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.