Bring a machine gun into a bank robbery — you don’t have to fire a single shot — and be prepared for an additional 30-year mandatory minimum prison stint on top of any other punishment. That’s what happened to a man named Bryan Burwell, who was convicted in Washington and is now serving more than 40 years behind bars.
Burwell’s lawyers recently pitched the U.S. Supreme Court on the case, urging the high court to review this issue: Whether prosecutors, at trial, should be required to prove that a person knew a particular gun was capable of automatic fire.
Burwell, according to his attorneys, didn’t know the AK-47 he carried during a robbery in Northeast Washington in 2004 was a machine gun. The bulk of Burwell’s prison sentence flows from the machine gun charge.
Now, the U.S. Justice Department has jumped into the dispute, telling the justices there’s no need to pick up the case. A divided U.S. Court of Appeals for the D.C. Circuit, sitting in a rare full-court session, ruled in favor of the government in August. The government contends the D.C. Circuit decision doesn’t conflict with any earlier rulings in the high court and should be left undisturbed.
"A machine gun presents an ‘immense danger’ even in the hands — indeed, especially in the hands — of one who does not know it will fire automatically," the DOJ’s Elizabeth Collery wrote in the court papers, which were filed in response to Burwell’s petition in the Supreme Court.
Collery said the "moral depravity" of a person who would "thoughtlessly carry a weapon of such vast destructive potential" is perhaps different in kind, but not degree, from the person who carries a machine gun knowingly.
The statutory language at issue discusses whether "the firearm possessed … is a machine gun or a destructive device." DOJ lawyers noted in court papers that the law doesn’t say "knowingly" possessed, unlike in other parts of the statute.
Burwell and the other defendants went to trial in 2005. Prosecutors that summer successfully convinced the trial judge that the defense lawyers should not be allowed to argue that federal law requires the government to prove that the defendant knew the firearm was an automatic weapon.
Sitting as a full court, the D.C. Circuit issued a divided ruling that went against Burwell. Judge Janice Rogers Brown wrote the opinion for the majority.
Brown, quoting from another case, said the machine gun law doesn’t pose a danger of ensnaring "an altar boy [who made] an innocent mistake" because the government must first prove that a person is guilty either of drug trafficking or a violent crime in order for the 30-year penalty to apply.
"The higher penalties attached to the use of the most dangerous kinds of firearms reflect Congress’ desire to create a deterrent commensurate with the increased danger posed by these weapons," Brown wrote.
Writing in dissent, Judge Brett Kavanaugh acknowledged that the law in question — like many federal criminal statutes — doesn’t carry a "mens rea" — criminal intent — requirement. "But the presumption of mens rea means that, unless Congress plainly indicates otherwise, the government must prove the defendant’s mens rea for each element of the offense," Kavanaugh wrote.
Prosecutors, Kavanaugh said, should have been required to prove that Burwell knew the gun he had in his hands was an automatic weapon.
A lawyer for Burwell, Robert Becker, an appellate specialist in Washington, said in the petition in the Supreme Court that his client is "guilty of a serious offense" but that he shouldn’t be convicted for a violation "when he did not have the required guilty intent." (A person who carries a semi-automatic firearm during a robbery faces a 10-year mandatory minimum sentence.)
DOJ lawyers said in their papers in the Supreme Court that the trial record contained "sufficient, indeed overwhelming proof" that Burwell knew he was carrying a machine gun.
Burwell, for instance, joined the robbery team after other members fired their automatic weapons at the police. Burwell’s firearm, prosecutors said, featured a "visible selector switch" with three slots: safe, semi-automatic and automatic. And, lastly, prosecutors noted: Burwell’s firearm had a 75-round drum magazine, making its automatic potential "eye-popping."
Mike Scarcella is a reporter for The National Law Journal, a Legal affiliate based in New York. This article first appeared on The BLT: The Blog of Legal Times. •