United States v. Blair

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.