United States of America v. GEORGE BLAIR (98-2051); and CONNIE BLAIR, also known as LAUNA MAIKOWSKI (99-1626)

28 United States v. Blair, et al. Nos. 98-2051; 99-1626
C. Conclusion
I would reverse the district court’s denial of Mr. Blair’s
motion to dismiss the indictment on the basis of Ovalle.
However, if the district court had been correct in denying Mr.
Blair’s motion, I agree with the majority that Mr. Blair’s other
claims would fail, as do all claims raised by his co-defendant,
Connie Blair.
*The Honorable Robert Holmes Bell, United States District Judge for
the Western District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0178P (6th Cir.)
File Name: 00a0178p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
GEORGE BLAIR (98-2051);
and C ONNIE BLAIR, also
known as LAUNA M AIKOWSKI
(99-1626),
Defendants-Appellants.
;>

1
Nos. 98-2051;
99-1626
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.*

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2 United States v. Blair, et al. Nos. 98-2051; 99-1626
_________________
COUNSEL
ARGUED: Milton R. Henry, Bloomfield Hills, Michigan,
for Appellants. Patricia G. Gaedeke, UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:
Milton R. Henry, Bloomfield Hills, Michigan, for Appellants.
Patricia G. Gaedeke, UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee.
COLE, J., delivered the opinion of the court, in which
BELL, D. J., joined. CLAY, J. (pp. 19-28), delivered a
separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. George and Connie
Blair were convicted of various drug and money laundering
charges and sentenced to lengthy terms of imprisonment. The
Blairs now appeal their convictions; George also appeals his
sentence. Specifically, George argues that the district court
erred: by denying his motion to suppress evidence; by
denying his motion to dismiss the original indictment based
on the composition of the grand jury; by denying his motion
to vacate his sentence based on “promises” made to testifying
witnesses; and by failing to reduce his sentence based on the
100:1 sentencing disparity of crack cocaine versus powder
cocaine. Connie joins George’s argument with respect to the
district court’s denial of their motion to suppress evidence
and, in addition, contends that the district court erred by
denying her motion to dismiss the superseding indictment
based on the composition of the grand jury that returned the
original indictment. For the reasons that follow, we
AFFIRM the Blairs’ convictions and George’s sentence.
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
of an express acknowledgment of the unfairness of the jury
selection system as applied to African Americans by one of
the judges from the Eastern District of Michigan and the
district’s former Chief of Court Operations, the jury selection
plan remains the same. See Avern Cohn & David A.
Sherwood, The Rise and Fall of Affirmative Action in Jury
Selection, 32 U. Mich. J.L. Reform 323, 333 (1999) (“Early
experiences suggest that judges are trying criminal cases
largely with African-American defendants, prosecuted in front
of mostly white judges, by mostly white prosecutors and
defense counsel, and with decisions made by almost all-white
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
community.” United States v. Allen, 160 F.3d 1096, 1103
(6th Cir. 1998) (quoting Taylor v. Louisiana, 419 U.S. 522,
528 (1975)). Yet, despite this precious constitutional
guarantee, and despite the fact that it is well known that
African-American defendants in the Eastern District of
Michigan are being deprived of this guaranteed right, the
judges of that district have yet to act. It is for this reason that
I continue to urge that the jury selection plan in this district be
reformed to insure that African Americans, and other minority
groups as well, are provided with the constitutionally sound
and fair jury to which they are entitled. The judges of the
Eastern District of Michigan should reevaluate the current
system through the use of empirical and statistical data, and
devise a plan that comports with the fair representation
requirement of the Sixth Amendment. Until this occurs,
granting Mr. Blair’s motion to dismiss the indictment (thereby
subjecting him to possible reindictment by the government),
although technically the correct form of relief in this case,
would actually provide no relief at all.

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26 United States v. Blair, et al. Nos. 98-2051; 99-1626
In addition, the court erroneously assumed that by
invalidating Section VIII. B. of the plan, it thereby
remedied the constitutionally infirm jury selection
process that existed in the Eastern District of Michigan.
However, by failing to consider the adequate
representation of citizens in the jury array in the Eastern
District in the course of its analysis, the Ovalle court did
not recognize that while it may have been invalidating a
jury selection process which was constitutionally infirm
as applied to “non-blacks,” it was leaving in its wake a
jury selection plan which was unconstitutional as applied
to blacks – and possibly other minority groups as well –
inasmuch as the Ovalle court simply invalidated Section
VIII. B. of the plan. By hastily ending its analysis there,
the Ovalle court left African Americans in the same
“underrepresented” position as they were before the plan
was initiated, thereby simply exchanging one apparently
one unfair process for another, without considering the
impact of its ruling on the underrepresentation of blacks
in the jury selection process -- a problem that had been
duly recognized by the United States District Court for
the Eastern District of Michigan, and without examining
through statistics or empirical data whether the plan left
status quo ante was constitutionally sound as applied to
all minority groups.
Id. at 751.
Despite the criticisms and concerns regarding the jury
selection plan in the Eastern District of Michigan which were
brought to the fore by Spearman nearly one year ago, the jury
selection plan utilized in this district remains status quo.
These concerns are not baseless or without foundation.
Because of the long-standing acknowledged
underrepresentation of African Americans in the jury venire
of the Eastern District of Michigan, the current jury selection
process in this district is of questionable constitutionality.
Although some minor modifications were made in the jury
selection plan that was reinstated by the Eastern District of
Michigan in response to Ovalle, nothing was done in the main
Nos. 98-2051; 99-1626 United States v. Blair, et al. 3
I.
Beginning in approximately 1992, George Blair and Connie
Blair (aka Launa Miakowski) operated several prostitution
houses in Detroit, Michigan. As a part of their operation, the
Blairs sold drugs – typically crack cocaine or heroin – to the
prostitutes who worked in the houses, most of whom had
serious drug addictions. In addition to requiring the
prostitutes to buy their drugs from them, the Blairs sold drugs
to the prostitutes’ clients. The Blairs also sold drug
paraphernalia such as syringes and pipes at their houses.
During a routine “shift” at a house, the Blairs sold
approximately $1000 worth of drugs.
In April 1997, IRS Special Agent Thomas Kraft, having
information that the Blairs were engaged in narcotics
trafficking, provided an affidavit in order to obtain a search
warrant for the Blairs’ residence and one of the prostitution
houses. A federal magistrate judge issued the warrant, which
authorized law enforcement agents to seize records “relating
to the transportation, importation, ordering, sale, and
distribution of controlled substances.” Detroit police officers
assisted in the execution of the warrant to search the Blairs’
residence. In that capacity, a Detroit police officer who was
also a DEA Task Force Agent, Sergeant James Raby, aided in
the search. Raby observed on top of a dresser an open pill
vial that contained a plastic bag in which there was “a white
substance [that appeared] to be narcotics.” Raby conducted
a field test on the substance which revealed the presence of
cocaine.
At this point, Raby left the Blairs’ residence to obtain a
state search warrant authorizing agents to seize “[a]ll
suspected controlled substances, all items used in the [sic]
connection with the sales, manufacture, use, storage,
distribution, transportation, delivery or concealment of
controlled substances.” Raby then returned to the Blairs’
residence with the state warrant. Law enforcement agents
ultimately seized 350 grams of crack cocaine, 50 grams of

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4 United States v. Blair, et al. Nos. 98-2051; 99-1626
1The government asked the court to instruct the Blairs on the dangers
of joint representation. The court did so, at which time the Blairs stated
their desire to be represented by the same attorney.
2Connie never did obtain new counsel, and Henry continued to
represent Connie, as well as George.
heroin, drug paraphernalia, four loaded firearms and
approximately $13,000 in cash.
In December 1997, a federal grand jury in the Eastern
District of Michigan indicted the Blairs in a six-count
indictment, setting forth five counts of possession with intent
to distribute controlled substances, in violation of 21 U.S.C.
§ 841(a)(1), and one count of engaging in a continuing
criminal enterprise (CCE), in violation of 21 U.S.C. § 848.
Both George and Connie were represented by the same
attorney, Milton Henry,1 who filed a motion to suppress the
evidence seized during the search of the Blairs’ residence.
Following a hearing, the district court denied the motion.
The case was set for trial. The day before trial was
scheduled to begin, Henry indicated that because of potential
conflicts, he wished to withdraw from the representation of
Connie.2 The court severed Connie, but proceeded to trial in
George’s case. George waived his right to a jury trial; thus,
the court conducted a bench trial. The court found George
guilty of the five drug counts, but acquitted him of the CCE
count.
Two weeks after George’s trial and prior to Connie’s trial,
this court issued a decision invalidating a portion of the jury
selection plan in the Eastern District of Michigan. See United
States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998). Citing
Ovalle, the Blairs filed a motion to dismiss their indictment.
On April 24, 1998, the district court denied the motion as to
George, but granted it as to Connie after the government
agreed that her indictment should be dismissed without
prejudice because she had not yet been tried. Approximately
two weeks later, another grand jury returned a superseding
Nos. 98-2051; 99-1626 United States v. Blair, et al. 25
Amendment, and how the Court’s failure to consider this
challenge left the jury selection reform in the hands of the
judges of the Eastern District of Michigan who “have failed
in their responsibility to devise a jury selection plan which
provides for a fair cross section of the community as applied
to all races.” See 186 F.3d at 748. Specifically, Spearman
stated as follows:
Indeed, at issue in Ovalle was whether Hispanics were
unconstitutionally represented in the jury array in
violation of the appellants’s Sixth Amendment right to a
jury drawn from a fair cross section of the community, as
well as their equal protection rights under the Fifth
Amendment. Ovalle, 136 F.3d at 1095. However, the
Ovalle court chose not to adjudicate the issue of fair
representation, and instead limited its analysis and
holding to the equal protection claim as applied to the
“mechanics’ of Section VIII. B. Id. at 1095, 1106
(finding that underrepresentation of any group “was not
the point” of the court’s inquiry). In stopping short of
properly adjudicating the constitutionality of the jury
selection process in the Eastern District, the court further
frustrated the problem . . . by dividing the group of
potential jurors into two broad categories of blacks and
“non-blacks,” . . . and in failing to consider actual
representation of the individual groups, [thereby]
singling out African Americans as somehow being
adequately – or more than adequately – represented by
the jury selection plan that was in place at the time when,
historically, it had been the white population which had
been more than adequately represented.
Furthermore, by failing to address whether all groups
were constitutionally represented, the court also left
unredressed the issue of whether the jury selection plan
which was in place at the time, although designed to
increase the number of African Americans in the jury
array, was in fact providing for a representative number
of black jurors.

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24 United States v. Blair, et al. Nos. 98-2051; 99-1626
allowed these defendants to avail themselves of their co-
defendants’ challenge. This case should be no different. As
cited at length by the majority, Ovalle has been interpreted as
precluding defendants who did not raise challenges to the jury
selection plan prior to trial from availing themselves of the
Ovalle decision. However, these cases did not involve a
situation like that in the case at hand, where one co-defendant
was able to avail herself of the Ovalle decision, but the other
co-defendant was not able to avail himself of the same. This
case is more factually analogous to that of the Ovalles than
that of the cases where a single defendant or co-defendants
each raised a challenge under Ovalle after the trial had begun
or was concluded. Therefore, like the Ovalles, Mr. Blair
should be allowed to avail himself of his co-defendant’s
objection.
However, as noted at the outset of my opinion and as
further explained in the section that follows, reindicting Mr.
Blair under the jury selection process as it now stands in the
Eastern District of Michigan would do nothing but subject
him to a jury selection process that is no more representative,
and therefore no more constitutional, than that used in
connection with his first indictment. In fact, as a result of the
Ovalle decision, the jury venire under which Mr. Blair would
proceed at this point may actually be less fair to African
Americans than the jury venire under which Mr. Blair first
proceeded. This is because the jury selection plan in
operation at the time Mr. Blair’s indictment was handed down
was designed to rectify the underrepresentation of African
Americans in the previous plan; however, it is that very
“previous plan” -- the plan known to be unfair to African
Americans -- which is operation at the current time as a result
of the Ovalle decision.
B. The Jury Selection Process in the Eastern District of
Michigan in the Aftermath of the Ovalle Decision
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
Nos. 98-2051; 99-1626 United States v. Blair, et al. 5
indictment against Connie, charging her with the same six
counts set forth in the original indictment and adding a count
of money laundering conspiracy, in violation of 18 U.S.C.
§ 1956. The Blairs then filed another motion to dismiss both
indictments, which the district court denied.
In July 1998, the Blairs filed a motion for dismissal or other
relief, arguing that the government induced prosecution
witnesses to testify, in violation of 18 U.S.C. § 201(c). The
district court denied the motion.
In August 1998, the district court sentenced George.
George raised several objections at that time, including an
objection to the calculation of his sentence on the basis of
crack cocaine rather than powder cocaine. The district court
sentenced George to 262 months’ imprisonment to be
followed by five years of supervised release. George filed a
timely notice of appeal of his conviction and sentence.
In October 1998, Connie entered into a conditional plea
agreement with the government pursuant to Fed. R. Crim. P.
11(a)(2). Connie entered a plea of guilty to one count of
possession with intent to distribute controlled substances and
to the money laundering conspiracy count, in exchange for the
dismissal of the other five charges. In addition, Connie
reserved her right to appeal the denial of the joint motion to
suppress evidence and her motion to dismiss the superseding
indictment. The district court sentenced Connie to 168
months’ imprisonment to be followed by five years of
supervised release. Connie filed a timely notice of appeal of
her conviction.
This court consolidated the Blairs’ appeals and granted
Connie’s motions to consolidate and adopt George’s joint
appendix and his argument regarding the denial of the Blairs’
motion to suppress evidence.

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6 United States v. Blair, et al. Nos. 98-2051; 99-1626
II.
A. MOTION TO SUPPRESS
The Blairs argue that the district court erred by denying
their motion to suppress evidence because Agent Kraft’s
affidavit was insufficient to support the federal search
warrant, the federal search warrant did not comply with the
particularity requirement of the Fourth Amendment, the
federal search warrant was a “subterfuge” to search for drugs,
and Sergeant Raby impermissibly field tested the suspected
drugs. The Blairs further argue that the state search warrant
was invalid because it was obtained on the basis of Raby’s
unlawful actions.
We review a district court’s factual findings regarding a
motion to suppress for clear error, and its legal conclusions de
novo. See United States v. Leake, 998 F.2d 1359, 1366 (6th
Cir. 1993). In addition, a magistrate’s finding of probable
cause for the issuance of a warrant is accorded “great
deference.” See id. at 1362-63; United States v. Sonagere, 30
F.3d 51, 53 (6th Cir. 1994). On appeal, we must determine
whether, in light of the totality of the circumstances, the
magistrate had a “substantial basis” for concluding that “a
search would uncover evidence of wrongdoing.” Sonagere,
30 F.3d at 53 (quoting Illinois v. Gates, 462 U.S. 213, 236
(1983)).
1. The Federal Warrant
a. Sufficiency of the affidavit
The Blairs argue that the affidavit was insufficient to
support the warrant in this case, because the magistrate judge
had no basis to conclude that records relating to the Blairs’
businesses would be found in their residence. We disagree.
The application for the federal search warrant was based on
an eleven-page affidavit by Agent Kraft, who had extensive
experience in drug-trafficking investigations. Kraft testified
that the purpose of the search warrant was “to locate and seize
Nos. 98-2051; 99-1626 United States v. Blair, et al. 23
1It is significant that Mr. Blair and his co-defendant Connie Blair had
proceeded in tandem throughout the criminal process, such that the
pretrial conference, motions to quash the search warrant, suppress the
evidence, and dismiss the case, were jointly brought by these Defendants.
It was only after Mr. Blair waived his right to jury trial that the district
court severed Mr. Blair’s case from his co-defendant’s case. See United
States District Court for the Eastern District of Michigan (Detroit)
Criminal Docket for Case #: 97-CR-18440-1, at 3-6, United States v.
Blair.
African Americans. Therefore, while Hispanics may have
had a reason to question the jury selection process in the
Eastern District of Michigan, African Americans would not
have had such a reason. In my opinion, this serves as an
objective external factor that excused Attorney Henry from
raising the issue.
Finally, I agree with Mr. Blair’s argument that the district
court should have construed his co-defendant’s objection to
the composition of the grand jury to include him. Once again,
to hold otherwise does nothing more than elevate form over
substance, where Mr. Blair is not allowed to avail himself of
his co-defendant’s challenge simply because he and his co-
defendant had separate trials.1 If Mr. Blair had been tried
with his co-defendant then, like the Ovalles, Mr. Blair would
have been able to benefit from his co-defendant’s objection.
See Ovalle, 136 F.3d at 1109. Under the majority’s view, had
the Ovalles moved for a separate trial from their co-
defendants Canales and Garcia, then they would not have
been able to avail themselves of their co-defendants’
objection to the jury venire.
The facts of this case are ones not anticipated by the Ovalle
court. It is true that in Ovalle the Court stated that “[h]ad
Canales and Garcia not raised these objections prior to trial,
all of the appellants would be barred from raising such an
objection for the first time on appeal or in a collateral
proceeding attacking their convictions since the objection
would be waived by the failure to object prior to trial.” See
136 F.3d at 1109. However, the fact remains that the Ovalles
did not raise such an objection prior to trial and the Court

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22 United States v. Blair, et al. Nos. 98-2051; 99-1626
At the time of Mr. Blair’s indictment, the jury selection plan
in place had been drafted and approved by the judges of the
Eastern District of Michigan and approved by the Judicial
Counsel of the Sixth Circuit allegedly to remedy the
underrepresentation of African Americans. Therefore,
Attorney Henry had no reason to believe that the very judges
who approved the plan would find it unfair to African
Americans. See Spearman, 186 F.3d at 754 (finding that “a
defense attorney would have had no reason to challenge the
jury selection process that was in place in the Eastern District
of Michigan prior to Ovalle, inasmuch as the court to which
he would make his challenge consisted of the very judges who
approved the plan”). Those unpublished cases cited and
relied upon by the majority fail to recognize that an attorney
similarly situated to Mr. Henry would have found any
challenge to the jury selection plan futile in light of the fact
that the plan had allegedly been designed and approved to
correct the underrepresentation of African Americans. In
other words, even if an attorney similarly situated to Mr.
Henry had held a belief that the plan was unfair to blacks, or
had heard of other attorneys who believed the same, there was
no basis for the attorney to believe that his challenge to the
jury selection plan would be seriously considered – let alone
be successful. Indeed, none of the judges of the Eastern
District of Michigan have acted upon the concerns expressed
more than one year ago regarding the unfair jury selection
process as it exists in the aftermath of Ovalle. See Spearman,
186 F.3d at 747-55.
Furthermore, what is of critical importance here is the fact
that the defendants in Ovalle who challenged the jury
selection process under the Fifth Amendment right to equal
protection as well as under the Sixth Amendment right to fair
representation, were Hispanic, not African American. In
other words, the defendants in Ovalle made these challenges
on the basis of their Hispanic ethnicity; however, an African-
American defendant such as Mr. Blair would have had no
reason to challenge the jury selection process which allegedly
had been designed – and subsequently approved – to correct
the constitutionally infirm jury selection process as applied to
Nos. 98-2051; 99-1626 United States v. Blair, et al. 7
evidence relating to an investigation into violations of Title
18, United States Code Section 1956, Laundering of
Monetary Instruments, Title 18, United States Code Section
1957, Engaging in Monetary Transactions in Property Derived
from Specified Unlawful Activity and Title 21, United States
Code Section 841 and 846.” Kraft’s affidavit set forth his
experience in investigating the financial aspects of drug
trafficking and stated that in his experience it was common
for drugs traffickers to store financial records in their homes.
Kraft also provided information obtained about the Blairs
from several cooperating witnesses, with statements attesting
to their reliability. The cooperating witnesses stated that they
had worked as prostitutes for the Blairs and purchased
quantities of drugs from them. The affidavit also provided
that electric company records for the suspected houses of
prostitution listed the subscriber for electric services as Launa
Miakowski. Finally, the affidavit reported that although the
Blairs owned a new home, a motor home, a barber shop, and
a party store, George had not filed income tax returns for the
years 1990 through 1995, and Connie had filed returns under
the name Launa Miakowski indicating a total income of
$46,462 for the years 1990 through 1994.
Considering the totality of the circumstances, we find that
Kraft’s affidavit established probable cause for the issuance
of the search warrant. Accordingly, the magistrate judge had
a substantial basis to conclude that wrongdoing would be
uncovered by the search. The affidavit provided information
regarding Kraft’s extensive experience in investigating the
financial aspects of drug trafficking and his professional
opinion that drug traffickers keep financial records at their
homes. In addition, the affidavit provided information
obtained from reliable cooperating witnesses and electric
company records. This information was sufficient for the
issuance of the search warrant in this case. See United States
v. Jones, 159 F.3d 969, 975 (6th Cir. 1998) (stating that “[i]n
the case of drug dealers, evidence is likely to be found where
the dealers live”).

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8 United States v. Blair, et al. Nos. 98-2051; 99-1626
b. Particularity
The Blairs also argue that the federal search warrant was
overbroad in that it lacked particularity as to the items to be
seized. Because the Blairs failed to make this argument to the
district court, it is waived. See United States v. Critton, 43
F.3d 1089, 1094 (6th Cir. 1995) (holding that a defendant
who fails to raise a specific issue as the basis for suppression
in a motion to suppress to the district court has waived the
right to raise that issue on appeal). Even if the Blairs’
argument were properly before us, that argument would fail.
It is well settled that items to be seized pursuant to a search
warrant must be described with particularity to prevent “the
seizure of one thing under a warrant describing another.”
Marron v. United States, 275 U.S. 192, 196 (1927); see also
Andresen v. Maryland, 427 U.S. 463, 480 (1976). However,
we have recognized that the degree of specificity in a warrant
must be flexible, depending upon the type of items to be
seized and the crime involved. See United States v. Ables,
167 F.3d 1021, 1033 (6th Cir.) (citing United States v.
Henson, 848 F.2d 1374, 1383 (6th Cir. 1988) (citation
omitted)), cert. denied, 119 S. Ct. 2378 (1999). “Thus[,] a
description is valid if it is as specific as the circumstances and
the nature of the activity under investigation permit.” Id. We
also have agreed with the Second Circuit’s conclusion that
“‘[o]nce a category of seizable papers had been adequately
described, with the description delineated in part by an
illustrative list of seizable items, the Fourth Amendment is
not violated because the officers executing the warrant must
exercise some minimal judgment as to whether a particular
document falls within the described category.’” Id. at 1034
(quoting United States v. Riley, 906 F.2d 841, 845 (2d Cir.
1990)).
Here, the warrant described the items to be seized as
“[b]ooks, records, receipts, notes, ledgers, airline tickets,
money orders, passports, and other papers relating to the
transportation, importation, ordering, sale, and distribution of
controlled substances.” The warrant also authorized seizure
Nos. 98-2051; 99-1626 United States v. Blair, et al. 21
(4) Requests for discovery under Rule 16; or
(5) Requests for a severance of charges or
defendants under Rule 14.
Fed. R. Crim. P. 12(b)(1)-(5). The Advisory Committee
Notes on the 1944 adoption of subdivision (b)(1) and (2)
states that the section includes challenges made to the
“[i]llegal selection or organization of the grand jury,
disqualification of individual grand jurors, presence of
unauthorized persons in the grand jury proceedings, defects in
indictment or information other than lack of jurisdiction or
failure to state an offense, etc.” See Fed. R. Crim. P. 12(b)
advisory committee’s note. However, I submit that although
the advisory note speaks to illegal selection or organization of
the grand jury, it does not speak to the specific nature of an
unconstitutional selection of the grand jury, where the
defendant is not challenging the selection of his particular
grand jury based upon an illegality such as juror tampering,
but rather the defendant is challenging the unconstitutional
nature of the jury selection plan as a whole. See Greene, 971
F. Supp. at 1138 (distinguishing Shotwell Manufacturing v.
United States, 371 U.S. 341 (1963) on the basis of, among
other things, the fact that the defendant did not challenge the
entire jury selection system, but only the impanelment of his
own jury). Accordingly, I believe that Rule 12(b)(2) is not an
absolute bar to considering Mr. Blair’s challenge to the jury
selection plan.
To the extent that one disagrees, I believe that under Rule
12(f), Mr. Blair has shown cause to excuse his failure to raise
the challenge to the jury selection plan prior to trial. In
concluding otherwise, the majority accurately states that a
defense counsel’s failure to recognize the factual or legal
basis for a claim, or a defense counsel’s failure to raise the
claim despite recognizing it, does not constitute cause to
excuse the lack of a timely objection. However, I respectfully
disagree with the majority’s conclusion that Attorney Milton
R. Henry did not have justifiable cause to excuse his failure
to recognize or raise a challenge to the jury selection process.

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20 United States v. Blair, et al. Nos. 98-2051; 99-1626
thereby allowing the government to reindict Mr. Blair, the
judges of the Eastern District of Michigan should immediately
revise their jury selection plan to comport with all
constitutional mandates, so that Mr. Blair would be
guaranteed the constitutionally fair trial to which he is
entitled. See United States v. Spearman, 186 F.3d 743, 747-
55 (6th Cir. 1999). Allowing defendants to be tried and
convicted under a knowingly unfair jury selection system in
the Eastern District of Michigan is unconscionable; allowing
Mr. Blair to be twice subjected to an unfair jury selection
system would be even worse.
A. Timeliness of Mr. Blair’s Motion to Dismiss the
Indictment on the Basis of Ovalle
It has been recognized that “the plain language of Rule
12(b) clearly does not require that constitutional challenges to
the jury selection process must be made prior to trial.” See
United States v. Greene, 971 F. Supp. 1117, 1137 (E.D. Mich.
1997). Indeed, an examination of the plain language of the
rule indicates that it is silent as to constitutional challenges.
Specifically, the language of the rule provides as follows:
(b) Pretrial Motions. Any defense, objection, or
request which is capable of determination without the
trial of the general issue may be raised before trial by
motion. Motions may be written or oral at the discretion
of the judge. The following must be raised prior to trial:
(1) Defenses and objections based on defects in the
institution of the prosecution; or
(2) Defenses and objections based on defects in the
indictment 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 court at any time during the
pendency of the proceedings); or
(3) Motions to suppress evidence; or
Nos. 98-2051; 99-1626 United States v. Blair, et al. 9
of records of financial transactions and “electronic equipment
to aid them in their drug trafficking activities.” Thus, the
warrant specified that the records sought were those related to
drug-trafficking activities and did not violate the particularity
requirement of the Fourth Amendment.
c. Subterfuge
The Blairs also argue that the federal warrant authorizing
seizure of records and documents was merely a subterfuge;
that, in actuality, law enforcement agents were impermissibly
searching for drugs. As further support for their contention,
the Blairs assert that law enforcement agents seized jewelry,
money and vehicles that were obviously not records or
documents, and that the federal warrant was executed
primarily by police officers who worked in narcotics. The
Blairs’ argument lacks merit.
The federal warrant was issued on the basis of an affidavit
provided by an IRS agent who specialized in the monetary
transactions that occurred as a result of drug trafficking.
Although drug-trafficking activities were suspected, the IRS
agent was seeking financial records indicating money
laundering or monetary proceeds from illegal activities. Thus,
the federal “document” warrant was properly issued and
executed by federal agents, with the assistance of Detroit
police officers. The investigation did not turn into a drug
investigation until law enforcement officers observed the
presence of drugs in plain view while executing the federal
warrant. The subsequent state warrant then authorized
officers to seize items related to narcotics transactions or the
proceeds of narcotics transactions, which would include
vehicles, jewelry and money. Accordingly, there is no
evidence that the document warrant was a pretext to enable
law enforcement agents to search for drugs, that the agents
“manipulated” the system, or that the agents seized items not
authorized by the warrants.

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10 United States v. Blair, et al. Nos. 98-2051; 99-1626
d. The plain view doctrine
The Blairs contend that Sergeant Raby violated their Fourth
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
substance. The Blairs essentially assert that Raby’s actions
went beyond the scope of the federal warrant. The district
court concluded otherwise, finding that the drugs were in fact
in plain view and Raby therefore had authority to perform a
field test. We agree with the district court.
It is well established that law enforcement agents may seize
items in plain view, so long as the agent is lawfully present,
the discovery is inadvertent, and the incriminating nature of
the item is “immediately apparent.” United States v.
Blakeney, 942 F.2d 1001, 1028 (6th Cir. 1991); see generally
Horton v. California, 496 U.S. 128 (1990). When officers
executing a search warrant seize an item in plain view that is
outside the scope of the warrant, the officers must have
probable cause to believe that there is a nexus between the
viewed item and criminal activity. See United States v.
Calloway, 116 F.3d 1129, 1133 (6th Cir. 1997); United States
v. Beal, 810 F.2d 574, 576 (6th Cir. 1987).
Here, the district court relied on Raby’s statement in his
affidavit in support of the state search warrant to determine
that the drugs were in plain view. Raby testified that while
searching the master bedroom on the federal warrant, he:
observed in a [sic] open pill vial, a clear plastic bag
containing a hard off white substance that the affiant
believed to be cocaine. The affiant conducted a field test
on the substance which tested positive for the presence of
cocaine. Further, the affiant observed numerous bundles
several inches each containing one hundred dollar, fifty
and twenty dollar bills. Further, the affiant observed
boxes of syringes lying on the bed in the master
bedroom.
Nos. 98-2051; 99-1626 United States v. Blair, et al. 19
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
CLAY, Circuit Judge, concurring in part and dissenting in
part. I concur in Judge Cole’s well-reasoned and thorough
opinion as it relates to all issues except George Blair’s
challenge to the district court’s denial of his motion to dismiss
the original indictment based upon the composition of the
grand jury. Mr. Blair’s challenge to the composition of the
grand jury should not be held as untimely because to do so
puts form over substance inasmuch as his attorney had no
reason to believe that the jury selection plan in the Eastern
District of Michigan at that time would be found
unconstitutional. However, granting Mr. Blair relief and
allowing the government to reindict him at this time would do
nothing more than put form over substance once again, since
the current jury selection plan in the Eastern District of
Michigan has been found to be unfair to at least one minority
group – African Americans. Which is to say, although this
Court held that the jury selection plan under which Mr.
Blair’s original indictment was delivered was
unconstitutional, see United States v. Ovalle, 136 F.3d 1092,
1108-09 (6th Cir. 1998), after Ovalle was issued, the Eastern
District of Michigan simply returned to the jury selection plan
status quo ante, thereby reinstituting the defective jury
selection plan which had previously been found to be unfair
to African Americans. As such, the discriminatory jury
selection plan currently in place in the Eastern District of
Michigan is no more constitutionally fair than the plan under
which Mr. Blair first proceeded.
Because the current jury selection plan in the Eastern
District of Michigan has been shown to be demonstrably
unfair to African Americans, affording Mr. Blair a new trial
at this juncture would appear to be an exercise in futility. Mr.
Blair would merely be exchanging one unconstitutional jury
selection plan for another in the course of a remand from this
Court. It is for this reason that although I would reverse,

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18 United States v. Blair, et al. Nos. 98-2051; 99-1626
significant is the fact that the witnesses, the prostitutes[,]
testified with a degree of regularity that the substance
that they were buying from the house in which they were
living was, in fact, crack cocaine. They referred to it as
rocks that they were purchasing.
The district court’s statements provided ample reasoning for
sentencing George on the basis of crack cocaine. The district
court did not commit clear error.
Finally, George raises a constitutional challenge to the
100:1 sentencing disparity of crack cocaine versus powder
cocaine. The law is well settled in this circuit that the 100:1
ratio withstands constitutional scrutiny. See, e.g., United
States v. Bingham, 81 F.3d 617, 630-31 (6th Cir. 1996);
United States v. Hill, 79 F.3d 1477, 1488-89 (6th Cir. 1996);
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);
United States v. Williams, 962 F.2d 1218, 1227 (6th Cir.
1992); United States v. Pickett, 941 F.2d 411, 418-19 (6th
Cir. 1991).
III.
For the foregoing reasons, we affirm.
Nos. 98-2051; 99-1626 United States v. Blair, et al. 11
3The 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”).
In light of this statement, we do not believe that the district
court clearly erred in its factual finding that the drugs were in
plain view, because Raby was lawfully present, the discovery
of the drugs was inadvertent, and the incriminating nature of
the drugs was immediately apparent. We further conclude
that Raby had probable cause to believe there was a nexus
between the suspected drugs and criminal activity.
In addition, we find no problem with the fact that Raby
field tested the suspected cocaine. Because the drugs
legitimately fell into the plain view exception, their
warrantless seizure was permissible. See Blakeney, 942 F.2d
at 1028. Thus, it would have been permissible for Raby to
seize the suspected drugs for later testing. Accordingly, Raby
did not violate the Blairs’ Fourth Amendment rights by field
testing the suspected drugs.3
2. The State Warrant
The Blairs allege that the state warrant was invalid, because
it was issued on the basis of Raby’s impermissible discovery
of the cocaine. We can easily dispose of that argument,
having found that the discovery of the cocaine was
constitutionally sound. Moreover, there was no problem with
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.

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12 United States v. Blair, et al. Nos. 98-2051; 99-1626
4The district court stated that, in actuality, a slightly different jury
selection plan was in effect at the time of the Blairs’ original indictment
that allowed juror’s names who had been removed to be deferred for use
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).
5Fed. R. Crim. P. 12(b)(2) provides:
(b) Pretrial Motions. Any defense, objection, or request which is
capable of determination without the trial of the general issue may be
raised before trial by motion . . . The following must be raised prior
to trial: . . .
(2) Defenses and objections based on defects in the indictment
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
court at any time during the pendency of the proceedings) . . . .
B. OVALLE ISSUE
In Ovalle, this court held that the jury selection plan in the
Eastern District of Michigan – which was essentially the same
plan in place at the time of the original indictment in this
case4 – violated the Jury Selection and Service Act, 28 U.S.C.
§ 1862, and the Equal Protection Clause, because it allowed
the removal of every fifth non-black juror from the jury wheel
in order to increase the number of black jurors. See Ovalle,
136 F.3d at 1099-1100, 1105-07. The Blairs contend that the
district court erred by denying their motions to dismiss their
indictments – in the case of Connie, the superseding
indictment – based on the composition of the grand jury that
returned the original indictment pursuant to Ovalle. We
review a defendant’s challenge to the composition of a grand
jury de novo. See Ovalle, 136 F.3d at 1100.
1. George’s Argument
In George’s case, the district court denied his motion to
dismiss the indictment on the basis of Ovalle, holding that
George waived his right to challenge the composition of the
grand jury by failing to make a pretrial motion under Fed. R.
Crim. P. 12(b)(2),5 and by failing to establish cause or
Nos. 98-2051; 99-1626 United States v. Blair, et al. 17
based on the Tenth Circuit’s panel decision in United States
v. Singleton, 144 F.3d 1343 (10th Cir. 1998) (holding that
promises made in a plea agreement could violate 18 U.S.C.
§ 201(c)), vacated, 165 F.3d 1297 (10th Cir.) (en banc), cert.
denied, 119 S. Ct. 2371 (1999). On appeal, George concedes
that the panel decision in Singleton has been overruled and
acknowledges this court’s decision in United States v. Ware,
161 F.3d 414, 419 (6th Cir. 1998) (holding that § 201(c),
which penalizes an individual for giving anything of value in
exchange for testimony, does not apply to the United States
government), cert. denied, 526 U.S. 1045 (1999).
Nonetheless, George contends that § 201(c) was violated
because it was not the prosecutor who gave things of value to
witnesses, it was Sergeant Raby. This argument fails.
First, as the government notes, George has waived this
argument by failing to raise it before the trial court. In
addition, even if George had not waived this argument, any
“promises” made to witnesses by Sergeant Raby were made
on behalf of the government; accordingly, George’s argument
lacks merit.
D. CRACK COCAINE/ POWDER COCAINE
George asserts that the government failed to establish at
sentencing that the involved cocaine was crack cocaine. We
review factual determinations of the sentencing court for clear
error. See United States v. Gort-DiDonato, 109 F.3d 318, 328
(6th Cir. 1997).
The district court, after extensive arguments, determined
that George should be sentenced on the basis of crack
cocaine. The court noted:
The other evidence that leads this Court to find by a
preponderance of the evidence that the substance
involved is crack cocaine is not only do I believe that the
substance as identified by the lab report is, in fact, crack
cocaine, the witnesses testified with a large amount of
consistency. The police officers, who made the search,
identified it as, quote, crack cocaine. . . . But as

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16 United States v. Blair, et al. Nos. 98-2051; 99-1626
6Title 18 U.S.C. § 201(c) provides in part that:
(c) Whoever –
(1) otherwise than as provided by law for the proper
discharge of official duty – . . .
(2) directly or indirectly, gives, offers, or promises anything
of value to any person, for or because of the testimony under
oath or affirmation given or to be given by such person as a
witnesses upon a trial, . . . .
We further note that Connie does not have a double
jeopardy argument arising from the second indictment. It is
well established that dismissal of an indictment prior to trial
does not raise a double jeopardy issue and does not bar
subsequent prosecution for the offenses described in the
indictment. See Pi, 174 F.3d at 748. Connie argues,
however, that jeopardy attached in her case because George
had already been tried at the time the indictment against her
had been dismissed. Connie’s argument is misplaced, as she
cannot assert George’s jeopardy rights. Connie’s trial had
been severed from George’s and had not yet begun when the
original indictment was dismissed and the superseding
indictment filed. Accordingly, jeopardy did not attach to the
charges against Connie.
Finally, Connie asserts that the illegality of the original
indictment somehow tainted the second indictment. Again,
Connie misses the mark. Any irregularity in an original
indictment has no effect on a subsequent indictment. See id.
(citing United States v. Senak, 477 F.2d 304, 306 (7th Cir.
1973) (“[a] federal grand jury may return a second indictment
for the same offense when the first indictment has been
dismissed or otherwise found defective”)).
C. 18 U.S.C. § 201 (c)6
George argues that his conviction should be vacated on the
basis that law enforcement agents impermissibly promised
witnesses leniency and paid their expenses in exchange for
their testimony against him. George filed such a motion in
the district court approximately five months after his trial,
Nos. 98-2051; 99-1626 United States v. Blair, et al. 13
Fed. R. Crim. P. 12(b) (emphasis added). The effects of failing to raise
a 12(b)(2) motion before trial are set forth in Rule 12(f):
(f) Effect of Failure To Raise Defenses or Objections.
Failure by a party to raise defenses or objections or to make
requests which must be made prior to trial, at the time set by the
court . . . shall constitute waiver thereof, but the court for cause
shown may grant relief from the waiver.
Fed. R. Crim. P. 12(f).
prejudice for this procedural default. See Blair, 9 F. Supp. 2d
at 780-81. We agree.
George contends that the district court should have found
that cause existed to excuse his failure to raise the Ovalle
issue prior to trial, because Ovalle was not decided until
February 23, 1998, two weeks after his trial. Pursuant to
Ovalle, it is clear that a defendant’s failure to object to the
composition of the grand jury prior to trial constitutes waiver
of that argument. See 136 F.3d at 1107-09; Fed R. Crim. P.
12(b)(2). In order to show cause to excuse this type of
procedural default, a defendant must demonstrate that “some
objective factor external to the defense impeded counsel’s
efforts to comply with the . . . procedural rule.” Murray v.
Carrier, 477 U.S. 478, 488 (1986). “[T]he mere fact that
counsel failed to recognize the factual or legal basis for a
claim, or failed to raise the claim despite recognizing it, does
not constitute cause for the procedural default.” Id. at 486.
George’s reliance on the timing of Ovalle is therefore
misplaced. Ovalle did not recognize a new right; instead, it
held that the 1992 jury selection plan violated well established
constitutional rights. Prior to trial, George failed to recognize
or chose to ignore a potential challenge to the jury selection
plan. This failure does not establish cause to overcome
George’s waiver of the issue; the fact that Ovalle illuminated
this issue two weeks later does nothing to change that result.
George has failed to demonstrate an objective external factor
that prohibited him from raising an objection to the jury
selection plan prior to his trial; accordingly, he has not shown
cause to excuse his waiver of this issue. See United States v.

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14 United States v. Blair, et al. Nos. 98-2051; 99-1626
Simpson, Nos. 97-2305, 97-2307, 97-2316, 98-1050, 1999
WL 777348, at *10 (6th Cir. Sept. 21, 1999) (stating that “the
fact that Ovalle was not decided until after [defendant’s] trial
is not sufficient cause for this court to grant relief from the
waiver of the issue”); see also United States v. Bischoff, Nos.
97-1980, 97-1983, 1999 WL 644340, at *6 (6th Cir. Aug. 19,
1999) (cause not shown for failure to raise Ovalle in district
court); United States v. Valme, No. 98-1340, 1999 WL
519232, at *5 (6th Cir. July 16, 1999) (holding that cause did
not exist for defendant’s failure to timely raise Ovalle issue);
United States v. Garavaglia, Nos. 98-1512, 98-1674, 1999
WL 220125, at *6 (6th Cir. April 6, 1999) (stating that
defendant’s contention that “case law was against him” did
not constitute cause to excuse waiver of Ovalle issue); United
States v. Carr, Nos. 97-1367, 97-1422, 97-1513, 97-1584, 97-
1814, 1999 WL 211928, at *6 (6th Cir. March 11, 1999)
(cause not shown for failure to raise Ovalle issue prior to
trial).
In addition, George argues that the district court should
have construed his co-defendant’s timely objection to the
composition of the grand jury to include him. In so arguing,
George relies on the fact that, in Ovalle, we allowed a
“narrow exception” to the Ovalles with respect to waiver
pursuant to Fed. R. Crim. P. 12(b)(2) because their co-
defendants raised a timely exception before their joint trial.
We stated, however, that:
We emphasize that it is only because the Ovalles’
codefendants Canales and Garcia raised a timely
objection to the seating of the grand and petit juries that
the Ovalles are permitted the benefit of this decision.
Had Canales and Garcia not raised these objections prior
to trial, all of the appellants would be barred from raising
such an objection for the first time on appeal or in a
collateral proceeding attacking their convictions since the
objection would be waived by the failure to object prior
to trial. See Fed. R. Crim. P. 12(b)(2).
Ovalle, 136 F.3d at 1109.
Nos. 98-2051; 99-1626 United States v. Blair, et al. 15
We agree with the district court and the government that
Connie’s timely objection, i.e., prior to her trial, does not
create an exception for George. Unlike the situation in
Ovalle, Connie did not raise her valid objection prior to
George’s trial, but after George had been convicted. This
does not fall into the narrow exception to Rule 12(b)(2)
created by Ovalle. Accordingly, the district court did not err
by denying George’s motion to dismiss his indictment on the
basis of the composition of the grand jury.
2. Connie’s Argument
As for Connie, the district court dismissed the original
indictment with respect to her without prejudice and, two
weeks later, a new grand jury issued a superseding indictment
against her. Connie now contends that a superseding
indictment can only be issued when a valid, prior indictment
is still pending. Connie further argues that a superseding
indictment cannot arise from an invalid, original indictment.
Connie’s argument’s lack merit.
Connie is correct in that some courts have narrowly defined
the term “superseding indictment” to refer to an indictment
returned when an original indictment still exists. See United
States v. Bowen, 946 F.2d 734,735 (10th Cir. 1991) (citing
United States v. Rojas-Contreras, 474 U.S. 231, 237 (1985)
(Blackmun, J., concurring)). However, this court has held
that a superseding indictment returned one month after the
original indictment had been dismissed for citing the wrong
statute was valid. See United States v. Pi, 174 F.3d 745, 748
(6th Cir.), cert. denied, 120 S. Ct. 74 (1999). Moreover, even
if the term “superseding” was inappropriate to describe the
second indictment, such a description is mere surplusage that
can be ignored. See United States v. Caldwell, 176 F.3d 898,
902 (6th Cir.) (“A part of the indictment unnecessary to and
independent of the allegations of the offense proved may
normally be treated as a ‘useless averment’ that ‘may be
ignored.’” (citation and quotation omitted)), cert. denied, 120
S. Ct. 275 (1999).

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