#### UNITED STATES of America, Plaintiff, v. George Allen BLAIR, Defendant.

No. 97-CR-81440-DT.

United States District Court, E.D. Michigan, Southern Division.

April 24, 1998.

William Richards, Asst. U.S. Atty., Detroit, MI, for Plaintiff.

Milton R. Henry, Bloomfield Hills, MI, for Defendant.

*ORDER DENYING DEFENDANT’S MOTION TO VACATE CONVICTION AND TO DISMISS INDICTMENT*

DUGGAN, District Judge.

On December 9, 1997, defendant was indicted by a grand jury on five counts of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), and one count of continuing criminal enterprise in violation of 21 U.S.C. § 848. On January 9,1998, defendant filed a motion to quash search warrants, to suppress evidence, and to dismiss cause. On February 2, 1998, this Court entered an order denying defendant’s motion to quash search warrants, to suppress evidence, and dismiss cause.

On February 5, 1998, a bench trial began after defendant, in open court, and in writing, expressly waived his right to a jury trial. On February 10, 1998, defendant was found guilty of the five counts of possession with intent to distribute a controlled substance and not guilty of the charge of continuing criminal enterprise.

On March 25, 1998, defendant George Blair filed a motion to vacate his conviction and to dismiss grand jury indictment alleging that the indictment was returned by a grand jury “which was selected, drawn and summoned in a manner which violated the Jury Selection and Service Act of the United States, 28 U.S.C. § 1861*et seq.,*as well as the Fifth and Sixth Amendment to the United States Constitution.” (Df.’s Mot. at ¶ 5). In support of his motion, the defendant relies on the recent Sixth Circuit decision in *U.S. v. Ovalle,*136 F.3d 1092 (6th Cir.1998). In *Ovalle,*the Sixth Circuit concluded that this district’s Jury Selection Plan was not constitutionally valid. This Plan reduced the number of white potential jurors in order to achieve a percentage of African American potential jurors consistent with the African American population in the district. As this Jury Selection Plan was used to select the *780Grand Jury which indicted defendant, defendant contends that his indictment must be dismissed.1 This Court disagrees.

Fed.R.Crim.P. 12(b)(2) requires that any defense or objection based on defects in the indictment must be raised prior to trial. In *Davis v. United States,*411 U.S. 233, 234, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), the Supreme Court addressed the effect of Fed. R.Crim.P. 12(b)(2) on a post-conviction motion for relief “which raises for the first time a claim of unconstitutional discrimination in the composition of a grand jury.” In ruling on this issue, the Supreme Court stated:

> We believe that the necessary effect of the congressional adoption of Rule 12(b)(2) is to provide that a claim once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of “cause” which that Rule requires. We therefore hold that the waiver standard expressed in Rule 12(b)(2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review.

*Id.*at 242, 93 S.Ct. 1577. In fact, in *Ovalle,*the Sixth Circuit applied this rule to bar certain claims:

> Federal Rule of Criminal Procedure 12(b)(2) provides that “[djefenses and objections based on defects in the indictment or information ...” must be raised prior to trial. Federal Rule of Criminal Procedure 12(b)(2) governs an untimely claim of discrimination in the selection of the grand jury, “even when such challenges are on constitutional grounds.” *Davis v. United States,*411 U.S. 233, 238, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973) (citing *Shotwell Mfg. Co. v. United States,*371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963)). “Challenges of the petit jury are treated the same as challenges of the grand jury.” *United States v. Hearst,*638 F.2d 1190, 1196 (9th Cir.1980) (citing *Shotwell Mfg. Co.,*371 U.S. at 362, 83 S.Ct. 448), *cert. denied,*451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).

> Failure to raise an objection to the selection of the grand or petit jury prior to trial “shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.” Fed.R.Crim.P. 12(f); *see also United States v. Oldfield,*859 F.2d 392, 396 (6th Cir.1988).

*Ovalle,*136 F.3d at 1107.

Defendant has not asserted any “cause” for not raising this issue in a timely manner, nor does this Court believe, under the facts presented, that he can establish “cause.”

The Eastern District’s Jury Selection Plan was adopted by this Court and approved by the Sixth Circuit in 1992. The Administrative Orders implementing this Plan have been issued regularly since its adoption and have been posted in the courthouse. The Plan is a public document. Concerns about the constitutionality of the Plan were addressed in *United States v. Greene,*971 F.Supp. 1117 (E.D.Mich.1997), a case decided by the Hon. Gerald E. Rosen on July 23, 1997, which received wide spread publicity. (See attached).

Furthermore, the Court held a public meeting on August 20, 1997, the purpose of which was to address concerns about the “constitutionality” of the Jury Selection Plan. The hearing was well publicized and well attended by representatives of numerous local bar associations and other interested groups. In this Court’s opinion, defendant and defense counsel were on notice with respect to the provisions of the Plan well before February 5,1998, the date on which trial began and the date on which defendant elected to waive his right to a jury trial. There*781fore, the Court concludes that defendant cannot establish cause for not raising this issue prior to the commencement of trial.

Moreover, in order to prevail, defendant must also establish “prejudice.” *See Ovalle,*136 F.3d at 1107 (citing *Davis v. United States,*411 U.S. at 245, 93 S.Ct. 1577). Under the facts presented here, the Court does not believe that defendant can establish prejudice. The jury plan which defendant challenges and which the Sixth Circuit found to be constitutionally defective was intended to, and did in fact, increase the number of African Americans in the jury pool to more accurately reflect the African American population within the Eastern District of Michigan. Defendant, an African American, has not, and in this Court’s opinion, cannot, demonstrate that selection of the grand jury from a jury pool which increased the number of African American potential jurors somehow prejudiced him.

For the reasons set forth above,

IT IS ORDERED that defendant George Blair’s motion to vacate his conviction and dismiss the grand jury indictment is DENIED.

*782

*783

1

. In actuality, the Jury Selection Plan which was used to Select, the grand jury that indicted defendant is not the same Jury Selection Plan that was the subject of the decision in *Ovalle.*On April 8, 1997, Chief Judge Anna Diggs Taylor issued Administrative Order, 97-AO-019 which provided that jurors whose names were "removed” were not eliminated from potential jury service; rather, their jury service was deferred because their names were retained for use in future jury wheels. In the Jury Selection Plan at issue in *Ovalle,*the jurors’ names that were removed to balance the wheel were not retained for future selection. According to Court records, the grand jury that indicted defendant was selected on May 15, 1997, pursuant to Judge Taylor’s Administrative Order of April 8, 1997.