IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) Case No. 03 CR 80

)

GREGORY McNEAL )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

On March 27, 2003, a grand jury indicted Gregory McNeal for conspiracy to possess

cocaine base and cocaine with intent to distribute in violation of 21 U.S.C. § 846; possession of

cocaine base and cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1);

possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §

924(c)(1); and possession of a firearm after conviction of a felony in violation of 18 U.S.C. §

922(g)(1). About six months before McNeal’s trial, on November 12, 2004, the government

filed an information pursuant to 21 U.S.C. § 851 alleging that if McNeal was convicted, it

intended to seek enhanced penalties on the Title 21 charges based on the fact that on August 19,

1998, McNeal was convicted in Illinois state court of the felony offense of manufacture /

delivery of cocaine.

A jury convicted McNeal on all charges on May 18, 2005. Pursuant to the § 851

information, the government contends that McNeal is subject to enhanced penalties due to the

1998 conviction. See 21 U.S.C. § 841(b). McNeal objects to the use of the 1998 conviction to

enhance his sentence, contending that he received ineffective assistance of counsel in that case. 

The government argues that the law does not permit McNeal to attack the 1998 conviction
2

collaterally. For the reasons stated below, the Court agrees with the government.

Facts

McNeal’s lawyer in the 1998 case was Anthony Basile. In 1999, the Illinois Attorney

Registration and Disciplinary Commission filed a complaint against Basile, alleging that he had

engaged in conduct prejudicial to the administration of justice and reflecting adversely on his

honesty, trustworthiness, and fitness. Specifically, the ARDC alleged that Basile had repeatedly

failed to appear in court on a series of Illinois criminal cases between 1996 and 1999 and had, on

several occasions, been found in contempt as a result. One of the contempt charges was initiated

in 1996 by Judge Joseph Kazmierski, the judge who conducted the 1998 bench trial of McNeal

(represented by Basile) that resulted in the conviction at issue in the present case.

At an evidentiary hearing held before an ARDC hearing panel in 2000, Basile testified

that he had been diagnosed with HIV in 1996 and with AIDS in 1999, that he had experienced

numerous physical ailments, and that as a result of his disease and related ailments he had

difficulty remembering and retaining information. A psychiatrist who evaluated Basile

concluded that his cognitive disabilities stemmed from depressive disorders, use of cocaine, and

AIDS-related dementia, and that this prevented Basile from practicing law competently. The

hearing panel recommended that Basile be suspended from practicing law, a recommendation

that the Illinois Supreme Court adopted in September 2000.

McNeal’s current counsel has also uncovered information that in January 2000, following

contempt findings, Basile was placed on probation by two separate Cook County Criminal Court

judges, with a condition that he participate in an “intensive drug program.” McNeal’s counsel

has also obtained records reflecting that Basile was charged criminally with narcotics-related
3

offenses in 1987 (several separate charges), 1989 (two charges), 1994, 1995, 1997, 1999 (five

charges), 2001, 2003, and 2005.

McNeal contends that when Basile represented him in the 1998 case, he was impaired,

under investigation by the ARDC, and incapable of competent representation of clients. In

addition, McNeal contends that Basile suffered from a conflict of interest that impaired his

representation of McNeal in the state court case.

In the 1998 state court case, the prosecution’s case against McNeal consisted of the

testimony of a Chicago police officer who testified that he saw McNeal and a juvenile, Roceasar

Ivy, engage in narcotics transactions on October 7, 1997. The officer testified that after arresting

McNeal and Ivy, he recovered a cigarette box from which, he said, he had seen McNeal and Ivy

remove objects and give them to apparent purchasers. The box contained numerous packets of a

substance that later testing showed to be cocaine. On cross examination, the officer denied

“putting the [drugs] on Mr. McNeal” after learning that Ivy was a juvenile.

Following the conclusion of the prosecution’s case, Basile asked for a continuance so that

he could bring Ivy in to testify. At a later date, Basile indicated that he might also call another

witness, Tonzel Means. Still later, the prosecutor reported that he believed Basile represented

Roceasar Ivy on other matters and that as a result Basile might have a conflict of interest. The

trial judge indicated that he would address the issue the following day. The record regarding the

next day’s proceedings, however, reflects no discussion of the conflict. Basile did not call Ivy or

Means to testify on McNeal’s behalf. Rather, Basile presented McNeal’s testimony and then

rested the defense case. In his testimony, McNeal denied participating in any narcotics

transactions and said that he had been standing with several other males, including Means and
4

Ivy, when the police arrived. Several of the youths ran, and some were taken into custody. 

When the police learned Ivy was a juvenile, McNeal said, an officer told him that he (McNeal)

would be “going straight down” for the drugs.

At the conclusion of the bench trial, the judge found McNeal guilty of possession of a

controlled substance with intent to deliver. He was sentenced to a period of four years

incarceration. McNeal was found eligible for placement at a “boot camp” facility, evidently

completed that facility’s program successfully, and as a result was released from incarceration

after serving slightly more than six months.

McNeal’s counsel in the present case has presented an affidavit from Tonzel Means. 

Means says that on the date of the alleged offense, he was with McNeal at all times, and McNeal

did not participate in any narcotics transactions and did not exchange money or objects with

anyone. Means says that McNeal asked him to testify in the case, and that as a result he (Means)

spoke with McNeal’s lawyer and told him what had happened. The lawyer was aware that

Means was present at court on the day of McNeal’s trial. Means was prepared to testify, but

Basile never called him to testify.

As indicated earlier, McNeal objects to the use of the 1998 conviction to enhance his

sentence, arguing that the conviction was obtained in violation of his Sixth Amendment rights to

effective assistance of counsel and to representation by counsel free from conflicts of interest. 

The government contends that McNeal is barred from challenging the 1998 conviction. It relies

on § 851(e), which provides that “[n]o person who stands convicted of an offense under this part

may challenge the validity of any prior conviction alleged under this section which occurred

more than five years before the date of the information alleging such prior conviction.” 21
1

 The trial date was reset to April 2005 in September 2004, following the return of a

superseding indictment that included sentencing-related allegations, during the period after the

decision in Blakely v. Washington, 542 U.S. 961 (2004), and before United States v. Booker, 543

U.S. 220 (2005), when the effect of Blakely on the federal Sentencing Guidelines was still

uncertain.

5

U.S.C. § 851(e).

As indicated earlier, McNeal was convicted in the state court case on August 19, 1998. 

He was first charged in the present case on March 27, 2003, about four years and seven months

after the 1998 conviction. The government first advised McNeal on April 17, 2003 that it

intended to file a § 851 information. The disclosure came in a letter in which the prosecutor

transmitted to defense counsel copies of certain discovery materials. The prosecutor stated in the

letter that “September 12 is the deadline for entering into plea agreements with this office” (at

the time, the case was set for trial on October 14, 2003). The prosecutor went on to state that

“[f]urther, on May 1, I intend to file section 851 notices concerning any defendant with

applicable prior convictions.” Gov’t Resp. to Def.’s Dec. 22, 2005 Filing, Ex. A. The trial was

thereafter postponed on more than one occasion, however, and the prosecutor states that for that

reason, he deferred filing the § 851 information. Gov’t Resp. to Def.’s Dec. 22, 2005 Filing at 6.

On July 8, 2004, the day after co-defendant Rokesha Johnson pled guilty, the prosecutor

wrote to defense counsel for McNeal and co-defendant Keith Collins to advise them of

Johnson’s guilty plea. At that point, the case was set for trial on September 7, 2004. The

prosecutor’s letter included the following admonition: “as to Mr. McNeal, I intend to file a

Section 851 enhancement against him by August 2, 2004, if he has not yet pled guilty.” Gov’t

Resp. to Def.’s Dec. 22, 2005 Filing, Ex. B. The prosecutor advises that after the trial date was

again reset, this time to April 11, 2005,1

 he reserved filing the § 851 information until November
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2004, “when it became clear that the defendant would not plead guilty.” Govt. Resp. to Def.’s

Dec. 22, 2005 Filing at 6.

The government has also explained the reason for its delay in filing the § 851

information: 

the government’s filing of a Section 851 enhancement occurred only after it

became clear that defendant did not intend to plead guilty and cooperate with the

investigation. The government, as it often does in cases involving potential

Section 851 enhancements, was using the threat of an enhancement to entice

defendant to follow through with his earlier desire to cooperate in this and other

investigations.

Govt’s Resp. to Def.’s Dec. 22, 2005 Filing at 6. The effect of the “threat” of the enhancement

was to give McNeal the opportunity to elect to plead guilty without the additional sentencing

burden that a § 851 enhancement would impose. Thus the delay effectively provided McNeal

with a potential benefit, albeit one that he elected not to accept, as was his right.

The delay, however, also eliminated McNeal’s ability to launch a collateral attack under

§ 851(c)(2). Had the government filed the § 851 information at any time within about five

months of when it first raised the possibility of seeking an enhancement, the statute would have

entitled McNeal to attack the 1998 conviction. But by the time the government actually filed the

§ 851 notice in November 2004, over eighteen months after it first raised the possibility, the time

for a challenge under § 851(c)(2) had run.

Discussion

McNeal contends the government delayed unduly in filing the § 851 information. He

asks the Court, as a matter of statutory construction, to toll § 851(e)’s five year limitation on

collateral challenges to a prior conviction. Alternatively, McNeal asks the Court to dismiss the §

851 information, arguing that this is required by principles of due process.
7

It is clear that § 851(e) does not allow for tolling or extension of the five year limit on

challenges to prior convictions in the manner sought by McNeal. McNeal argues that once the

government learns of a prior conviction that qualifies under § 851, any subsequent return of an

indictment or information should toll § 851(e)’s limitation period. Under McNeal’s proposed

rule, because the government learned of McNeal’s 1988 conviction by April 17, 2003, the

superseding indictment that was returned three months later would toll the limitation period and

permit McNeal to challenge the prior conviction. The plain language of § 851(e) makes it clear,

however, that it is the § 851 information, not any indictment returned in the case, that tolls the

limitation period under § 851(e). See United States v. Arango-Montoya, 61 F.3d 1331, 1338 n.1

(7th Cir. 1995); United States v. Cevallos, 574 F.2d 854, 855 (5th Cir. 1978).

We therefore turn to McNeal’s contention that the government’s delay in filing the § 851

information violated McNeal’s rights under the Fifth Amendment’s Due Process Clause. The

Seventh Circuit has held that the government may file a § 851 information as late as the eve of

trial, see, e.g., United States v. Ceballos, 302 F.3d 679, 692-93 (7th Cir. 2002), but neither the

Seventh Circuit nor any other circuit has directly addressed the issue presented by McNeal. That

issue, as the Court understands it, is as follows: when the government becomes aware of a

qualifying prior conviction of the defendant that, at that point, is less than five years old, but

delays filing a § 851 information until after the prior conviction is more than five years old and is

thus beyond statutory challenge, does the Due Process Clause entitle a defendant to some form

of relief?

In addressing this issue, the Court assumes, for purposes of discussion, that McNeal has

in fact been prejudiced by his inability to raise a challenge under § 851(c)(2) to the use of the
8

1998 conviction for enhancement purposes. The mere loss of the opportunity to make such a

challenge is not, in our estimation, cognizable prejudice for due process purposes; rather, such

prejudice exists only where the defendant could have mounted a successful attack on the prior

conviction. Cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982) (concerning

government’s deportation of potential defense witness; due process violated only if defendant

can make some showing that show the witness’s testimony likely would have been favorable and

material). At this point the Court cannot say that McNeal would succeed in his attack on the

1998 conviction; to make such a determination, as the government points out, further

proceedings would be required. But for present purposes, we will assume that McNeal would be

able to make the necessary showing.

We begin our discussion by noting that the Supreme Court has held that the Constitution

does not entitle a convicted defendant to collaterally attack a prior conviction used to enhance

his sentence. See Custis v. United States, 511 U.S. 485, 496-97 (1994). In Custis, the Court

noted that it had previously permitted collateral challenges to convictions obtained in violation

of the Sixth Amendment’s right to counsel – that is, where no counsel was appointed for an

indigent defendant. Id. at 494 (citing Johnson v. Zerbst, 304 U.S. 458 (1938)). The Court

declined, however, to extend this rule to prior convictions subject to other constitutional

infirmities, stating that its prior decisions indicated that “failure to appoint counsel for an

indigent defendant [is] a unique constitutional defect.” Id. at 496. The Court went on to state

that the distinction was supported by the need for “[e]ase of administration”: “determination of

claims of ineffective assistance of counsel ... would require sentencing courts to rummage

through frequently nonexistent or difficult to obtain state-court transcripts or records that may
9

date from another era, and may come from any one of the 50 States.” Id. In addition, the Court

stated, “[t]he interest in promoting the finality of judgments” provided additional support for its

decision. A challenge to a prior conviction, the Court said, amounts to a request to deprive a

state court judgment of its normal force and effect, in a proceeding with an independent purpose

other than to overturn the prior judgment; such “‘[i]nroads on the concept of finality tend to

undermine confidence in the integrity of our procedures’ and inevitably delay and impair the

orderly administration of justice.” Id. at 497 (quoting United States v. Addonizio, 442 U.S. 178,

184 n.11 (1979)).

In short, there is no constitutional right to collaterally challenge a prior conviction used to

enhance a sentence. Such a right exists only to the extent it is accorded by statute.

The question in this case, however, is not whether the Constitution requires allowing a

collateral attack on a prior conviction used for sentencing enhancement; Congress specifically

permitted such attacks in § 851(e). Rather, the issue is whether the government may delay its

filing of a § 851 information in a way that prevents the defendant from exercising his statutory

right to make a collateral attack. 

This is a difficult issue that does not find any clear answer in precedent. As discussed

earlier, the parties have not cited, and the Court has not found, any prior decisions addressing the

issue. There is, however, an arguable analogy in cases dealing with conduct by the government

that has the effect of depriving the defendant of the ability to defend a criminal charge. The

analogy is not perfect; a § 851 enhancement is not a criminal charge. But because a § 851

enhancement has the effect of increasing the minimum and maximum penalties for the crime,

and because § 851 itself permits a defense to the enhancement (within the time limit noted), the
10

comparison is not an unfair one.

“[T]he Due Process Clause always protects defendants against fundamentally unfair

treatment by the government in criminal proceedings.” Doggett v. United States, 505 U.S. 647,

666 (1992). The Supreme Court’s decisions reflect that due process is implicated when the

government deprives an accused of the ability to defend against a criminal charge. For example,

the government may not suppress evidence favorable to the accused, and it has an affirmative

duty to disclose exculpatory evidence even without a request, irrespective of its good faith. See,

e.g., Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Agurs, 427 U.S. 97 (1976); Brady v.

Maryland, 373 U.S. 83 (1963). Under some circumstances, the government is required to

disclose the identity of an undercover informant who has evidence important to the defense of a

charge, so that the defendant can call the informant to testify. See Roviaro v. United States, 353

U.S. 53 (1957). Due process may be violated when the government deports a witness who

would have given material testimony favorable to the defense, see Valenzuela-Bernal, 458 U.S.

at 873, and when the government, in bad faith, fails to preserve evidence potentially useful to the

accused. Arizona v. Youngblood, 488 U.S. 51 (1988). Due process is also implicated when the

government delays prosecution for so long that it impairs the defendant’s ability to mount a

defense. See United States v. Lovasco, 431 U.S. 783, 790 (1977); United States v. Marion, 404

U.S. 307, 325 (1971).

In the present case, McNeal relies on constitutional doctrine regarding undue

preindictment delay. In Lovasco, the Supreme Court determined that while statutes of limitation

are “the primary guarantee against bringing overly stale criminal charges,” the constitutional

guarantee of due process “has a limited role the play in protecting against oppressive delay.” 
11

Lovasco, 431 U.S. at 789. Specifically, the Court ruled, the Due Process Clause prohibits

prosecution of a defendant following the government’s undue delay in returning charges, if the

actual prejudice to the accused outweighs the government’s justification for the delay. Id.

Courts have indicated that investigative delay is ordinarily justified, but that tactical, reckless, or

bad faith preindictment delay that unduly prejudices a defendant is constitutionally dubious. See

id. at 795-97 & n.17; see also, e.g., United States v. Sowa, 34 F.3d 447, 450-52 (7th Cir. 1994). 

In Sowa, the Seventh Circuit determined that once a defendant has demonstrated actual and

substantial prejudice to his defense resulting from the government’s delay, the government must

provide its reasons for the delay, and the reasons “are then balanced against the defendant’s

prejudice to determine whether the defendant has been denied due process.” Id. at 451.

McNeal contends that the government had no good reason for its delay in filing the § 851

information in this case, and that he has been irreparably prejudiced due to his inability to make

a timely collateral attack on the 1998 conviction. Though the analogy between preindictment

delay cases and McNeal’s situation has some appeal, the Court is not persuaded that the Due

Process Clause provides McNeal with an avenue for relief. In the preindictment delay cases, the

basis for relief is that the defendant has been deprived of the ability to mount a defense to the

government’s charge because of the government’s undue delay. By contrast, McNeal had ample

opportunity to challenge the 1998 conviction after he was sentenced by the state court judge in

that case, by way of appeal and by post-conviction petition. The 1988 conviction imposes an

infirmity on McNeal not because of anything the government did or failed to do, but because he

chose not to challenge the conviction by the means the law provided to him.

McNeal might have a better claim for relief if there was some reason to believe that the
2

 We also note that there was a second potentially-useable conviction, another narcotics

charge to which McNeal pled guilty at or around the same time he was convicted by the judge in

the case at issue.

12

government was cognizant of the fact that its delay might deprive McNeal of the ability to make

a successful collateral challenge to the 1988 conviction. In cases in which preindictment delay

has resulted in actual dismissal of an indictment, there typically is a showing that the government

was at least conscious of the adverse effect of its delay in the particular case. See, e.g., United

States v. Sabath, 990 F. Supp. 1007, 1019 (N.D. Ill. 1998) (Castillo, J.). The Court sees no

evidence of anything of the kind in this case. To be sure, government counsel can reasonably be

deemed to have been on notice, even if he was not consciously aware, of the five year limitation

on collaterally challenging prior convictions asserted under § 851. But that is a far cry from

awareness of any potential infirmity with McNeal’s prior conviction.2

 Indeed, under ordinary

circumstances one would not expect the government to have any information about potential

infirmities in prior convictions. Such things ordinarily do not show up from examination of a

defendant’s criminal history, or even from examination of the judgment of conviction in a prior

case. Cf. Custis. 

Even though McNeal may reasonably claim to have been prejudiced by the government’s

delay in this case, the potential prejudice is outweighed by the countervailing considerations we

have discussed. Specifically, McNeal had, but bypassed, the opportunity to challenge the 1988

conviction both directly (by appeal) and indirectly (by post-conviction motion and federal habeas

corpus petition). In addition, there is no indication that in delaying filing of the § 851

information, the government was conscious that McNeal might suffer actual prejudice; to the

contrary, the government’s delay provided McNeal with a potential benefit if he chose to plead
13

guilty. For these reasons, the Court rejects McNeal’s contention that the government should be

precluded from using the 1998 conviction to seek an enhancement of McNeal’s sentence.

Conclusion

For the reasons stated above, the Court overrules defendant Gregory McNeal’s objection

to the government’s § 851 notice. Sentencing is set for May 10, 2006 at 1:30 p.m.

____________________________________

MATTHEW F. KENNELLY

 United States District Judge

Date: March 20, 2006