IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) Case No. 03 CR 80

)

KEITH COLLINS and GREGORY McNEAL )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Keith Collins and Gregory McNeal were charged with conspiracy to distribute, and to

possess with intent to distribute, more than fifty grams of “cocaine base (commonly known as

‘crack cocaine’),” as well as possession of more than fifty grams of that substance with intent to

distribute. McNeal was also charged with possession of a weapon in relation to a narcotics

crime, as well as unlawful possession of a weapon by a felon. Prior to trial, after holding an

evidentiary hearing, the Court denied both defendants’ motions to suppress the narcotics and

other evidence on the ground that it had been obtained as the result of an unlawful seizure.

Shortly before trial, the government moved to sever the trials of the two defendants on

the grounds that it wished to introduce against each defendant an inculpatory statement by that

defendant that also implicated the other defendant. The defendants agreed to the motion for

severance.

Before trial, after extensive discussion, both defendants and the government agreed to a

procedure under which a single trial of both defendants would be held, with a separate jury

empaneled to hear each defendant’s case. The trial was held in this District’s ceremonial

courtroom, which has two jury boxes. Each jury was advised that separate juries were being
2

empaneled to ensure that each defendant received separate consideration of his case. Each jury

was excused when opening statements and closing arguments on the other defendant’s case were

being presented (this resulted in the government giving separate opening statements and closing

arguments for each defendant), and was also excused when evidence admissible only against the

other defendant was admitted. 

Both defendants were convicted on all counts. Each has moved for a judgment of

acquittal or for a new trial. Each has also raised a sentencing-related issue that intertwines, to

some extent, with the issues raised in their post-trial motions.

A. Motions for judgment of acquittal or new trial

1. Issue specific to defendant Collins

The closing arguments on Collins’ case were delivered prior to the closing arguments on

McNeal’s case. Many of the exhibits offered by the government had been admitted against both

defendants. During his closing argument, Collins’ attorney made use of certain of the exhibits,

including defense exhibits. The jury began its deliberations on Collins’ case while closing

arguments were presented to the jury in McNeal’s case. The exhibits were not immediately sent

back to the Collins jury, as the government intended to make use of a number of its exhibits

during the McNeal closing arguments, and the Court wanted to provide the jury a complete set of

the exhibits all at once, rather than sending them back piecemeal.

Soon after it began its deliberations, the Collins jury requested a list of the exhibits. At

the time, the exhibits were being used in the McNeal closing arguments, so the Court determined

they would be made available to the Collins jury as soon as those arguments concluded. 

However, before the exhibits could be provided, the Collins jury advised that it had reached a
3

verdict.

Collins now objects that “[t]he procedure implemented in the double-jury trial deprived

[him] of his right to due process by preventing him from presenting a full defense. Had Collins

received a single jury trial, the jury would have received the exhibits and the guidance from the

trial judge it requested.” Collins Mem. at 3. This argument is without merit. Collins knowingly

and voluntarily agreed to the double-jury procedure and thus waived the right to argue that the

procedure violated due process. Collins may challenge the propriety of the jury’s return of a

verdict without having the trial exhibits, but his challenge is not evaluated any differently than it

would be if he had been tried alone, without a co-defendant.

When the jury retired to deliberate, Collins did not request that the jury be advised not to

begin its deliberations until the exhibits were provided. Nor, when the jury requested the exhibit

list, did Collins ask that the jury be told to put its deliberations on hold until the list and/or the

exhibits could be provided. Under the circumstances, Collins has forfeited any objection to the

jury’s continuation of its deliberations, or to its return of a verdict, without having the exhibits

in-hand. In any event, even after asking for the exhibit list, the jury was entitled to change its

mind and return a verdict before it had the list or the exhibits. See United States v. Pickard, 278

F. Supp. 2d 1217, 1236 (D. Kan. 2003). Collins is not entitled to a new trial on this basis.

2. Issues common to Collins and McNeal

Both defendants make a number of conclusory assertions of error. For the most part,

these arguments are so undeveloped that they are deemed forfeited and thus do not entitle either

defendant to a new trial. See, e.g., United States v. Andreas, 150 F.3d 766, 769-70 (7th Cir.

1998). These include Collins’ contentions that he was entitled to due process of law and did not
4

receive a fair and impartial trial, and McNeal’s boilerplate arguments that the Court erred in

overruling unidentified objections to the jury instructions and in failing to give unidentified

instructions, in denying unnamed oral motions before and during trial, and in overruling

unspecified evidentiary objections.

Both defendants argue that the Court should reverse its earlier ruling denying their

motions to suppress evidence. McNeal identifies no new evidence that would warrant

reconsideration; his motion is denied. Collins says that the trial testimony of co-defendant

Rokesha Johnson, who testified as a government witness, establishes that evidence the Court

relied upon in denying the pretrial motion to suppress was untrue. The Court disagrees;

Johnson’s testimony that a particular officer approached her after her vehicle was stopped and

asked where a particular item was is not necessarily inconsistent with the officer’s testimony at

the pretrial hearing that he looked inside the vehicle and saw the item. In any event, Johnson’s

trial testimony does not cause the Court to doubt the accuracy of the officer’s pretrial testimony,

and thus reconsideration is unwarranted.

Both defendants argue the evidence offered at trial was insufficient to prove that the

narcotic substance recovered in the case was in fact crack cocaine. The Court disagrees. As the

government argues, the testimony of a DEA forensic chemist that the substances were consistent

with crack cocaine; the physical characteristics of the substances; (as to Collins) Collins’

admission that he and McNeal cooked crack cocaine; and (as to McNeal) the recovery of items

commonly used to cook crack cocaine, was sufficient to satisfy the government’s burden of

proof. See, e.g., United States v. Linton, 235 F.3d 328, 330 (7th Cir. 2000).

There was sufficient evidence of a conspiracy to admit co-conspirator declarations under
5

Federal Rule of Evidence 801(d)(2) – and in any event, defendants did not object to such

evidence at trial. Finally, the evidence offered at trial, considered in the light most favorable to

the government as required on a motion for judgment of acquittal or for a new trial, was more

than sufficient to satisfy the government’s burden of proving the defendants’ guilt on all the

charges, and those verdicts were not against the manifest weight of the evidence.

The Court has reviewed the defendants’ remaining arguments and finds them to be

without merit.

For these reasons, the Court denies each defendant’s motion for a judgment of acquittal

or for a new trial.

B. Sentencing issue

The government contends that based on the jury’s findings, both Collins and McNeal are

subject to enhanced minimum and maximum sentences applicable to offenses involving more

than fifty grams of substances containing “cocaine base,” see 21 U.S.C. § 841(b)(1)(A)(iii),

which the Seventh Circuit has held means crack cocaine – one form (but not the only form) of

cocaine base. See United States v. Edwards, 397 F.3d 570, 571 (7th Cir. 2005); see also, United

States v. Booker, 70 F.3d 488, 494 (7th Cir. 1995). In their sentencing memoranda, Collins and

McNeal contend the predicate for application of the higher minimum and maximum has not been

established.

Under Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact that subjects the defendant

to a higher maximum sentence must be proven to a jury beyond a reasonable doubt. In a § 841

case, determination of whether the narcotic the defendant distributed was crack cocaine is such a

fact. After Apprendi, “drug type and quantity remain sentencing issues, but the burden of proof
6

and fact finder have changed.” See United States v. Knight, 342 F.3d 697, 710 (7th Cir. 2003);

Horton v. United States, 244 F.3d 546, 552 (7th Cir. 2001). Specifically, a defendant may be

subjected to an enhanced sentence based on drug type and quantity under § 841(b) only if the

facts supporting the enhancement were “proven to a jury beyond a reasonable doubt.” United

States v. Knight, 342 F.3d 697, 710 (7th Cir. 2003); United States v. Nance, 236 F.3d 820, 824-

25 (7th Cir. 2000). 

McNeal argues in his sentencing memorandum – entitled “position statement with respect

to the narcotic substance for which he should be sentenced” – that the evidence presented at trial

failed to prove beyond a reasonable doubt that the substance seized was crack cocaine. It

appears that McNeal is attempting to rehash, and perhaps expand upon, the sufficiency argument

made in his post-trial motion. Either way, the argument is without merit. As the Court indicated

earlier, the evidence (taken in the light most favorable to the government, as the law requires on

a motion for judgment of acquittal) was sufficient to prove beyond a reasonable doubt that the

substances were crack cocaine.

The same is true of the parallel argument made in Collins’ sentencing memorandum. 

Collins, like McNeal, appears to reargue the sufficiency of the evidence presented to the jury on

whether the substances were crack cocaine. His argument, like McNeal’s, is without merit.

The defendants’ sentencing memoranda also appear to ask the Court to reweigh the

evidence and come to its own determination of whether the substances were proven beyond a

reasonable doubt to be crack cocaine. The government argues that once the jury has spoken on

an issue of this type, “its verdict controls unless the evidence is insufficient or some procedural

error occurred; it is both unnecessary and inappropriate for the judge to reexamine, and resolve
7

in the defendant’s favor, a factual issue that the jury has resolved in the prosecutor’s favor

beyond a reasonable doubt.” United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005). The

Court agrees. Were, however, the Court to find the evidence insufficient to support the jury’s

finding that the substance was crack cocaine, we certainly would be empowered to “acquit” the

defendants on that point – which would leave them free from the enhanced minimum and

maximum penalties that apply to offenses involving crack. That said, the evidence was

sufficient to support the jury’s finding, as the Court has already concluded.

If there were a procedural error relating to the crack issue, it stands to reason that the

Court would have the authority to order a new trial (it is unclear whether this would be a new

trial on all the issues presented to the first juries, or only on the type of narcotic involved). But

in their sentencing memoranda, neither defendant seeks a new trial. Moreover, no procedural

error regarding the crack issue was cited in either defendant’s post-trial motion as a basis for

granting a new trial.

In its response to the defendants’ sentencing memoranda, the government noted that the

special interrogatories submitted to the trial juries asked them, in the event of a guilty finding on

each narcotics charge, to state the quantity of “cocaine base” involved in the offense – without

reference to the term “crack cocaine.” The government correctly noted in its response that

neither defendant had made a contemporaneous objection to the interrogatories at trial, thus

forfeiting the point. Even after the government flagged the issue, neither defendant sought a new

trial; Collins did not reply to the government’s response, and McNeal did not request a new trial
1

 The Court would have rejected such a request had it been made for the first time in the

defendants’ sentencing memoranda. The defendants made no contemporaneous objection to the

jury instructions or verdict forms at trial and thus forfeited any challenge to the instructions

relating to this point. See Fed. R. Crim. P. 30(d); Bank of Nova Scotia v. United States, 487 U.S.

250, 254-55 (1988). If the defendants had raised the issue in their post-trial motions, the Court

could have considered whether the giving of the instructions constituted “plain error” despite the

absence of a contemporaneous objection. Cf. Fed. R. Crim. P. 30(d) (cross-referencing Fed. R.

App. P. 52(b), the plain error rule). But defendants did not challenge the instructions or the

verdict forms in their post-trial motions. A motion for new trial must be filed within seven days

after the verdict is entered, a time limit the Court cannot extend once the period has run. Fed. R.

Crim. P. 33(b)(2). In addition, the Court cannot grant a new trial sua sponte once the seven day

time period has run. See Carlisle v. United States, 517 U.S. 416 (1996); United States v.

Stephens, ___ F. Supp. 2d ___, No. 02 CR 661, 2003 WL 21439862, at * 4 (N.D. Ill. June 20,

2003), aff’d, 421 F.3d 503 (7th Cir. 2005).

8

in his reply. In short, a new trial does not appear to be an option.1

Rather, both the government in its response and McNeal in his reply limit their

arguments to a discussion of how the jury’s findings should be interpreted. The government

argues that the jury found the substance was crack; McNeal argues the jury found it was not

crack. The Court considers Collins to have adopted this argument. 

We begin our assessment of the parties’ arguments by reviewing the pertinent jury

instructions. The “elements” instruction given to each jury on Count One, the conspiracy

charge, told the jury that to sustain the charge of conspiracy, the government had to prove,

among other things, that “the conspiracy charged in Count One existed.” See, e.g., Collins Jury

Instructions at 7. The jury was given a copy of the indictment. The charging paragraph of Count

One, the conspiracy charge, alleged that the defendants conspired to distribute, and to possess

with intent to distribute, “a controlled substance, namely, in excess of 50 grams of mixtures

containing cocaine base (commonly known as ‘crack cocaine’), a Schedule II Narcotic Drug

Controlled Substance.” Indictment, Count 1 ¶ 1. Count One also made several other references
2

 In the copy of the indictment given to the jury, these paragraphs were renumbered to

account for a paragraph that was excised from that version.

9

to crack cocaine, alleging that McNeal cooked cocaine into crack cocaine for Collins; that

Collins stored wholesale quantities of crack cocaine; that McNeal cooked cocaine into 673

grams of crack cocaine for Collins on a particular date; and that after McNeal had done so,

Collins delivered the crack cocaine to Rokesha Johnson for transport to another location. 

Indictment, Count 1 ¶¶ 3, 4, 6, 7.2

No reference to crack cocaine can be found, however, in the instructions for Count One

or the verdict form for that Count. The elements instruction simply referred to the charge in the

indictment, without elaboration. The verdict form told the jury that if it found the defendant

guilty, it had to determine another question by checking the applicable box on the verdict form. 

The question asked the jury to find the quantity of “cocaine base” that it found had been proved

beyond a reasonable doubt to have been a foreseeable consequence of the conspiracy. The form

made no reference to crack cocaine but rather asked the jury to find the quantity “of a mixture or

substance containing cocaine base.” See, e.g., Collins Jury Instructions at 32.

The elements instruction on Count Two, the charge of possession with intent to

distribute, read as follows:

To sustain the charge of possession of cocaine base (commonly known as

“crack cocaine”) with intent to distribute as charged in Count Two, the

government must prove the following propositions:

First, the defendant knowingly or intentionally possessed cocaine base;

Second, the defendant possessed the cocaine base with the intent to deliver

it to another person.

...
10

See, e.g., Collins Jury Instructions at 19. Count Two of the indictment, referenced in the

instruction, alleged that the defendants possessed with intent to distribute “a controlled

substance, namely, in excess of 50 grams of mixtures containing cocaine base (commonly known

as ‘crack cocaine’), a Schedule II Narcotic Drug Controlled Substance.” Indictment, Count 2. 

The verdict form for Count Two, like the one for Count One, asked the jury in the event of a

guilty finding to determine the amount of “a mixture or substance containing cocaine base” that

had been proved beyond a reasonable doubt; it made no reference to crack cocaine.

The government argues that a fair reading of the verdict “makes clear that the jury

equated crack cocaine with cocaine base.” Gov’t Resp. to Defs’ Sentencing Memoranda at 7. 

McNeal argues that “the jury was never asked to find ‘crack’” and “did not find McNeal guilty

of ‘crack,’” but rather “unanimously agreed that McNeal was involved with more than 50 grams

of cocaine base, not ‘crack.’” McNeal Reply at 3, 5 & 7.

As noted earlier, in this Circuit at least, the enhanced penalties that § 841(b) imposes for

offenses involving cocaine base actually apply only to offenses involving crack cocaine, as

opposed to other forms of cocaine base. See Edwards, 397 F.3d at 571. The elements

instructions and the verdict forms ought to have specified clearly that the jury was required make

findings on the quantity of crack cocaine involved, not cocaine base. In a different context, the

Seventh Circuit has suggested that a verdict that is ambiguous as to the type of drug involved

cannot sustain imposition of a sentence based on the alternative that supports a more severe

sentence. See United States v. Banks, 78 F.3d 1190, 1202 (7th Cir. 1996) (multiple-object

conspiracy case; ultimately holding that no ambiguity existed because indictment was worded in

conjunctive, not disjunctive). 
11

Neither side has cited any cases that discuss how the Court should determine the meaning

of a verdict in these circumstances. McNeal argues that it is inappropriate to refer to the

indictment to determine what the jury found. The Court does not agree. The indictment was

specifically referenced in the elements instructions for both Count One and Count Two. We see

no reason why the Court cannot consider a document the jury was told to examine. See

Banks, 78 F.3d at 1203-04 (referring to indictment that was cross-referenced in instructions). 

But this begs the question of what looking at the indictment tells us about what the jury decided. 

As indicated earlier, the indictment makes numerous references to crack cocaine. One may

fairly infer that the jury considered these allegations in making its determination of guilt. But

here we are considering the jury’s quantity finding, not its determination that the government

had proved the elements of the offenses. The instructions, whether considered alone or in light

of the indictment’s wording, said nothing to the jury about how it was to go about making the

quantity determination on the verdict form or what it had to find about the type of narcotic

involved. And the verdict form itself – the only part of the instructions that clearly tells us what

the jury decided – made no reference to crack cocaine, but only to cocaine base. 

In short, neither the indictment nor the instructions indicate that the jury intended to

make a finding about “crack” when it completed a verdict form that referred only to “cocaine

base,” of which crack is one (but only one) form. If the evidence had reflected no distinction

between cocaine base and crack cocaine, perhaps it would be appropriate to construe the form as

a finding that crack was involved. But although the government’s forensic chemist testified that

the substances were consistent with crack cocaine, see Adkins Tr. 16, she also stated that not all

cocaine base is crack cocaine, and she conceded that her worksheets prepared
3

 The Seventh Circuit has held that Watts survives the Supreme Court’s decision in

United States v. Booker, 125 S.Ct. 738 (2005), to make application of the Guidelines nonmandatory. See United States v. Price, 418 F.3d 771, 788 (7th Cir. 2005).

12

contemporaneously with her testing referred only to cocaine base, not crack cocaine. See id. 21.

Given this evidence, and the fact the verdict form was worded to require only a finding about

“cocaine base,” and not crack, the jury could well have found only that cocaine base in the broad

sense was involved. At a minimum, the Court cannot say that the verdict form reflects a finding

by the jury that the government had proved beyond a reasonable doubt that the substance was

crack cocaine.

As noted earlier, the parties cited no cases addressing the particular issue involved here. 

But McNeal makes the point that just as, under Rivera, a court may not reexamine and resolve in

the defendant’s favor a factual issue that the jury has decided in the prosecution’s favor, it stands

to reason that a court may not resolve in the prosecution’s favor a factual issue on which the jury

has made a contrary finding – at least on issues that Apprendi assigns to the jury. The Supreme

Court held in United States v. Watts, 519 U.S. 148, 152-55 (1997), that a judge may sentence a

defendant based on conduct that was the subject of acquittal by a jury, but this was due largely to

the difference in the standards of proof for guilt and ordinary sentencing issues.3

 Under

Apprendi, sentencing issues that involve enhancement of the maximum sentence, as is the case

with the “crack” determination, must be proved beyond a reasonable doubt, unlike other types of

sentencing factors. Thus Watts does not permit the Court to enhance the defendants’ sentences

by finding what the jury did not.

Under the circumstances, and given the unfortunate omission of the term “crack cocaine”

from the verdict form, the Court is constrained to conclude that the jury did not make the
4

 The higher maximums and minimums for offenses involving crack operate in tandem

and are imposed via a single subsection of § 841; the two cannot be divorced. Under

Apprendi, “[i]t is unconstitutional for a legislature to remove from the jury the assessment of

facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” 

Apprendi, 530 U.S. at 490. See also Harris v. United States, 536 U.S. 545, 554 (2002) (fact

determination that does not “authorize the judge to impose [a] ... higher penalt[y]” but rather 

“alter[s] only the minimum” sentence may be treated as a sentencing factor to be determined by

the judge).

13

findings necessary to subject the defendants to the higher maximum (and thus the higher

minimum) applicable to narcotics offenses involving crack cocaine, and that it is inappropriate

for the Court to revisit the issue as a fact finder.4

This conclusion is consistent with, and supported by, the decision in United States v.

Thomas, 360 F. Supp. 2d 238 (D. Mass. 2005), the only case anything like this one disclosed by

the Court’s research. In Thomas, the indictment charged the defendant with an offense involving

“cocaine base.” The verdict form provided to the jury directed it to consider whether the

government had proved the defendant guilty of possessing with intent to distribute “cocaine

base, sometimes known as ‘crack cocaine.’” Though the indictment in the present case was

slightly more specific than the one in Thomas, the verdict form was less so, for unlike in

Thomas it made no mention of crack cocaine. Despite the somewhat more specific verdict form

in Thomas, the judge concluded that the form’s “ambiguous wording ... did not require [the jury]

necessarily to address the more specific question of whether the substance actually distributed by

the defendant ... was, in fact, cocaine base in the form of crack. For all that can be known for

certain from the special verdict form, the jury might have simply intended to find the defendant

guilty of crimes involving cocaine base.” Id. at 240. The same is true in this case. As in

Thomas, “[t]he record in this case is not sufficiently clear for the court to conclude that the jury
14

found beyond a reasonable doubt that this defendant was guilty of possession with intent to

distribute and distributing crack cocaine versus generic cocaine base.” Id. at 241 (emphasis in

original).

Conclusion

For the reasons stated above, the Court denies defendants’ motions for judgment of

acquittal or for a new trial [docket # 130-1]. The Court further concludes that defendants will

not be sentenced pursuant to the enhanced maximum and minimum sentences applicable to

narcotics offenses involving crack cocaine but rather will be sentenced under the penalties

applicable to offenses involving cocaine. Cf. U.S.S.G., App. C, Amend. 487 (1993) (“forms of

cocaine base other than crack ... will be treated as cocaine” for purposes of the Sentencing

Guidelines).

 /s/ Matthew F. Kennelly 

MATTHEW F. KENNELLY

 United States District Judge

Date: October 18, 2005