« Split Second Circuit panel rejects varied constitutional attacks on NY parole practices | Main | "Former Gov. Don Siegelman sentenced to 78 months in prison" »

August 3, 2012

En banc DC Circuit splits over mens rea required for 30-year gun mandatory minimum

The Blog of Legal Times has this new post about this notable en banc ruling handed down by the DC Circuit. Because all the opinions in the ruling run over 100 pages, I will rely here on The BLT's post provide a summary of the two leading opinions:

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....

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."

August 3, 2012 at 04:08 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference En banc DC Circuit splits over mens rea required for 30-year gun mandatory minimum:


while i agree with the descent about their hypo.....the machine gun was NOT hidden!

Posted by: rodsmith | Aug 3, 2012 5:07:07 PM

Glad to see Brett Kavanagh get this right. He's a good guy.

Posted by: Thinkaboutit | Aug 4, 2012 12:04:37 AM

The mens rea.

Unlawful in our secular nation.

1) In Latin, the tongue of the Catholic Church.

2) Mind reading, a power attributed to God, even by the Medieval Church. Only the dumbass lawyer believes it can be done by man.

3) Copied from the analysis of mortal sin in the Catholic Catechism.

4) Once a useful loophole, when the sole punishment was death, even for minor crime. Now misleading. How do you dumbasses know the hunter shooting another thinking him a deer is any less dangerous than a contract killer hired by the other's wife. The acts and outcomes are identical.

Posted by: Supremacy Claus | Aug 4, 2012 3:48:44 AM

Interesting case. Given thirty years was at stake, some extra degree of concern should be present. I'll remain agnostic on what side is correct here though the split among conservative judges is notable.

Posted by: Joe | Aug 4, 2012 9:13:10 AM

SC, the difference between the acts of the Magoo hunter and the contract killer is that one was an accident and the other a deliberate killing...and that difference -- which strikes me as important -- remains the same whether we speak of it in English or Latin.

Posted by: John K | Aug 4, 2012 10:41:49 AM

Ordell Robbie says about the AK47, "AK-47. The very best there is. When you absolutely, positively got to kill every mf in the room, accept no substitutes."

I do not support a presumption of mens rea. Nevertheless, the first question I have is whether he knew he was holding an AK47. It is my understanding that, unless modified, an AK47 is an automatic weapon, even though it has a fire selector that lets you choose semi automatic or automatic. Once (if) Burwell knew he had an AK47, where is the presumption? Is it presumed that the automatic weapon he possessed was the automatic weapon he possessed?

The opposite would be true where a semi-automatic pistol, for example, is modified to shoot like a machine gun. In other words, the holder of the weapon in this example has no reason to know that he is holding a machine gun.

Posted by: Stanley Feldman | Aug 4, 2012 2:25:03 PM

John K.: That is the belief of the Church. It believed God would read your mind and judge your intent in heaven. Even the church did not believe man could read the minds of criminals.

Half the murderers are legally drunk. Half the murder victims are legally drunk. Some murderers sincerely have no recall of their crime, and are remorseful. Most criminals are impulsive, in general. This is a handicap they did not choose to have. What if the impulsive alcoholic hunter goes home and crashes into a bus of kids going to hemophilia camp? Is his release wise than?

All crimes should be strict liability (only statutory rape is, today, with no intent needed to convict). The decision to release or imprison should be based on the past behaviors. It should be made by members of the executive. They should be liable for their careless decisions to future victims of the defendant, and to the defendant for overly harsh sentencing, outside of professional standards. So a kid kills his parents. He might go home if an honor student without behavior difficulties, but who was abused for years by parents.

You safety is the aim of the criminal law, past behavior has to take priority in any disposition decision.

The overwhelming majority of the public agrees with you and not with me, in my informal sampling of opinion. Like 99% agree with you.

Posted by: Supremacy Claus | Aug 5, 2012 9:26:44 AM

John K.: Trivial quibble. An accident is dropping the gun by mistake. It goes off and kills the other hunter.

The hunter shooting another thinking him a deer (or a real lady putting her wash on a line, wearing white gloves), intentionally raised his gun, aimed it, and intentionally pulled the trigger. The prosecutor will try to infer this intent from the facts of the behavior, in the absence of a confession about inner thoughts, designs, and purposes.

This inference makes a world of difference. In the case of the careless hunter, an insurance settlement is made. In the case of the contract killer, the defendant gets the needle. Given the potential dangerousness of the careless hunter, the inference does not enough substance to support the difference in sentencing.

Posted by: Supremacy Claus | Aug 5, 2012 9:48:14 AM

Thinkaboutit --

I don't know if he got it right, but he is for sure a good guy.

Posted by: Bill Otis | Aug 5, 2012 8:58:04 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB