Petitioner Ronald Shamburg, by counsel Steven A. Greenbaum, appeals the order of the Circuit Court of Berkeley County, entered May 4, 2012, sentencing him to incarceration in the West Virginia Penitentiary upon the entry of his plea of guilty to: a determinate term of forty years for first-degree robbery; one to five years for conspiracy to commit robbery; and two to ten years for malicious assault. The State appears by counsel Cheryl K. Saville.
Petitioner was arrested in the early morning hours of July 13, 2011, for the home invasion of Howard L. Strauss, who was severely beaten. Mr. Strauss identified petitioner—who had been employed to perform landscaping work for Mr. Strauss—and two other individuals as his attackers. Each individual confessed.
We went there and we parked and then we all three went up to the door. [A female co-defendant, Jennifer Barnhart] was the one that knocked on the door and I was to the left-hand side of the door and [a male co-defendant, Brian Shamburg,] was to the right-hand side of the door.
her in, Brian went in behind her and that's when the [T]aser come into play, because after he got his phone he started [T]asering him and I hit him like a few times and then we just pretty much kept beating him, beating him, beating on him for nothing.
Somewhere along the line, the money come out of the house and I didn't see it.
. . . Yeah, there was some blood on his face and dripping off his face onto his floor. There was a good bit of blood around.
The State filed a written sentencing recommendation, recommending in part that petitioner serve twenty-eight years in prison for the conviction on the charge of first-degree robbery. At the sentencing hearing, Mr. Strauss read his victim impact statement, relating how petitioner and petitioner's co-defendants planned the attack, took advantage of his trust and physical limitations, and feigned an emergency to gain access to his home. He then told how upon entry they immediately used a Taser gun to immobilize him and repeatedly beat and kicked him. He said that one of his attackers tried to strangle him. He then explained that the bones under his eyes were fractured in the attack and that he temporarily lost sight and suffered blurred vision. He said one tooth was broken, requiring dental work, and he had numbness in his face. He also told the court that he continued to suffer psychological issues, and that he did not feel safe in his own home. Mr. Strauss had to drive himself to the hospital after the attack because his attackers took his cell phone and he had no means to contact emergency services.
At the conclusion of the sentencing hearing, the circuit court sentenced petitioner as noted above. This appeal followed. On appeal, petitioner asserts three assignments of error: that the circuit court failed to comply with the judicial disqualification provisions of Rule 17.01 of the West Virginia Trial Court Rules, thereby rendering the entry of his plea and the subsequent sentence void; that the circuit court placed excessive emphasis on the victim impact statement; and that the sentence of forty years in prison for first-degree robbery violates the West Virginia constitutional prohibition of cruel and unusual punishment because it is disproportionate to the nature of the offense. This Court reviews sentencing orders "under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).
Upon a proper disqualification motion, as set forth in this rule, a judge shall be disqualified from a proceeding only where the judge's impartiality might reasonably be questioned in accordance with the principles established in Canon 3(E)(1) of the Code of Judicial Conduct.
(a) In any proceeding, any party may file a written motion for disqualification of a judge within thirty (30) days after discovering the ground for disqualification. The motion shall be addressed to the judge whose disqualification is sought and be filed with the circuit clerk at least seven (7) days in advance of any date set for a non-trial proceeding in the case or at least twenty-one (21) days in advance of any trial date set in the case . . . .
(1) proceed no further in the matter . . . .
Petitioner's motion for disqualification was filed in the circuit court on January 13, 2012, on the ground that the victim was a former Berkeley County Commissioner and "upon information, [petitioner] believes that each of the [j]udges in this [j]udicial [c]ircuit previously had regular and recurring contact with Mr. Strauss, by virtue of his former position as [c]ounty [c]ommissioner and [p]resident of the County Commission of Berkeley County. . ." Petitioner subsequently entered his plea agreement with the State and notified the court that he wished to withdraw his motion for disqualification so the court could take his plea. The court set a hearing on petitioner's change of plea, and it began the hearing by informing the parties that it had received from defense counsel a letter withdrawing the motion for disqualification. Defense counsel confirmed that the motion for disqualification had been filed prophylactically, and the court said, "All right. Unless I receive something in writing stating otherwise, I'll assume it's remaining withdrawn . . . as we move forward."
The motion for disqualification was not transmitted to the Chief Justice of this Court.
[a]s a general rule, an unconditional plea of guilty or nolo contendere, intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings. Although a defendant may still challenge the sufficiency of the indictment or other defects bearing directly upon the State's authority to compel the defendant to answer to charges in court, claims of nonjurisdictional defects in the proceedings, such as unlawfully obtained evidence and illegal detention, generally will not survive the plea.
THE COURT: Do you further understand that you will be giving up any claim that this [c]ourt, the [j]udge, me, you will be giving up any claim that I have not treated you fairly?
THE COURT: Do you understand that if you persist in your pleas of guilty and the same are accepted by the [c]ourt, that you will be just as convicted of the crimes you plead guilty to as if a jury had returned lawful verdicts of guilty against you?
THE COURT: However, if you pursue in your right to have a trial and you are convicted, there could be different grounds for appeal. On the other hand, if you are convicted on your pleas of guilty, your right to appeal those convictions will be much more limited. Do you understand?
The record thus demonstrates that the plea was intelligently and voluntarily made. We need not consider, however, petitioner's claim that the court was divested of jurisdiction upon the filing of the motion for disqualification because the court took no further action in the case until accepting withdrawal of the motion. Though petitioner argues that Rule 17.01 absolutely prohibits a circuit court judge from proceeding once a motion is filed, it is disingenuous for petitioner to effect the withdrawal of his own motion by representing to the court that the motion was the product only of "an abundance of caution," then call "foul" upon imposition of the sentence. We recognize, of course, that a jurisdictional defect, if one exists, cannot be waived. State v. Tommy Y., Jr., 219 W.Va. 530, 637 S.E.2d 628 (2006) (citing Franklin D. Cleckley, Handbook on West Virginia Criminal Procedure, p. I-687 (1993)). However, we view petitioner's withdrawal as an acknowledgment that there was an insufficient basis for the motion when filed, particularly because there is no evidence in the record of an actual conflict of the presiding circuit court judge. Indeed, the motion suggested that "each of the [j]udges" in the circuit knew the victim well and were "concerned with being re-elected to the bench by the same voting populace which elected Mr. Strauss to his former position." In light of the lack of support for the motion to disqualify, we find that the error, if any, in permitting petitioner to withdraw the motion, was harmless. See Shenandoah Sales & Service, Inc. v. Assessor of Jefferson County, 228 W.Va. 762, 772, 724 S.E.2d 733, 743 (2012).
In declining to address this question, we also will not consider whether the motion was of any effect, given that it was likely untimely. Rule 17.01 requires that "any party may file a written motion for disqualification of a judge within thirty . . . days after discovering the ground for disqualification." The State charges, and petitioner does not dispute, that petitioner was aware of his victim's status as a former county commissioner as early as September of 2011. The motion to disqualify was not filed until January of 2012. Petitioner argues that the time standard of Rule 17.01, because it employs the word "may," is discretionary. He does not acknowledge the more-likely possibility that it is the filing of the motion itself that is discretionary, but the time limit, clearly set out in the rule, is firm.
We turn to the second assignment of error, in which petitioner argues that the circuit court placed undue emphasis on Mr. Strauss's victim impact statement. The circuit court was obligated to consider the statement to some degree. West Virginia Code § 61-11A-3(a) provides as follows: "In every case in which a presentence report is ordered by the court, such presentence report shall contain a victim impact statement unless the court orders otherwise, if the defendant, in committing a felony or misdemeanor, caused physical, psychological or economic injury or death of the victim." The statement is statutorily required to include "a description of the nature and extent of any physical or psychological injury suffered by the victim as a result of the offense . . . ." See W.Va. Code § 61-11A-3(b). We perceive no evidence that the degree of consideration exceeded that contemplated by our statute.
As with his first assignment of error, petitioner supports this second assignment of error, in part, with the argument that the circuit court displayed unsuitable "sensitivity" to the victim. But the transcript of the sentencing hearing belies this argument. The court explained that it had taken into consideration statements of petitioner's former middle school teacher, petitioner's mother, and Dr. Edward Grove, a retired minister who indicated that petitioner was a good candidate for rehabilitation. The court also emphasized a probation officer's opinion that petitioner had shown no remorse for his actions. And while the court did refer to some statements made by Mr. Strauss, the court focused on the circumstances of the crime, not the opinion or recommendation of the victim. The details provided by Mr. Strauss were consistent with the admission offered by petitioner at the plea hearing: Petitioner and his co-defendants planned to rob Mr. Strauss, took advantage of his willingness to assist after they manufactured a fictitious emergency, then attacked their victim with a Taser gun and beat him "unmercifully." Petitioner argues that Mr. Strauss provided the court with "misinformation," but the court relied on the investigating state trooper's description of the "large amount of blood" found throughout the victim's home, as well as the "graphic and compelling" photographs taken immediately after the attack. Furthermore, though petitioner disputes the characterization that his victim was "left for dead," it is undisputed that the attackers took their victim's phone, leaving him unable to call for help. It is apparent on the face of the record that the circuit court properly focused upon the sentencing criteria and the nature of the crime, and did not place excessive emphasis on the victim impact statement.
Petitioner does not assign as error the circuit court's denial of his motion for bond modification, but he does devote a significant portion of his brief to the hearings and subsequent order addressing that motion. To the extent that petitioner relates those events as evidence of bias, we find none, and we note that the court actually afforded petitioner two hearings and careful consideration before denying the motion. This crime was shocking, and it was not unreasonable for the court to order a probation suitability report or ultimately find that a $105,000, cash-only bond was not excessive.
Finally, we address petitioner's claim that his sentence for first-degree robbery was cruel and unusual in that it was disproportionate to the crime he committed. In Syllabus Point 8 of State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980), we recognized: "Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: 'Penalties shall be proportioned to the character and degree of the offence.'" In Syllabus Point 4 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981), this Court stated: "While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Inasmuch as petitioner challenges his sentence for first-degree robbery, and that charging statute does not affix a maximum limit, we consider whether the punishment "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. . ." thereby violating the applicable constitutional provision. State v. Booth, 224 W.Va. 307, 314, 685 S.E.2d 701, 708 (2009).
The forty-year sentence neither shocks the conscience nor is disproportionate given the nature of the offense. Petitioner attempts to differentiate himself from other violent offenders that have come before this Court (See Booth, 224 W.Va. at 314 n.11, 685 S.E.2d at 709 n.11) by arguing that he does not have an extensive criminal history, that his robbery offense was not committed in combination with "other serious felony offenses," and that he did not use a firearm. We find these arguments unpersuasive in light of the cold and calculating nature of petitioner's actions that was apparent to the circuit court. Petitioner and his cohorts planned a robbery of an individual who had given petitioner employment. They concocted a scheme wherein they preyed upon the victim's willingness to provide help, and forced their way into his home in the middle of the night. As the circuit court pointed out, the three easily could have restrained the victim, but instead repeatedly attacked him with a Taser gun and savagely beat him. Petitioner himself told the court, ". . . then we just pretty much kept beating him, beating him, beating on him for nothing." In the end, petitioner and the others left their victim bloodied on the floor of his own home, with lasting physical and psychological impairment, taking with them his only means of calling for help. It was not unreasonable for the circuit court to conclude that petitioner left his victim for dead.
W.Va. Code § 61-2-12(a) (2000) (Repl. Vol. 2010).


FindACase | Petrosino v. Stearn's Products, Inc.
Petrosino v. Stearn's Products, Inc.
STEARN'S PRODUCTS, INC. D/B/A DERAE®, Defendants.
Plaintiff Elizabeth Petrosino, on behalf of herself and others similarly situated, commenced this action against Steam's Products, Inc., D/B/A Dera E®. (See Amended Compl., ECF No. 19.) Plaintiff brings claims sounding in: (1) violation of New York General Business Law § 349; (2) violation of New York General Business Law § 350; (3) breach of express warranty; (4) violation of state consumer protection statutes; and (5) injunctive relief. Before the Court are Defendant's Motion to Dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), and Defendant's Motion to Stay the case pursuant to the primary jurisdiction doctrine. For the following reasons, Defendant's Motion to Dismiss is GRANTED in part and DENIED in part with leave to amend. The Motion to Stay is DENIED in its entirety.
Plaintiff commenced this putative class action suit on August 31, 2016, in the Supreme Court of the State of New York, County of Dutchess, (Notice of Removal, Exh. A, Complaint, ECF No. 1) claiming that Defendant allegedly uses deceptive and misleading labeling on their cosmetic products. (Amended Compl. (“Compl.”) ¶ 1, ECF No. 19.) Defendant removed this action on October 3, 2016 pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). (Notice of Removal ¶ 2.) On December 1, 2016, Plaintiff filed an Amended Complaint seeking injunctive relief, punitive damages and claiming violations of New York General Business Law (“GBL”) §§ 349 and 350, breach of express warranty, and violations of the consumer protection statues of all fifty states.
On a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), dismissal of a case is proper “when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). A plaintiff has the burden of proving subject matter jurisdiction by preponderance of the evidence. Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012); Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova, 201 F.3d at 113). “‘[J]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'” Morrison, 547 F.3d at 170 (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)).
On a motion to dismiss for “failure to state a claim upon which relief can be granted, ” pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal is proper unless the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679.
When there are well-pleaded factual allegations in the complaint, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. A claim is facially plausible when the factual content pleaded allows a court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Ultimately, determining whether a complaint states a facially plausible claim upon which relief may be granted must be “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
Defendant moves to dismiss the Amended Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The Court takes the arguments and claims in turn. Defendant's motion is denied.
A plaintiff fulfills the federal constitutional requirements for Article III standing by alleging an actual case or controversy. Buonasera v. Honest Co., Inc., 208 F.Supp.3d 555, 564 (S.D.N.Y. 2016). In order to satisfy this jurisdictional requirement, “(1) the plaintiff must have suffered an injury-in-fact; (2) there must be a causal connection between the injury and the conduct at issue; and (3) the injury must be likely to be redressed by a favorable decision.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016) (quoting Jewish People for the Betterment of Westhampton Beach v. Vill. of Westhampton Beach, 778 F.3d 390, 394 (2d Cir. 2015)). Plaintiff must demonstrate standing for each claim and form of relief sought. Id. A named Plaintiff seeking to represent a class must abide by these same standing requirements. Id. (citing Lewis v. Casey, 518 U.S. 343, 357 (1996)).


text:
U.S. Supreme Court ruled on a presidential immigration order and a challenge to use of race in the University of Texas’ admission process.
The U.S. Supreme Court on Thursday morning upheld race as a factor in college admissions and denied President Obama’s effort to allow some undocumented immigrants to obtain work permits to stay in the United States.
Originating from two Texas cases before the court, the decisions will directly impact millions of Americans.
In the first decision issued Thursday, the court upheld the University of Texas policy that uses students’ race as a factor in determining admissions, ruling that in limited instances, race can be used to promote a diverse student body. The case is Fisher v. University of Texas at Austin.
In the second, United States v. Texas, the Supreme Court split, 4-4, effectively leaving the lower court’s ruling in place, ending protection granted by the Obama administration for about 11 million immigrants via the Deferred Action for Parents of Americans (DAPA). The president wanted to allow undocumented immigrants whose children were born in the United States to apply for work permits and temporary residency.
President Barack Obama expressed disappointment in the DAPA ruling.
A decision involving a third Texas case, focused on abortion rights and regulations for abortion clinics and doctors, is pending and is expected before the end of June.
Together, these three cases deal with some of the United States’ most vexing, contentious issues — abortion, illegal immigration and affirmative action.
Due to the sudden and untimely death of Justice Antonin Scalia, only eight justices weighed in on these cases. Coincidentally, Scalia died while vacationing in Texas. In the event of a 4-4 decision, the ruling issued by the lower court will stand. (The college admissions case was decided by seven justices; Justice Elena Kagan excused herself due to a conflict.) Scalia’s absence, however, likely did not affect the outcome of United States v. Texas.
These decisions hold far-reaching implications for the American people. And that import comes with intense emotions among advocates on opposing sides of the abortion rights, undocumented immigrant and affirmative action questions.
Demonstrators have gathered in Washington, D.C, to make their voices heard on the matter of Whole Woman’s Health v. Hellerstedt, which was argued before the court on March 2, 2016. In 2013, Texas passed the nation’s strictest regulations on abortion providers. The law requires doctors to have admitting privileges at a hospital 30 miles from his or her clinic, and requires clinics to meet the same standards as ambulatory surgical centers.
Because those standards cannot be met in about 20 percent of the state’s counties, the law dramatically reduces a woman’s access to abortion providers.
The lawsuit challenges the constitutionality of those provisions in the law.
The state of Texas challenged the Deferred Action for Parents of Americans, announced in November 2014, that allows undocumented immigrants with U.S.-born children to apply for three-year work permits enabling them to stay in the United States. United States v. Texas was argued before the Supreme Court on April 18, 2016.
The federal government argued the state had no standing to challenge an executive order. Nonetheless, a federal judge with anti-immigration leanings granted an injunction requested by GOP lawmakers in Texas to stop implementation of the policy.
Thursday’s decision effectively nullifies the president’s executive order.
Does a university need to consider race to achieve a diverse student body? That was the question at the heart of Fisher v. University of Texas at Austin, which was argued before the Supreme Court on Dec. 9, 2015. The justices ultimately decided in favor of the university.
Abigail Fisher, of Sugar Land, Texas, was denied admission to the university and accused the school of preferential treatment for some minority college applicants.
Her entire family had gone to school at UT and she said she’d always dreamed of going there, too. The university countered that Fisher lacked the academic qualifications for admittance regardless of any affirmative action policy. Most of the students with lower grades than Fisher who were granted admission were white.
Fisher was recruited by an activist to take her case to court. The case reached the High Court in 2013 and was sent back to the lower courts for review.

matches: v. v. v. v. v. v.


text:
In re Sup. Ct. Comm. on Model Jury Instructions-Civ.
In re Guardianship of S.H.
Scottsdale Ins. Co. v. Morrow Valley Land Co.
In re Dist. Ct. Resource Assessment Bd.
McMillan v. Live Nation Entm't, Inc.
Miller v. Ark. Dep't of Human Servs.
Richard v. Union Pac. R.R. Co.
Williams v. Helena Reg'l Med. Ctr.
Fluker v. Helena W.-Helena Pub. Sch. Dist.
City of Clinton v. S. Paramedic Servs., Inc.
Mann v. Ark. Dep't of Human Servs.
Hotfoot Logistics LLC v. Shipping Point Mktg., Inc.
In re Admin. Order No. 19-Proposed Amends.
In re Ark. R. Crim. P.
City of Clinton v. S. Paramedic Servs. Inc.
Paulino v. QHG of Springdale, Inc.
Ark. Dep't of Human Servs. v. Civitan Ctr., Inc.
In re Rules of Civ. P.
In re Ark. Continuing Legal Education Bd.

matches: v. v. v. v. v. v. v. v. v. v. v. v.


§ 219-2 License required; exceptions.
§ 219-3 Application for license.
§ 219-4 Investigation; issuance of license.
§ 219-6 Veterans; exemptions from fees.
§ 219-7 Issuance of license plates and badge.
§ 219-8 Transfer of license or badge prohibited.
§ 219-9 Operation from stationary locations and in congested areas.
§ 219-11 Use of sound devices or flashing lights.
§ 219-12 Denial, suspension or revocation of license.
§ 219-14 Display of license upon request.
§ 219-15 Maintenance of records.
§ 219-16 Violations and penalties.
§ 219-19 Application for license.
§ 219-21 Veterans; exemptions from fees.
§ 219-22 Investigation; issuance of license.
§ 219-23 Filing of surety bond.
§ 219-24 Display of license upon request.
§ 219-26 Maintenance of records.
§ 219-27 Violations and penalties.
§ 219-29 License required; exceptions.
§ 219-30 Open-air sales from temporary structures.
§ 219-31 Application for license for open-air sales.
§ 219-32 Application for open-air sales by established merchant.
§ 219-33 Time limit for application.
§ 219-34 Investigation; issuance of license.
§ 219-35 Duration of license.
§ 219-37 Appointment of City to receive process.
§ 219-38 Posted of license; wearing of identification.
§ 219-40 Sound devices prohibited.
§ 219-42 Maintenance of records.
§ 219-43 Revocation of license; notice and hearing.
§ 219-45 Compliance with applicable zoning requirements.
§ 219-46 Nuisance per se.
§ 219-47 Violations and penalties.
§ 219-50 Permitted solicitation; frequency of solicitation or standing.
§ 219-53 Solicitation by minors prohibited.
§ 219-54 Objects carried restricted.
§ 219-56 Solicitation during adverse weather conditions prohibited.
§ 219-57 Solicitation permitted during daylight hours only.
§ 219-58 Work zone solicitation prohibited.
§ 219-59 Working traffic signals required.
Christmas tree sales — See Ch. 103.
Ice cream vending vehicles — See Ch. 176.
Noise made by hawkers and peddlers — See Ch. 203, § 203-3.
Vending and peddling in parks — See Ch. 215.
Temporary open-air sales — See Ch. 248, Art. I.


text:
Before COX, WILSON and GIBSON*., Circuit Judges.
Anthony Swatzie appeals his conviction and sentence for possession of cocaine base and cocaine with intent to distribute, in violation of 21 U.S.C. 841(a). His appeal presents the issue whether, in light of Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), it was plain error for the district court to sentence Swatzie according to its finding, by a preponderance of the evidence, that Swatzie possessed the right kind and sufficient amount of drugs to subject him to an heightened statutory maximum sentence. We affirm.
According to the trial evidence - which was uncontradicted, because the defense offered no evidence - Swatzie, who served as a confidential informant to the Florida Department of Law Enforcement, was also selling powder and crack cocaine on a regular basis from at least Thanksgiving 1998 to the time of his arrest in July 1999. Swatzie came to the authorities' attention by selling powder cocaine to another confidential informant, David Lowe. Upon Swatzie's arrest at his home, Swatzie permitted law enforcement officers to search his house. Swatzie offered to cooperate, directed officers to drugs and currency in his bedroom, and denied that his wife (the other resident of the house) was involved in drug dealing. Among the drugs found in the bedroom were 21.1 gm of cocaine base and 135.9 gm of cocaine powder. Swatzie confessed to buying powder cocaine from South Florida and then cooking some of it into crack cookies for a regular customer.
The indictment charged that Swatzie "did knowingly and intentionally possess with intent to distribute cocaine base, commonly known as `crack cocaine,' and cocaine hydrochloride, controlled substances, in violation of Title 21, United States Code, Sections 841(a) and (b)(1)(B)." (R.1-1 at 1.) The jury was instructed that it could find Swatzie guilty of the charged offense if "the Defendant knowingly and willfully possessed cocaine base or cocaine hydrochloride as charged" and "the Defendant possessed the substance with the intent to distribute it." (R.1-17 at 10.) The jury was not told what 21 U.S.C. 841(b)(1)(B) was (it is the section imposing enhanced statutory sentencing ranges for certain kinds and quantities of drugs possessed), and the court did not ask the jury to find either what kind of cocaine Swatzie possessed or how much. Swatzie did not object to the indictment or the jury charge, agreeing with the Government that the jury charge was (except in respects not relevant here) "fine." (R.3 at 4.) Nor did Swatzie ask for a special verdict of any kind.
Swatzie did, however, put the amount of and form of cocaine at issue by objecting to the presentence report's findings as to these two facts. But at sentencing Swatzie's counsel characterized this objection only "as a matter of preserving that issue, if Mr. Swatzie takes an appeal," and offered no evidence or argument except to say that "Mr. Swatzie has always maintained that he didn't make those statements," probably referring to Swatzie's statement to authorities that he had cooked up the crack found in his house for a habitual customer. (R.4 at 3.) The district court overruled Swatzie's objection and found, by a preponderance of the evidence offered at trial and in reliance on the presentence investigation report, that Swatzie was responsible for 1330 gm of cocaine powder and 136 gm of crack. This amount included estimates of amounts involved in prior deals described by witnesses, as well as the amounts found in Swatzie's house.
The district court adopted the presentence report's calculation of Swatzie's sentence, which was as follows: Swatzie-who has many prior felony drug convictions-is a "career offender," and as such his offense level is based on the statutory maximum sentence for his offense. U.S.S.G. 4B1.1. The crack amount found by the district court alone largely exceeds the floor necessary under 21 U.S.C. 841(b)(1)(B) to make Swatzie eligible for a statutory maximum sentence of life in prison. Because the statutory maximum here is life, the career-offender guideline gives Swatzie an offense level of 37. See id. 4B1.1(A). An offense level of 37 and Swatzie's criminal history category of VI yield a sentencing range of 360 months to life. The district court sentenced Swatzie to life in prison. Swatzie appeals his conviction and sentence.
Swatzie's second contention is closely related to the first. He argues that the quantity of drugs found by the district court permitted the court to impose a sentence above the lowest statutory maximum for possession with intent to distribute. According to Swatzie, these facts were therefore elements of the crime, and they should thus have appeared in the indictment and been addressed by a jury instruction requiring the jury to find how much of which drugs Swatzie possessed.
Swatzie's issues are so closely intertwined as to be inseparable. Both are about the proper procedure for establishing facts that permit the imposition of a sentence under 21 U.S.C. 841(b) that exceeds the lowest statutory maximum for possession of drugs with intent to distribute; the only distinction between the issues is that the facts - type of drugs and quantity of drugs - are different. We therefore treat Swatzie's two issues together as a single issue: Whether the kind of drugs that Swatzie possessed with intent to distribute, and the quantities of those drugs that he possessed, may properly be omitted from the indictment and found by the court by a preponderance of the evidence.
Our resolution of Swatzie's case, however, has another overlay of analysis. Swatzie did not timely object to the indictment or the jury instructions, nor did he request a special verdict. As he admits, Fed. R. Crim. P. 52(b) thus limits our review to one for plain error only. See United Stated v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998).
"Before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights. . . . If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1548-49 (1997). We consider each element of this test seriatim and conclude that we must affirm.
A. Was there error, and was it plain?
Swatzie tackles the first elements of the plain-error test mostly in reliance on the recent case of Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), which issued after the district court had sentenced Swatzie, and which according to Swatzie plainly makes drug quantity and type elements of the crime that must be alleged in the indictment, submitted to the jury, and found beyond a reasonable doubt. Apprendi was convicted in a New Jersey court on a plea of guilty to possession of a firearm for an unlawful purpose. The statutory sentencing range for that offense is five to ten years, but New Jersey has a separate "hate crime" statute that, upon a finding of a purpose of discriminatory intimidation in committing the crime, imposes a sentencing range of ten to twenty years. The New Jersey court held a post-plea evidentiary hearing and found that Apprendi's conduct - firing into a black family's house - was, by a preponderance of the evidence, for the purpose of racist intimidation. It accordingly sentenced Apprendi to 12 years in prison. See id. at 2352. The Supreme Court declared this procedure to be in violation of the Sixth and Fourteenth Amendments because it removed an element of the enhanced- sentence crime from the jury's consideration. The rule that the Sixth and Fourteenth Amendments impose, the Court held, is that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 2362-63. Apprendi did not argue that his indictment unconstitutionally omitted the sentence- enhancing intent, and the Supreme Court "thus [did] not address the indictment question separately." Id. at 2356 n.3.
The Government's initial brief merely "[a]ssum[ed] arguendo" that Apprendi's rule applied to enhanced drug sentences imposed under 21 U.S.C. 841(b)(1)(B). (Gov't Br. at 7.) But under intervening Department of Justice instructions, the Government filed a "Notice of Change of Position," announcing that it conceded that Apprendi applied to sentences imposed under 841, and acknowledged at oral argument that "it was hard to get up with a straight face" and argue that Apprendi did not apply here. The Government did, however, contend that any suggestion in Apprendi that the indictment needed to refer to the sentence- increasing facts was not binding because the Court did not directly address the question.
We prefer in this case to take the Government's first recommended approach as to issues surrounding both the failure to submit the drug issues to the jury and the sufficiency of the indictment: we assume arguendo that there was error, and that it was plain. There are at least two reasons not to answer those questions now. First, holdings on these questions are not necessary to our affirmance of Swatzie's conviction and sentence; for the reasons we discuss below, Swatzie has not satisfied the other two parts of the plain-error test. Second, we are not fully informed. Because of the Government's concession, both sides of the jury-submission issue have not been addressed. Moreover, because the Government did not consider the sufficiency of the indictment to be properly raised in Swatzie's brief - while we construe Swatzie's brief liberally and consider the issue raised, Swatzie's treatment of the issue was indeed cursory, at best - the Government has not responded to Swatzie's contentions in writing. It would not be prudent for us to resolve such important questions on such briefing, especially when there are other cases pending in which the Government has fully briefed Apprendi's effect on indictments alleging 841 offenses, and when agreeing with Swatzie would require us to declare circuit precedent overruled. See United States v. Hester, 199 F.3d 1287, 1291 (11th Cir. 2000) (amount of drugs not element of offense); United States v. Perez, 960 F.2d 1569, 1574 (11th Cir. 1992) (indictment need not allege drug quantity for enhanced sentence to apply).
Thus, merely assuming arguendo that Swatzie could show error, and that it would be plain, we turn to the other two parts of the plain-error test.
B. Did the error affect Swatzie's substantial rights?
Whether or not error occurred, Swatzie cannot show either that it had an effect on his substantial rights or sufficient reason for us to exercise our rarely-invoked power to correct plain error, and he thus cannot satisfy either element three or element four of the plain-error test. Swatzie was arrested in a sting and, upon leading authorities to the 100-plus grams of cocaine and twenty-odd grams of cocaine base in his house, admitted to possession of the cocaine base and cocaine hydrochloride. He offered no evidence to dispute whether he had admitted to possessing the cocaine, even when given the opportunity to do so at sentencing, and did not seek to discredit the sources of the evidence against him.3 We can fairly say in these circumstances that there was no serious dispute that Swatzie possessed at least 5 gm of cocaine base, enough for the increased statutory maximum, and no evidentiary basis existed for the jury reasonably to have found that Swatzie possessed drugs with intent to distribute, but did not possess both cocaine base and powder at least in the amounts the authorities bagged at Swatzie's house. And as long as the jury found that Swatzie possessed 5 gm of cocaine base with intent to distribute, Swatzie's sentence - both under 841 and, incidentally, under the Guidelines - would have been identical.
Thus, the failure to submit the issues of the kind and quantity of drugs to the jury, or mention them in the indictment, could not have "affected the outcome of the district court proceedings." United States v. Olano, 507 U.S. 725, 735, 113 S. Ct. 1770, 1778 (1993). Swatzie counters, though, that when the district court wrongly takes an issue from the jury, and decides it according to a lower burden of proof, we must presume prejudice. We disagree. Swatzie's best case is Sullivan v. Louisiana, which held that the failure to instruct the jury in a constitutionally sufficient reasonable-doubt standard can never be harmless beyond a reasonable doubt. 508 U.S. 275, 281, 113 S. Ct. 2078, 2082 (1993). For two reasons, Sullivan does not govern this case.
First, the Supreme Court has refused to extend Sullivan's presumption of prejudice to the omission of an element from the jury instructions. See Neder v. United States, 119 S. Ct. 1827, 1834-36 (1999) (materiality element of fraud offense improperly determined by judge rather than jury). The error in Neder is in material respects indistinguishable from error under Apprendi: A fact issue due to be resolved by a jury using a reasonable-doubt standard instead went to the judge, who used a less exacting standard, but because the error is limited to a single element, we have a basis on which to imagine what a fully instructed jury would have done. See id. at 1833, 1837.
Second, Sullivan was apparently not a plain-error case. The standard for prejudice in plain-error review, regardless of the error's constitutional nature, is not whether the error is harmless beyond a reasonable doubt (the harmless-error standard for preserved constitutional error4. ), but Fed. R. Crim. P. 52(a)'s ordinary harmless error standard, which is whether the error actually "had substantial influence" on the outcome, or leaves us in "grave doubt" that it did (meaning that "the matter is so evenly balanced that [the judge] feels himself in virtual equipoise"), O'Neal v. McAninch, 513 U.S. 432, 437- 38, 435, 115 S. Ct. 992, 995, 994 (1995) (quoting in part Kotteakos v. United States, 328 U.S. 750, 764, 66 S. Ct. 1239, 1248 (1946)). See Olano, 507 U.S. at 734, 113 S. Ct. at 1778. Given our ability to size up a dispute over drug quantity and type - or rather to note its absence - we can confidently say that whatever the circumstances in some cases may be, there is not a grave doubt here about the lack of effect.
C. Should we exercise our discretion to notice the plain error?
Even if Swatzie were right, nonetheless, that we must presume an effect on his substantial rights in these circumstances, we would still have to ask whether we should exercise our plain- error discretion to correct an error that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392 (1936). When the evidence of an element wrongly taken from the jury is "overwhelming," "that question must be answered in the negative." Johnson, 520 U.S. 461, 470, 117 S. Ct. 1544, 1550 (1997). As we explained above, a jury could not in this state of evidence have concluded that Swatzie possessed a controlled substance with intent to distribute, but did not possess at least 5 gm of cocaine base. Nor has Swatzie hinted that, for lack of notice from the indictment, he had difficulty disputing the issues of either the kind of drugs or the quantity. Reversing the judgment in these circumstances would thus itself "bestir the public to ridicule" the judicial process. Id. at 470, 117 S. Ct. at 1550 (quoting R. Traynor, The Riddle of Harmless Error 50 (1970)). So even were there plain error here presumptively affecting Swatzie's substantial rights, we would decline to notice it.
For the foregoing reasons, Swatzie's conviction and sentence are affirmed.
Honorable John R. Gibson, U. S. Circuit Judge for the Eighth Circuit, sitting by designation.
Swatzie also argues that the district court erred in instructing the jury in an aiding-and-abetting theory though none appeared in the indictment. The district court did not err, plainly or otherwise. See United States v. Mu±oz, 681 F.2d 1372, 1375 (11th Cir. 1982) ("There is no requirement that the aiding and abetting statute be cited in the indictment for conviction to be obtained upon a theory of aiding and abetting.").
This is the statutory maximum imposed by 21 U.S.C. 841(b)(1)(C) on defendants with a prior felony drug conviction who possess less than 500 gm of cocaine powder.
At sentencing Swatzie did, in conclusory fashion, challenge the amount and type of drugs attributed to him. In similar circumstances when the omitted element of the offense was the materiality of a misrepresentation, the Supreme Court did not consider such a conclusory challenge enough to create a real dispute, and we reach the same conclusion. See Johnson v. United States, 520 U.S. 461, 470 n.2, 117 S. Ct. 1544, 1550 n.1 (1997) (On Rule 50 motion, defendant said, "I would argue that the element of materiality has been insufficiently proven and that the Court ought to grant a judgment of acquittal.").
See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967).

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Defendant, who was charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq., including Possession with Intent to Deliver (“PWID”) relating to his presence in a kitchen in front of a pot of boiling water next to a measuring cup and a digital scale containing a large quantity of cocaine at an apartment leased by Michael Pifath (“Lessor”), filed a Pretrial Motion seeking suppression of evidence and a Petition for Habeas Corpus relief challenging the Commonwealth’s establishment of a prima facie case as to the PWID charge.
1. Warnings pursuant to Miranda v. Arizona, 384 US 436 (1966), are required when an individual is subject to custodial interrogation.
2. A custodial interrogation is questioning initiated by law enforcement authorities in which law enforcement should know that the words or actions reasonably are likely to elicit an incriminating response from the defendant.
3. In considering whether a defendant has waived his or her Miranda rights, the court should consider whether the waiver was voluntary in the sense that the choice was not the end of governmental pressure and the waiver was knowing and intelligent in the sense that it was made with full comprehension of both the nature of the right being abandoned and the consequence of the choice.
4. Voluntariness of a waiver is determined from the totality of the circumstances surrounding the confession. In assessing the voluntariness of waiver, the court should consider the duration and means of interrogation, the physical and psychological state of the accused, the conditions attendant to the detention, the attitude of the interrogator and any other facts that could drain a person’s ability to withstand suggestion and coercion.
5. An individual who is read his or her rights, indicates understanding of those rights and makes a statement can be found expressly to have waived his or her Miranda rights even though there is no specific statement of waiver of rights.
6. Unsolicited statements of a defendant need not be preceded by Miranda warnings.
7. When the totality of the circumstances reveals that Defendant was advised his Miranda rights by law enforcement, verbally indicated understanding of those rights, made contradictory statements regarding ownership of the cocaine, began to yell at the lessor of the apartment for permitting law enforcement to enter the apartment and asked the lessor if he would accept responsibility for the cocaine and later signed a written waiver of his Miranda rights and there is no indication of coercive or manipulative conduct on the part of law enforcement, the record establishes that Defendant voluntarily waived his Miranda rights.
8. If consent to a search voluntarily is given by an individual who has authority to give that consent, a warrantless search is proper.
9. In determining voluntariness of consent for a search, considerations for the court include the defendant’s custodial status, the use of duress or coercive tactics by law enforcement, the defendant’s knowledge of his or her right to refuse consent, the defendant’s education and intelligence, the defendant’s belief that no incriminating evidence will be found and the extent and the level of the defendant’s cooperation with law enforcement.
10. In light of the fact that Defendant twice was advised of his Miranda rights, signed a written waiver of those rights, signed two (2) written forms authorizing his consent to search cell phones that informed him that he did not have to consent to the same and provided the passwords of the cell phones to law enforcement and there is no evidence of undue duress on the part of law enforcement or compromising factors about Defendant’s maturity or intelligence, consent to search the cell telephones was given freely and knowingly.
11. To demonstrate the existence of a prima facie case, the Commonwealth must produce evidence of every material element of the charged offense and the defendant’s complicity therein. The proof need be such that if the evidence were presented at trial and accepted as true, the judge would be warranted in allowing the case to go to the jury.
12. Since the lessor of the apartment stated to law enforcement that his supplier was inside of his apartment, Defendant was found standing in front of a pot of boiling water on the stove next to a large pile of cocaine on a digital scale, Defendant’s cell phone was plugged into the wall for charging next to the scale, testimony was provided by law enforcement that the items found in close proximity to Defendant commonly were used to cook crack cocaine, Defendant made statements indicating that the cocaine belonged to he and the lessor of the apartment and a law enforcement officer provided an expert opinion that the cocaine was possessed with intent to deliver and/or manufacture it, the Commonwealth established a prima facie case to support the PWID charge.
L.C.C.C.P. No. CP-38-CR-0000935-2017, Opinion by John C. Tylwalk, President Judge, January 30, 2018.
AND NOW, this 30th day of January, 2018, upon consideration of Defendant’s Pretrial Motion and the evidence adduced at the hearing conducted on January 10, 2018, it is hereby Ordered that said Motion is DENIED. It is further Ordered that Defendant’s Petition for Habeas Corpus Relief is DENIED. Defendant is directed to appear for the Call of the List scheduled for February 6, 2018 at 8:30 a.m. in the designated Courtroom and the Term of Criminal Jury Trials to commence on February 26, 2018.
OPINION, TYLWALK, P.J., JANUARY 30, 2018.
Defendant is charged with Possession with Intent To Deliver and/or Manufacture a Controlled Substance (Cocaine) (“PWID”), Possession of a Controlled Substance (Cocaine), and Possession of Drug Paraphernalia (1) for an incident that occurred on April 22, 2017 at a second-floor apartment at 122 East Cumberland Street in the City of Lebanon. He has filed a Pretrial Motion seeking suppression of evidence and a Petition for Habeas Corpus Relief challenging the Commonwealth’s evidence to support a prima facie case as to the PWID charge. We conducted a hearing on January 10, 2018, the parties have filed Briefs, and the matter is now before us for disposition.
At the hearing, Detective Lawrence Minnick of the Lebanon County Drug Task Force testified that the apartment was the residence of Michael Pifath. Detective Minnick, Detective Ryan Mong, and Sergeant Brett Hopkins, also of the Drug Task Force, went to the apartment on April 22, 2017 to place Pifath under arrest for drug violations. After observing Pifath leaving the apartment, the officers arrested him. Detective Minnick and Detective Ryan Mong entered the apartment with Pifath’s consent in order to secure the premises. Once inside, Defendant was observed standing at the stove in the kitchen in front of a pot of boiling water. Beside him on the kitchen counter was a digital scale containing a large quantity of a substance that appeared to be cocaine on it and a glass Pyrex measuring cup.
Detective Mong determined that there were outstanding warrants for Defendant in Lancaster County. He arrested Defendant, placed him in handcuffs and turned him over to Detective Minnick. When Detective Minnick gave Defendant his Miranda warnings, Defendant said that he understood and would speak with him. Defendant made several statements to Detective Minnick. At one point, he yelled into the living room asking Pifath why he “let the cops in” and asking Pifath whether he would take responsibility for the drugs. Defendant first stated that the drugs did not belong to him, but later referred to Pifath and stated “what’s mine is his.” Defendant then stopped answering the questions posed to him by Detective Minnick.
Defendant was then transported to the Drug Task Force Office where he was given his Miranda warnings a second time. He signed a written waiver form and agreed to speak with the officers. At that point, he denied ownership of the cocaine found at the apartment or any involvement in any drug-related activity.
Detective Mong testified that he was the first officer to enter the apartment. After Pifath gave the keys to the officers and consented to a search the premises, he entered and observed Defendant at the stove with the digital scale containing a large quantity of what appeared to be cocaine just to the right of where he was standing. After he checked Defendant’s identification and found that he had an outstanding warrant from Lancaster County, Detective Mong arrested Defendant on that warrant. He then left Defendant with Detective Minnick.
At the Drug Task Force Office, all three officers remained in the room with Defendant. Detective Mong gave Defendant the written waiver of rights form and asked Defendant if he had any questions. Defendant was also asked to give consent to a search of two cellphones which were found in the apartment. Detective Mong believes that he advised that he would obtain a search warrant if Defendant did not give his consent. Defendant gave both oral and written consent to a search of the cellphones. The written forms he signed specifically provided that “I have been advised of my right to refuse to give consent for the search of and or forensic examination of the electronic device and waive that right.” At the time he was no longer handcuffed, but was still in custody and in leg shackles.
Detective Mong explained that, with regard to the PWID and/or Manufacture charge, it was his opinion, through his expertise and experience with the Drug Task Force, that the cocaine was intended for delivery. In reaching this conclusion, he noted the bulk weight of the cocaine – seventeen (17) grams, the presence of the scale for weighing it out, and the fact that no paraphernalia for personal use was found on Defendant’s person. Detective Mong further explained that crack cocaine was manufactured by mixing cocaine with water and baking soda. It was also his opinion that Defendant was in the process of manufacturing crack cocaine due to the presence of the boiling water, the Pyrex container and the fact that Pifath had informed him that his drug supplier was inside the apartment. Detective Mong acknowledged that Pifath was the tenant of the apartment and that Defendant did not reside there. He also acknowledged that, although no ingestion paraphernalia was found on Defendant, a cocaine pipe was found in the bedroom.
Miranda warnings are required when an individual is subject to custodial interrogation. Commonwealth v. McAliley, 919 A.2d 272 (Pa. Super. 2007). An interrogation for Miranda purposes is defined as questioning initiated by law enforcement authorities, where the police should know that their words or actions are reasonably likely to elicit an incriminating response from the defendant. Commonwealth v. Gwynn, 723 A.2d 143 (Pa. 1998). If a defendant has been advised of his rights prior to making a voluntary and knowing statement, such evidence is admissible at trial. Commonwealth v. Walker, 36 A.3d 1 (Pa. 2011). In considering an individual’s waiver of Miranda rights, the following are to be considered: (1) whether the waiver was voluntary, in the sense that the defendant’s choice was not the end of governmental pressure; and (2) whether the waiver was knowing and intelligent, in the sense that it was made with full comprehension of both the nature of the right being abandoned and the consequence of that choice. Commonwealth v. Pruitt, 951 A.2d 307 (Pa. 2008).
Voluntariness is determined from the totality of the circumstances surrounding the confession. The question of voluntariness is not whether the defendant would have confessed without interrogation, but whether the interrogation was so manipulative or coercive that it deprived the defendant of his ability to make a free and unconstrained decision to confess. The Commonwealth has the burden of proving by a preponderance of the evidence that the defendant confessed voluntarily.
Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) (citations omitted).
In assessing voluntariness pursuant to the totality of the circumstances, a court should consider: the duration and means of interrogation, the physical and psychological state of the accused, the conditions attendant to the detention, the attitude of the interrogator, and any other factors that could drain a person’s ability to withstand suggestion and coercion. Nester at 882. An individual who is read his rights, indicates that he understands those rights, and then makes a statement can be found to have given an express waiver of his Miranda rights even though he does not specifically state that he waives his rights. See, Commonwealth v. Hughes, 639 A.2d 763 (Pa. 1994); Commonwealth v. Baez, 21 A.3d 1280 (Pa. Super. 2011). Unsolicited statements made by a defendant are not required to be preceded by Miranda warnings. Commonwealth v. King, 721 A.2d 763, 775 (Pa. 1998).
Defendant first contends that the statements he made to Detective Minnick should be suppressed. We disagree. Defendant was given his Miranda warnings by Detective Minnick and verbally indicated his understanding of those rights. He then made several statements to Detective Minnick. At first, Defendant denied ownership of the cocaine, but then indicated that it belonged to both himself and Pifath. Of his own accord, Defendant began to yell at Pifath for permitting the police to enter the apartment and asking Pifath if he was going to take responsibility for the cocaine. When Defendant ceased answering Detective Minnick’s questions, he never specifically asked for counsel or stated that he did not want to speak with the officers. Defendant was given his Miranda warnings again once he had been transported to the Drug Task Force office. He also signed a written waiver after being given an opportunity to review the form. He indicated that he could read and write and said that he had no questions upon his completion of his review of the form.
We find nothing in these circumstances to suggest that Defendant’s waiver was anything but voluntary. There is no indication of any coercive and/or manipulative conduct on the part of the officers such that Defendant would have been unable to make an unconstrained decision to waive his rights. Moreover, Defendant’s statements to Pifath were not the result of any questioning on the part of the officers, but were voluntary assertions made spontaneously due to his apparent anger/frustration with Pifath for consenting to the officers’ entering the apartment. Defendant clearly indicated that he understood what the officers told him and asked no questions which would point to any confusion or feelings of oppression on his part. For these reasons, we will deny Defendant’s request to suppress this evidence.
Defendant next complains that his consent to search of the cellphones was not given freely and voluntarily because he was in custody, handcuffed, and under the supervision of several detectives at the time his consent was given. We likewise reject this contention.
While there is no hard and fast list of factors evincing voluntariness of consent to search, some considerations include (1) the defendant’s custodial status, (2) the use of duress or coercive tactics by law enforcement personnel, (3) the defendant’s knowledge of his right to refuse to consent, (4) the defendant’s education and intelligence, (5) the defendant’s belief that no incriminating evidence will be found, and (6) the extent and level of the defendant’s cooperation with the law enforcement personnel.
Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003). The fact that a defendant’s consent is given at a time that he knows the search will reveal evidence of a crime does not necessarily make the consent involuntary. Commonwealth v. Strickler, supra.
Here, Defendant had already been given his Miranda warnings two times and had reviewed and signed a written waiver of those rights. He was given two written forms for consent to search his cellphones. Both forms specifically informed him that he did not have to give his consent. After reviewing the forms, however, he signed them and gave the passwords to the detectives so they could access the phones. No evidence of undue duress on the part of the detectives or of any compromising factors regarding Defendant’s maturity or intelligence was presented at the hearing such that his consent could be considered involuntary. Thus, we find that Defendant’s consent was given freely and knowingly and will, therefore, deny his request for relief on this basis.
Defendant lastly argues that the Commonwealth has failed to establish a prima facie case with regard to the PWID and/or Manufacture charge against him. We also find this argument to be without merit.
To demonstrate the existence of a prima facie case, the Commonwealth must produce evidence of every material element of the charged offense as well as the defendant’s complicity therein. Commonwealth v. Dantzler, 135 A.3d 1109, 1114 (Pa. Super. 2016). The Commonwealth’s burden at this stage falls short of proof beyond a reasonable doubt. Commonwealth ex rel. Lagana v. Commonwealth Office of Attorney General, 662 A.2d 1127, 1129 (Pa. Super. 1995), citing Commonwealth v. Lacey, 496 A.2d 1256 (Pa. Super. 1985). The proof need only be such that, if the evidence were presented at trial and accepted as true, the trial judge would be warranted in allowing the case to go to the jury. Id. To meet this burden, the Commonwealth may utilize the evidence produced at the preliminary hearing and may also submit additional proof. Commonwealth v. Dantzler, supra.
The Controlled Substance Act prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance.” 35 P.S. §780-113(a)(30). Defendant is charged with PWID and/or Manufacture of a controlled substance – cocaine/crack cocaine. Pifath, the resident of the apartment, stated to the detective that his supplier was inside. Defendant was found standing in front of a pot of boiling water on the stove next to a large pile of cocaine on a digital scale on the counter. Next to those items, he had his cellphone plugged into the wall for charging. Detective Mong noted that the items found in close proximity to Defendant were commonly used to cook cocaine into crack cocaine. Defendant’s statements indicated that the cocaine belonged to him and Pifath. Taking all these factors into consideration, Detective Mong gave his expert opinion that the cocaine was possessed with the intent to deliver and/or manufacture. Giving the Commonwealth the benefit of the reasonable inferences based on this evidence, we find that it has established a prima facie case of PWID and/or manufacture of a controlled substance and we will deny Defendant’s Petition for Writ of Habeas Corpus.
We will enter an appropriate Order and direct Defendant to appear for the next scheduled Call of the List.
(1) Counts 1 through 3, 35 P.S. §780-113(a)(30), 35 P.S. §780-113(a)(16), and 35 P.S. §780-113(a)(32), respectively.


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Mr. Edmond G. Toomey, of Helena, Mont., for appellant.
Mr. Clarence Hanley, of Helena, Mont., for appellees.
Again we are asked to decide whether state taxes as applied to an interstate motor carrier run afoul of the commerce clause, Art. I, 8, of the Federal Constitution.
Prior to July 1, 1941, the fees collected pursuant to 3847.16(a) and 3847.27 were paid into the state treasury and credited to 'the motor carrier fund.'3 After that date, by virtue of Mont.Laws, 1941, c. 14, 2, they were allocated to the state's general fund.
Appellant is a Kentucky corporation, with its principal offices in Indianapolis, Indiana. Its business is exclusively interstate. It consists in transporting household [332 U.S. 495 , 498] goods and office furniture from points in one state to destinations in another. Appellant does no intrastate business in Montana. The volume of its interstate business there is continuous and substantial, not merely casual or occasional. 4 It holds a certificate of convenience and necessity issued by the Interstate Commerce Commission, pursuant to which its business in Montana and elsewhere is conducted.
In 1935 appellant received a class C permit to operate over Montana highways, as required by state law. 5 Until 1937, apparently, it complied with Montana requirements, including the payment of registration and license plate fees for its vehicles operating in Montana and of the 5õ per gallon tax on gasoline purchased there. 6 However, in 1937 and thereafter appellant refused to pay the flat $10 fee imposed by 3847.16(a) and the $ 15 minimum 'gross revenue' tax laid by 3847.27. In consequence, after hearing on order to show cause, the appellee [332 U.S. 495 , 499] board7 in 1939 revoked the 1935 permit and brought this suit in a state court to enjoin appellant from further operations in Montana.
Upon appellant's cross-complaint, the trial court issued an order restraining the board from enforcing the 'gross revenue' tax laid by 3847.27. But at the same time it enjoined appellant from operating in Montana until it paid the fees imposed by 3847.16(a). On appeal the state supreme court held both taxes applicable to interstate as well as intrastate motor carriers and construed the term 'gross operating revenue' in 3847.27 to mean 'gross revenue derived from operations in Montana.'8 It then sustained both taxes as against appellant's constitutional objections, state and federal. Accordingly, it reversed the trial court's judgment insofar as the 'gross revenue' tax had been held invalid, but affirmed the decision relating to the flat $10 tax. Mont., 172 P.2d 452, 460.
Moreover, since Montana has not demanded or sought to enforce payment by appellant of more than the flat $15 minimum fee for class C carriers under 3847.27,11 we limit our consideration of the so-called 'gross revenue' tax to that fee. This too is in accordance with the state supreme court's declaration: 'Even if it be admitted [332 U.S. 495 , 501] that the manner of arriving at a sound basis upon which the tax on gross revenue (should be calculated) is not provided by the statute, a c ntention to which we do not agree, no difficulty would arise in putting into effect the minimum fee of $15.00 required for each company vehicle operated within the state.'12 Although the state court did not concede that the statute comprehended no workable or sound basis for calculating the tax above the minimum, we take this statement as a clear declaration that it would sustain the minimum charge even if for some reason the amount of the tax above the minimum would have to fall.
Neither exaction discriminates against interstate commerce. Each applies alike to local and interstate operations. Neither undertakes to tax traffic or movements [332 U.S. 495 , 502] taking place outside Montana or the gross returns from such movements or to use such returns as a measure of the amount of the tax. Both levies apply exclusively to operations wholly within the state or the proceeds of such operations, although those operations are interstate in character.
Concededly the proceeds of the two taxes presently involved are not allocated to those objects. 14 Rather they now go into the state's general fund subject to appropriation for general state purposes. 15 Indeed this fact, in appellant's view, is the vice of the statute. But in that [332 U.S. 495 , 503] view appellant of the exactions. It is far too late to question that a state, consistently with the commerce clause, may lay upon motor vehicles engaged exclusively in interstate commerce, or upon those who own and so operate them, a fair and reasonable, nondiscriminatory tax as compensation for the use of its highways. Hendrick v. Maryland, supra; Clark v. Poor, 274 U.S. 554 ; Aero Transit Co. v. Georgia Commission, supra; Morf v. Bingaman, 298 U.S. 407 ; Dixie Ohio Co. v. Commission, supra; Clark v. Paul Gray, Inc., 306 U.S. 583 ; cf. South Carolina Highway Department v. Barnwell Bros., 303 U.S. 177 . Moreover 'common carriers for hire, who make the highways their place of business, may properly be charged an extra tax for such use.' Clark v. Poor, supra, 274 U.S. at page 557, 47 S.Ct. at page 703.
The present taxes on their face are exacted 'in consideration of the use of the highways of this state,' that is, they are laid for the privilege of using those highways. And the aggregate amount of the two taxes taken together is less than the amount of similar taxes this Court has heretofore sustained. Cf. Dixie Ohio Co. v. Commission, supra; Aero Transit Co. v. Georgia Commission, supra. The state builds the highways and owns them. 16 Motor carriers for hire, and particularly truckers of heavy goods, like appellant, make especially arduous use of roadways, entailing wear and tear much beyond that resulting from general indiscriminate public use. Morf v. Bingaman, supra, 298 U.S. at page 411, 56 S.Ct. at page 758. Although the state may not discriminate against or exclude such interstate traffic generally in the use of its highways, this does not mean that the state is required to furnish those facilities to it free of charge or indeed on equal terms with other traffic not inflicting similar destructive effects. Cf. Clark v. Poor, supra; Morf v. Bingaman, supra, 298 U.S. at page 411, 56 S.Ct. at page 758. Interstate traffic equally with [332 U.S. 495 , 504] intrastate may be required to pay a fair share of the cost and maintenance reasonably related to the use made of the highways.
The exactions in the present case fall clearly within the rule of Morf v. Bingaman and its predecessors in authority, and therefore, like that case, outside the decisions in the Interstate Transit and like cases. Both taxes are levied 'in consideration of the use of the highways of this state,' that is, as compensation for their use, and bear only on the privilege of using them, not on the privilege of doing the interstate business. Moreover, the flat $10 fee laid by 3847.16(a) is further identified as one on the privilege of use by the fact that 'unlike the general tax in Interstate Transit, Inc., v. Lindsey, 283 U.S. 183 , the levy of which was unrelated to the use of the highways, grant of the privilege of their use is by the present statute made conditional upon payment of the fee.' Morf v. Bingaman, supra, 298 U. S. at page 410, 56 S.Ct. at page 757.
It is of no consequence that the state has seen fit to lay two exactions, substantially identical, rather than combine them into one, or that appellant pays other taxes [332 U.S. 495 , 507] which in fact are devoted to highway maintenance. For the state does not exceed its constitutional powers by imposing more than one form of tax. Interstate Busses Corporation v. Blodgett, supra; Dixie Ohio Co. v. Commission, supra. And, as we have said, the aggregate amount of both taxes combined is less than that of taxes heretofore sustained. In view of these facts there is not even semblance of substance to appellant's contention that the taxes are excessive.
Neither is there merit in its other arguments, which we have considered, including those urging due process and equal protection grounds for invalidating the levies.
The judgment of the Supreme Court of Montana is affirmed.
In further relation to issuance of the permit, see note 5.
Section 3847.2, Rev.Codes Mont. (1935), contains the definitions of the three classes of carriers.
[ Footnote 3 ] The moneys in the motor carrier fund were subject to appropriation for use in supervision and regulation of many activities other than those connected with the public highways. See Rev.Codes Mont. (1935), 3847.17, 3847.28; and cf. note 13.
[ Footnote 4 ] Appellant's answer and cross-complaint set forth statistics concerning its use of Montana highways during the years 1937, 1938 and 1939. The figures show appellant's equipment operating on Montana highways during 227 days in 1937, 385 trucking days in 1938; and 405 trucking days in 1939. See also note 6.
[ Footnote 5 ] The statute was Mont.Laws, 1931, c. 184, 23, now Rev.Codes Mont. ( 1935), 3847.23. The section applied the act of which it was a part to interstate and foreign commerce 'insofar as such application may be permitted under the provisions of' the Federal Constitution, treaties and acts of Congress, but expressly exempted interstate carriers from making 'any showing of public convenience and necessity' in order to secure the certificate or permit.
[ Footnote 6 ] These taxes were imposed separately from the two involved in this case. Appellant's brief states the registration and license plate fees increased from $660.50 in 1937 to $1,212.50 in 1938 and to $1,630.50 in 1939. The gasoline tax increased from $745.30 in 1937 t $1,257.90 in 1938 and $1,649.98 in 1939. The gallonage tax, though ultimately borne by the consumer, was laid on the sale and collected from the dealer.
[ Footnote 7 ] It should be noted that 'the board of railroad commissioners,' as used in 3847.16(a), and 'the public service commission,' as used in 3847.27, designate a single body, invested with regulatory power over various public utilities in addition to motor carriers, e.g., railroads, common carriers of oil, etc. By Rev.Codes Mont. (1935), 3880, 'The board of railroad commissioners * * * shall be ex-officio the public service commission hereby created * * *.' The two terms were said by the Montana Supreme Court in this case to be 'used interchangeably.' 172 P.2d 452, 461.
[ Footnote 8 ] This judicial construction was embodied in an amendment to the section made by Mont.Laws, 1947, c. 73, 2.
[ Footnote 9 ] Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 ; Huddleston v. Dwyer, 322 U.S. 232 ; Minnesota v. Probate Court, 309 U.S. 270 , 126 A.L.R. 530; Morehead v. N.Y. ex rel. Tipaldo, 298 U.S. 587, 103 A.L.R. 1445; cf. Erie R. Co. v. Tompkins, 304 U.S. 64 , 114 A.L.R. 1487.
[ Footnote 10 ] Acting not only in the view that statutes are presumptively constitutional and, if necessary, are to be so construed as to make them so, the court noted that 3847.16(b) expressly provides that, when service 'is rendered partly in this state and partly in an adjoining state or foreign country,' carriers 'shall comply with the provisions of this act' concerning 'payment of compensation' and making reports by showing 'the total business performed within the limits of this state.' (Emphasis added.) Accordingly it held that 3847.27 and 3847.16 should be read together and the limitation of 3847.16(b) 'within the limits of this state' thus became a part of 3847.27 as well as 3847.16(a). Mont., 172 P.2d 452, 460.
[ Footnote 11 ] Appellant's vice president and general manager, Wheating, testified that for purposes of applying 3847.27 he had calculated, for each of the years 1939 through 1942, 'the (gross) income for that operation of the load miles operated in Montana by using an average income per mile figure based upon the probable load factor we would have had in Montana.' (Emphasis added.) On this basis the amount of the tax as calculated at one-half of one per cent quarterly was substantially below the statutory minimum for each of the four years. See note 19. These figures apparently were reported to and accepted by the board as the basis for its demands upon the taxpayer for the flat $15 minimum annual tax.
[ Footnote 12 ] Mont., 172 P.2d 452, 460. Appellant had argued, as it does here, that even if the 'gross revenue' tax is limited to revenue derived from operations in Montana, it is nevertheless invalid for want of any prescribed method on the face of the statute for ascertaining or calculating the tax. The state court held that the statute by necessary implication authorized the board to 'adopt any fair and reasonable mode of enforcement designed to effectuate the purposes of the Act.' Mont., 172 P. 2d 452, 461. In view of our limitation of the question before us, as stated in the text, we need not express opinion concerning this ruling or any tax above the minimum calculated in accordance with it. Cf. note 11.
In another connection the state supreme court adverted to the separability clause contained in 3847.24 of the statute, though not referring to it expressly in relation to the statement quoted in the text.
[ Footnote 13 ] See note 6 and text. It is admitted by the pleadings that the proceeds of he vehicle registration and license tax and the gallonage tax are allocated to the construction, repair and maintenance of state highways.
[ Footnote 14 ] The board concedes in the brief filed here that the state supreme court was in error in the statement that the revenue from the two taxes presently in issue 'is devoted to the building, repairing and policing of such highways * * *.' Mont., 172 P.2d 452, 462.
[ Footnote 15 ] See note 3 and text.
[ Footnote 16 ] It is immaterial that the state receives federal aid for state road construction, a fact on which appellant places some emphasis.
[ Footnote 17 ] See note 18 infra and text.
[ Footnote 19 ] Appellant claims that the $15 minimum fee is unreasonable since it is roughly ten times greater than the tax that would be required if the percentage standard provided in the statute were applied. To accept appellant's position would mean that a state could never impose a minimum fee, but would have to adjust its taxes to the inevitable variations in the use of the highways made by various carriers. The Federal Constitution does not require the state to elaborate a system of motor vehicle taxation which will reflect with exact precision every graduation in use. In return for the $15 fee appellant can do business grossing $3,000 per vehicle annually for operations on Montana roads. Appellant was not wronged by its failure to make the full use of the highways permitted. Aero Transit Co. v. Georgia Commission, 295 U.S. 285 ; Morf v. Bingaman, 298 U.S. 407 ; cf. Kane v. New Jersey, 242 U.S. 160 .

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The Superior Court has no jurisdiction, under the St. of 1883, c. 223, of a petition, under the Pub. Sts. c. 27, § 129, by ten taxable inhabitants of a town, to restrain the town from an alleged illegal expenditure of money.
MORTON, C.J. This is a petition, under the Pub. Sts. c. 27, § 129, by ten taxable inhabitants of the town of Wilbraham, brought in the Superior Court, to restrain the town from an alleged illegal expenditure of money.
We are met at the threshold of the case with the question whether the Superior Court has jurisdiction of the petition, which, though not raised in the Superior Court, and not argued by counsel, it is necessary that we should consider.
The St. of 1883, c. 223, § 1, provides that "the Superior Court shall have original and concurrent jurisdiction with the Supreme Judicial Court in all matters in which relief or discovery in equity is sought, with all the powers and authorities incident to such jurisdiction."
The language of the statute is broad, and, without doubt, it was intended to confer upon the Superior Court concurrent jurisdiction in equity in all suits between individuals involving private rights, of which the Supreme Judicial Court has jurisdiction by virtue of the general principles of equity jurisprudence.
parks; to restrain the use of buildings for hospitals; to compel the observance of the laws governing street railway companies; and to restrain a city or town from the illegal appropriation of money; and many others which might be mentioned. It would not be proper for us to decide whether any of these numerous special powers conferred by statute on this court are transferred to the Superior Court by the St. of 1883, except the one involved in this case.
We are of opinion that the power given to this court by the Pub. Sts. c. 27, § 129, to hear and determine in equity the petition of ten taxable inhabitants to restrain a town from illegally appropriating money, was not so transferred. The subject of the statute is not a matter cognizable under the general principles of equity jurisprudence. However it may be in other jurisdictions, it has never been held in this Commonwealth that a suit by a tax-payer to restrain an illegal appropriation of money by a town was within the general scope of the jurisdiction of a court of equity. If the court already had jurisdiction of the matter, the statute enacted for the purpose of conferring jurisdiction was unnecessary. Carlton v. Salem, 103 Mass. 141 . Loud v. Charlestown, 99 Mass. 208 .
This authority in this court to restrain the abuse of corporate powers by cities and towns was first conferred by the St. of 1847, c. 37. It is a special power in the nature of a power of supervision over other departments or agencies of the government, conferred upon the highest judicial tribunal. It is not included in the enumeration of the equity powers in the Pub. Sts. c. 151, § 2, which are transferred to the Superior Court; and we think it was not the intention of the St. of 1883 to give this power to the Superior Court. This view is fortified by the provisions of § 2 of the St. of 1883, which excepts from the operation of the act § 1 of the Pub. Sts. c. 151.
Superior Court concurrent jurisdiction in all matters within the scope of the general equity jurisprudence, but to retain within the exclusive jurisdiction of the Supreme Judicial Court other special bills, writs, or petitions allowed by our statutes, in which relief in equity is prayed for.
For these reasons, we are of opinion that the Superior Court has no jurisdiction of this petition.
G. M. Stearns, for the petitioners.
C. L. Gardner & C. L. Long, for the respondents.


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Stephen I. Vladeck is Professor of Law and Associate Dean for Scholarship at American University Washington College of Law. He is a senior editor of the Journal of National Security Law & Policy. His recent writings have focused on the role of the federal courts in litigation arising out of the war on terrorism, especially the relevance of new research into the historical scope of habeas corpus in defining the scope of the Suspension Clause (Harvard Law Review), and the troubling inversion of the relationship between state and federal remedies in post-September 11 Bivens suits (co-authored with Carlos Vázquez; forthcoming in the University of Pennsylvania Law Review).
The summer after the Supreme Court’s 2011 Term seems a strange moment to reflect upon Alexander Bickel’s The Least Dangerous Branch – and his Harvard Law Review Foreword on the “passive virtues” that preceded it. After all, “passive” could be just about the most inapt word to use to describe a Court that just decided Arizona v. United States and NFIB v. Sebelius, and that will soon confront the constitutionality of race-based affirmative action (to say nothing of the constitutionality of the Voting Rights Act of 1965 or of state bans on gay marriage).
At least with regard to hot-button social issues, the Court in the near term appears generally uninterested in relying on justiciability doctrines or other avenues for judicial restraint (e.g., the Tax Anti-Injunction Act) to avoid reaching the merits of high-profile constitutional questions. This reality is only that much more significant given that, as Kathryn Watts points out in her contribution to this symposium, the movement toward an almost entirely discretionary docket (much of which post-dated Bickel) has made it possible for the Justices to be passively virtuous without deigning to explain themselves.
First, in April 2006, Justice Anthony Kennedy penned a concurrence in the denial of certiorari joined by Chief Justice John Roberts and Justice John Paul Stevens (the only opinion featuring that line-up in the five Terms during which the trio served together) in Padilla v. Hanft (“Padilla II”). In Padilla I (2004), the question had been whether the government could detain a U.S. citizen arrested within the territorial United States as an “enemy combatant.” The Justices ducked out on a technicality, holding that Padilla had filed his habeas petition in the wrong court. But between the lines, one could easily find five votes for the proposition that Padilla’s detention was, in fact, unlawful. That may explain why, when the case returned to the Court after Padilla re-filed in the proper venue, the government unsealed a civilian criminal indictment against Padilla and transferred him to civilian custody while his cert. petition was pending.
This development, as Justice Kennedy explained, meant that “there are strong prudential considerations disfavoring the exercise of the Court’s certiorari power.” At the same time, however, the concurrence went out of its way to stress Padilla’s “continuing concern that his status might be altered again,” specifically noting that Padilla would have immediate remedies if the government were to seek to return him to military custody, including “the option of seeking a writ of habeas corpus in this Court” (a remedy the Justices have not granted since 1925). Thus, the Padilla II concurrence suggested that the merits of Padilla’s military detention were less important than the ability of the courts in general (and the Supreme Court, in particular) to supervise it, an issue that had been practically – if not formally – mooted by Padilla’s transfer.
To similar effect, consider the joint “statement” by Justices Stevens and Kennedy respecting the denial of certiorari in Boumediene v. Bush (2007), which was subsequently overtaken when the Court reversed course at the end of the 2006-07 Term and (on rehearing) granted review. In explaining why the Justices initially decided to stay their hand, the opinion explained that the Court was merely abstaining in favor of the statutory review provided by the Detainee Treatment Act of 2005. “If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the [DTA], or some other and ongoing injury,” the Stevens-Kennedy statement concluded, “alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals.” As in Padilla II, so long as the issue was simply the merits of the claims, and not the power of the federal courts to decide them, there were not four votes to intervene.
But perhaps the best example of this theme can be found in what may well be the Court’s last word on the Guantánamo habeas cases: Justice Stephen Breyer’s four-Justice statement respecting the denial of certiorari in Kiyemba v. Obama (2011). The issue in Kiyemba was the fate of the Uighurs – a group of ethnically Turkic Chinese Muslims held at Guantánamo who fell outside the government’s ongoing detention power. After the district court ordered the government to produce the detainees in a D.C. courtroom, the D.C. Circuit reversed, holding that the detainees had no right to be released into the United States even if they were no longer properly subject to detention at Guantánamo.
The Court then granted certiorari to decide “whether a district court may order the release of an unlawfully held prisoner into the United States where no other remedy is available,” only to vacate and remand when advised by the Obama Administration that the detainees had received “genuine” resettlement offers. Although the D.C. Circuit adhered to its original decision on remand, the Justices declined to intervene the second time. As Justice Breyer explained for himself and Justices Kennedy, Ginsburg, and Sotomayor, “these [resettlement] offers, the lack of any meaningful challenge as to their appropriateness, and the Government’s uncontested commitment to continue to work to resettle petitioners transform petitioners’ claim. Under present circumstances, I see no Government-imposed obstacle to petitioners’ timely release and appropriate resettlement.” As in Padilla II and Boumediene, as soon as the focus changed from the scope of judicial power to the specifics of how it should be exercised, the Justices demurred. The strongest justification for exercising the Court’s power, in other words, was when it was necessary to protect the Court’s power.
One can say a lot more about these (and other) cases, but perhaps the most important evidence of this theory is the Court’s refusal to review a series of lower court decisions that sidestepped claims arising out of, inter alia, the U.S. government’s alleged “extraordinary rendition” of non-citizens to countries in which they were tortured; the NSA’s warrantless wiretapping program; and post-September 11 terrorism convictions, many of which feature lower court judges stressing both the importance and novelty of some of the procedural and evidentiary issues that their decisions have confronted. Put simply, it’s not just that the Supreme Court over the past decade has shown an interest in judicial power in the war on terrorism as an end unto itself – it’s that the lower courts appear to have gotten the same message.
To be sure, there can be little doubt that strategic voting (and, in Kiyemba, Justice Elena Kagan’s recusal) had a lot to do with the line-ups and results in each of these three cases. But the pivotal role of Justice Kennedy in each is more than just a reflection of his position at the center of the Court. At a far deeper level, one can find such an understanding of judicial power (and of the separation of powers, more generally) throughout Justice Kennedy’s jurisprudence.
[W]e have come to think of liberty as defined by that word in the Fifth and Fourteenth Amendments and as illuminated by the other provisions of the Bill of Rights. The conception of liberty embraced by the Framers was not so confined. They used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts. The idea and the promise were that when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of any one branch to influence basic political decisions.
To the extent that the “liberty” protected by the separation of powers is equally about “freedom from intrusive governmental acts” and “limits on the ability of any one branch to influence basic political decisions,” Kennedy’s concurrence thereby suggested that the principal goal of the Court’s separation-of-powers jurisprudence should be to protect the separation of powers as such. That principle holds, so much so that perhaps it prevails even without regard to the potential impact of the challenged governmental conduct on individual rights.
This understanding also pervades Justice Kennedy’s majority opinion on the merits in Boumediene. There the Court held that the jurisdiction-stripping provision of the Military Commissions Act of 2006 violated the Suspension Clause as applied to non-citizens detained at Guantánamo. The Court nonetheless expressly refused to decide whether those detainees had any individual rights under the Due Process Clause. Less obvious, but perhaps no less significant, is his opinion for a five-four majority in Legal Services Corp. v. Velazquez (2001), in which the Court struck down a federal funding restriction that precluded legal aid lawyers who receive federal funds from challenging the validity of certain welfare laws. Whereas the crux of the holding was that such restrictions interfered with the lawyers’ First Amendment rights, the majority’s analysis was suffused with repeated concerns over the “severe impairment of the judicial function” that the spending restrictions might otherwise effect.
Boumediene and Velazquez are hardly alone. In any number of jurisprudential contexts, one can find a growing number of examples of the Court (with Justice Kennedy’s backing) handing down rulings endorsing broader conceptions of judicial power without a corresponding vision of how that power should be exercised. From the odd procedural maneuverings in the Troy Davis case to the Court’s newfound obsession with “jurisdictionality,” the view across different bodies of doctrine (and, at times, different ideological blocs) reveals a fairly consistent approach to the forward-looking preservation of judicial power, and little more.
And that is where Bickel comes in. In one sense, Justice Kennedy’s vision of the separation of powers appears to be deeply faithful to the passive virtues. After all, the bulk of these cases are at great pains to preserve the role of the federal courts – especially the Supreme Court – as the authoritative expositors of federal law, and, as such, the principal enforcers of constitutional rights.
So too, the central concern animating Bickel’s plea for the “passive virtues” was that a Court seen as unduly interventionist would inevitably dilute its long-term moral and institutional authority. Thus, Bickel offered an encomium to the Justices to rely on justiciability doctrines and other avenues of restraint to avoid unnecessarily reaching constitutional questions, with the goal of preserving the Court’s power in the long term so that it would have the ability and wherewithal to hand down a decision like Brown (or Heller or Citizens United) if and when the time came.
Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. (emphasis added).
By Kennedy’s measure, then, the virtue of preserving judicial power would be to do nothing more than ensure that such a “genuine debate” take place. And it is certainly true that reasonable people (including Bickel himself) have disagreed for a half-century on where The Least Dangerous Branch intended to draw the line between judicial intervention and judicial restraint when it came to how the Court should circumscribe its own authority. But I think that the idea that the original Constitution eschews rights because they are less important is certainly not what Bickel had in mind. Quite the contrary: He sought to validate certain kinds of judicial power in order to better safeguard rights, not to abridge them.
Full disclosure: Professor Vladeck co-authored an amicus brief in support of the petitioner in Boumediene.