*1 refer free a is to judge district A magistrate ato status pauper motion a mo such grant is to if the decision an such may enter tion, magistrate however, deny, tois If the decision order. recom such make must magistrate who will judge district
mendation U.S.C. action. final take then 636(b)(1)(B).2
§ to the are REMANDED two cases These district decision for a district should pauper status as to whether
judge preju- are without remands denied. be in the appeal right plaintiffs’ to the dice is denied.3 status pauper
event America, STATES
UNITED Plaintiff-Appellee,
v. BURTON, Richard
James Defendant-Appellant.
No. 88-5508. Appeals, Circuit.
Sixth 20, 1989. April
Argued 17, 1990. Jan.
Decided 22, 1990. Denied March
Rehearing magistrate. U.S.C. jurisdiction of the Application to Proceed in noteWe However, 6/86) 636(c)(1). (AO Ambrose Rev. Pauperis form Forma entering pro- sign magistrate it propriety in that our conclusion consistent magistrate to nor ad- signature raised line was neither denial vides order of but, seldom, granted if petition if if the order would of consent The issue dressed. denied, signature line on petition is ever, proceedings since these implicated in be judge. district references order must pauper proceed status application Thus, at this filed. granted the suit is before Welch, Cir. 729 F.2d Ambrose 3. In oppo- really no proceedings there is stage of the denying pauper 1984), that an order we held party to consent. able site appealable since applicant to an status parties consented whether not clear
Terry Cushing (argued), C. Cleveland Gambill, Louisville, Atty., Asst. U.S. Ky., U.S., plaintiff-appellee.
Stephen (argued), L. Hixson Bowling Green, Ky., Heavrin, Louisville, Donald M. Ky., for Burton, James Richard defendant- appellant. JONES,
Before: Judge, Circuit ENGEL, *, Judge Senior Circuit WOODS,** District Judge.
ENGEL, Judge. Senior Circuit James Burton appeals conviction and sentence in the United States District Court for the Western Kentucky District of for three counts of marijuana in violation of 21 U.S.C. 844. year sentenced to one for each count to be served concurrently. For the below, reasons stated we affirm.
Burton moved to a landlocked farm in
Warren County, Kentucky in 1980. The
farm is remote and
fenced with locked
gates and “No Trespassing” signs all
Acting
around it.
on information that Bur-
ton was cultivating marijuana, but without
obtaining
warrant,
a search
the Kentucky
State Police went to Burton’s farm July
gain access,
1987. To
the officers
climbed over a
approached
fence and
an
area
surrounded
another fence with a
gate,
locked
also traversed.
They discovered
marijuana plants
several
pots
in black
property.
on the
They then
proceeded
home,
to Burton’s
arrested him
rights.
advised
of his
A search
warrant was obtained for the property and
plants
more
were discovered in the barn in
up
growing
area set
marijuana.
Processed
was found in the
house and several firearms were discover-
ed.
was-charged
in a four count
indictment with three
unlawfully
counts of
manufacturing
possessing
with intent to distribute and one count of
using
firearms
connection with the com-
drug trafficking
mission of a
offense.
**
Engel
Woods,
*The Honorable Albert J.
George
became Senior
Honorable
E.
United States Dis-
Judge
Judge
Michigan,
Circuit
effective
trict
sitting by designation.
for the Eastern District
October
I.
jury,
dire
voir
During the
jury be advised
asked
defense
accorded
protection
special
“[T]he
charged
for the
maximum
people
Fourth Amendment
give the
refused to
offenses.
*3
effects,’
houses,
and
papers,
‘persons,
their
asked if
prosecution
the
Later
instruction.
open fields.” Hester
the
is
extended
penal-
the
thought that
jury
the
anyone
59,
57,
S.Ct.
44
States, 265 U.S.
v. United
too
were
offenses
drug-related
for
ties
1984, the
(1924). In
446,
898
445,
68 L.Ed.
jurors
potential
Seven
too lenient.
or
strict
in Oliver
Hester
Court reaffirmed
Supreme
The
too lenient.
laws
opined
170, 104 S.Ct.
States, 466 U.S.
persons
the seven
to excuse
refused
Oliver,
(1984). In
214
1735,
L.Ed.2d
80
only after
but
request,
the defense’s
upon
Kentucky State
the
of
officers
narcotics
follow the
it would
that
jury indicated
the
defen
the
property of
entered the
Police
per-
to their
regard
without
given
as
gate and
a locked
by going
dant
around
beliefs.1
sonal
They
signs.
Trespassing”
“No
ignoring
government presented
property
At the trial the
its
the
and
field
found a
manufacturing a
case of
with intent to distribute.
for
was arrested
owner
proceeded
theory
Supreme
The defense
with a
The
substance.
controlled
necessity-Burton
medical
suffers
from
constitu
that the search
determined
glaucoma and he claims that he raised and
war
though no search
tionally valid even
symp-
used the
to relieve the
defen
because
been obtained
rant had
jury began
toms of the illness. The
delib-
pri
expectation
no reasonable
dant had
during
May 3,
erations
the afternoon of
home
around his
open fields
vacy
in
midnight.
1988 and deliberated until after
privacy
his
attempts
protect
his
despite
They reached a verdict at 1:50 a.m.
“No
posting
erecting fences and
such as
on the
innocent
Burton
jury found
signs.
The
Trespassing”
found
counts but
four
charges
all
felony
by the
the search
claims that
offense of
included
the lesser
guilty of
beyond the
Police went
Kentucky State
on three
here
the search
and that
scope of Oliver
year for
to one
sentenced
counts.
However, the
constitutionally invalid.
concurrently.
It is this
run
count to
each
distin-
hardly appear to
of this case
facts
now
that Burton
sentence
and
conviction
involved
Both cases
guish it from Oliver.
first
Burton contends
appeal,
On
appeals.
There were
Kentucky
Police.
State
Kentucky
Police
State
entry
that
and fences
signs posted
Trespassing”
“No
land
warrant
his
without
onto
Officers
In
that was searched.
the land
around
of the
in violation
marijuana was
find
contention
Oliver,
rejected the
the Court
he contends
Next
Amendment.
Fourth
priva-
protected
created
actions
that such
by
its discretion
court abused
trial
that
the terms
field within
interest in
cy
at voir
jurors
the seven
excuse
refusing to
Specifically,
Amendment.
Fourth
drug laws
current
opined that the
dire who
suggestion that
reject the
“we
Court stated
keeping the
lenient;
are too
privacy establish
protect
steps taken to
claims that
He also
a.m.
1:30
after
until
open
in an
privacy
expectations of
that
evi-
inconsistent
the verdict was
S.Ct.
legitimate.” Id. at
field are
incorrectly classi-
marijuana is
dence, that
at 1743.
drug, and
counts
that
as a Schedule
fied
the cases
between
only difference
Finally,
only
count.
really
one
3 were
fence
over a
police climbed
pos-
simple
here
penalty
claims that
he
Oliver, the
gate, whereas
and a locked
equal protection
violates
session
gate. Given
around locked
went
Eighth
officers
as the
as well
clauses
process
due
evident
language from Oliver
the cited
Amendment.
jury.
actually
served on
opinion
Only
seven who voiced
one
drug-related offenses
penalties for
regarding the
that this distinction is not of
e.g.,
constitutional
Bailey,
United States v.
significance.
The same is true
(1980);
of Burton’s
100 S.Ct.
II. for Burton which he failed to utilize. Giv large en the quantity marijuana produc Burton, who suffers glaucoma, from suc- government ed without sanction and the ceeded in persuading the trial per- court to availability treatment, of lawful Burton’s mit him to offer in his defense a claim that defense in all events borders incredi he growing, possessing using was mar- much, ble. Burton benefited at least as if ijuana as a matter of necessity. medical more, not from the claim of medical neces He introduced evidence of some medical sity than he was entitled to. A reasonable opinion that the substance alleviates this jury could guilty simple have found him prevailed condition. He further upon the possession upon the facts of this case and trial give court to necessity” “medical sympathy persuaded this one did. If it not jury. instruction to the He now claims that him guilty find of the more serious proof under the jury’s guilty verdict of charges, compel it did acquit it to while acquitting him of the lesser. charges of the more serious of manufactur- ing and of with intent to distrib- III.
ute is incorrect and cannot stand. We dis- agree. remaining The issues warrant little necessity
Medical has recognized by been attention. reversing There is no basis for by some courts and authority. jury some See verdict where deliberations contin- Notably, proceeding begun, glaucoma this after Bur- receives for his under a part program physician’s supervision. ton became a of this and now for their jurors potential seven clearly miss judge a.m. 1:50 until ued drug-re- present that opinion allowing discretion acting within A trial lenient. are too lated offenses appeared they where continue them to ruling on chal- discretion broad court has no and there progress making States, Dennis bias. lenges for weariness. complaints 521, 94 70 S.Ct. claim defendant’s Regarding no show- has been (1950). There L.Ed. 734 reclassify should this that judge trial here and the bias ing of actual in category, “our Schedule out members questioned adequately of whether limited quiry is fol- would whether to determine unreason or is irrational ... classification beliefs. any personal despite low the F.2d Whitley, able.” no abuse there was we find Therefore Cir.1984). has been There 1129, 1141 judge. by the trial of discretion Further, has showing here. no such AF- we above stated reasons For the correctly determined, and been repeatedly FIRM. clearly a task so, reclassification *5 attorney general and legislature JONES, Circuit R. NATHANIEL Greene, v. See U.S. one. judicial not a and concurring. Judge, Cir.1989); States (6th United 453 892 F.2d conducted search Although I believe Cir.1984); (7th 440, 450 Wables, F.2d 731 v. than the intrusive more case was in this Middleton, F.2d 690 States in Oliver conducted search Cir.1982).3 conclusion A similar 823 1735, 80 170, 104 States, S.Ct. defendant’s regarding reached may be majori- (1984), agree with 214 L.Ed.2d simple posses for penalty that the claim district court’s ty’s conclusion protec constitutional various sion violates However, be affirmed. judgment should argument for this no basis There tions. in case and Oliver in this officers while aas classified presently marijuana since signs Trespassing” while ignored “No both for and I substance Schedule search, un- I am fields conducting an open been ration drugs have of such possession conclusion majority’s agree with to able by Con established thoughtfully ally and in this police by the taken actions well should as argument Thus this gress. offi- from the indistinguishable case are not to legislature, to made be in Oliver. cers’ acts courts. at arrived officers in Oliver When 2 counts argued that also gate farm, a locked they saw Oliver’s offense. Count one and 3 constituted sign at- Trespassing” “No had in found plants marijuana 138 2 concerned however, fence, to the it. Next tached two concerned Count barn. Burton’s one around led “footpath [which] in his found processed pounds of 173, 104 at U.S. gate.” 466 of side Burton with charge counts Both home. around officers “walked 1738. The at S.Ct. manufacture unlawful and then along road” gate and marijuana. to distribute intent on Oliver’s of a field discovered of guilty found case, the officers instant In the farm. Id. 2 and that counts is clear It both counts. reaching a fences before over two climbed of amounts forms different involved mari- ultimately to Burton’s led path which in differ discovered marijuana which Although the Oliver plants. juana 2 and counts Therefore ent locations. trespass common stressed offenses. separate involved sei- the search little relevance has Amend- Fourth by the raised zure issues dis no abuse Finally, there was Constitution, the the United toment failing dis- trial court cretion preempt Circuit the Sixth precedented for agen- federal appropriate legislature and 3. The Congress this area. reexamining engaged currently cies are un- would be and it classification type police activity in the in- conducted
stant unnecessarily potential- case invites a
ly dangerous response by a landowner. although
Consequently, the search conduct-
ed in may constitutional, this case police
should refrain from performing types these searches because a risk create
serious injury to undercover police officers. Stephen Glazek, E. argued, It is not unlikely Sharon M. fence-climbing that a un- Woods, Mashour, Susan officer, Barris, Sott, L. dercover mistaken the land- Driker, Detroit, Denn & Mich., owner ordinary plaintiff- for an trespasser, will find appellee. staring himself down the barrel of the land- shotgun.
owner’s Tobis, Lori L. Rossman, Richard A. Pep-
per, Seheetz, Hamilton Detroit, Mich., & Kaufman, M. Jon argued, New City, York for defendant-appellant. MARTIN,
Before GUY, JONES and Judges. Circuit GUY, Jr., RALPH B. Judge. Circuit ASSOCIATES, REGIS appeal This presents questions two *6 Plaintiff-Appellee, review. The first is whether the remand to state court of a removal action on the basis (MANAGEMENT) district interpretation court’s of a RANK HOTELS forum LIMITED, selection clause results in appeal- Defendant-Appellant. able order. Since we answer this No. 89-1418. affirmative, in the we reach the second Court of Appeals, question which involves a review of the Sixth Circuit. decision reached the district interpretation of the forum selection Argued Dec. 1989. issue, clause. On this we conclude the Decided Jan. court erred and we shall reverse.
I. Plaintiff, Regis (Regis), Associates en- tered into an agreement defendant, (Rank), Rank Hotels Limited Re- gis employed manage Rank to the Hotel St. Regis Detroit, Michigan. Regis ais limited partnership, formed existing under the laws of the State of Michigan. corporation Rank is a organized England principal laws whose office is London, England. Although agree- this ment was into in entered mere- ly an agreement extension of a among Rank, the 3071 Limited Partnership, and Regis St. Company, Hotel predeces- Regis. sor to When the 1980 agreement being negotiated, Rank as a offered agreement model one of its standard