There's no doubt Bryan Burwell was carrying a gun during a bank robbery in Washington in 2004. But here are the open questions: Did he know the weapon was capable of automatic fire? Should prosecutors have had to prove any knowledge?
Using a machine gun in certain crimes can tack on an additional 30-year mandatory-minimum prison sentence on top of whatever you get for the underlying offense. In Burwell's case, he's now serving more than 40 years for his role in the armed robbery. The bulk of that time flows from the firearm charge.
Burwell's attorneys are crying foul, arguing that federal prosecutors should be required to convince the jury that a defendant knew a firearm was a machine gun. A divided federal appeals court in Washington sided with the U.S. Justice Department, and now a petition is pending in the U.S. Supreme Court that asks the justices to take a look at the case. DOJ could respond early next year.
In the trial court, Burwell's lawyers said in their Supreme Court papers, "prosecutors purposefully tried Mr. Burwell under the theory that knowledge of the automatic nature of the weapon was not a requirement under the statute." The defense, according to the petition, was denied the chance to argue that prosecutors must show knowledge.
In the Supreme Court, Burwell is represented by Washington solo Robert Becker, Sidley Austin litigation associate Jeremy Bylund and a team from Northwestern University School of Law's Supreme Court clinic.
"Mr. Burwell is guilty of an offense, surely—and a serious offense, at that—but under a faithful reading of this Court's jurisprudence he should not be convicted of an offense when he did not have the required guilty intent," Becker, counsel of record, wrote in the petition.
That raises a question about whether Burwell knew the AK-47 in his hands could shoot rapid-fire with the single squeeze of the trigger. Becker said Burwell didn't purchase the weapons used in a series of bank robberies, and he didn't participate in one of the hold-ups in which co-defendants sprayed automatic fire.
"Moreover, the markings on the AK-47s were in a foreign language and did not even appear to be full words," Becker said in court papers. (Burwell's case doesn't challenge federal restrictions on possession of machine guns.)
Prosecutors said in the D.C. Circuit that the gun in question had a switch with three positions—including one for automatic fire. Civilian semiautomatic rifles, prosecutors said, only come with two options: one for "safe" and the other for "fire."
The government said that even though prosecutors didn't need to convince the jury, there was more than sufficient evidence that showed Burwell knew he was holding a machine gun.
The full D.C. Circuit, sitting in a rare en banc session, ruled in August for the government. Writing for the majority, Judge Janice Rogers Brown rejected Burwell's argument about proof. The court noted that Burwell was committing a violent act—a bank robbery—with a firearm.
The presumption that prosecutors must prove a person's knowledge, the majority said, is only in play to separate innocent from criminal conduct.
"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 wrote.
Judge Brett Kavanaugh, in his dissent, said that under the majority opinion’s analysis, an altar boy is guilty of theft and drug possession for taking a collection bag that contained a "stash of cocaine sewn into the lining." Kavanaugh wrote “the fact the defendant is a 'bad person' who has done 'bad things' does not justify dispensing with the presumption" that prosecutors be required to show a person's criminal intent.
The difficulty of distinguishing between a semi-automatic and an automatic gun, Kavanaugh also said, supports the requirement that prosecutors must prove a defendant's knowledge. The two types of firearms, the judge said, "may appear externally similar if not identical." A person who commits a robbery with a semi-automatic firearm faces a 10-year mandatory minimum sentence, Kavanaugh noted.
The Center on the Administration of Criminal Law, represented by Jenner & Block, this month filed a friend-of-the-court brief in support of Burwell in the Supreme Court litigation.
The knowledge requirement "plays a particularly important role in statutes like the one at issue here, where Congress has deemed that a notably harsh penalty provision will be triggered by a single critical fact," Jenner litigation partner Anthony Barkow, counsel of record, said in the brief.
"When a defendant deliberately selects a machinegun over other potential firearms," the brief said, "there is no question that is a culpable choice meriting higher punishment."
DOJ's response to Burwell's petition--if the government decides to respond at all--is due January 7.