concurring in part and dissenting in part.
I concur in Judge Cole’s well-reasoned and thorough opinion as it relates to all issues except George Blair’s challenge to the district court’s denial of his motion to dismiss the original indictment based upon the composition of the grand jury. Mr. Blair’s challenge to the composition of the grand jury should not be held as untimely because to do so puts form over substance inasmuch as his attorney had no reason to believe that the jury selection plan in the Eastern District of Michigan at that túne would be found unconstitutional. However, granting Mr. Blair relief and allowing the government to reindict him at this time would do nothing more than put form over substance once again, since the current jury selection plan in the Eastern District of Michigan has been found to be unfair to at least one minority group— African Americans. Which is to say, although this Court held that the jury selection plan under which Mr. Blair’s original indictment was delivered was unconstitutional, see United States v. Ovalle, 136 F.3d 1092, 1108-09 (6th Cir.1998), after Ovalle was issued, the Eastern District of Michigan simply returned to the jury selection plan status quo ante, thereby reinstituting the defective jury selection plan which had previously been found to be unfair to African Americans. As such, the discriminatory jury selection plan currently in place in the Eastern District of Michigan is no more constitutionally fair than the plan under which Mr. Blair first proceeded.
Because the current jury selection plan in the Eastern District of Michigan has been shown to be demonstrably unfair to African Americans, affording Mr. Blair a new trial at this juncture would appear to be an exercise in futility. Mr. Blair would merely be exchanging one unconstitutional jury selection plan for another in the course of a remand from this Court. It is for this reason that although I would reverse, thereby allowing the government to *703reindict Mr. Blair, the judges of the Eastern District of Michigan should immediately revise their jury selection plan to comport with all constitutional mandates, so that Mr. Blair would be guaranteed the constitutionally fair trial to which he is entitled. See United States v. Spearman, 186 F.3d 743, 747-55 (6th Cir.1999). Allowing defendants to be tried and convicted under a knowingly unfair jury selection system in the Eastern District of Michigan is unconscionable; allowing Mr. Blair to be twice subjected to an unfair jury selection system would be even worse.
A. Timeliness of Mr. Blair’s Motion to Dismiss the Indictment on the Basis of Ovalle
It has been recognized that “the plain language of Rule 12(b) clearly does not require that constitutional challenges to the jury selection process must be made prior to trial.” See United States v. Greene, 971 F.Supp. 1117, 1137 (E.D.Mich. 1997). Indeed, an examination of the plain language of the rule indicates that it is silent as to constitutional challenges. Specifically, the language of the rule provides as follows:
(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution; or
(2) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings); or
(3) Motions to suppress evidence; or
(4) Requests for discovery under Rule 16; or
(5)Requests for a severance of charges or defendants under Rule 14.
Fed.R.Crim.P. 12(b)(l)-(5). The Advisory Committee Notes on the 1944 adoption of subdivision (b)(1) and (2) states that the section includes challenges made to the “[ijllegal selection or organization of the grand jury, disqualification of individual grand jurors, presence of unauthorized persons in the grand jury proceedings, defects in indictment or information other than lack of jurisdiction or failure to state an offense, etc.” See Fed.R.Crim.P. 12(b) advisory committee’s note. However, I submit that although the advisory note speaks to illegal selection or organization of the grand jury, it does not speak to the specific nature of an unconstitutional selection of the grand jury, where the defendant is not challenging the selection of his particular grand jury based upon an illegality such as juror tampering, but rather the defendant is challenging the unconstitutional nature of the jury selection plan as a whole. See Greene, 971 F.Supp. at 1138 (distinguishing Shotwell Manufacturing v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963) on the basis of, among other things, the fact that the defendant did not challenge the entire jury selection system, but only the impanelment of his own jury). Accordingly, I believe that Rule 12(b)(2) is not an absolute bar to considering Mr. Blair’s challenge to the jury selection plan.
To the extent that one disagrees, I believe that under Rule 12(f), Mr. Blair has shown cause to excuse his failure to raise the challenge to the jury selection plan prior to trial. In concluding otherwise, the majority accurately states that a defense counsel’s failure to recognize the factual or legal basis for a claim, or a defense counsel’s failure to raise the claim despite recognizing it, does not constitute cause to excuse the lack of a timely objection. However, I respectfully disagree with the majority’s conclusion that Attorney Milton R. Henry did not have justifiable cause to excuse his failure to recognize or raise a *704challenge to the jury selection process. At the time of Mr. Blair’s indictment, the jury selection plan in place had been drafted and approved by the judges of the Eastern District of Michigan and approved by the Judicial Counsel of the Sixth Circuit allegedly to remedy the underrepresentation of African Americans. Therefore, Attorney Henry had no reason to believe that the very judges who approved the plan would find it unfair to African Americans. See Spearman, 186 F.3d at 754 (finding that “a defénse attorney would have had no reason to challenge the jury selection process that was in place in the Eastern District of Michigan prior to Ovalle, inasmuch as the court to which he would make his challenge consisted of the very judges who approved the plan”). Those unpublished cases cited and relied upon by the majority fail to recognize that an attorney similarly situated to Mr. Henry would have found any challenge to the jury selection plan futile in light of the fact that the plan had allegedly been designed and approved to correct the underrepresentation of African Americans. In other words, even if an attorney similarly situated to Mr. Henry had held a belief that the plan was unfair to blacks, or had heard of other attorneys who believed the same, there was no basis for the attorney to believe that his challenge to the jury selection plan would be seriously considered — let alone be successful. Indeed, none of the judges of the Eastern District of Michigan have acted upon the concerns expressed more than one year ago regarding the unfair jury selection process as it exists in the aftermath of Ovalle. See Spearman, 186 F.3d at 747-55.
Furthermore, what is of critical importance here is the fact that the defendants in Ovalle who challenged the jury selection process under the Fifth Amendment right to equal protection as well as under the Sixth Amendment right to fair representation, were Hispanic, not African American. In other words, the defendants in Ovalle made these challenges on the basis of their Hispanic ethnicity; however, an African-American- defendant such as Mr. Blair would have had no reason to challenge the jury selection process which allegedly had been designed — and subsequently approved — to correct the constitutionally infirm jury selection process as applied to African Americans. Therefore, while Hispanics may have had a reason to question the jury selection process in the Eastern District of Michigan, African Americans would not have had such a reason. In my ■opinion, this serves as an objective external factor that excused Attorney Henry from raising the issue.
Finally, I agree with Mr. Blair’s argument that the district court should have construed his co-defendant’s objection to the composition of the grand jury to include him. Once again, to hold otherwise does nothing more than elevate form over substance, where Mr. Blair is not allowed to avail himself of his co-defendant’s challenge simply because he and his co-defendant had separate trials.1 If Mr. Blair had been tried with his co-defendant then, like the Ovalles, Mr. Blair would have been able to benefit from his co-defendant’s objection. See Ovalle, 136 F.3d at 1109. Under the majority’s view, had the Ovalles moved for a separate trial from their co-defendants Canales and Garcia, then they would not have been able to avail themselves of their co-defendants’ objection to the jury venire.
The facts of this case are ones not anticipated by the Ovalle court. It is true that in Ovalle the Court stated that “[h]ad Ca-nales and Garcia not raised these objec*705tions prior to trial, all of the appellants would be barred from raising such an objection for the first time on appeal or in a collateral proceeding attacking their convictions since the objection would be waived by the failure to object prior to trial.” See 136 F.3d at 1109. However, the fact remains that the Ovalles did not raise such an objection prior to trial and the Court allowed these defendants to avail themselves of their co-defendants’ challenge. This case should be no different. As cited at length by the majority, Ovalle has been interpreted as precluding defendants who did not raise challenges to the jury selection plan prior to trial from availing themselves of the Ovalle decision. However, these cases did not involve a situation like that in the case at hand, where one co-defendant was able to avail herself of the Ovalle decision, but the other co-defendant was not able to avail himself of the same. This case is more factually analogous to that of the Ovalles than that of the cases where a single defendant or co-defendants each raised a challenge under Ovalle after the trial had begun or was concluded. Therefore, like the Ovalles, Mr. Blair should be allowed to avail himself of his co-defendant’s objection.
However, as noted at the outset of my opinion and as further explained in the section that follows, reindicting Mr. Blair under the jury selection process as it now stands in the Eastern District of Michigan would do nothing but subject him to a jury selection process that is no more representative, and therefore no more constitutional, than that used in connection with his first indictment. In fact, as a result of the Ovalle decision, the jury venire under which Mr. Blair would proceed at this point may actually be less fair to African Americans than the jury venire under which Mr. Blair first proceeded. This is because the jury selection plan in operation at the time Mr. Blair’s indictment was handed down was designed to rectify the underrepresentation of African Americans in the previous plan; however, it is that very “previous plan”' — the plan known to be unfair to African Americans — which is operation at the current time as a result of the Ovalle decision.
B. The Jury Selection Process in the Eastern District of Michigan in the Aftermath of the Ovalle Decision
United States v. Spearman analyzed at length Ovalle’s failure to consider the defendant’s fair representation challenge to the jury selection process brought under the Sixth Amendment, and how the Court’s failure to consider this challenge left the jury selection reform in the hands of the judges of the Eastern District of Michigan who “have failed in their responsibility to devise a jury selection plan which provides for a fair cross section of the community as applied to all races.” See 186 F.3d at 748. Specifically, Spear-man stated as follows:
Indeed, at issue in Ovalle was whether Hispanics were unconstitutionally represented in the jury array in violation of the appellants’s Sixth Amendment right to a jury drawn from a fair cross section of the community, as well as their equal protection rights under the Fifth Amendment. Ovalle, 136 F.3d at 1095. However, the Ovalle court chose not to adjudicate the issue of fair representation, and instead limited its analysis and holding to the equal protection claim as applied to the “mechanics” of Section VIII. B. Id. at 1095, 1106 (finding that underrepresentation of any group “was not the point” of the court’s inquiry). In stopping short of properly adjudicating the constitutionality of the jury selection process in the Eastern District, the court further frustrated the problem ... by dividing the group of potential jurors into two broad categories of blacks and “non-blacks,” ... and in failing to consider actual representation of the individual groups, [thereby] singling out African Americans as somehow being adequately- — or more than adequately — represented by the jury selection plan that was in place at the time *706when, historically, it had been the white population which had been more than adequately represented.
Furthermore, by failing to address whether all groups were constitutionally represented, the court also left unre-dressed the issue of whether the jury selection plan which was in place at the time, although designed to increase the number of African Americans in the jury array, was in fact providing for a representative number of black jurors.
In addition; the court erroneously assumed that by invalidating Section VIII. B. of the plan, it thereby remedied the constitutionally infirm jury selection process that existed in the Eastern District of Michigan. However, by failing to consider the adequate representation of citizens in the jury array in the Eastern District in the course of its analysis, the Ovalle court did not recognize that while it may have been invalidating a jury selection process which was constitutionally infirm as applied to “non-blacks,” it was leaving in its .wake a jury selection plan which was unconstitutional as applied to blacks — and possibly other minority groups as well — inasmuch as the Ovalle court simply invalidated Section VIII. B. of the plan. By hastily ending its analysis there, the Ovalle court left African Americans in the same “underrepresented” position as they were before the plan was initiated, thereby simply exehahging one apparently one unfair process for another, without considering the impact of its ruling on the underrepresentation of blacks in the jury selection process — a problem that had been duly recognized by the United States District Court for the Eastern District of Michigan, and without examining through statistics or empirical data whether the plan left status quo ante was constitutionally sound as applied to all minority groups.
Id. at 751.
Despite the criticisms and concerns regarding the jury ^election plan in the Eastern District of/ Michigan which were brought to the ford by Spearman nearly one year ago, the jury selection plan utilized in this district remains status quo. These concerns are not baseless or without foundation. Because of the long-standing acknowledged underrepresentation of African Americans in the jury venire of the Eastern District of Michigan, the current jury selection process in this district is of questionable constitutionality. Although some minor modifications were made in the jury selection plan that was reinstated by the Eastern District of Michigan in response to Ovalle, nothing was done in the main to remedy the known problem of the underrepresentation of African Americans on federal juries. Indeed, even in the face of an express acknowledgment of the unfairness of the jury selection system as applied to African Americans by one of the judges from the Eastern District of Michigan and the district’s former Chief of Court Operations, the jury selection plan remains the same. See Avern Cohn & David A. Sherwood, The Rise and Fall of Affirmative Action in Jury Selection, 32 U. Mich. J.L. Reform 323, 333 (1999) (“Early experiences suggest that judges are trying criminal cases largely with African-American defendants, prosecuted in front of mostly white judges, by mostly white prosecutors and defense counsel, and with decisions made by almost all-white juries. This is not fairness in the criminal justice system.”).
“The Sixth Amendment .requires that the jury venire from which a jury is selected represent a ‘fair cross-section’ of the community.” United States v. Allen, 160 F.3d 1096, 1103 (6th Cir.1998) (quoting Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d- 690 (1975)). Yet, despite this precious constitutional guarantee, and despite the fact that it is well known that African-American defendants in the Eastern District of Michigan are being deprived of this guaranteed right, the judges of that district have yet to act. It is for this reason that I continue to urge that the jury selection plan in this district be reformed to insure that African Americans, and other minority groups as well, *707are provided with the constitutionally sound and fair jury to which they are entitled. The judges of the Eastern District of Michigan should reevaluate the current system through the use of empirical and statistical data, and devise a plan that comports with the fair representation requirement of the Sixth Amendment. Until this occurs, granting Mr. Blair’s motion to dismiss the indictment (thereby subjecting him to possible reindictment by the government), although technically the correct form of relief in this case, would actually provide no relief at all.
C. Conclusion
I would reverse the district court’s denial of Mr. Blair’s motion to dismiss the indictment on the basis of Ovalle. However, if the district court had been correct in denying Mr. Blair’s motion, I agree with the majority that Mr. Blair’s other claims would fail, as do all claims raised by his co-defendant, Connie Blair.
. Il is significant that Mr. Blair and his co-defendant Connie Blair had proceeded in tandem throughout the criminal process, such that the pretrial conference, motions to quash the search warrant, suppress the evidence, and dismiss the case, were jointly brought by these Defendants. It was only after Mr. Blair waived his right to jury trial that the district court severed Mr. Blair's case from his co-defendant's case. See United States District Court for the Eastern District of Michigan (Detroit) Criminal Docket for Case # : 97-CR-18440-1, at 3-6, United States v. Blair.