Bryan Burwell maintains he didn't know the gun he was holding during a bank robbery was capable of automatic fire. The gun, an AK-47, cost him an extra 30 years in prison.
A divided federal appeals court in Washington ruled today that prosecutors were not required to prove at trial that Burwell knew the firearm was a machine gun. The U.S. Court of Appeals for the D.C. Circuit, sitting in a rare session as a full court, upheld the 30-year mandatory prison term for possession of a machine gun. The court ruled 5 to 3 in favor of the U.S. Justice Department.
Judge Janice Rogers Brown, writing for the majority, said there's nothing unfair in the statute. Burwell, the court said, knew he was committing a violent crime when he robbed two banks. It's not unusual, Brown wrote, to punish defendants for unintended consequences of unlawful acts.
"The higher penalties attached to the use of the most dangerous kinds of firearms reflect Congress's desire to create a deterrent commensurate with the increased danger posed by these weapons," Brown said.
A jury in Washington's federal trial court convicted Burwell in 2005 for his role in a robbery conspiracy that Brown said employed "old school tactics," including pistol-whipping and subduing bystanders.
Burwell was sentenced to about 11 years for the robbery scheme. On top of that, the trial judge tacked on an additional 30 years for possession of a machine gun.
The National Association of Criminal Defense Lawyers and the Federal Public Defender's Office supported Burwell in the appeal, saying that prosecutors should have been required to prove Burwell's knowledge that he was brandishing a machine gun during a robbery spree in Washington in 2004.
Robert Becker, a court-appointed lawyer, argued for Burwell in the D.C. Circuit. Becker went up against Stratton Strand, an assistant U.S. Attorney in the District of Columbia.
Writing in dissent, Judge Brett Kavanaugh posed a hypothetical situation in which, under the majority decision, an altar boy can be found guilty both of theft and drug possession for stealing a collection plate that held cash and a bag of cocaine sewn into the lining.
"The presumption of mens rea embodies deeply rooted principles of law and justice that the Supreme Court has emphasized time and again," Kavanaugh wrote in the dissent, joined by Judge David Tatel. "The presumption of mens rea is no mere technicality, but rather implicates 'fundamental and far-reaching' issues, as this case well illustrates."
Kavanaugh wrote in his 51-page dissent—nearly twice as long as the majority opinion—that "the debate over mens rea is not some philosophical or academic exercise. It has major real-world consequences for criminal defendants. And it takes on added significance in an era of often lengthy mandatory minimum sentences."
Judge Judith Rogers, who supported many of the reasons Kavanaugh articulated, said the U.S. Supreme Court has twice said that carrying a machine gun "involves heightened culpability."
One judge, Karen LeCraft Henderson, questioned why the D.C. Circuit was even hearing the case as a full court. Burwell's dispute, the judge said, did not present an issue of exceptional importance.
At trial, the judge said, there was overwhelming evidence that Burwell knew the firearm he carried was a potential machine gun. During one robbery, co-conspirators used AK-47s "repeatedly and with abandon," spraying bullets at a police car that was in pursuit, Henderson said. Burwell joined the gang after that robbery.
Henderson said Burwell's appeal lacked merit, wasting the resources of the court and of the lawyers involved in the case.