*1 release, $309,546 bodily conviction injury, in varies from the and supervised term of received, committing which restitution. Jackson was which in serious bod- carjacking a resulted II. variation the con- ily injury. The between is whether the this case indictment is The issue viction and sentence and the ruling in Jones Supreme Court’s Jones. Al- essentially the same as to con- States issued subsequent Jackson’s outrageous though conduct was Jackson’s viction, pending, appeal but while his sentence, 25-year we deserving and 25-year us to his sentence compels vacate the by Supreme are Court’s constrained Jones, resentencing. and remand opinion in Jones the district instruct violating with charged the defendant years. the to 15 court to reduce sentence statute, but in- carjacking the federal Despite may record that evidence failed “reference statute’s dictment sufficiently on indicate that Jackson was charged none of subsections and numbered 25-year faced a potentially notice that he in the latter two.” the facts mentioned 2119(2), § government under sentence at 1218. The same true 119 S.Ct. any question has not raised of harmless Jones, subse- instant case. Also error. counsel did not seek Government quent by the dis- jury instructions issued harmless error to advance constitutional subject to trict court “defined the elements we it analysis, even after asked about proof by ref- the Government’s burden we do argument, oral therefore solely paragraph to the first erence address, pretermit, any rather harm- but bodily § with no mention of serious analysis that be less error could advanced. Id. Al- having actually occurred. injury” here though the district court transmitted we vacate the sentence is- Accordingly, verdict special form by sued the district court and remand for injury bodily result- asked whether serious opin- with this resentencing accordance ed, counsel carjacking, from the Jackson’s ion. objected to court’s ac- timely the district tions, made no arguing the indictment 2119(2) §
reference to and directed Jones case. Fi- pending
court to the then case, the Jones
nally, as instant adopted presentence re-
district court
port’s 25-year sentence recommendation had one of the victims in fact
because America, UNITED STATES of The Jones injury. bodily suffered serious Plaintiff-Appellee, and, objected to his sentence on defendant held that the appeal, Supreme Court § paragraphs of 2119 are be con- three (98-2051); George BLAIR and Connie “establishing separate three of- strued as Blair, as Maikow also known Launa specification of fenses distinct ele- (99-1626), Defendants-Appellants. ski ments, charged each of which must be 98-2051, Nos. 99-1626. indictment, proven beyond a reasonable doubt, to a for its submitted Appeals, United States Court of Jones, at 1228. verdict.” Sixth Circuit. Jones, case, In this as in indictment Argued Feb. make charging Jackson did not direct ref- 2119(2), § the district court erence to May and Filed Decided incorrectly para- construed statute’s graphs sentencing enhancements. indictment,
wording alleging of Jackson’s cause
carjacking intent serious *4 Detroit, As a Michigan. part houses (argued Gaedeke and Patricia G. briefed), Attorney, the U.S. De- Blairs sold operation, drugs— their Office troit, MI, Plaintiff-Appellee. for typically crack cocaine or heroin —to the houses, prostitutes who worked briefed), Henry (argued R. Milton drug most of had serious addictions. whom MI, Hills, Defendants-Ap- Bloomfield requiring prostitutes In addition to pellants. them, their from the Blairs buy drugs sold CLAY, Circuit Before: COLE drugs to clients. The prostitutes’ BELL, Judge.* Judges; District also as drug paraphernalia Blairs sold such syringes at their houses. Dur- pipes COLE, J., opinion delivered house, ing a routine “shift” at a the Blairs J., court, BELL, joined. D. in which drugs. worth of approximately sold $1000 702-07), CLAY, delivered a (pp. J. concurring in separate part and opinion April Special Agent Thom- IRS dissenting part. Kraft, having information that in narcotics engaged Blairs were traffick- OPINION ing, provided an affidavit order to obtain
COLE, Judge. Circuit Blairs’ a search warrant for the residence *5 Blair prostitution were convicted and one of the houses. A George and Connie money laundering drug of various and judge federal issued the war- magistrate charges lengthy rant, sentenced to terms of law enforcement which authorized imprisonment. appeal The Blairs now “relating to agents seize records convictions; George also his appeals their sale, transportation, importation, ordering, George Specifically, argues that sentence. and distribution of controlled substances.” by denying court erred: his district police Detroit assisted in exe- officers evidence; by denying suppress motion to of search cution the warrant to the Blairs’ the original his motion to dismiss indict- a capacity, po- In that Detroit residence. composition ment on the based also a DEA lice officer who was Task grand by denying his motion va- jury; to Agent, Sergeant Raby, Force James aided on “promises” cate based his sentence on a Raby top the search. observed witnesses; testifying by made fail- to vial that open pill dresser an contained his ing reduce sentence based on there was “a plastic bag which white disparity of crack cocaine sentencing 100:1 to be appeared] substance narcotics.” [that joins powder versus cocaine. Connie Raby a field test on the conducted sub- George’s respect with the dis- argument presence stance revealed the of co- which sup- trict denial of their motion to court’s caine. and, addition, press contends evidence Raby At this left the Blairs’ resi- point, denying court erred by the district dence to obtain a state search warrant in- superseding her to dismiss motion seize authorizing agents suspected “[a]ll composition on the dictment based substances, all items controlled used in- grand jury original that returned sales, connection with the manufac- [sic] follow, For the reasons that we dictment. ture, use, distribution, storage, transporta- AFFIRM the Blairs’ convictions and tion, or concealment of controlled delivery George’s sentence. Raby then returned to the
substances.” I. Blairs’ with the state warrant. residence ultimately agents Law enforcement seized 1992, approximately Beginning cocaine, (aka grams grams of crack Blair George and Connie Launa Blair Miakowski) heroin, four drug paraphernalia, several loaded operated prostitution * Bell, Michigan, sitting by designation. Robert Holmes Honorable Judge for the Western District States District $13,000 approximately firearms and in ey laundering conspiracy, in violation of 18 cash. § U.S.C. 1956. The Blairs then filed an- indictments, other motion to dismiss both grand jury December federal which the district court in the Eastern District of indict- denied. indictment, ed the Blairs a six-count In July the Blairs filed a motion setting possession forth five counts of relief, for dismissal or other arguing that substances, intent to distribute controlled government prosecution induced wit- 841(a)(1), § in violation of 21 U.S.C. testify, nesses to in violation of 18 U.S.C. engaging one count of in a continuing 201(c). § The district court denied the (CCE), enterprise criminal in violation of motion. § George U.S.C. 848. Both and Connie represented attorney, the same In August the district court sen- Henry,1 Milton sup- who filed a motion to tenced George. George raised several ob- press the evidence during seized time, jections at including objection an search of the Following Blairs’ residence. to the calculation of his sentence on the hearing, the district court denied the basis of powder crack cocaine rather than motion. cocaine. The district court sentenced day The case was set for trial. The George to 262 months’ imprisonment to be trial was begin, Henry before scheduled to followed years supervised five re- indicated that because of potential con- George lease. filed a timely ap- notice of flicts, he wished to withdraw from the peal his conviction and sentence. representation of Connie.2 The court sev- Connie, ered but proceeded to trial In October Connie entered into a George’s George case. waived his *6 plea agreement conditional with gov- trial; thus, a the court conducted a ernment pursuant to Fed.R.Crim.P. bench trial. The court found George 11(a)(2). Connie a plea guilty entered of counts, guilty drug of the five acquit- but possession one count of with intent to him ted of the CCE count. distribute controlled substances and to the Two weeks after George’s prior trial and count, money laundering conspiracy in ex- trial, to Connie’s this court issued a deci- change for the dismissal of the other five invalidating portion sion a of the se- addition, charges. In Connie reserved her lection the Eastern District of to appeal joint the denial of the Ovalle, Michigan. See United States v. suppress motion to evidence and her mo- (6th Cir.1998). F.3d Citing 136 1092 tion superseding to dismiss the indictment. Ovalle, the a Blairs filed motion to dismiss 24, 1998, The district court their indictment. sentenced Connie to 168 April On district court denied the motion as to months’ imprisonment to be followed George, granted but it as to Connie after years supervised five of release. Connie government agreed that her indict- timely filed a notice of of appeal her con- ment should be dismissed preju- without viction. yet dice because she had not been tried. This court ap- consolidated Blairs’ later, Approximately two weeks another peals granted Connie’s motions to con- grand jury returned a indict- superseding joint solidate adopt George’s appendix Connie, ment against charging her with argument regarding and his the denial of origi- same six counts set forth in the adding nal indictment and a count of mon- the Blairs’ motion to suppress evidence. counsel, government 1. The asked the court to instruct 2. Connie never did obtain new dangers joint representa- Connie, the Blairs on the Henry represent continued to well as so, tion. The court did at which time the George. represented by Blairs stated their desire to be attorney. the same 696 1956, Laundering of Mone- Code Section
II.
18,
Instruments,
States
Title
tary
TO SUPPRESS
A. MOTION
1957,
Monetary
Engaging
Section
Code
the district
argue
Blairs
from
Derived
Property
Transactions
suppress
denying their motion
erred
Activity and Title
Unlawful
Specified
affidavit
Kraft’s
Agent
because
evidence
841 and 846.”
Code Section
United States
the federal
support
was insufficient
experience
affidavit set forth his
Kraft’s
warrant,
search warrant
the federal
search
drug
aspects
financial
investigating the
re-
particularity
comply
did not
experi-
that in his
trafficking and stated
Amendment, the
Fourth
quirement
drugs traffickers
it was common for
ence
“subterfuge”
a
warrant was
federal search
in their homes.
financial records
to store
Raby
Sergeant
drugs, and
to search for
obtained
information
provided
Kraft also
suspected
field tested
impermissibly
cooperating
the Blairs from several
about
argue
further
Blairs
drugs. The
witnesses,
attesting to
with statements
it
was invalid because
warrant
state search
cooperating wit-
reliability. The
their
Raby’s unlaw-
on the basis of
was obtained
had worked as
they
stated that
nesses
ful actions.
purchased
for the Blairs and
prostitutes
The affi-
from them.
quantities
drugs
fac
court’s
review district
We
company
that electric
sup
provided
motion to
also
regarding a
davit
findings
tual
error,
legal
prosti-
conclu
suspected
and its
for the
houses
press for clear
records
Leake,
United States
the subscriber for electric ser-
sions de novo. See
tution listed
Cir.1993).
Finally,
F.2d
1366
Miakowski.
vices as Launa
addition,
finding
probable
magistrate’s
the Blairs
reported
although
affidavit
a warrant
home,
the issuance of
home,
cause for
a motor
a bar-
a new
owned
See id.
“great deference.”
store,
accorded
George had
shop,
party
and a
ber
1362-63;
Sonagere,
United States
years
for the
income tax returns
not filed
(6th Cir.1994).
appeal, we
On
filed
and Connie had
through
whether,
light
must determine
Miakowski
the name Launa
returns under
circumstances,
magis
totality of the
$46,462 for the
indicating a total income of
for conclud
basis”
trate had “substantial
years
through
1994.
uncover evidence
ing that “a search would
circum-
totality
Considering
*7
F.3d at 53
Sonagere, 30
wrongdoing.”
of
stances,
affidavit es-
we find that Kraft’s
213,
Gates,
v.
462 U.S.
(quoting Illinois
for the issuance
probable cause
tablished
(1983)).
2317,
236,
697 orders, Particularity money passports, papers and other b. relating transportation, importation, that the fed argue The Blairs also sale, ordering, and distribution of con- was overbroad that eral search warrant trolled substances.” The warrant also au- as to the items to be particularity it lacked thorized seizure of records of financial to make Because the Blairs failed seized. equipment transactions and “electronic court, it to the district is argument this drug trafficking aid them their activi- Critton, 43 waived. See United States (6th Cir.1995) Thus, 1089, specified ties.” the warrant that the (holding F.3d 1094 specif a sought drug- a who fails to raise records were those related to that defendant in a suppression ic issue as the basis for activities and did not violate the trafficking to the district court has suppress motion to requirement the Fourth particularity raise that issue on waived the Amendment. argument appeal). Even if the Blairs’ us, Subterfuge argument before c. properly
were would fail. argue The Blairs also that the fed authorizing eral warrant seizure of records
It well settled that items to be
is
merely
subterfuge;
and documents was
a
to a
warrant must
pursuant
seized
search
that,
actuality,
agents
law enforcement
prevent
particularity
be described
thing
searching
one
under a warrant
impermissibly
drugs.
“the seizure of
describing
contention,
another.” Marron v. United
support
As
for their
further
States,
192, 196,
74, 72
275 U.S.
48 S.Ct.
the Blairs
law
assert
enforcement
(1927); see also Andresen v.
L.Ed. 231
jewelry, money
seized
and vehicles
agents
463, 480,
Maryland, 427
U.S.
obviously
that were
not records or docu
(1976).
However, we
Here, the warrant described the the document “[bjooks, records, there no evidence that is items to be seized tickets, law en- notes, pretext was a to enable airline warrant receipts, ledgers, 698 drugs, for that that the affiant to be agents to search substance believed
forcement system, the agents “manipulated” the The affiant cocaine. conducted field that items not authorized agents the seized the posi- test on substance which tested by the warrants. Fur- presence tive for the cocaine. ther, the affiant observed numerous plain
d. The
view doctrine
several
each containing
bundles
inches
Sergeant
that
The Blairs contend
dollar, fifty and-twenty
one hundred
dol-
Fourth Amendment
Raby violated their
Further,'
lar bills.
the affiant observed
drugs
found
rights
respect
with
syringes
lying
boxes of
on the bed
during
pursuant
the search
to the federal
master bedroom.
warrant,
drugs
were not in
because
statement,
light
In
of this
we do
be-
Raby
authority
had no
plain view and
clearly
lieve that the district court
erred
The Blairs
field test the substance.
essen
finding
drugs
its factual
that the
were in
Raby’s actions went be
tially assert that
view,
plain
Raby
lawfully
because
was
warrant.
yond
scope
of the federal
present,
discovery
drugs
of the
otherwise,
The district court concluded
inadvertent,
the incriminating
nature
finding
drugs
plain
in fact in
that
were
drugs
immediately
apparent.
authority
Raby
therefore had
view
Raby
proba-
further conclude that
had
We
perform
agree
a field test.
with the
We
ble cause to believe there was a nexus
district court.
suspected drugs
between the
and criminal
It is well established that law activity.
may
agents
enforcement
seize items
addition,
prob
we find no
view,
long
agent
lawfully
so
as the
is
plain
Raby
lem with the fact that
field tested the
inadvertent,
present,
discovery
suspected
drugs
cocaine. Because the
le
nature of the item is
incriminating
fell
gitimately
plain
excep
into the
view
“immediately apparent.” United States v.
tion,
permis
their warrantless seizure was
1001,
Blakeney, 942 F.2d
1028
Cir.
Blakeney,
sible.
Here, Raby’s the district court relied on pose argument, having found support statement in affidavit in his discovery of the cocaine was constitu state search warrant determine that the Moreover, tionally drugs plain Raby view. testified sound. there was no searching that while the master problem Raby’s bedroom affidavit in support of warrant, on the he: federal Raby’s clearly the state warrant. affidavit *9 vial, qualifications, stated his and what he ob open pill observed a clear a[sie] plastic bag containing plain during a hard off white served in view the execution 1996) Raby drugs (stating 3. The fact that field tested the amended in that "the fact that probable does not indicate that he lacked officers chose to field test the substance does cause to believe that the substance was in fact they probable indicate that lacked cause Buchanan, See cocaine. United States 70 contraband”). to the believe residue 1995) (as 826 & n. 5 Cir.
699
Blair,
F.Supp.2d
the
dural default. See
at
Accordingly,
warrant.
of the federal
legitimacy
the
argument regarding
agree.
780-81. We
Blairs’
warrant fails.
of the state
George
contends that the district
court should have found that cause existed
B. OVALLE ISSUE
to excuse his
to raise the Ovalle
failure
Ovalle,
that
In
this court held
the
trial,
prior
issue
to
because Ovalle was not
plan
the Eastern District
jury selection
23, 1998,
February
until
decided
two
essentially the
—which
Ovalle,
trial.
weeks after his
Pursuant
to
the
plan
place
at
the time of
same
it
that a
is clear
defendant’s failure to
original indictment
this case4—violated
object
composition
grand jury
to the
the
Act, 28
Jury
the
Selection and Service
prior to trial constitutes waiver of that
Equal
§
and the
Protection
U.S.C.
1107-09;
argument. See 136 F.3d at
Fed
Clause,
it allowed the removal of
because
12(b)(2).
P.
In order to show
R.Crim.
jury
every
juror
fifth non-black
from the
type
procedural
cause to excuse this
wheel in order to increase the number of
default, a defendant must demonstrate
Ovalle,
F.3d at
jurors.
black
See
objective
factor external to the
“some
1099-1100,
The Blairs contend
1105-07.
impeded counsel’s efforts
com
defense
to
by denying
court erred
the district
...
Mur
ply
procedural
rule.”
their motions to dismiss their
indict-.
Carrier,
478, 488,
ray v.
477 U.S.
Connie,
the su
mente—in
case
(1986).
2639,
this
has failed to
George
attacking
that result.
their convictions since the
change
ing
objective external factor
demonstrate an
objection
would
the failure
be waived
objec-
an
raising
him from
prohibited
object prior
to
to trial.
See Fed.
plan prior
to his
tion to
12(b)(2).
R.Crim.P.
trial;
he has not shown cause
accordingly,
Ovalle,
raising objection inappropriate such an for the first was to describe the second
701
201(c)6
indictment,
description
§
sur-
such a
is mere
C. 18 U.S.C.
plusage
ignored.
that can be
See United
George argues that his conviction
(6th
Caldwell,
898,
v.
176 F.3d
902
States
should be vacated
on
basis that
law
Cir.) (“A part of the indictment unneces
agents
enforcement
impermissibly prom
sary
allegations
to and
independent
leniency
paid
ised witnesses
and
their ex
proved may normally
of the offense
be
penses
exchange
testimony
for their
‘may
that
treated as
‘useless averment’
against
George
him.
filed such a motion in
”
omitted)),
(citation
ignored.’
quotation
be
approximately
the district
five
—
denied,
U.S. -,
rt.
trial,
ce
months after his
based on the Tenth
(1999).
275,
the involved dissenting part. in of the factual determinations We review See for clear error. sentencing court Judge well-reasoned I concur Cole’s Didonato, 109 F.3d v. Gort United States all thorough opinion as it relates to Cir.1997). (6th 318, 323 except George challenge Blair’s to issues his to the district court’s denial of motion court, argu- after extensive The district original upon indictment based dismiss the ments, George that should be determined jury. Mr. composition grand crack cocaine.- on the basis of sentenced challenge composition Blair’s to the noted: The court jury untimely should not be held as grand that leads this Court The other evidence so form over substance puts because do of the evi- preponderance to find attorney had no reason to inasmuch as his is that the substance involved dence jury plan that the selection believe only do I believe cocaine is not crack Michigan at that túne Eastern District by the that the as identified substance be found unconstitutional. Howev- would cocaine, is, fact, crack report lab er, granting allowing Mr. Blair relief and large with a amount witnesses testified him at government to reindict this officers, consistency. police The who put than form nothing time would do more as, search, quote, it made the identified again, once since the cur- over substance significant But as crack cocaine.... jury plan rent in the Eastern selection witnesses, prosti- the fact that the Michigan District of has been found to be tutes!,] degree regu- with a testified minority group— unfair to least one they were larity that the substance say, al- African Americans. Which is to they the house in which buying from jury selec- though this Court held fact, was, in crack cocaine. living were original Mr. Blair’s plan tion under which they They referred to it as rocks was unconstitu- indictment delivered purchasing. Ovalle, tional, States v. see United provided (6th The district court’s statements Cir.1998), 1092, 1108-09 after F.3d sentencing George on ample reasoning for issued, the Eastern District of Ovalle The district the basis of crack cocaine. jury se- Michigan simply returned not commit clear error. ante, did quo thereby plan lection status reinstituting jury the defective selection Finally, George raises a constitu plan previously which had been found to sentencing to the 100:1 challenge tional such, unfair African Americans. As be powder crack cocaine versus disparity of discriminatory jury plan selection cur- The law is well settled this cocaine. rently place in the Eastern District of that the 100:1 ratio withstands con circuit constitutionally fair Michigan is no more See, scrutiny. e.g., United stitutional plan than the under which Mr. Blair first Bingham, v. 81 F.3d 630-31 States proceeded. (6th Hill, Cir.1996); United States jury plan Because the current selection (6th Cir.1996); F.3d 1488-89 has Michigan in the Eastern District of (6th Reece, 994 F.2d 278-79 States v. demonstrably unfair to been shown to be Tinker, Cir.1993); United States Americans, affording Mr. Blair a African (6th Cir.1992); United States juncture appear at this would new trial Williams, 1218, 1227 962 F.2d Cir. V. futility. Mr. Blair would be an exercise Pickett, 1992); United States v. exchanging one unconstitutional merely be (6th Cir.1991). 411, 418-19 plan for another selection this It is course of a remand from Court. III. I re- although this reason that would verse, reasons, allowing government thereby we affirm. foregoing For the Blair, the East- judges (5)Requests reindict Mr. for a severance of charges immediate- ern District should or defendants under Rule 14. ly revise their to com- 12(b)(l)-(5). Fed.R.Crim.P. Advisory mandates, port with all constitutional so Committee Notes on adoption the 1944 guaranteed that Mr. Blair would be (b)(1) (2) subdivision states that constitutionally fair trial to which he is section includes challenges made to the *13 entitled. See United States v. Spearman, “[ijllegal selection or organization of the (6th Cir.1999). 747-55 Al- grand jury, disqualification of individual lowing defendants to be tried and convict- grand jurors, presence of unauthorized knowingly jury ed under a unfair selection persons grand the jury proceedings, system Michigan in the Eastern District of defects in indictment or information other unconscionable; allowing is Mr. Blair to be jurisdiction than lack of or failure to state subjected jury twice to an unfair selection offense, 12(b) an etc.” See Fed.R.Crim.P. system would be even worse. However, advisory committee’s note. I that although advisory submit the note A. Timeliness of Mr. Blair’s Motion to speaks illegal selection organization or Dismiss the Indictment on the Basis grand jury, it does not speak to the of Ovalle specific nature of an unconstitutional selec- recognized plain It has been that “the grand tion of jury, the where the defen- 12(b) language of not clearly Rule does dant is not challenging the selection of his require challenges that constitutional to particular grand jury upon based an ille- jury process the selection must be made juror such as gality tampering, but rather prior to trial.” See United States the defendant is challenging the unconsti- (E.D.Mich. Greene, F.Supp. jury tutional nature of the plan selection as 1997). Indeed, plain an examination of the Greene, a whole. F.Supp. See at 1138 language rule indicates that it is (distinguishing Manufacturing Shotwell silent as challenges. Spe- to constitutional States, 371 U.S. cifically, language provides the of the rule (1963) of, L.Ed.2d 357 on the among basis as follows: other fact things, the that the defendant (b) defense, Pretrial Any Motions. challenge did not the jury entire selection objection, request or which capable system, only but the impanelment of his determination without the trial of the jury). Accordingly, own I believe that general may issue be raised before trial 12(b)(2) Rule is not an absolute bar by motion. may Motions be written or considering challenge Mr. Blair’s to the oral at the discretion of judge. jury plan. selection following must be to trial: prior raised I disagrees, To extent one be- (1) objections Defenses and based on 12(f), lieve that under Rule Mr. Blair has pros- defects the institution of the shown cause to excuse his failure to raise ecution; or challenge jury plan selection (2) objections Defenses and based on otherwise, prior concluding to trial. defects in the or indictment informa- majority accurately states that a defense (other tion than that it fails to show recognize counsel’s failure to the factual or jurisdiction charge in the court or to claim, legal basis for a or a defense coun- objections an offense which shall be despite sel’s failure to raise the claim by any noticed time it, recognizing does not constitute cause to during the pendency proceed- timely objection. excuse the lack of a or ings); However, disagree I with the respectfully (3) evidence; suppress Motions to or majority’s Milton Attorney conclusion (4) Requests discovery justifiable Henry under Rule R. did not have cause to
16;
recognize
excuse
failure to
or raise a
his
well
under the
protection as
as
equal
At
jury
process.
selection
challenge to the
indictment,
jury
representa-
to fair
Blair’s
Sixth Amendment
time of Mr.
tion,
drafted
African American.
place
Hispanic,
had been
plan
selection
words,
the Eastern
judges
in Ovalle
approved
In other
the defendants
approved
of their
challenges
District
these
on the basis
made
alleg-
however,
of the Sixth Circuit
Counsel
an African-
ethnicity;
Judicial
Hispanic
remedy
underrepresentation
edly to
Mr. Blair
defendant such as
American-
Therefore, Attorney
Americans.
African
challenge
reason to
would have had no
believe that the
no reason to
Henry had
had
allegedly
which
process
selection
would
approved
who
very judges
ap-
designed
subsequently
been
—and
African Americans. See
it unfair to
find
constitutionally in-
proved
correct the
—to
(finding that “a
at 754
Spearman, 186 F.3d
process
applied
firm
no reason
attorney would have had
defénse
Therefore,
His-
while
African Americans.
*14
jury
process
selection
challenge
to
the
question
to
may have had a reason
panics
District of
place
in
in the Eastern
in
process
the Eastern
jury
the
selection
Ovalle,
as the
to
inasmuch
Michigan prior
Michigan,
of
African Americans
District
make his chal-
which he would
court to
In my
a reason.
would not have had such
very judges who
lenge consisted
n opinion,this serves
objective
as an
exter-
plan”).
unpublished
Those
approved the
Henry
Attorney
factor that excused
nal
majority
the
upon
cited and relied
cases
issue.
raising
from
the
attorney similarly
that an
recognize
fail to
argu-
I
Mr. Blair’s
Finally,
agree with
Henry would have found
to Mr.
situated
should have
ment that
the district court
jury
plan
challenge to the
selection
any
objection to
his co-defendant’s
construed
plan
the fact that the
had
light
futile in
of
in-
grand jury
the
to
composition
the
approved
to
designed
been
allegedly
to hold otherwise
again,
clude him. Once
African
underrepresentation of
correct the
form
nothing more than elevate
over
does
words,
if an
even
Americans.
other
substance,
Blair
where Mr.
is not allowed
Henry
to Mr.
attorney similarly situated
of his co-defendant’s chal-
to avail himself
unfair
plan
that the
had held a belief
he and his co-defen-
lenge simply because
blacks,
attorneys
or had heard of other
to
If Mr. Blair had
separate
dant had
trials.1
same, there was no basis
who believed the
then, like
tried with his co-defendant
been
attorney to
that his chal-
for the
believe
Ovalles,
have been
the
Mr. Blair would
jury
plan
to
selection
would be
lenge
the
from his co-defendant’s ob-
able to benefit
seriously
alone be success-
considered —let
Ovalle,
Furthermore, impor- what is of critical court. It is true that pated by the Ovalle the fact that the defendants tance here is stated that Ca- “[h]ad Ovalle the Court jury challenged who selection Ovalle objec- these and Garcia not raised right under the Fifth nales process Amendment jury waived trial that the district significant Mr. Blair and his co- his 1. Il is proceeded in Blair had tan- Blair's case from his co- defendant Connie court severed Mr. process, throughout such dem criminal States District defendant's case. See United conference, pretrial quash motions to Michigan for the Eastern District Court (Detroit) evidence, warrant, suppress the the search # : 97- Criminal Docket for Case case, brought by jointly and dismiss CR-18440-1, 3-6, v. Blair. United States only Mr. Blair Defendants. It was after these trial, prior appellants tions all of the be unfair to African Americans —which is raising would be barred from such an ob- operation at the current time as a result of jection appeal for the first time on the Ovalle decision. proceeding attacking
collateral their con- objection victions since the would be Jury B. The Selection Process in the object waived the failure to prior to Eastern District of However, trial.” F.3d at See 136 1109. Aftermath of the Ovalle Decision the fact remains that the did Ovalles v. Spearman States analyzed at objection prior raise such an trial length Ovalle’s failure to consider the de- the Court allowed these defendants to fendant’s fair representation challenge to avail themselves of their co-defendants’ jury process selection brought under challenge. This case be no differ- should Amendment, the Sixth and how the length by majority, ent. As cited at Court’s failure to consider this challenge has interpreted precluding Ovalle been left the selection reform in the hands challenges defendants who did not raise judges of the Eastern District of plan selection prior to trial from Michigan who “have respon- failed their availing themselves of the Ovalle decision. However, sibility to devise a jury cases these did not involve a hand, provides situation like that the case at which for a fair cross section of where one co-defendant was able to avail community as applied to all races.” *15 decision, of herself the Ovalle but the oth- See at 186 F.3d 748. Specifically, Spear- er co-defendant was not able to avail him- man stated as follows: self of the same. This case is factu- more Indeed, at issue in Ovalle was wheth- ally analogous to that of the Ovalles than er Hispanics were unconstitutionally that of the single cases where a defendant in represented jury the in array viola- or co-defendants each raised a challenge tion of the appellants’s Sixth Amend- under begun Ovalle the trial had after jury ment to a drawn from a fair Therefore, was concluded. like the community, cross section of the as well Ovalles, Mr. Blair should be allowed to equal protection as their rights under avail objec- himself of his co-defendant’s Ovalle, the Fifth Amendment. tion. However, at 1095. the Ovalle court However, as noted at my the outset of adjudicate chose the issue of fair opinion and as further in explained the representation, and instead limited its follows, section that Mr. reindicting Blair analysis holding to the equal protec- jury under the process selection itas now tion claim as applied “mechanics” stands in the Eastern District Michigan of of Section VIII. B. at Id. subject would do nothing jury but him to a (finding that underrepresentation any selection process that is no more represen- group point” “was not the of the court’s tative, and therefore no more constitution- inquiry). In stopping properly short of al, than that used in connection with his adjudicating constitutionality the fact, first indictment. In as a result of the jury process selection in the Eastern decision, jury Ovalle the venire under District, the court further the frustrated which Mr. Blair proceed would this ... problem by dividing the group of point may actually be less fair to African jurors potential into two broad catego- jury Americans than the venire under “non-blacks,” ries of blacks and ... which Mr. Blair proceeded. first This is in failing to consider actual representa- jury because the selection in plan opera- groups, [thereby] tion of the individual tion at the time Mr. Blair’s indictment was singling out African Americans as some- designed handed down rectify was the being how adequately- more than ad- underrepresentation of African Americans —or however, in previous by plan; equately represented jury it is that selec- — very “previous plan”' plan known to plan place tion that was in at the time —the uti- jury plan year ago, the selection one when, it had been white historically, quo. remains status more than lized in this district which had been population or without are not baseless represented. These concerns adequately long-standing Because of foundation. Furthermore, by failing to address Afri- underrepresentation of constitutionally acknowledged groups all whether jury also left unre- in the venire the court can Americans represented, jury whether the Michigan, the current dressed the issue Eastern District of in at the place plan which is of selection in this district jury process selection time, to increase although designed Although constitutionality. questionable jury Americans African number of were made minor modifications some repre- for a providing in fact array, was that was reinstated jury plan selection jurors. number of black sentative by the Eastern District addition; as- erroneously Ovalle, nothing was done response to invalidating VIII. Section sumed that remedy problem the known the main to thereby remedied the it plan, B. of the African Ameri- underrepresentation of jury infirm selection constitutionally Indeed, even juries. on federal cans Dis- in the Eastern that existed process acknowledgment of the express face of an However, failing Michigan. trict of system as jury selection unfairness adequate representation to consider the by one of the to African Americans applied array in East- jury of citizens Michi- Eastern District of judges from the analysis, of its in the course ern District the district’s former Chief gan and recognize that did not the Ovalle court jury selection Operations, Court invalidating a may have been while it & the same. See Avern Cohn remains which was consti- process selection Sherwood, Fall of A. The Rise and David to “non- tutionally applied infirm as Selection, Jury 32 U. Affirmative Action blacks,” leaving it in its .wake (1999) (“Early Mich. Reform J.L. unconstitution- plan which was *16 judges trying are suggest that experiences possibly blacks—and applied al as with African-Ameri- largely criminal cases as minority groups well—inas- other defendants, in front of prosecuted can simply invali- much as Ovalle by mostly pros- white mostly judges, white By plan. B. of the dated Section VIII. counsel, and with deci- and defense ecutors there, ending analysis its hastily juries. by almost all-white sions made African Americans court left Ovalle justice criminal This is not fairness position as “underrepresented” the same system.”). initiated, plan they before the were .requires that Amendment “The Sixth simply exehahging appar- one thereby another, jury which a is select- jury venire from process for ently one unfair impact represent of its a ‘fair cross-section’ considering the ed without Allen, underrepresentation community.” States ruling on the Cir.1998) jury process (quoting selection blacks in the —a duly 522, 528, recognized Louisiana, that had been problem Taylor v. 419 U.S. (1975)). Yet, District Court for by the United States 42 L.Ed.2d- 690 S.Ct. Michigan, the Eastern District guaran- constitutional despite precious this examining through statistics without tee, the fact that it is well despite plan sta- data whether the left empirical defendants that African-American known constitutionally sound ante was quo tus are Michigan in the Eastern District minority groups. to all applied right, guaranteed this being deprived of act. yet Id. at 751. have judges of that district urge I It reason that continue this re- and concerns Despite criticisms in this district jury plan garding plan ^election African Ameri- to insure that be reformed Michigan which Eastern District of/ well, cans, groups as minority and other nearly by Spearman brought ford provided constitutionally are with the they and fair to which are
sound judges
entitled. The of the Eastern Dis-
trict of should reevaluate the system through empiri-
current the use of data,
cal and statistical and devise a fair comports representation
requirement of the Sixth Amendment. occurs, granting this Mr.
Until Blair’s mo- (thereby
tion to dismiss the indictment
subjecting possible him to reindictment government), although technically case,
correct form of relief in this would
actually provide no relief at all.
C. Conclusion
I would reverse the district court’s deni-
al of Mr. Blair’s motion to dismiss the
indictment on the basis Ovalle. Howev-
er, if the district court had been correct motion,
denying Mr. Blair’s I agree with majority that Mr. Blair’s other claims fail,
would as do all claims raised his co-
defendant, Blair. Connie DETERGENTS, INC.,
HUISH
Plaintiff-Appellant, *17 COUNTY, KENTUCKY;
WARREN Environmental, Inc.,
Monarch
Defendants-Appellees.
No. 98-5566. Appeals,
United States Court of
Sixth Circuit.
Argued: April May
Decided and Filed: