Bryan Burwell, federal prosecutors contend, ran with a bank robbery team whose members armed themselves with fully automatic firearms to intimidate Washington police during a months-long crime spree in 2004.
A federal trial judge sentenced Burwell to 11 years and three months in prison for his role in the robberies, which received widespread public attention for their violence. For his use of the machine gun — a two-handled, foreign-made AK-47 military rifle — Burwell received an additional 30 years behind bars.
A provision in federal law sets out a mandatory 30-year term for any person who uses an automatic weapon during a robbery. But questions remain: Did Burwell know the gun he brandished during the holdups was capable of shooting automatically? And should prosecutors have been forced to prove Burwell’s knowledge to the jury?
Those questions are central to the case in the U.S. Court of Appeals for the D.C. Circuit, which agreed to take up the issues at a rare en banc hearing on Jan. 30. Burwell’s appeal presents a key test of how judges should interpret criminal laws that don’t address a defendant’s knowledge of a particular aspect of a crime. The case also highlights the ongoing debate over the ever increasing number of criminal statutes that critics contend are being drafted without clarity.
The National Association of Criminal Defense Lawyers and the Federal Public Defender’s Office for the District of Columbia are supporting Burwell in the appeal, urging the full D.C. Circuit to vacate the panel ruling. The April 2011 decision favored prosecutors, who have argued that the machine gun provision is a sentencing factor that judges weigh — not juries. The appeals court upheld Burwell’s conviction.
Burwell’s lawyer, Robert Becker, a Washington solo practitioner, said there is a long-standing and strong presumption against strict liability — violations of the law in which prosecutors do not need to convince jurors about a person’s knowledge.
“That’s what the government is arguing — if it happens to be an automatic weapon, you are stuck,” Becker, a longtime appellate advocate, said. “When it’s a serious crime and serious time is involved, our system is very averse to that kind of thing.”
The law in question was added to the existing criminal statutes in the Firearm Owners Protection Act of 1986. “The higher penalties attached to the use in violent crimes of the most dangerous kinds of firearms reflect Congress’s purpose to provide a deterrent commensurate with the increased danger posed by those weapons,” Assistant U.S. Attorney Stratton Strand, who will argue for the government, said in a D.C. Circuit brief. (A spokesman for the U.S. Attorney’s Office for the District of Columbia declined to comment.)
Adding a knowledge requirement to the machine gun provision, Strand said, “would make it more difficult to prosecute and severely punish individuals who use such firearms in crimes of violence.”
D.C. Circuit Judge Janice Rogers Brown in April described Burwell and his associates as “modern-day bank robbers” who employed “old-school tactics” that included subduing bystanders, pistol-whipping and shooting at the police.
“By the summer of 2004, the robbers had developed a signature style,” Brown wrote in the unanimous three-judge panel decision. “The gang wore bullet-proof vests, masks and gloves, and relied on superior [firepower], preferring to use military weapons like AK-47s” in the hope to keep the authorities at a distance.
In the ruling, Brown and judges Karen LeCraft Henderson and David Tatel — an ideologically diverse panel — rejected Burwell’s claim that prosecutors needed to prove to the jury that Burwell knew the two-handled AK-47 was capable of automatic gunfire.
The circuit judges, citing a drug prosecution the appeals court decided in 1992 called U.S. v. Harris, said “we have squarely held that a defendant need not know the weapon” is a machine gun for the 30-year mandatory prison provision to stand.
Burwell’s appellate lawyer and the criminal defense advocates supporting his position successfully convinced the full appeals court last October to re-examine the panel decision. The U.S. Supreme Court in 2010 in U.S. v. O’Brien effectively overturned the D.C. Circuit in Harris, Becker said. The high court said in the case that the machine gun provision of the law “is an element to be proved to the jury beyond a reasonable doubt” and not a “sentencing factor to be proved to the judge at sentencing.” Still, the court expressly refrained from deciding whether a defendant needs to know the characteristics of a particular weapon.
Prosecutors said the AK-47 firearms used in the holdups functioned in both semi-automatic and automatic settings through a simple flip of a switch. Strand said in court papers that the “sheer size” of the 75-round drum on Burwell’s firearm “would have suggested, even to an uninformed user, that the weapon was capable of automatic firing.”
Becker said there were no markings on the firearms to indicate they were capable of automatic fire and that Burwell himself did not acquire a rifle. “A defendant who does not know the gun he is carrying is an automatic clearly lacks the moral depravity the 30-year sentence was intended to punish,” Becker said.
Brown Rudnick white-collar criminal defense partner Paul Enzinna, who is representing the criminal defense lawyer association in support of Burwell, said he is hopeful the D.C. Circuit decision will help shape how courts determine congressional intent.
“If the en banc court follows what the panel did, it’s a real chipping away of the current state of the law about what you do when a statute is silent on intent,” Enzinna said. “The overarching issue here is whether and how Congress needs to be more clear in enacting statutes about the mental state required to prove a criminal violation.”
Mike Scarcella can be contacted at firstname.lastname@example.org.