(CN) – Lawyers for Florida man convicted of armed robbery in 2015, asked the 11th Circuit on Tuesday the toss his conviction on the grounds he didn’t use a real gun in committing the crime.
Jose Benitez Jr., doesn’t contest the fact he robbed an Iberia Bank in Cape Coral, Florida on Oct. 8, 2014, that he used “what appeared to be gun” during the robbery or that he made off with more than $12,000.
But he contends that at trial it was made absolutely clear that the gun he used was fake, and therefore his conviction on a charge of armed robbery was erroneous as was the harsh sentence he received — more than 10 years in prison, followed by 60 months supervised released.
Appearing before the 11th Circuit in Jacksonville, Florida, where a three-judge panel was hearing cases for the day, Benitez’s attorney, Andrew Greenlee, argued that prosecutors failed to meet the required burden of proving his client used a real gun in the commission of his crime, and unfairly “gutted [Benitez’s] entire defense.”
“[Benitez] based his defense on the understanding he needed to defend himself on the charge of carrying a firearm,” Greenlee said.
But attorney Holly Gershow, representing the United States, said it makes no difference whether the gun could fire or not.
“The grand jury only had to find probable cause,” she said. “The bank employees believed it was a real gun.”
Greenlee noted that Benitez could have pleaded guilty without admitting the use of a firearm.
Instead, he said, he hired his own expert witness to testify the weapon in question was not a firearm. “Firearms are not toys,” the expert told the court.
Greenlee said that if a “jury finds he is guilty of robbery, it should be the lesser charge of bank robbery. [The government] wants it both ways].”
The 11th Circuit did not say when it will rule on the matter.