwell in the D.C. Circuit.
Brown Rudnick partner Paul Enzinna said in a brief that the resolution of Burwell’s case “is likely to have a significant effect on the interpretation of other federal criminal statutes that contain no explicit mens rea requirement.”
“Federal criminal statutes, which already number in the thousands, are being enacted at an ever-increasing rate,” the NACDL brief said. “These statutes are often drafted without ‘clarity and specificity’ with regard to” the knowledge requirement.
The appeals court did not immediately rule today.