                                                                              RECOMMENDED FOR FULL-TEXT PUBLICATION
28   United States v. Blair, et al.    Nos. 98-2051; 99-1626                       Pursuant to Sixth Circuit Rule 206
                                                                           ELECTRONIC CITATION: 2000 FED App. 0178P (6th Cir.)
                                                                                       File Name: 00a0178p.06
C. Conclusion
  I would reverse the district court’s denial of Mr. Blair’s
motion to dismiss the indictment on the basis of Ovalle.           UNITED STATES COURT OF APPEALS
However, if the district court had been correct in denying Mr.
Blair’s motion, I agree with the majority that Mr. Blair’s other                     FOR THE SIXTH CIRCUIT
claims would fail, as do all claims raised by his co-defendant,                        _________________
Connie Blair.

                                                                                                      ;
                                                                                                       
                                                                    UNITED STATES OF AMERICA,
                                                                                                       
                                                                              Plaintiff-Appellee,
                                                                                                       
                                                                                                       
                                                                                                          Nos. 98-2051;
                                                                               v.
                                                                                                       
                                                                                                          99-1626
                                                                                                        >
                                                                    GEORGE BLAIR (98-2051);            
                                                                                                       
                                                                    known as LAUNA MAIKOWSKI 
                                                                    and CONNIE BLAIR, also

                                                                                                       
                                                                           Defendants-Appellants. 
                                                                    (99-1626),
                                                                                                       
                                                                                                      1
                                                                          Appeal from the United States District Court
                                                                         for the Eastern District of Michigan at Detroit.
                                                                        No. 97-81440—Patrick J. Duggan, District Judge.
                                                                                      Argued: February 1, 2000
                                                                                  Decided and Filed: May 26, 2000
                                                                   Before: COLE and CLAY, Circuit Judges; BELL, District
                                                                                       Judge.*




                                                                       *
                                                                        The Honorable Robert Holmes Bell, United States District Judge for
                                                                   the Western District of Michigan, sitting by designation.

                                                                                                     1
2    United States v. Blair, et al.   Nos. 98-2051; 99-1626     Nos. 98-2051; 99-1626        United States v. Blair, et al.     27

                   _________________                            to remedy the known problem of the underrepresentation of
                                                                African Americans on federal juries. Indeed, even in the face
                        COUNSEL                                 of an express acknowledgment of the unfairness of the jury
                                                                selection system as applied to African Americans by one of
ARGUED: Milton R. Henry, Bloomfield Hills, Michigan,            the judges from the Eastern District of Michigan and the
for Appellants. Patricia G. Gaedeke, UNITED STATES              district’s former Chief of Court Operations, the jury selection
ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:            plan remains the same. See Avern Cohn & David A.
Milton R. Henry, Bloomfield Hills, Michigan, for Appellants.    Sherwood, The Rise and Fall of Affirmative Action in Jury
Patricia G. Gaedeke, UNITED STATES ATTORNEY,                    Selection, 32 U. Mich. J.L. Reform 323, 333 (1999) (“Early
Detroit, Michigan, for Appellee.                                experiences suggest that judges are trying criminal cases
                                                                largely with African-American defendants, prosecuted in front
  COLE, J., delivered the opinion of the court, in which        of mostly white judges, by mostly white prosecutors and
BELL, D. J., joined. CLAY, J. (pp. 19-28), delivered a          defense counsel, and with decisions made by almost all-white
separate opinion concurring in part and dissenting in part.     juries. This is not fairness in the criminal justice system.”).
                   _________________                               “The Sixth Amendment requires that the jury venire from
                                                                which a jury is selected represent a ‘fair cross-section’ of the
                       OPINION                                  community.” United States v. Allen, 160 F.3d 1096, 1103
                   _________________                            (6th Cir. 1998) (quoting Taylor v. Louisiana, 419 U.S. 522,
   R. GUY COLE, JR., Circuit Judge. George and Connie           528 (1975)). Yet, despite this precious constitutional
Blair were convicted of various drug and money laundering       guarantee, and despite the fact that it is well known that
charges and sentenced to lengthy terms of imprisonment. The     African-American defendants in the Eastern District of
Blairs now appeal their convictions; George also appeals his    Michigan are being deprived of this guaranteed right, the
sentence. Specifically, George argues that the district court   judges of that district have yet to act. It is for this reason that
erred: by denying his motion to suppress evidence; by           I continue to urge that the jury selection plan in this district be
denying his motion to dismiss the original indictment based     reformed to insure that African Americans, and other minority
on the composition of the grand jury; by denying his motion     groups as well, are provided with the constitutionally sound
to vacate his sentence based on “promises” made to testifying   and fair jury to which they are entitled. The judges of the
witnesses; and by failing to reduce his sentence based on the   Eastern District of Michigan should reevaluate the current
100:1 sentencing disparity of crack cocaine versus powder       system through the use of empirical and statistical data, and
cocaine. Connie joins George’s argument with respect to the     devise a plan that comports with the fair representation
district court’s denial of their motion to suppress evidence    requirement of the Sixth Amendment. Until this occurs,
and, in addition, contends that the district court erred by     granting Mr. Blair’s motion to dismiss the indictment (thereby
denying her motion to dismiss the superseding indictment        subjecting him to possible reindictment by the government),
based on the composition of the grand jury that returned the    although technically the correct form of relief in this case,
original indictment. For the reasons that follow, we            would actually provide no relief at all.
AFFIRM the Blairs’ convictions and George’s sentence.
26    United States v. Blair, et al.   Nos. 98-2051; 99-1626      Nos. 98-2051; 99-1626      United States v. Blair, et al.    3

     In addition, the court erroneously assumed that by                                         I.
  invalidating Section VIII. B. of the plan, it thereby
  remedied the constitutionally infirm jury selection               Beginning in approximately 1992, George Blair and Connie
  process that existed in the Eastern District of Michigan.       Blair (aka Launa Miakowski) operated several prostitution
  However, by failing to consider the adequate                    houses in Detroit, Michigan. As a part of their operation, the
  representation of citizens in the jury array in the Eastern     Blairs sold drugs – typically crack cocaine or heroin – to the
  District in the course of its analysis, the Ovalle court did    prostitutes who worked in the houses, most of whom had
  not recognize that while it may have been invalidating a        serious drug addictions. In addition to requiring the
  jury selection process which was constitutionally infirm        prostitutes to buy their drugs from them, the Blairs sold drugs
  as applied to “non-blacks,” it was leaving in its wake a        to the prostitutes’ clients. The Blairs also sold drug
  jury selection plan which was unconstitutional as applied       paraphernalia such as syringes and pipes at their houses.
  to blacks – and possibly other minority groups as well –        During a routine “shift” at a house, the Blairs sold
  inasmuch as the Ovalle court simply invalidated Section         approximately $1000 worth of drugs.
  VIII. B. of the plan. By hastily ending its analysis there,
  the Ovalle court left African Americans in the same                In April 1997, IRS Special Agent Thomas Kraft, having
  “underrepresented” position as they were before the plan        information that the Blairs were engaged in narcotics
  was initiated, thereby simply exchanging one apparently         trafficking, provided an affidavit in order to obtain a search
  one unfair process for another, without considering the         warrant for the Blairs’ residence and one of the prostitution
  impact of its ruling on the underrepresentation of blacks       houses. A federal magistrate judge issued the warrant, which
  in the jury selection process -- a problem that had been        authorized law enforcement agents to seize records “relating
  duly recognized by the United States District Court for         to the transportation, importation, ordering, sale, and
  the Eastern District of Michigan, and without examining         distribution of controlled substances.” Detroit police officers
  through statistics or empirical data whether the plan left      assisted in the execution of the warrant to search the Blairs’
  status quo ante was constitutionally sound as applied to        residence. In that capacity, a Detroit police officer who was
  all minority groups.                                            also a DEA Task Force Agent, Sergeant James Raby, aided in
                                                                  the search. Raby observed on top of a dresser an open pill
Id. at 751.                                                       vial that contained a plastic bag in which there was “a white
                                                                  substance [that appeared] to be narcotics.” Raby conducted
  Despite the criticisms and concerns regarding the jury          a field test on the substance which revealed the presence of
selection plan in the Eastern District of Michigan which were     cocaine.
brought to the fore by Spearman nearly one year ago, the jury
selection plan utilized in this district remains status quo.         At this point, Raby left the Blairs’ residence to obtain a
These concerns are not baseless or without foundation.            state search warrant authorizing agents to seize “[a]ll
Because of the long-standing acknowledged                         suspected controlled substances, all items used in the [sic]
underrepresentation of African Americans in the jury venire       connection with the sales, manufacture, use, storage,
of the Eastern District of Michigan, the current jury selection   distribution, transportation, delivery or concealment of
process in this district is of questionable constitutionality.    controlled substances.” Raby then returned to the Blairs’
Although some minor modifications were made in the jury           residence with the state warrant. Law enforcement agents
selection plan that was reinstated by the Eastern District of     ultimately seized 350 grams of crack cocaine, 50 grams of
Michigan in response to Ovalle, nothing was done in the main
4       United States v. Blair, et al.       Nos. 98-2051; 99-1626           Nos. 98-2051; 99-1626       United States v. Blair, et al.   25

heroin, drug paraphernalia, four loaded firearms and                         Amendment, and how the Court’s failure to consider this
approximately $13,000 in cash.                                               challenge left the jury selection reform in the hands of the
                                                                             judges of the Eastern District of Michigan who “have failed
   In December 1997, a federal grand jury in the Eastern                     in their responsibility to devise a jury selection plan which
District of Michigan indicted the Blairs in a six-count                      provides for a fair cross section of the community as applied
indictment, setting forth five counts of possession with intent              to all races.” See 186 F.3d at 748. Specifically, Spearman
to distribute controlled substances, in violation of 21 U.S.C.               stated as follows:
§ 841(a)(1), and one count of engaging in a continuing
criminal enterprise (CCE), in violation of 21 U.S.C. § 848.                       Indeed, at issue in Ovalle was whether Hispanics were
Both George and Connie        were represented by the same                     unconstitutionally represented in the jury array in
attorney, Milton Henry,1 who filed a motion to suppress the                    violation of the appellants’s Sixth Amendment right to a
evidence seized during the search of the Blairs’ residence.                    jury drawn from a fair cross section of the community, as
Following a hearing, the district court denied the motion.                     well as their equal protection rights under the Fifth
                                                                               Amendment. Ovalle, 136 F.3d at 1095. However, the
  The case was set for trial. The day before trial was                         Ovalle court chose not to adjudicate the issue of fair
scheduled to begin, Henry indicated that because of potential                  representation, and instead limited its analysis and
conflicts, he wished to withdraw from the representation of                    holding to the equal protection claim as applied to the
Connie.2 The court severed Connie, but proceeded to trial in                   “mechanics’ of Section VIII. B. Id. at 1095, 1106
George’s case. George waived his right to a jury trial; thus,                  (finding that underrepresentation of any group “was not
the court conducted a bench trial. The court found George                      the point” of the court’s inquiry). In stopping short of
guilty of the five drug counts, but acquitted him of the CCE                   properly adjudicating the constitutionality of the jury
count.                                                                         selection process in the Eastern District, the court further
                                                                               frustrated the problem . . . by dividing the group of
  Two weeks after George’s trial and prior to Connie’s trial,                  potential jurors into two broad categories of blacks and
this court issued a decision invalidating a portion of the jury                “non-blacks,” . . . and in failing to consider actual
selection plan in the Eastern District of Michigan. See United                 representation of the individual groups, [thereby]
States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998). Citing                        singling out African Americans as somehow being
Ovalle, the Blairs filed a motion to dismiss their indictment.                 adequately – or more than adequately – represented by
On April 24, 1998, the district court denied the motion as to                  the jury selection plan that was in place at the time when,
George, but granted it as to Connie after the government                       historically, it had been the white population which had
agreed that her indictment should be dismissed without                         been more than adequately represented.
prejudice because she had not yet been tried. Approximately
two weeks later, another grand jury returned a superseding                       Furthermore, by failing to address whether all groups
                                                                               were constitutionally represented, the court also left
                                                                               unredressed the issue of whether the jury selection plan
    1
      The government asked the court to instruct the Blairs on the dangers     which was in place at the time, although designed to
of joint representation. The court did so, at which time the Blairs stated     increase the number of African Americans in the jury
their desire to be represented by the same attorney.                           array, was in fact providing for a representative number
                                                                               of black jurors.
    2
      Connie never did obtain new counsel, and Henry continued to
represent Connie, as well as George.
24    United States v. Blair, et al.   Nos. 98-2051; 99-1626        Nos. 98-2051; 99-1626       United States v. Blair, et al.    5

allowed these defendants to avail themselves of their co-           indictment against Connie, charging her with the same six
defendants’ challenge. This case should be no different. As         counts set forth in the original indictment and adding a count
cited at length by the majority, Ovalle has been interpreted as     of money laundering conspiracy, in violation of 18 U.S.C.
precluding defendants who did not raise challenges to the jury      § 1956. The Blairs then filed another motion to dismiss both
selection plan prior to trial from availing themselves of the       indictments, which the district court denied.
Ovalle decision. However, these cases did not involve a
situation like that in the case at hand, where one co-defendant       In July 1998, the Blairs filed a motion for dismissal or other
was able to avail herself of the Ovalle decision, but the other     relief, arguing that the government induced prosecution
co-defendant was not able to avail himself of the same. This        witnesses to testify, in violation of 18 U.S.C. § 201(c). The
case is more factually analogous to that of the Ovalles than        district court denied the motion.
that of the cases where a single defendant or co-defendants
each raised a challenge under Ovalle after the trial had begun        In August 1998, the district court sentenced George.
or was concluded. Therefore, like the Ovalles, Mr. Blair            George raised several objections at that time, including an
should be allowed to avail himself of his co-defendant’s            objection to the calculation of his sentence on the basis of
objection.                                                          crack cocaine rather than powder cocaine. The district court
                                                                    sentenced George to 262 months’ imprisonment to be
  However, as noted at the outset of my opinion and as              followed by five years of supervised release. George filed a
further explained in the section that follows, reindicting Mr.      timely notice of appeal of his conviction and sentence.
Blair under the jury selection process as it now stands in the
Eastern District of Michigan would do nothing but subject              In October 1998, Connie entered into a conditional plea
him to a jury selection process that is no more representative,     agreement with the government pursuant to Fed. R. Crim. P.
and therefore no more constitutional, than that used in             11(a)(2). Connie entered a plea of guilty to one count of
connection with his first indictment. In fact, as a result of the   possession with intent to distribute controlled substances and
Ovalle decision, the jury venire under which Mr. Blair would        to the money laundering conspiracy count, in exchange for the
proceed at this point may actually be less fair to African          dismissal of the other five charges. In addition, Connie
Americans than the jury venire under which Mr. Blair first          reserved her right to appeal the denial of the joint motion to
proceeded. This is because the jury selection plan in               suppress evidence and her motion to dismiss the superseding
operation at the time Mr. Blair’s indictment was handed down        indictment. The district court sentenced Connie to 168
was designed to rectify the underrepresentation of African          months’ imprisonment to be followed by five years of
Americans in the previous plan; however, it is that very            supervised release. Connie filed a timely notice of appeal of
“previous plan” -- the plan known to be unfair to African           her conviction.
Americans -- which is operation at the current time as a result
of the Ovalle decision.                                               This court consolidated the Blairs’ appeals and granted
                                                                    Connie’s motions to consolidate and adopt George’s joint
B. The Jury Selection Process in the Eastern District of            appendix and his argument regarding the denial of the Blairs’
   Michigan in the Aftermath of the Ovalle Decision                 motion to suppress evidence.

  United States v. Spearman analyzed at length Ovalle’s
failure to consider the defendant’s fair representation
challenge to the jury selection process brought under the Sixth
6    United States v. Blair, et al.    Nos. 98-2051; 99-1626       Nos. 98-2051; 99-1626            United States v. Blair, et al.         23

                              II.                                  African Americans. Therefore, while Hispanics may have
                                                                   had a reason to question the jury selection process in the
               A. MOTION TO SUPPRESS                               Eastern District of Michigan, African Americans would not
                                                                   have had such a reason. In my opinion, this serves as an
  The Blairs argue that the district court erred by denying        objective external factor that excused Attorney Henry from
their motion to suppress evidence because Agent Kraft’s            raising the issue.
affidavit was insufficient to support the federal search
warrant, the federal search warrant did not comply with the          Finally, I agree with Mr. Blair’s argument that the district
particularity requirement of the Fourth Amendment, the             court should have construed his co-defendant’s objection to
federal search warrant was a “subterfuge” to search for drugs,     the composition of the grand jury to include him. Once again,
and Sergeant Raby impermissibly field tested the suspected         to hold otherwise does nothing more than elevate form over
drugs. The Blairs further argue that the state search warrant      substance, where Mr. Blair is not allowed to avail himself of
was invalid because it was obtained on the basis of Raby’s         his co-defendant’s challenge simply    because he and his co-
unlawful actions.                                                  defendant had separate trials.1 If Mr. Blair had been tried
                                                                   with his co-defendant then, like the Ovalles, Mr. Blair would
  We review a district court’s factual findings regarding a        have been able to benefit from his co-defendant’s objection.
motion to suppress for clear error, and its legal conclusions de   See Ovalle, 136 F.3d at 1109. Under the majority’s view, had
novo. See United States v. Leake, 998 F.2d 1359, 1366 (6th         the Ovalles moved for a separate trial from their co-
Cir. 1993). In addition, a magistrate’s finding of probable        defendants Canales and Garcia, then they would not have
cause for the issuance of a warrant is accorded “great             been able to avail themselves of their co-defendants’
deference.” See id. at 1362-63; United States v. Sonagere, 30      objection to the jury venire.
F.3d 51, 53 (6th Cir. 1994). On appeal, we must determine
whether, in light of the totality of the circumstances, the           The facts of this case are ones not anticipated by the Ovalle
magistrate had a “substantial basis” for concluding that “a        court. It is true that in Ovalle the Court stated that “[h]ad
search would uncover evidence of wrongdoing.” Sonagere,            Canales and Garcia not raised these objections prior to trial,
30 F.3d at 53 (quoting Illinois v. Gates, 462 U.S. 213, 236        all of the appellants would be barred from raising such an
(1983)).                                                           objection for the first time on appeal or in a collateral
                                                                   proceeding attacking their convictions since the objection
                  1. The Federal Warrant                           would be waived by the failure to object prior to trial.” See
                                                                   136 F.3d at 1109. However, the fact remains that the Ovalles
               a. Sufficiency of the affidavit                     did not raise such an objection prior to trial and the Court
  The Blairs argue that the affidavit was insufficient to
support the warrant in this case, because the magistrate judge         1
had no basis to conclude that records relating to the Blairs’            It is significant that Mr. Blair and his co-defendant Connie Blair had
                                                                   proceeded in tandem throughout the criminal process, such that the
businesses would be found in their residence. We disagree.         pretrial conference, motions to quash the search warrant, suppress the
                                                                   evidence, and dismiss the case, were jointly brought by these Defendants.
  The application for the federal search warrant was based on      It was only after Mr. Blair waived his right to jury trial that the district
an eleven-page affidavit by Agent Kraft, who had extensive         court severed Mr. Blair’s case from his co-defendant’s case. See United
experience in drug-trafficking investigations. Kraft testified     States District Court for the Eastern District of Michigan (Detroit)
that the purpose of the search warrant was “to locate and seize    Criminal Docket for Case #: 97-CR-18440-1, at 3-6, United States v.
                                                                   Blair.
22   United States v. Blair, et al.    Nos. 98-2051; 99-1626       Nos. 98-2051; 99-1626       United States v. Blair, et al.     7

At the time of Mr. Blair’s indictment, the jury selection plan     evidence relating to an investigation into violations of Title
in place had been drafted and approved by the judges of the        18, United States Code Section 1956, Laundering of
Eastern District of Michigan and approved by the Judicial          Monetary Instruments, Title 18, United States Code Section
Counsel of the Sixth Circuit allegedly to remedy the               1957, Engaging in Monetary Transactions in Property Derived
underrepresentation of African Americans. Therefore,               from Specified Unlawful Activity and Title 21, United States
Attorney Henry had no reason to believe that the very judges       Code Section 841 and 846.” Kraft’s affidavit set forth his
who approved the plan would find it unfair to African              experience in investigating the financial aspects of drug
Americans. See Spearman, 186 F.3d at 754 (finding that “a          trafficking and stated that in his experience it was common
defense attorney would have had no reason to challenge the         for drugs traffickers to store financial records in their homes.
jury selection process that was in place in the Eastern District   Kraft also provided information obtained about the Blairs
of Michigan prior to Ovalle, inasmuch as the court to which        from several cooperating witnesses, with statements attesting
he would make his challenge consisted of the very judges who       to their reliability. The cooperating witnesses stated that they
approved the plan”). Those unpublished cases cited and             had worked as prostitutes for the Blairs and purchased
relied upon by the majority fail to recognize that an attorney     quantities of drugs from them. The affidavit also provided
similarly situated to Mr. Henry would have found any               that electric company records for the suspected houses of
challenge to the jury selection plan futile in light of the fact   prostitution listed the subscriber for electric services as Launa
that the plan had allegedly been designed and approved to          Miakowski. Finally, the affidavit reported that although the
correct the underrepresentation of African Americans. In           Blairs owned a new home, a motor home, a barber shop, and
other words, even if an attorney similarly situated to Mr.         a party store, George had not filed income tax returns for the
Henry had held a belief that the plan was unfair to blacks, or     years 1990 through 1995, and Connie had filed returns under
had heard of other attorneys who believed the same, there was      the name Launa Miakowski indicating a total income of
no basis for the attorney to believe that his challenge to the     $46,462 for the years 1990 through 1994.
jury selection plan would be seriously considered – let alone
be successful. Indeed, none of the judges of the Eastern              Considering the totality of the circumstances, we find that
District of Michigan have acted upon the concerns expressed        Kraft’s affidavit established probable cause for the issuance
more than one year ago regarding the unfair jury selection         of the search warrant. Accordingly, the magistrate judge had
process as it exists in the aftermath of Ovalle. See Spearman,     a substantial basis to conclude that wrongdoing would be
186 F.3d at 747-55.                                                uncovered by the search. The affidavit provided information
                                                                   regarding Kraft’s extensive experience in investigating the
  Furthermore, what is of critical importance here is the fact     financial aspects of drug trafficking and his professional
that the defendants in Ovalle who challenged the jury              opinion that drug traffickers keep financial records at their
selection process under the Fifth Amendment right to equal         homes. In addition, the affidavit provided information
protection as well as under the Sixth Amendment right to fair      obtained from reliable cooperating witnesses and electric
representation, were Hispanic, not African American. In            company records. This information was sufficient for the
other words, the defendants in Ovalle made these challenges        issuance of the search warrant in this case. See United States
on the basis of their Hispanic ethnicity; however, an African-     v. Jones, 159 F.3d 969, 975 (6th Cir. 1998) (stating that “[i]n
American defendant such as Mr. Blair would have had no             the case of drug dealers, evidence is likely to be found where
reason to challenge the jury selection process which allegedly     the dealers live”).
had been designed – and subsequently approved – to correct
the constitutionally infirm jury selection process as applied to
8     United States v. Blair, et al.    Nos. 98-2051; 99-1626        Nos. 98-2051; 99-1626       United States v. Blair, et al.   21

                       b. Particularity                                     (4) Requests for discovery under Rule 16; or
   The Blairs also argue that the federal search warrant was                (5) Requests for a severance of charges or
overbroad in that it lacked particularity as to the items to be                 defendants under Rule 14.
seized. Because the Blairs failed to make this argument to the
district court, it is waived. See United States v. Critton, 43       Fed. R. Crim. P. 12(b)(1)-(5). The Advisory Committee
F.3d 1089, 1094 (6th Cir. 1995) (holding that a defendant            Notes on the 1944 adoption of subdivision (b)(1) and (2)
who fails to raise a specific issue as the basis for suppression     states that the section includes challenges made to the
in a motion to suppress to the district court has waived the         “[i]llegal selection or organization of the grand jury,
right to raise that issue on appeal). Even if the Blairs’            disqualification of individual grand jurors, presence of
argument were properly before us, that argument would fail.          unauthorized persons in the grand jury proceedings, defects in
                                                                     indictment or information other than lack of jurisdiction or
   It is well settled that items to be seized pursuant to a search   failure to state an offense, etc.” See Fed. R. Crim. P. 12(b)
warrant must be described with particularity to prevent “the         advisory committee’s note. However, I submit that although
seizure of one thing under a warrant describing another.”            the advisory note speaks to illegal selection or organization of
Marron v. United States, 275 U.S. 192, 196 (1927); see also          the grand jury, it does not speak to the specific nature of an
Andresen v. Maryland, 427 U.S. 463, 480 (1976). However,             unconstitutional selection of the grand jury, where the
we have recognized that the degree of specificity in a warrant       defendant is not challenging the selection of his particular
must be flexible, depending upon the type of items to be             grand jury based upon an illegality such as juror tampering,
seized and the crime involved. See United States v. Ables,           but rather the defendant is challenging the unconstitutional
167 F.3d 1021, 1033 (6th Cir.) (citing United States v.              nature of the jury selection plan as a whole. See Greene, 971
Henson, 848 F.2d 1374, 1383 (6th Cir. 1988) (citation                F. Supp. at 1138 (distinguishing Shotwell Manufacturing v.
omitted)), cert. denied, 119 S. Ct. 2378 (1999). “Thus[,] a          United States, 371 U.S. 341 (1963) on the basis of, among
description is valid if it is as specific as the circumstances and   other things, the fact that the defendant did not challenge the
the nature of the activity under investigation permit.” Id. We       entire jury selection system, but only the impanelment of his
also have agreed with the Second Circuit’s conclusion that           own jury). Accordingly, I believe that Rule 12(b)(2) is not an
“‘[o]nce a category of seizable papers had been adequately           absolute bar to considering Mr. Blair’s challenge to the jury
described, with the description delineated in part by an             selection plan.
illustrative list of seizable items, the Fourth Amendment is
not violated because the officers executing the warrant must            To the extent that one disagrees, I believe that under Rule
exercise some minimal judgment as to whether a particular            12(f), Mr. Blair has shown cause to excuse his failure to raise
document falls within the described category.’” Id. at 1034          the challenge to the jury selection plan prior to trial. In
(quoting United States v. Riley, 906 F.2d 841, 845 (2d Cir.          concluding otherwise, the majority accurately states that a
1990)).                                                              defense counsel’s failure to recognize the factual or legal
                                                                     basis for a claim, or a defense counsel’s failure to raise the
   Here, the warrant described the items to be seized as             claim despite recognizing it, does not constitute cause to
“[b]ooks, records, receipts, notes, ledgers, airline tickets,        excuse the lack of a timely objection. However, I respectfully
money orders, passports, and other papers relating to the            disagree with the majority’s conclusion that Attorney Milton
transportation, importation, ordering, sale, and distribution of     R. Henry did not have justifiable cause to excuse his failure
controlled substances.” The warrant also authorized seizure          to recognize or raise a challenge to the jury selection process.
20    United States v. Blair, et al.   Nos. 98-2051; 99-1626        Nos. 98-2051; 99-1626       United States v. Blair, et al.     9

thereby allowing the government to reindict Mr. Blair, the          of records of financial transactions and “electronic equipment
judges of the Eastern District of Michigan should immediately       to aid them in their drug trafficking activities.” Thus, the
revise their jury selection plan to comport with all                warrant specified that the records sought were those related to
constitutional mandates, so that Mr. Blair would be                 drug-trafficking activities and did not violate the particularity
guaranteed the constitutionally fair trial to which he is           requirement of the Fourth Amendment.
entitled. See United States v. Spearman, 186 F.3d 743, 747-
55 (6th Cir. 1999). Allowing defendants to be tried and                                     c. Subterfuge
convicted under a knowingly unfair jury selection system in
the Eastern District of Michigan is unconscionable; allowing          The Blairs also argue that the federal warrant authorizing
Mr. Blair to be twice subjected to an unfair jury selection         seizure of records and documents was merely a subterfuge;
system would be even worse.                                         that, in actuality, law enforcement agents were impermissibly
                                                                    searching for drugs. As further support for their contention,
A. Timeliness of Mr. Blair’s Motion to Dismiss the                  the Blairs assert that law enforcement agents seized jewelry,
   Indictment on the Basis of Ovalle                                money and vehicles that were obviously not records or
                                                                    documents, and that the federal warrant was executed
  It has been recognized that “the plain language of Rule           primarily by police officers who worked in narcotics. The
12(b) clearly does not require that constitutional challenges to    Blairs’ argument lacks merit.
the jury selection process must be made prior to trial.” See
United States v. Greene, 971 F. Supp. 1117, 1137 (E.D. Mich.           The federal warrant was issued on the basis of an affidavit
1997). Indeed, an examination of the plain language of the          provided by an IRS agent who specialized in the monetary
rule indicates that it is silent as to constitutional challenges.   transactions that occurred as a result of drug trafficking.
Specifically, the language of the rule provides as follows:         Although drug-trafficking activities were suspected, the IRS
                                                                    agent was seeking financial records indicating money
     (b) Pretrial Motions. Any defense, objection, or               laundering or monetary proceeds from illegal activities. Thus,
  request which is capable of determination without the             the federal “document” warrant was properly issued and
  trial of the general issue may be raised before trial by          executed by federal agents, with the assistance of Detroit
  motion. Motions may be written or oral at the discretion          police officers. The investigation did not turn into a drug
  of the judge. The following must be raised prior to trial:        investigation until law enforcement officers observed the
                                                                    presence of drugs in plain view while executing the federal
       (1) Defenses and objections based on defects in the          warrant. The subsequent state warrant then authorized
           institution of the prosecution; or                       officers to seize items related to narcotics transactions or the
                                                                    proceeds of narcotics transactions, which would include
       (2) Defenses and objections based on defects in the          vehicles, jewelry and money. Accordingly, there is no
           indictment or information (other than that it            evidence that the document warrant was a pretext to enable
           fails to show jurisdiction in the court or to            law enforcement agents to search for drugs, that the agents
           charge an offense which objections shall be              “manipulated” the system, or that the agents seized items not
           noticed by the court at any time during the              authorized by the warrants.
           pendency of the proceedings); or
       (3) Motions to suppress evidence; or
10   United States v. Blair, et al.   Nos. 98-2051; 99-1626       Nos. 98-2051; 99-1626       United States v. Blair, et al.    19

                d. The plain view doctrine                          _____________________________________________
   The Blairs contend that Sergeant Raby violated their Fourth      CONCURRING IN PART, DISSENTING IN PART
Amendment rights with respect to the drugs found during the         _____________________________________________
search pursuant to the federal warrant, because the drugs were
not in plain view and Raby had no authority to field test the        CLAY, Circuit Judge, concurring in part and dissenting in
substance. The Blairs essentially assert that Raby’s actions      part. I concur in Judge Cole’s well-reasoned and thorough
went beyond the scope of the federal warrant. The district        opinion as it relates to all issues except George Blair’s
court concluded otherwise, finding that the drugs were in fact    challenge to the district court’s denial of his motion to dismiss
in plain view and Raby therefore had authority to perform a       the original indictment based upon the composition of the
field test. We agree with the district court.                     grand jury. Mr. Blair’s challenge to the composition of the
                                                                  grand jury should not be held as untimely because to do so
   It is well established that law enforcement agents may seize   puts form over substance inasmuch as his attorney had no
items in plain view, so long as the agent is lawfully present,    reason to believe that the jury selection plan in the Eastern
the discovery is inadvertent, and the incriminating nature of     District of Michigan at that time would be found
the item is “immediately apparent.” United States v.              unconstitutional. However, granting Mr. Blair relief and
Blakeney, 942 F.2d 1001, 1028 (6th Cir. 1991); see generally      allowing the government to reindict him at this time would do
Horton v. California, 496 U.S. 128 (1990). When officers          nothing more than put form over substance once again, since
executing a search warrant seize an item in plain view that is    the current jury selection plan in the Eastern District of
outside the scope of the warrant, the officers must have          Michigan has been found to be unfair to at least one minority
probable cause to believe that there is a nexus between the       group – African Americans. Which is to say, although this
viewed item and criminal activity. See United States v.           Court held that the jury selection plan under which Mr.
Calloway, 116 F.3d 1129, 1133 (6th Cir. 1997); United States      Blair’s original indictment was delivered was
v. Beal, 810 F.2d 574, 576 (6th Cir. 1987).                       unconstitutional, see United States v. Ovalle, 136 F.3d 1092,
                                                                  1108-09 (6th Cir. 1998), after Ovalle was issued, the Eastern
  Here, the district court relied on Raby’s statement in his      District of Michigan simply returned to the jury selection plan
affidavit in support of the state search warrant to determine     status quo ante, thereby reinstituting the defective jury
that the drugs were in plain view. Raby testified that while      selection plan which had previously been found to be unfair
searching the master bedroom on the federal warrant, he:          to African Americans. As such, the discriminatory jury
                                                                  selection plan currently in place in the Eastern District of
  observed in a [sic] open pill vial, a clear plastic bag         Michigan is no more constitutionally fair than the plan under
  containing a hard off white substance that the affiant          which Mr. Blair first proceeded.
  believed to be cocaine. The affiant conducted a field test
  on the substance which tested positive for the presence of         Because the current jury selection plan in the Eastern
  cocaine. Further, the affiant observed numerous bundles         District of Michigan has been shown to be demonstrably
  several inches each containing one hundred dollar, fifty        unfair to African Americans, affording Mr. Blair a new trial
  and twenty dollar bills. Further, the affiant observed          at this juncture would appear to be an exercise in futility. Mr.
  boxes of syringes lying on the bed in the master                Blair would merely be exchanging one unconstitutional jury
  bedroom.                                                        selection plan for another in the course of a remand from this
                                                                  Court. It is for this reason that although I would reverse,
18   United States v. Blair, et al.     Nos. 98-2051; 99-1626      Nos. 98-2051; 99-1626             United States v. Blair, et al.          11

  significant is the fact that the witnesses, the prostitutes[,]   In light of this statement, we do not believe that the district
  testified with a degree of regularity that the substance         court clearly erred in its factual finding that the drugs were in
  that they were buying from the house in which they were          plain view, because Raby was lawfully present, the discovery
  living was, in fact, crack cocaine. They referred to it as       of the drugs was inadvertent, and the incriminating nature of
  rocks that they were purchasing.                                 the drugs was immediately apparent. We further conclude
                                                                   that Raby had probable cause to believe there was a nexus
The district court’s statements provided ample reasoning for       between the suspected drugs and criminal activity.
sentencing George on the basis of crack cocaine. The district
court did not commit clear error.                                     In addition, we find no problem with the fact that Raby
                                                                   field tested the suspected cocaine. Because the drugs
  Finally, George raises a constitutional challenge to the         legitimately fell into the plain view exception, their
100:1 sentencing disparity of crack cocaine versus powder          warrantless seizure was permissible. See Blakeney, 942 F.2d
cocaine. The law is well settled in this circuit that the 100:1    at 1028. Thus, it would have been permissible for Raby to
ratio withstands constitutional scrutiny. See, e.g., United        seize the suspected drugs for later testing. Accordingly, Raby
States v. Bingham, 81 F.3d 617, 630-31 (6th Cir. 1996);            did not violate the Blairs’ Fourth  Amendment rights by field
United States v. Hill, 79 F.3d 1477, 1488-89 (6th Cir. 1996);      testing the suspected drugs.3
United States v. Reece, 994 F.2d 277, 278-79 (6th Cir. 1993);
United States v. Tinker, 985 F.2d 241, 242 (6th Cir. 1992);                               2. The State Warrant
United States v. Williams, 962 F.2d 1218, 1227 (6th Cir.
1992); United States v. Pickett, 941 F.2d 411, 418-19 (6th            The Blairs allege that the state warrant was invalid, because
Cir. 1991).                                                        it was issued on the basis of Raby’s impermissible discovery
                                                                   of the cocaine. We can easily dispose of that argument,
                               III.                                having found that the discovery of the cocaine was
                                                                   constitutionally sound. Moreover, there was no problem with
  For the foregoing reasons, we affirm.                            Raby’s affidavit in support of the state warrant. Raby’s
                                                                   affidavit clearly stated his qualifications and what he observed
                                                                   in plain view during the execution of the federal warrant.
                                                                   Accordingly, the Blairs’ argument regarding the legitimacy of
                                                                   the state warrant fails.




                                                                       3
                                                                         The fact that Raby field tested the drugs does not indicate that he
                                                                   lacked probable cause to believe that the substance was in fact cocaine.
                                                                   See United States v. Buchanan, 70 F.3d 818, 826 & n.5 (5th Cir. 1995)
                                                                   (as amended in 1996) (stating that “the fact that officers chose to field test
                                                                   the substance does not indicate that they lacked probable cause to believe
                                                                   the residue was contraband”).
12        United States v. Blair, et al.       Nos. 98-2051; 99-1626            Nos. 98-2051; 99-1626       United States v. Blair, et al.   17

                          B. OVALLE ISSUE                                       based on the Tenth Circuit’s panel decision in United States
                                                                                v. Singleton, 144 F.3d 1343 (10th Cir. 1998) (holding that
  In Ovalle, this court held that the jury selection plan in the                promises made in a plea agreement could violate 18 U.S.C.
Eastern District of Michigan – which was essentially the same                   § 201(c)), vacated, 165 F.3d 1297 (10th Cir.) (en banc), cert.
plan4in place at the time of the original indictment in this                    denied, 119 S. Ct. 2371 (1999). On appeal, George concedes
case – violated the Jury Selection and Service Act, 28 U.S.C.                   that the panel decision in Singleton has been overruled and
§ 1862, and the Equal Protection Clause, because it allowed                     acknowledges this court’s decision in United States v. Ware,
the removal of every fifth non-black juror from the jury wheel                  161 F.3d 414, 419 (6th Cir. 1998) (holding that § 201(c),
in order to increase the number of black jurors. See Ovalle,                    which penalizes an individual for giving anything of value in
136 F.3d at 1099-1100, 1105-07. The Blairs contend that the                     exchange for testimony, does not apply to the United States
district court erred by denying their motions to dismiss their                  government), cert. denied, 526 U.S. 1045 (1999).
indictments – in the case of Connie, the superseding                            Nonetheless, George contends that § 201(c) was violated
indictment – based on the composition of the grand jury that                    because it was not the prosecutor who gave things of value to
returned the original indictment pursuant to Ovalle. We                         witnesses, it was Sergeant Raby. This argument fails.
review a defendant’s challenge to the composition of a grand
jury de novo. See Ovalle, 136 F.3d at 1100.                                       First, as the government notes, George has waived this
                                                                                argument by failing to raise it before the trial court. In
                        1. George’s Argument                                    addition, even if George had not waived this argument, any
                                                                                “promises” made to witnesses by Sergeant Raby were made
  In George’s case, the district court denied his motion to                     on behalf of the government; accordingly, George’s argument
dismiss the indictment on the basis of Ovalle, holding that                     lacks merit.
George waived his right to challenge the composition of the
grand jury by failing5 to make a pretrial motion under Fed. R.                       D. CRACK COCAINE/ POWDER COCAINE
Crim. P. 12(b)(2), and by failing to establish cause or
                                                                                  George asserts that the government failed to establish at
                                                                                sentencing that the involved cocaine was crack cocaine. We
     4                                                                          review factual determinations of the sentencing court for clear
      The district court stated that, in actuality, a slightly different jury
selection plan was in effect at the time of the Blairs’ original indictment     error. See United States v. Gort-DiDonato, 109 F.3d 318, 328
that allowed juror’s names who had been removed to be deferred for use          (6th Cir. 1997).
in future jury wheels rather than being eliminated. See United States v.
Blair, 9 F. Supp. 2d 779, 780 n.1 (E.D. Mich. 1998).                              The district court, after extensive arguments, determined
     5                                                                          that George should be sentenced on the basis of crack
         Fed. R. Crim. P. 12(b)(2) provides:                                    cocaine. The court noted:
       (b) Pretrial Motions. Any defense, objection, or request which is
     capable of determination without the trial of the general issue may be       The other evidence that leads this Court to find by a
     raised before trial by motion . . . The following must be raised prior       preponderance of the evidence that the substance
     to trial: . . .                                                              involved is crack cocaine is not only do I believe that the
                                                                                  substance as identified by the lab report is, in fact, crack
          (2) Defenses and objections based on defects in the indictment          cocaine, the witnesses testified with a large amount of
     or information (other than that it fails to show jurisdiction in the
     court or to charge an offense which objections shall be noticed by the       consistency. The police officers, who made the search,
     court at any time during the pendency of the proceedings) . . . .            identified it as, quote, crack cocaine. . . . But as
16        United States v. Blair, et al.        Nos. 98-2051; 99-1626      Nos. 98-2051; 99-1626            United States v. Blair, et al.          13

  We further note that Connie does not have a double                       prejudice for this procedural default. See Blair, 9 F. Supp. 2d
jeopardy argument arising from the second indictment. It is                at 780-81. We agree.
well established that dismissal of an indictment prior to trial
does not raise a double jeopardy issue and does not bar                       George contends that the district court should have found
subsequent prosecution for the offenses described in the                   that cause existed to excuse his failure to raise the Ovalle
indictment. See Pi, 174 F.3d at 748. Connie argues,                        issue prior to trial, because Ovalle was not decided until
however, that jeopardy attached in her case because George                 February 23, 1998, two weeks after his trial. Pursuant to
had already been tried at the time the indictment against her              Ovalle, it is clear that a defendant’s failure to object to the
had been dismissed. Connie’s argument is misplaced, as she                 composition of the grand jury prior to trial constitutes waiver
cannot assert George’s jeopardy rights. Connie’s trial had                 of that argument. See 136 F.3d at 1107-09; Fed R. Crim. P.
been severed from George’s and had not yet begun when the                  12(b)(2). In order to show cause to excuse this type of
original indictment was dismissed and the superseding                      procedural default, a defendant must demonstrate that “some
indictment filed. Accordingly, jeopardy did not attach to the              objective factor external to the defense impeded counsel’s
charges against Connie.                                                    efforts to comply with the . . . procedural rule.” Murray v.
                                                                           Carrier, 477 U.S. 478, 488 (1986). “[T]he mere fact that
  Finally, Connie asserts that the illegality of the original              counsel failed to recognize the factual or legal basis for a
indictment somehow tainted the second indictment. Again,                   claim, or failed to raise the claim despite recognizing it, does
Connie misses the mark. Any irregularity in an original                    not constitute cause for the procedural default.” Id. at 486.
indictment has no effect on a subsequent indictment. See id.               George’s reliance on the timing of Ovalle is therefore
(citing United States v. Senak, 477 F.2d 304, 306 (7th Cir.                misplaced. Ovalle did not recognize a new right; instead, it
1973) (“[a] federal grand jury may return a second indictment              held that the 1992 jury selection plan violated well established
for the same offense when the first indictment has been                    constitutional rights. Prior to trial, George failed to recognize
dismissed or otherwise found defective”)).                                 or chose to ignore a potential challenge to the jury selection
                                                                           plan. This failure does not establish cause to overcome
                         C. 18 U.S.C. § 201 (c)6                           George’s waiver of the issue; the fact that Ovalle illuminated
                                                                           this issue two weeks later does nothing to change that result.
  George argues that his conviction should be vacated on the               George has failed to demonstrate an objective external factor
basis that law enforcement agents impermissibly promised                   that prohibited him from raising an objection to the jury
witnesses leniency and paid their expenses in exchange for                 selection plan prior to his trial; accordingly, he has not shown
their testimony against him. George filed such a motion in                 cause to excuse his waiver of this issue. See United States v.
the district court approximately five months after his trial,

     6                                                                     Fed. R. Crim. P. 12(b) (emphasis added). The effects of failing to raise
         Title 18 U.S.C. § 201(c) provides in part that:                   a 12(b)(2) motion before trial are set forth in Rule 12(f):
     (c) Whoever –                                                                     (f) Effect of Failure To Raise Defenses or Objections.
         (1) otherwise than as provided by law for the proper                       Failure by a party to raise defenses or objections or to make
     discharge of official duty – . . .                                             requests which must be made prior to trial, at the time set by the
         (2) directly or indirectly, gives, offers, or promises anything            court . . . shall constitute waiver thereof, but the court for cause
     of value to any person, for or because of the testimony under                  shown may grant relief from the waiver.
     oath or affirmation given or to be given by such person as a
     witnesses upon a trial, . . . .                                       Fed. R. Crim. P. 12(f).
14   United States v. Blair, et al.    Nos. 98-2051; 99-1626       Nos. 98-2051; 99-1626      United States v. Blair, et al.   15

Simpson, Nos. 97-2305, 97-2307, 97-2316, 98-1050, 1999               We agree with the district court and the government that
WL 777348, at *10 (6th Cir. Sept. 21, 1999) (stating that “the     Connie’s timely objection, i.e., prior to her trial, does not
fact that Ovalle was not decided until after [defendant’s] trial   create an exception for George. Unlike the situation in
is not sufficient cause for this court to grant relief from the    Ovalle, Connie did not raise her valid objection prior to
waiver of the issue”); see also United States v. Bischoff, Nos.    George’s trial, but after George had been convicted. This
97-1980, 97-1983, 1999 WL 644340, at *6 (6th Cir. Aug. 19,         does not fall into the narrow exception to Rule 12(b)(2)
1999) (cause not shown for failure to raise Ovalle in district     created by Ovalle. Accordingly, the district court did not err
court); United States v. Valme, No. 98-1340, 1999 WL               by denying George’s motion to dismiss his indictment on the
519232, at *5 (6th Cir. July 16, 1999) (holding that cause did     basis of the composition of the grand jury.
not exist for defendant’s failure to timely raise Ovalle issue);
United States v. Garavaglia, Nos. 98-1512, 98-1674, 1999                             2. Connie’s Argument
WL 220125, at *6 (6th Cir. April 6, 1999) (stating that
defendant’s contention that “case law was against him” did            As for Connie, the district court dismissed the original
not constitute cause to excuse waiver of Ovalle issue); United     indictment with respect to her without prejudice and, two
States v. Carr, Nos. 97-1367, 97-1422, 97-1513, 97-1584, 97-       weeks later, a new grand jury issued a superseding indictment
1814, 1999 WL 211928, at *6 (6th Cir. March 11, 1999)              against her. Connie now contends that a superseding
(cause not shown for failure to raise Ovalle issue prior to        indictment can only be issued when a valid, prior indictment
trial).                                                            is still pending. Connie further argues that a superseding
                                                                   indictment cannot arise from an invalid, original indictment.
  In addition, George argues that the district court should        Connie’s argument’s lack merit.
have construed his co-defendant’s timely objection to the
composition of the grand jury to include him. In so arguing,          Connie is correct in that some courts have narrowly defined
George relies on the fact that, in Ovalle, we allowed a            the term “superseding indictment” to refer to an indictment
“narrow exception” to the Ovalles with respect to waiver           returned when an original indictment still exists. See United
pursuant to Fed. R. Crim. P. 12(b)(2) because their co-            States v. Bowen, 946 F.2d 734,735 (10th Cir. 1991) (citing
defendants raised a timely exception before their joint trial.     United States v. Rojas-Contreras, 474 U.S. 231, 237 (1985)
We stated, however, that:                                          (Blackmun, J., concurring)). However, this court has held
                                                                   that a superseding indictment returned one month after the
  We emphasize that it is only because the Ovalles’                original indictment had been dismissed for citing the wrong
  codefendants Canales and Garcia raised a timely                  statute was valid. See United States v. Pi, 174 F.3d 745, 748
  objection to the seating of the grand and petit juries that      (6th Cir.), cert. denied, 120 S. Ct. 74 (1999). Moreover, even
  the Ovalles are permitted the benefit of this decision.          if the term “superseding” was inappropriate to describe the
  Had Canales and Garcia not raised these objections prior         second indictment, such a description is mere surplusage that
  to trial, all of the appellants would be barred from raising     can be ignored. See United States v. Caldwell, 176 F.3d 898,
  such an objection for the first time on appeal or in a           902 (6th Cir.) (“A part of the indictment unnecessary to and
  collateral proceeding attacking their convictions since the      independent of the allegations of the offense proved may
  objection would be waived by the failure to object prior         normally be treated as a ‘useless averment’ that ‘may be
  to trial. See Fed. R. Crim. P. 12(b)(2).                         ignored.’” (citation and quotation omitted)), cert. denied, 120
                                                                   S. Ct. 275 (1999).
Ovalle, 136 F.3d at 1109.
