*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, 76 L.Ed.2d 527 103 S.Ct. Accordingly, the warrant. of the search a basis to judge had substantial magistrate 1. The Federal Warrant would be uncov- wrongdoing that conclude Sufficiency the affidavit a. of provided the search. The affidavit ered affidavit argue that the Kraft’s extensive regarding The Blairs information support the warrant investigating was insufficient the financial experience .to case, judge magistrate because the trafficking profes- this and his aspects drug of relat that records had no basis to conclude drug keep traffickers opinion sional that would be ing the Blairs’ businesses homes. addi- financial records at their disagree. We found in their residence. tion, ob- provided affidavit information cooperating witnesses tained from reliable the federal search application for This company records. infor- and electric affi- eleven-page on an warrant was based for the issuance mation was sufficient Kraft, who had extensive by Agent davit in this case. See Unit- the search warrant investiga- drug-trafficking experience (6th Jones, 969, 975 v. ed States purpose Kraft that the tions. testified Cir.1998) the case of (stating that “[i]n “to warrant was locate search dealers, found likely is to be drug evidence investigation relating to an seize evidence live”). 18, the dealers States where into of Title violations

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 49 L.Ed.2d 627 ments, and that the federal warrant was degree speci have that the recognized primarily by police executed officers who flexible, in warrant be de ficity must argu worked in narcotics. The Blairs’ items to be upon type pending ment lacks merit. crime involved. See United seized and the The federal warrant was issued on (6th Ables, 1033 States v. F.3d an provided by the basis of an affidavit Cir.) Henson, (citing United States specialized monetary agent IRS who Cir.1988) (citation as a result of transactions occurred denied, omitted)), cert. U.S. Although drug-traffick drug trafficking. (1999). 2378, 144 L.Ed.2d 781 S.Ct. ing suspected, activities were IRS “Thus[,] valid if it is as description seeking financial records indi agent was the na as the circumstances and specific money laundering monetary pro investigation cating under activity ture of the Thus, with the permit.” agreed illegal Id. also have activities. We ceeds from “ ‘[o]nce conclusion that properly Second Circuit’s warrant was federal “document” *8 category papers of had been ade seizable agents, issued and executed federal described, description the de quately with police offi with assistance of Detroit the an list of part lineated illustrative investigation did not turn into cers. The items, the Fourth Amendment is seizable until law enforcement drug investigation executing the officers not violated because drugs the of presence officers observed must exercise some minimal the warrant the federal war executing view while plain particular to whether a docu judgment as then subsequent The state warrant rant. ” category.’ the described ment falls within related to to seize items authorized officers Riley, (quoting at 1034 States Id. proceeds or the narcotics transactions Cir.1990)). (2d 841, 845 906 transactions, include which would narcotics vehicles, jewelry money. Accordingly, and

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. 942 F.2d at 1028. See 1991); California, generally see Horton Thus, permissible it would have been U.S. L.Ed.2d Raby suspected drugs to seize the for later (1990). executing officers When testing. Accordingly, Raby violate did not in plain search warrant seize an item view rights by Blairs’ Fourth Amendment warrant, scope that is outside testing suspected drugs.3 field probable the officers must have cause to believe that there is a nexus between the 2. State Warrant activity. viewed item and criminal See Calloway, United States v. 116 F.3d allege The Blairs the state (6th Cir.1997); Beal, United States v. invalid, warrant was because it was issued (6th Cir.1987). Raby’s impermissible on the basis dis covery easily cocaine. We can dis

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, 91 L.Ed.2d 397 mere “[T]he indictment —based on the com perseding recognize fact that counsel failed to grand jury that returned position of claim, for a or failed legal factual or basis original pursuant indictment to Ovalle. it, despite recognizing to raise the claim to the challenge We review a defendant’s procedur does not constitute cause composition grand jury of a de novo. See 486, 106 al default.” Id. at S.Ct. 2639. Ovalle, 1100. George’s timing reliance on the of Ovalle is George’s Argument 1. misplaced. recog therefore Ovalle did not instead, it held that the right; nize a new case, George’s the district court jury plan violated well es selection denied his motion to dismiss indict Prior rights. tablished constitutional to Ovalle, holding ment on the basis of trial, recognize failed to or chose to George challenge waived his George challenge ignore potential a grand jury by failing composition failure not estab plan. selection This does pretrial make motion under Fed. waiver of 12(b)(2),5 George’s lish cause to overcome by failing to es R.Crim.P. issue; fact that illuminated prejudice proce- or for this Ovalle tablish cause that, jurisdiction in actuality, er than that it fails to show 4. The district court stated slightly charge different was in an offense which the court or to original at the time of the Blairs' indict effect objections by the court at shall be noticed juror’s ment that allowed names who had during pro- any pendency time to be deferred for use in future been removed ceedings) .... being jury wheels rather than eliminated. See 12(b) added). (emphasis Fed.R.Crim.P. Blair, F.Supp.2d United States v. 780 n. 12(b)(2) failing to raise a motion effects of (E.D 1998). .Mich. 12(0: trial set forth in Rule before are (0 Raise Defenses or Effect of Failure To 12(b)(2)provides: 5. Fed.R.Crim.P. by party Objections. to raise de- Failure defense, (b) Any objec- Pretrial Motions. requests objections or to make fenses or tion, request capable deter- which is trial, prior at the which must be made general mination without trial ... shall constitute time set the court may by motion issue be raised before trial thereof, but the court for cause waiver following prior ... The must be raised may grant relief from the waiver. shown ... trial: 12(0. Fed.R.Crim.P. (2) objections on de- Defenses and based (oth- fects in the indictment or information *10 700 proceed- in a nothing appeal later does to time on collateral issue two weeks

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, 136 F.3d at 1109. of this issue. See to excuse his waiver with the district court and the agree We 97-2305, Simpson, v. Nos. United States timely objection, government Connie’s 97-2307, 97-2316, 98-1050, 1999 WL i.e., trial, to her not create an prior does (6th 1999) 777348, Sept.21, at *10 Cir. George. Unlike the situation exception (stating that “the fact that Ovalle was not Ovalle, did her valid Connie not raise trial not [defendant’s] decided until after trial, objection after prior George’s to but grant for this court sufficient cause George had been convicted. This does not issue”); see relief from the waiver ’ exception fall to Rule into narrow Bischoff, v. 97- also United States Nos. 12(b)(2) Accordingly, created Ovalle. (6th 97-1983, 644340, 1980, 1999 WL at *6 by denying the district did not err 1999) (cause Aug.19, not shown for Cir. indictment George’s motion to dismiss his court); failure to raise Ovalle district composition on the basis of the of the Valme, 98-1340, v. No. 1999 United States ' (6th 1999) 16, 519232, grand jury. July at *5 Cir. WL (holding that cause did not exist for.defen-' Argument 2. Connie’s issue); timely dant’s failure to raise Ovalle 98-1512, Garavaglia, United States Nos. Connie, As for the district court dis- (6th 98-1674, 220125, 1999 WL at *6 Cir. original respect missed the indictment with 1999) 6, April (stating that defendant’s and, prejudice to her without two weeks law him” against contention that “case later, grand jury supersed- a new issued not cause to did constitute excuse waiver ing against indictment her. Connie now issue); Carr, of Ovalle United States v. superseding that a indictment contends 97-1367, 97-1422, 97-1513, 97-1584, Nos. valid, only prior can be issued when a (6th 97-1814, 211928, at *6 1999 WL Cir. pending. indictment is still Connie further 1999) (cause 11, not fail- March shown for argues superseding that a indictment can- trial). prior ure to raise Ovalle issue invalid, original not arise from an indict- addition, George argues argument’s ment. Connie’s lack merit. the district court should have construed in that Connie is correct some timely objection his co-defendant’s to the narrowly courts have defined the term “su composition grand jury to include perseding indictment” to refer to an indict arguing, George him. In so relies on the an indictment original ment returned when that, Ovalle, fact we allowed a “narrow Bowen, still exists. See United States exception” respect Ovalles (10th Cir.1991) 734, (citing 946 F.2d 12(b)(2) pursuant waiver to Fed.R.Crim.P. Rojas-Contreras, States v. because their co-defendants raised a time 555, 88 L.Ed.2d U.S. S.Ct. ly exception joint before their trial. We (1985) (Blackmun, J., concurring)). stated, however, that: However, this court has held that a su emphasize only We that it is because the perseding indictment returned one month Ovalles’ codefendants Canales and Gar- original after the indictment had been dis timely objection cia raised a to the seat- citing wrong missed for statute was juries that ing grand petit Pi, valid. See United States v. permitted Ovalles are the benefit of this — Cir.), denied, cert. U.S. decision. Had Canales and Garcia (1999). -, 145 L.Ed.2d 63 trial, objections all prior raised these Moreover, if “superseding” even the term appellants would be barred from

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, 145 L.Ed.2d 230 panel Circuit’s decision United States (10th Cir.1998) Singleton, 144 F.3d 1343 We further note that Connie that (holding promises made in a plea jeopardy argument does not have a double agreement could violate 18 U.S.C. arising from the second indictment. It is 201(c)), vacated, § 165 F.3d 1297 well established that dismissal of an indict Cir.) (en banc), denied, 1024, cert. 527 U.S. prior ment to trial does not raise a double (1999). 119 144 S.Ct. L.Ed.2d 775 jeopardy issue and does not bar subse appeal, George On concedes that the panel quent prosecution for the offenses de in Singleton decision has been overruled Pi, scribed in the indictment. See acknowledges this court’s decision however, argues, 748. Connie that Ware, United States v. 161 F.3d jeopardy attached in her case because (6th Cir.1998) 201(c), § (holding which George already had been tried at the time an penalizes giving individual for anything against the indictment her had been dis in exchange testimony, of value does argument missed. Connie’s is misplaced, apply government), United States jeopardy as she cannot assert George’s denied, rt. 526 U.S. ce rights. trial Connie’s had been severed (1999). S.Ct. 143 L.Ed.2d None George’s yet begun from and had not when theless, 201(c) § George contends that original indictment was dismissed it prosecutor violated because was not the superseding indictment filed. Accord witnesses, gave who of value it things ingly, jeopardy did not attach to the Sergeant Raby. argument This fails. charges against Connie. First, notes, government George Finally, argument by failing Connie asserts has waived this addition, illegality original indictment raise it before the trial court. if George argu- somehow even had not waived this tainted second indictment. ment, any “promises” ir made witnesses Again, Any Connie misses the mark. by Sergeant Raby were made on behalf of regularity original in an indictment has no ar- government; accordingly, George’s subsequent effect on a indictment. See id. gument lacks merit. Senak, (citing United States (7th Cir.1973) (“[a] 304, 306 grand federal D. CRACK COCAINE/POWDER jury may return a second indictment for COCAINE when first same offense indictment George govern has been dismissed or otherwise found de asserts that fective”)). sentencing ment failed to establish at 201(c) § provides part testimony 6. U.S.C. oath Title 18 for or because of the under that: given given by to be such or affirmation or trial,.... (c) upon person Whoever- as witnesses (1) provided by otherwise than as law for — proper discharge duty of official offers, (2) indirectly, gives, directly or promises anything any person, of value to *12 CLAY, in Judge, concurring part was crack cocaine. Circuit cocaine

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, 136 F.3d at 1109. jection. See Indeed, judges none ful. view, had the Ovalles majority’s Under have acted Michigan District of Eastern trial from their co- separate for a moved expressed more than upon the concerns Garcia, they then defendants Canales jury the unfair year ago regarding one them- not have been able to avail would as it exists the after- process selection objection to of their co-defendants’ selves Spearman, See math of Ovalle. jury venire. at 747-55. antici- The facts this case are ones not

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: