Docket – January 28, 2019

4th U.S. Circuit Court of Appeals

United States v. Azua-Rinconada (P), 4th Cir. (Niemeyer) from EDNC at Wilmington (Flanagan).

The district court didn’t clearly err in finding that law enforcement officers had the defendant’s voluntary consent to enter his residence, and he was not in custody when he voluntarily answered their questions.

Despite one officer’s command before entry to “open the door or we’re going to knock it down,” the statement in context didn’t fatally infect the voluntariness of the consent. Video footage convincingly shows that the defendant’s fiancée opened the door, that officers conversed with her in a calm, casual manner, and that she freely and with a degree of graciousness invited the officers in. Thus, their entry didn’t violate the Fourth Amendment.

The totality of the circumstances also supports the conclusion that the defendant was not in custody when questioned in his residence. For most of the interaction, he sat where he chose to sit, and the officers’ language, demeanor, and actions were calm and nonthreatening; tenor of the interaction remained conversational. While the defendant was undoubtedly intimidated during the interaction by having police in his home, that intimidation appeared no greater than the level characteristic of police questioning generally.

Affirmed. Judge Keenan wrote a concurring opinion.

Williams v. Stirling (P), 4th Cir. (Agee) from DSC at Greenville (Childs).

The district court properly granted the defendant’s habeas petition as to a claim of ineffective assistance of counsel.

In the defendant’s trial for offenses related to the shooting and killing his former girlfriend, defense counsel failed to investigate potentially mitigating evidence of Fetal Alcohol Syndrome. By counsel’s own admission, their failure to investigate signs of Fetal Alcohol Syndrome – specifically, information that the defendant’s mother consumed alcohol during her pregnancy and evidence that defendant had brain damage – fell below the standard for mitigation investigations. Because there was no recognition of a potential Fetal Alcohol Syndrome diagnosis by trial counsel, there was no further exploration of whether it was a potential mitigating factor.

The post-conviction review court’s determination to the contrary involved both an unreasonable application of the law and an unreasonable determination of the facts. Fetal Alcohol Syndrome evidence could have provided to the jury evidence of an overarching neurological defect that caused Williams’ criminal behavior. Had such evidence been presented, there was a reasonable probability that the jury would have returned a different sentence.

Affirmed.

U.S. District Court – Virginia Eastern

McClellan v. City of Alexandria, EDVA at Alexandria (Brinkema).

An opera singer arrested for singing on the streets of Alexandria may proceed on claims that the arrest violated her First Amendment rights and that the city ordinance she was said to have violated is void for vagueness.

Alexandria’s Noise Control Code contains two sets of regulations: One applying to the entire city, and another applying only in an area known as the “central business district,” where the plaintiff was singing. There are also two types of standards for unlawful noise within the central business district: a decibel threshold to be measured with an approved device from more than 10 feet away and a statutory presumption based on “normal hearing acuity.” The best reading of the Code is that people making noise in the central business district are subject to liability under both the city-wide and district-specific provisions.

The plaintiff’s performances on public sidewalks in Alexandria’s central business district are core First Amendment activity, and she has adequately alleged that the Noise Control Code is not narrowly tailored to serve the City’s interest. She alleges that her performance was not dangerously loud, disturbing, annoying, or disruptive, but rather was pleasant, relatively quiet, and appreciated by many of the passersby-including the City’s former mayor. Further, the performance took place in the central business district, a place with significant foot and motor vehicle traffic, businesses, pedestrians, and even other performers.

These allegations, if proved, would indicate that she was arrested while making noise below the ordinance threshold, which gives the lie to defendants’ claim that all she had to do to comply with the ordinance was to lower her volume. Moreover, the Noise Control Code could nonetheless deprive her of ample alternative channels if the threshold was unreasonably low and thus precluded her from exercising her First Amendment right to speak (or sing) freely in a reasonable way.

As to the plaintiff’s vagueness claim, the Noise Control Code includes some provisions employing vague, standardless language that may fail to satisfy the notice and separation-of-powers principles undergirding the vagueness doctrine. It also contains multiple and overlapping types of noise regulations that may prove difficult for laymen to understand.

Motion to dismiss granted in part and denied in part.

Virginia Circuit Courts

Bates v. Purdon, Norfolk (Lannetti).

Where mediation was a condition precedent to filing suit, an action was improper when the parties didn’t engage in mediation and the defendants didn’t waive their right to enforce it.

Here, the plaintiffs suggested mediation and the defendants didn’t respond. But the lack of response didn’t constitute waiver of the right to mediate. A party claiming waiver must prove it by clear, precise, and unequivocal evidence. The absence of response doesn’t meet that standard. The plaintiffs were in a situation not contemplated by their agreement to mediate, but instead of a complaint they should have filed a petition to compel mediation or a specific-performance action. However, the court will deny sanctions against the plaintiffs, who were forced to seek the court’s involvement.

Plea in bar sustained.

Randal Lowe Plumbing LLC v. Peachtree Cmties. LLC, Fairfax (Gardiner).

A judgment-creditor has not made the showing required to justify a subpoena on the judgment-debtor’s old law firm. After unsuccessful attempts to obtain discovery from the defendant in Georgia, the plaintiff served a subpoena on the law firm related to sale of the defendant’s business.

The law firm sought to quash the subpoena based on attorney-client privilege. Because the documents sought are possessed by the law firm solely by virtue of its attorney- client relationship with the defendant and a related entity, it’s a fair inference that the firm obtained the documents sought in order to provide legal assistance to the defendant.

Thus, the plaintiff bears the burden to show that the documents could have been obtained by court process from the defendant when they were in the defendant’s possession. Further, the plaintiff must show that the documents sought were the result of transfer by the defendant to the law firm. The plaintiff has made neither showing at this time, but if it can do so it may serve another subpoena on the law firm.



Categories: Daily Dockets

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