United States v. Price

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID PRICE,

Plaintiff,

Case No. 20 C 1184

v.

Judge Harry D. Leinenweber

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant David Price moves to vacate, set aside, or otherwise

correct his sentence pursuant to 28 U.S.C. § 2255. (Civ. Dkt.

No. 1.) For the reasons stated herein, the Court denies the Motion.

The Court finds that a certificate of appealability is not

warranted.

I. BACKGROUND

Defendant David Price challenges his 2014 criminal

convictions for (1) conspiracy to possess with the intent to

distribute heroin; (2) knowingly and intentionally using a

telephone in committing and in causing and facilitating the

commission of a felony; (3) money laundering; and (4) being a felon

in possession of a firearm. Jury Verdict, United States v. Price,

No. 12-CR-00587 (N.D. Ill. Mar. 12, 2014), Dkt. No. 104. Unless

otherwise indicated, citations in this section correspond with the

docket for that criminal case.

In July 2012, Price was indicted for various offenses related

to his participation in a drug conspiracy. (Indictment, Dkt.

No. 6.) In July 2013, the Government filed a superseding indictment

that included the following counts: (1) one count of conspiring

“to knowingly and intentionally possess with intent to distribute”

one kilogram or more of heroin in violation of 21 U.S.C.

§§ 841(a)(1), 846; (2) two counts of knowingly and intentionally

using a telephone “in committing and in causing and facilitating

the commission of a felony”; (3) one count of “conspir[ing] with

others to conduct financial transactions affecting interstate

commerce, the proceeds being from unlawful activity, knowing that

the transactions were designed to conceal and disguise the

proceeds”; (4) nine counts of money laundering; and (5) one count

of being a felon in possession of a firearm. (Superseding

Indictment 1–13, Dkt. No. 57.) Price entered a plea of not guilty

and proceeded to a jury trial in March 2014. (Dkt. No. 85.) Six

days into the trial, on the Government’s motion, the Court

dismissed one of the two telephone charges against Price. (03/11/14

Tr. 1247:10–11, Dkt. No. 165.) On March 12, 2014, a jury convicted

Price of all remaining charges. (Dkt. No. 104.) In October 2017,

the Court sentenced Price to thirty-seven years’ incarceration.

(Dkt. No. 153.)

A. Opening Statements

During opening statements, the Government introduced Price as

the head of a heroin distribution conspiracy that operated on the

West Side of Chicago from 2005 until 2011. (03/04/14 Tr. 179:10–

12, Dkt. No. 160.) The Government asserted that Price controlled

how the heroin was mixed with other substances, how the heroin was

distributed on the streets, and how profits of the heroin sales

were shared among the co-conspirators. (Id. at 179:12–15.) Price’s

income from the successful heroin conspiracy made him a millionaire

and, as a result, his friends and family made large purchases on

his behalf to hide his “dirty cash.” (Id. at 179:18–21, 181:16–

22.)

The defense utilized a partial admission strategy throughout

trial, beginning with its opening statement. Defense counsel made

the following concession to the jury:

Ladies and gentlemen, David Price did sell heroin. He

isn’t going to deny that. He isn’t going to try to

dispute it. It’s simply the truth. David Price was a

businessman, and his business was buying heroin and

reselling it for a profit. He had a source of supply

where he was able to obtain heroin, and he sold that

heroin to other drug dealers who were willing to pay his

price.

(03/04/14 Tr. 184:22–185:3.) While defense counsel admitted that

Price was a distributor of heroin, he maintained that Price worked

individually rather than as part of an elaborate conspiracy. (Id.

at 184:22–186:12.) The defense made the following distinction to

the jury:

[B]uying heroin and then reselling it for a profit, even

if you know that it’s going to be resold later, that

isn’t enough to constitute a conspiracy. In order to be

guilty of a conspiracy, the government has to prove that

David Price had an agreement about the distribution of

heroin with these other parties, and they’re not going

to be able to prove that because David Price wasn’t

involved in any conspiracy.

(Id. at 186:5–12.)

The defense was even more direct about the money laundering

charges. The defense described to the jury the way in which Price

directed his friends and family to make expensive purchases for

Price under their names and explained, “when somebody does that,

that’s the crime of money laundering, and that’s another crime

that David Price did commit.” (03/04/14 Tr. 186:21–23.) Near the

end of opening statements, defense counsel acknowledged that Price

expected to be found guilty of the money laundering charges but

said, “[W]hat he doesn’t expect is for you to find him guilty of

a charge that he did not commit under the law, the charge that he

was involved in a heroin conspiracy.” (03/04/14 Tr. 187:7–10.)

The defense ended its opening statement by saying Price was

“guilty of multiple distributions to multiple different drug

dealers” but maintained that Price was innocent because those are

not the crimes with which he was charged. (03/04/14 Tr. 195:4–12.)

B. Government’s Case in Chief

1. Drug Conspiracy

To prove its charge of drug conspiracy, the Government called

James Brown, Mokece Lee, and Joenathan Penson to each testify that

they participated in a conspiracy to distribute heroin with Price.

(03/05/14 Tr. 262:20–263:4, 442:4–443:16, Dkt. No. 161; 03/06/14

Tr. 713:20–714:9, Dkt. No. 162.) According to the testimony, Price

supplied the members of the conspiracy with heroin that they mixed,

bagged, and distributed throughout the West Side of Chicago.

(03/05/14 Tr. 267:16–268:24, 280:6–281:25; 03/06/14 Tr. 486:2–

487:24, 524:1–11, 594:1–18, 721:3–10; 03/07/14 Tr. 806:1–2,

Dkt. No. 163.) Price supplied heroin “on credit” and engaged in a

profit-sharing rotation in which Price kept the profits of the

heroin sales fifty percent of the time, and the co-conspirators

who made the sales would keep the profits the other fifty percent

of the time. (See, e.g., 03/05/14 Tr. 282:14–20; 03/06/14

Tr. 488:22–492:1, 507:23–25, 721:21–723:6.)

The Government also elicited testimony explaining that

Price’s heroin was distinct from other black-market heroin. First,

Price cut his heroin with Dormin, a sleeping pill, using a specific

recipe — five grams of raw heroin mixed with thirteen grams of

Dormin. (See 03/05/14 Tr. 480:2–8; 03/06/14 Tr. 682:17, 724:13;

03/07/14 Tr. 745:16–746:2, 766:2–5.) The resulting mixture was

also bagged in a specific manner. (See, e.g., 03/05/14 Tr. 280:6–

17, 450:6–8.) The heroin was branded with a piece of tape to make

Price’s high-quality product easily recognizable on the street.

(See 03/05/14 Tr. 281:8–25, 480:9–23, 482:6–12; 03/06/14

Tr. 550:17–22, 687:2–8, 725:12–18.) Price hired workers when

business increased, and he trained them to mix and bag the heroin

in the way he preferred. (See 03/05/14 Tr. 285:14–17, 449:23–

450:3; 03/06/14 Tr. 507:18–20, 516:22–518:16; 03/07/14 Tr. 746:13–

747:15.) The person whose turn it was to keep the profits during

a particular transaction was responsible for paying the workers.

(See 03/06/14 Tr. 500:2–25, 508:12–22, 595:19–24; 03/07/14

Tr. 747:6–749:2.)

The witnesses additionally identified an apartment known as

“Up Top” as the location where Price’s heroin was mixed and bagged

(e.g., 03/06/14 Tr. 521:18–522:11; 03/07/14 Tr. 756:12–13).

Surveillance footage showed Price using a key to enter Up Top, and

it was understood that Up Top was Price’s apartment. (See 03/04/14

Tr. 210:19–211:7; 03/06/14 Tr. 711:5–712:6; 03/07/14 Tr. 756:5–

23.) Price controlled access to the apartment and gave certain

individuals keys, while others had to call to have the door opened

by someone who was already inside. (See 03/05/14 Tr. 298:18–19,

311:1–9; 03/06/14 Tr. 527:3–528:6, 538:12–25, 540:17–541:3,

544:12–18; 03/07/14 Tr. 758:6–18, 764:7–18.) The Chicago Police

Department (“CPD”) pulled trash from the garbage cans outside Up

Top for six consecutive weeks from late 2007 until early 2008 and

recovered items often used in the mixing and bagging of heroin,

including sandwich and storage bags, scissors, aluminum foil

containers, empty spools for scotch tape, and Dormin packaging.

(03/05/14 Tr. 407:18–22, 411:7–412:24.) The defense stipulated

that items from the CPD trash pulls contained Dormin and heroin

residue and that Price’s fingerprints were found on a tequila box

also recovered from the trash pulled by the police. (Id. at 435:3–

20, 437:4–438:17.)

The Government also introduced evidence that Price, in an

attempt to preserve his drug operation, wanted to kill a co-

conspirator that he suspected was cooperating with a law

enforcement investigation. In late 2007, James Brown gambled away

money that he owed to Price as part of the heroin distribution

scheme. (03/05/14 Tr. 328:13–14.) Around the same time, Brown

stopped visiting Up Top regularly, and he told other co-

conspirators that he suspected law enforcement was watching the

apartment. (03/06/14 Tr. 559:13; 03/07/14 Tr. 788:1–5.) Price told

Joenathan Penson that he thought Brown was working with law

enforcement. (03/07/14 Tr. 787:11–21.) Price stopped supplying

heroin to Brown directly and, instead, instructed Brown to retrieve

it from other co-conspirators. (03/05/14 Tr. 330:3–9; 03/06/14

Tr. 561:4–25.) To resolve the money dispute and Brown’s

cooperation with law enforcement, Price expressed a desire to “do

something to” Brown. (03/07/14 Tr. 788:16–23.) Penson revealed

that two other co-conspirators who went by the nicknames “Black”

and “Bleek” volunteered to shoot Brown for Price. (03/07/14

Tr. 789:13–19.) In January 2008, Brown was shot in the leg by two

masked men (03/05/14 Tr. 335:4–20, 380:1–10.) When Price learned

that Brown survived the shooting, he called Black and Bleek

“amateurs” and said that he should have shot Brown himself.

(03/07/14 Tr. 799:3–9.)

At trial, defense counsel made the following objection to the

Government’s introduction of evidence of Brown’s shooting:

I believe the government intends to introduce evidence

that Mr. Brown was shot and then through subsequent

cooperators, introduce evidence that Mr. Price had

something to do with the shooting because Mr. Brown owed

Mr. Price money. It’s our position, Judge, that this

evidence is unfairly prejudicial. The prejudicial impact

of bringing up a shooting in a drug conspiracy case of

this kind far outweighs any probative value that it would

have in terms of establishing the actual conspiracy.

(03/05/14 Tr. 256:25–257:8.) The Court admitted the evidence.

(Id. at 257:21–258:11.)

2. Using Telephone in Commission of a Felony

Under 21 U.S.C. § 843(b), it is “unlawful for any person

knowingly or intentionally to use any communication facility in

committing or in causing or facilitating the commission of any act

or acts constituting a felony.” A telephone falls within the

definition of a “communication facility.”

In order to prove the use of a telephone in commission of a

felony, the Government introduced evidence of an intercepted call

during which Price asked a co-conspirator if he needed more heroin.

(03/06/14 Tr. 534:11–21.) Price also made a call to a co-

conspirator asking if he had Price’s money ready. (03/06/14

Tr. 567:5–568:17.) During a separate phone call, Price directed a

co-conspirator who needed more heroin to get it from someone else

who had a supply from Price. (03/07/14 Tr. 782:20–783:13.)

3. Money Laundering

The Government presented evidence of money laundering by

demonstrating that drug dealing was Price’s sole source of income.

Witnesses who had known Price since he was a child testified that

they could not recall a time when Price held legitimate employment.

(03/06/14 Tr. 589:2–7, 03/07/14 Tr. 915:22–916:1.) For example,

between 2003 and 2004, Dorothy Spann hired Price for a construction

job but fired him after just six months. (03/06/14 Tr. 706:16–

708:21.) After his termination, Price asked Spann to keep him on

the payroll and allow him to reimburse her in cash for the

paychecks he received thereafter. (Id. at 708:22–711:4.)

Despite his lack of employment, Price possessed multiple

luxurious items including a customized Harley-Davidson motorcycle,

vehicles, residences, diamond jewelry, designer apparel, and was

often in possession of large quantities of cash. (See, e.g.,

03/06/14 Tr. 583:25–586:23; 03/07/14 Tr. 828:1–831:22, 957:11–16,

968:1–4, 973:3–22, 980:6–25; 03/10/14 Tr. 1046:5–1048:23, 1071:21–

1072:12, 1094:5–1095:3, 1104:11, Dkt. No. 164.) Price enlisted the

help of his friends and family when he made his larger, more

significant purchases. The defense stipulated to at least five

residences that were leased to individuals other than Price,

despite the fact that Price was found to be the primary resident

of each. (03/10/14 Tr. 1167:5–1176:1.) Price’s father, David Price

Sr., testified that Price asked David Price Sr. to place a

Corvette, a Country Club Hills home, a Naperville apartment lease,

a motorcycle, and rental cars in David Price Sr.’s name. (03/07/14

Tr. 917:17–948:22.) When David Price Sr. agreed to the arrangement,

Price provided his father with cash to reimburse him for the

various monthly payments. (Id. at 922:5–8, 925:5–928:10, 932:17–

19, 940:1–22, 947:19–948:22.) Price’s sister, Charisma Tabor, let

Price place two vehicles and the vehicle loans in her name, and

Price gave her cash every month to pay off the loans. (03/10/14

Tr. 1122:19–1132:3.)

The Government “par[ed] down” its evidence of money

laundering based on the defense’s opening statement. (03/05/14

Tr. 256:6–9.) In its closing argument, the Government relied upon

the defense’s concession and said, “So let’s talk about the money

laundering counts quickly. Obviously, the defense has not really

contested these. And we agree that the defendant is, in fact,

guilty of these counts.” (03/11/14 Tr. 1322:1–4.)

4. Felon in Possession of a Firearm

Finally, the Government presented evidence that Price was a

felon in possession of a firearm. In October 2011, William Desmond,

an IRS Special Agent, searched Price’s Country Club Hills home and

located a firearm in the drawer of a nightstand in the master

bedroom. (03/07/14 Tr. 956:11–14, 981:17–982:11.) The serial

numbers were scratched off. (Id. at 982:19–20.) Multiple witnesses

also testified that they saw Price with the firearm at that

location. (Id. at 822:12–823:17, 998:16–999:5.)

C. Jury Verdict

Evidence concluded on March 11, 2014, and the jury began

deliberations that day. (03/11/14 Tr. 1375:25, 1402:11.) The jury

returned guilty verdicts with respect to all charges the next day,

March 12, 2014. (03/12/14 Tr. 1405:3–1406:19.)

1. Post-Trial

On June 25, 2014, the defense filed consolidated post-trial

motions. (Consolidated Post-Trial Mots., Dkt. No. 107.) The

consolidated filing included a motion for a new trial based on (1)

the Court’s refusal of a proposed buyer-seller jury instruction

and (2) the Court’s admission of unfairly prejudicial evidence

concerning the shooting of James Brown over the defense’s

objection. (Id. at 1–4.) The defense also included a motion for a

judgment of acquittal, arguing that the evidence was equally

supportive of guilt and innocence. (Id. at 4–6.) On December 8,

2014, the Court denied Price’s post-trial motions. (12/08/14

Order, Dkt. No. 115.)

On August 21, 2014, defense counsel Brindley was indicted on

federal criminal charges unrelated to Price’s case. Indictment,

United States v. Brindley, No. 14-CR-00468 (N.D. Ill. Aug. 21,

2014), Dkt. No. 1. On November 6, 2014, the Court held a hearing

to set a sentencing date and address potential conflicts of

interest stemming from Brindley’s indictment. (11/06/14 Tr. 2:11–

16, Dkt. No. 182.) The Court informed Price of the indictment and

of the potential conflicts of interest that could result therefrom.

(Id. at 3:11–17.) Price indicated that he reviewed the potential

conflicts with Brindley and understood the risks. (Id. at 3:18–

21.) Nonetheless, Price told the Court that he still wished to

have Brindley continue as his attorney. (Id. at 3:25.)

2. Sentencing

On August 4, 2017, Price filed a handwritten pro se memorandum

of understanding. (08/04/17 Mem., Dkt. No. 138.) Price admitted

his guilt to the money laundering counts and maintained his

innocence as to the rest of the charges. (Id. at 1, 7.) He sought

from the Court a sentence of 120 months of incarceration and sixty

months of supervised release. (Id. at 7.) In consideration of the

request, Price asked the Court to acknowledge his “acceptance of

responsibility for the multiple money laundering counts, which

Price expresses his sincere remorse for.” (Id.)

At the sentencing hearing on August 10, 2017, the Government

introduced evidence that Greg Holden (“Holden”), one of Price’s

co-conspirators, was murdered by Price in December 2011 for

cooperating with the Government’s investigation. The Court found

by a preponderance of the evidence that Price shot and killed

Holden. (08/10/17 Tr. 328:15–18, Dkt. No. 173.) The Court also

found beyond a reasonable doubt that Price ordered the shooting of

James Brown in response to Price’s suspicion that Brown was also

cooperating with the Government. (Id. at 328:18–19.) Lastly, the

Court found beyond a reasonable doubt that Price ordered the

shooting of Mokece Lee, although it ultimately did not occur. (Id.

at 328:19–21.) Based on the foregoing, the Court determined that

Price was subject to an offense level of 43 and a criminal history

category of II, resulting in a guidelines sentence of life in

prison. (Statement of Reasons at 1, Dkt. No. 152.) The Court

ultimately sentenced Price to thirty-seven years’ incarceration

and ten years’ supervised release. (Id. at 333:8–10.)

On September 26, 2017, the Court held a hearing during which

it ruled on the Government’s motions for restitution and

forfeiture. (09/26/17 Tr. 2:6–9, Dkt. No 167.) The defense had the

opportunity to respond to the motions but failed to do so. (Id. at

2:24–25.) Defense counsel was absent from the hearing, and the

Court granted the Government’s motion in counsel’s absence but

Price’s presence. (Id. at 2:10–3:23.) The Court stated that the

defense could file motions to reconsider at a later date. (Id. at

3:13–15.) The Court ordered Price to pay restitution to Greg

Holden’s family and forfeit his interest in property and money.

(Id. at 3:13–23.)

D. Price’s Appeal to the Seventh Circuit

In 2018, Price appealed (1) the Court’s order that he pay

restitution to Greg Holden’s family and (2) errors in the

presentence report. United States v. Price, 906 F.3d 685, 687 (7th

Cir. 2018). The Seventh Circuit affirmed the Court’s sentence and

restitution order. Id.

Price first argued that the Court lacked authority to order

restitution to the Holden family because restitution is

statutorily prohibited for a participant of the offense charged,

and Holden was Price’s co-conspirator. Id. at 689. The Seventh

Circuit affirmed the restitution order, clarifying for Price that

the restitution was not paid to Holden’s estate but to his family

members who were harmed by Holden’s murder and not identified as

his co-conspirators. Id. The Court’s order, therefore, did not

violate the statute. Id. at 690.

Price’s second argument was based on the fact that his two

prior misdemeanor convictions, both of which resulted in a sentence

of probation for one year or less, were included in his criminal

history calculation during sentencing. Id. The Seventh Circuit

agreed that the calculation was an error but affirmed the sentence

“because the advisory sentence at Price’s offense level was life

imprisonment regardless of the applicable criminal history

category, and because the district judge departed downward from

the Guidelines with a sentence of 37 years’ imprisonment.” Id.

Thus, the error did not prejudice Price’s substantial rights. Id.

Price filed this petition for relief pursuant to 28 U.S.C.

§ 2255 on February 18, 2020. (Civ. Dkt. No. 1.)

II. LEGAL STANDARD

Under 28 U.S.C. § 2255, a federal prisoner “may move the court

which imposed the sentence to vacate, set aside, or correct the

sentence.” The petitioner must prove that his “sentence was imposed

in violation of the Constitution or laws of the United States.” 28

U.S.C. § 2255(b). Relief under this section is reserved for

“extraordinary situations, such as an error of constitutional or

jurisdictional magnitude or where a fundamental defect has

occurred which results in a complete miscarriage of justice.” Blake

v. United States, 723 F.3d 870, 878–79 (7th Cir. 2013).

III. DISCUSSION

Pursuant to § 2255, Price moves for the Court to vacate his

conviction and sentence based on the ineffective assistance of

counsel. A petitioner arguing ineffective assistance of counsel

must satisfy the two-prong test set forth in Strickland v.

Washington, 466 U.S. 668 (1984). First, the petitioner “must show

that counsel’s performance was deficient.” Id. at 687. An

attorney’s performance is deficient if it falls “below an objective

standard of reasonableness” and is evaluated according to the facts

and circumstances as they existed at the time of the attorney’s

conduct. Id. at 688–690. “A court must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689.

Second, the petitioner must show that counsel’s error

prejudiced the defense in a way that “undermine[s] confidence in

the outcome.” Strickland, 466 U.S. at 692, 694. A showing that an

attorney’s error had “some conceivable effect” on the verdict is

not enough; there must be a “reasonable probability” that, but for

the error, “the result of the proceeding would have been

different.” Id. at 694. The Court is not bound by a particular

order in which to evaluate an ineffectiveness claim. Id. at 697.

“If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice . . . that course should be

followed.” Id.

Price argues his representation was constitutionally

deficient with respect to six topics: (1) counsel’s improper

concession of guilt; (2) counsel’s failure to object to evidence

of Price’s involvement in the shooting of a co-conspirator; (3)

counsel’s failure to object to the constructive amendment of the

indictment; (4) counsel’s failure to object to the government’s

fingerprint evidence; (5) counsel’s failure to withdraw from

representation after a conflict of interest arose; and (6)

counsel’s absence at a hearing for restitution and forfeiture. The

Court addresses each below.

A. Defense Counsel’s Strategic Concession of Guilt

Criminal defendants have the exclusive right to decide

whether to plead guilty. McCoy v. Louisiana, 138 S.Ct. 1500, 1508

(2018). Whereas counsel has leeway in the “strategic choices about

how best to achieve a client’s objectives,” maintaining innocence

is one of those choices “about what the client's objectives in

fact are.” Id. An attorney’s concession of guilt to certain counts

of a multi-count indictment to “bolster the case for innocence on

the remaining counts” is a permissible trial strategy when the

record contains evidence of the defendant’s consent to the

strategy. United States v. Holman, 314 F.3d 837, 840–41 (7th Cir.

2002). If a defendant expressly objects to a partial admission

strategy and wishes to maintain his innocence, counsel must abide

by those wishes. McCoy, 138 S.Ct. at 1509.

Price objects to both instances where his attorney used a

concession strategy at trial. Price argues these admissions

constituted ineffective assistance of counsel because “the record

clearly demonstrates that [Price] did not desire to admit guilt to

any portion of the indictment.” (Mem. at 12, Civ. Dkt. No. 3.)

During opening statements, Price’s defense counsel first admitted

to Price’s involvement in the purchase and sale of heroin but

argued that Price’s conduct was done individually rather than as

part of a conspiracy. Price alleges that he privately objected to

the strategy to admit partial guilt to counsel but was told to

“trust them” and not object in court. (Mem. at 14.) Second, defense

counsel’s opening statement offered that Price expected to be found

guilty of the money laundering charges, which Price states was

also against his wishes. The Court examines both disputed

concessions in turn.

A defense counsel’s complete concession of guilt without a

defendant’s consent “nullifies [a defendant’s] right to have the

issue of his guilt or innocence presented to the jury as an

adversarial issue and therefore constitutes ineffective

assistance.” United States v. Simone, 931 F.2d 1186, 1196 (7th

Cir. 1991) (quoting Francis v. Spraggins, 720 F.2d 1190, 1194 (11th

Cir. 1983)). However, when admissions do not actually concede

guilt, “counsel’s concessions have been treated as tactical

retreats and deemed to be effective assistance.” Id. Here, Price’s

counsel did not admit his guilt to a drug crime for which he had

been indicted. Instead, Price’s counsel admitted that Price

purchased and sold heroin in an individual capacity and

consistently denied that Price was involved in a conspiracy (the

drug crime for which he was indicted). Counsel’s defense theory

throughout trial was that Price was charged with the wrong crime;

while Price was guilty of bare possession and distribution of

heroin, he should be found not guilty because the government only

charged him with conspiracy. Counsel told the jury, “[H]e’s not

guilty of [conspiracy] because of the nature of the law, the poor

charging decisions of the United States, and inconsistent and

dishonest testimony.” (03/11/14 Tr. 1362:7–10.) Because Price was

not charged with the drug crime to which counsel conceded guilt,

Price’s argument fails for lack of deficient performance under

Strickland. See Simone, 931 F.2d at 1196.

Price’s ineffectiveness claim also fails because Price

ratified his counsel’s partial admission strategy. Price provides

the following narrative of events:

When Movant objected and complained to his Trial

Counsels, as to why they were telling the jury that he

was in fact guilty of Drug Dealing with others and of

Money Laundering, Trial Counsel Brindley told Movant to

trust them and NOT object to this Honorable Court,

because this was his best shot at winning his case by

raising the same in his Post-Conviction Motion.

(Mem. at 14.) In his motion, Price relies upon McCoy v. Louisiana,

138 S.Ct. 1500 (2018), which holds that a counsel who is aware of

a defendant’s express objections to any admission of guilt and

then proceeds to concede guilt before the jury violates the

defendant’s right to effective assistance of counsel. Id. at 1509.

In McCoy, the attorney admitted that the defendant was “furious”

when he learned of the attorney’s plan to concede guilt to the

crimes charged at trial. Id. at 1506. After hearing defense’s

strategy, the defendant continued to insist that counsel pursue

innocence, but counsel disregarded the defendant’s wishes and

admitted guilt during opening statements. Id. at 1505-07. The

defendant objected to counsel’s conduct on the record. Id. at 1506.

Price, on the other hand, did not object on the record to his

attorney’s concession of guilt during opening or closing

statements. (See 03/04/14 Tr. 184:21–195:12; 03/11/14 Tr. 1324:2–

1365:3.) The only conversation Price cites as an objection to

counsel’s strategy is the same conversation in which he seemed to

have taken counsel’s advice by withholding objections in the hope

that it would lead to a favorable outcome in post-conviction

proceedings. As stated in Strickland, judicial review of counsel’s

performance is highly deferential, in part, because “[i]t is all

too tempting for a defendant to second-guess counsel’s assistance

after conviction or adverse sentence.” Strickland, 466 U.S. at

689. Price questioned counsel’s strategy but, after further

explanation, must have agreed that the partial admission was his

best chance at post-conviction relief because he failed to object

in court after counsel emphasized the theory repeatedly throughout

trial. Consequently, Price cannot now successfully claim

ineffective assistance of counsel solely because the strategy to

which he acquiesced proved unsuccessful.

For the same reasons, counsel’s concession of Price’s guilt

as to the money laundering charges also fails to create a claim

for ineffective assistance of counsel under Strickland and United

States v. Simone, 93 1 F.2d 1186 (7th Cir. 1991). In Simone, a

defendant on trial for a drug conspiracy brought an ineffectiveness

claim based on his attorney’s concession at trial that the

defendant sold drugs independently as opposed to as part of a

conspiracy. Id. at 1194. The court, however, found that the

defendant consented to the trial strategy, thus barring his claim,

when he personally sent the court a handwritten letter that made

clear that the defendant’s position was also that he sold drugs

independently. Id. at 1196. Based on the letter, the court found

that the defendant’s attorney conducted the defense according to

the defendant’s wishes. Id.

Similarly, Price sent the Court a handwritten memorandum of

understanding that said, “Price further seeks the Court

acknowledge Price’s acceptance of responsibility for the multiple

money laundering counts, which Price expresses his sincere remorse

for.” (08/04/17 Mem. at 7.) Price’s letter set forth a strategy

that was identical to that of his trial attorney — Price was guilty

of money laundering. As a result, Price’s ineffectiveness argument

fails for lack of deficient performance under Strickland because

Price’s letter evinced his consent to his attorney’s concession of

guilt of money laundering.

B. Shooting Evidence

Price next contends that his right to the effective assistance

of counsel was violated based on the admission of evidence that

Price was involved in the shooting of a co-conspirator. Price’s

argues that his defense counsel should have objected to the

evidence and should not have asked the Court to question potential

jurors about their ability to remain impartial if evidence of a

shooting were introduced at trial. The Court addresses each in

turn.

A review of the record reveals that defense counsel made the

following objection at trial regarding the admittance of the

shooting evidence:

I believe the government intends to introduce evidence

that Mr. Brown was shot and then through subsequent

cooperators, introduce evidence that Mr. Price had

something to do with the shooting because Mr. Brown owed

Mr. Price money. It’s our position, Judge, that this

evidence is unfairly prejudicial. The prejudicial impact

of bringing up a shooting in a drug conspiracy case of

this kind far outweighs any probative value that it would

have in terms of establishing the actual conspiracy.

(03/05/14 Tr. 256:25–257:8.) Despite the objection, the Court

admitted the evidence. Defense counsel later submitted a post-

trial motion for a new trial based in part on the Court’s admission

of the shooting evidence. The post-trial motion argued that the

evidence was unfairly prejudicial to Price and raised doubts about

the reliability of the jury verdict. The Court also denied the

post-trial motion. Because Price’s defense counsel objected to the

admittance of the shooting evidence multiple times, Price’s

counsel cannot be considered ineffective on this basis. Further,

the Court properly admitted the evidence despite Price’s counsel’s

objections. Therefore, there is no claim for ineffective

assistance on this basis.

Price’s also objects to defense counsel’s request that the

Court question the jurors’ impartiality. Price does not cite any

case law to support his position, nor does he offer facts that

fully demonstrate how the questioning could have caused him

prejudice. To the contrary, counsel’s questions were probative of

the jurors’ ability to remain impartial when presented with

properly admitted evidence. The Court therefore finds no reason to

conclude that the questions were in error or that Price suffered

any prejudice as a result.

C. Constructive Amendment of the Indictment

Price next argues that counsel was ineffective based upon

defense counsel’s failure to object to the constructive amendment

of Price’s indictment. Price states the following:

A constructive amendment of an indictment occurs when an

indictment’s terms are effectively altered by the

presentation of evidence and jury instructions that so

modify essential Elements of the Offense charged that

there is a substantial likelihood that the defendant was

convicted of an offense other than that charged in the

indictment.

(Mem. at 21.) Price relies solely upon the definition of

“constructive amendment” and the elements of a drug conspiracy and

money laundering to support his position. (Id.) Furthermore, he

mentions that convictions for conspiracies to commit money

laundering and drug conspiracy do not require proof of an overt

act. (Id.) Price supports his position with merely conclusory

statements and does not offer any additional arguments or facts.

As explained in Argyropoulos v. City of Alton, 539 F.3d 724

(7th Cir. 2008), conclusory statements unsupported by evidence in

the record invites the Court to disregard the claim at issue. Id.

at 739. Price did not support his conclusion that his indictment

was constructively amended with facts from the record. As a result,

his claim is undeveloped and unsupported such that the court cannot

fully review it. Price’s ineffective assistance claim based on a

constructive amendment fails.

D. Fingerprint Evidence

Price next argues that counsel’s stipulation to the

Government’s fingerprint evidence without objection or further

investigation constitutes ineffective assistance of counsel. Price

relies on United States v. Saunders, 826 F.3d 363 (7th Cir. 2016),

which is separate from but related to Price’s case. The Saunders

defendants were charged separately but alleged to be part of

Price’s drug conspiracy. Id. at 365. The fingerprint expert at

issue in Saunders is the same expert that testified in Price’s

trial. (Id. at 366; 03/10/14 Tr. 1026:11–1042:24.)

In Saunders, the Government filed a Rule 16 disclosure that

explained the analysis, comparison, evaluation, and method the

expert used to determine that two fingerprints were a match.

Saunders, 826 F.3d at 366. The disclosure, however, lacked an

explanation of the number of points of verification that the expert

used to determine a match. Id. The Seventh Circuit concluded that

“[w]hatever standard a fingerprint expert chooses to use to

determine a match . . . the basis for the opinion that two prints

are a match must be disclosed, upon the defendants’ request.” Id.

at 370. Despite finding that the trial court erred in admitting

the fingerprint evidence, the Seventh Circuit subsequently held

that it did not prejudice the defendants in light of the weight of

the Government’s evidence against them at trial. Id.

As an initial matter, Price’s case is distinguishable from

Saunders. Federal Rule of Criminal Procedure 16 only requires a

summary of expert testimony “[a]t the defendant’s request.” FED.

R. CRIM. P. 16(g). Here, however, Price’s counsel did not make a

disclosure request; therefore, the government’s duty to make a

Rule 16 disclosure detailing the bases for the fingerprint expert’s

opinion was not triggered. Consequently, there was no deficient

Rule 16 disclosure to which counsel failed to object.

Even if the Government were required to make a Rule 16

disclosure and counsel did make an error, Price’s case was not

prejudiced. The Saunders court found that, even though the trial

court improperly admitted fingerprint evidence connecting the

defendants to fingerprints on heroin mixing and packaging

materials, the existence of other overwhelming evidence of guilt

rendered the error harmless. Saunders, 826 F.3d at 370. Some of

this “other evidence” included surveillance footage from Up Top,

physical evidence from the CPD trash pulls, and the testimony of

co-conspirators. Id.

The Saunders defendants were two of Price’s co-conspirators,

which resulted in an overlap in evidence between the two trials.

Consequently, the “other evidence” that the Saunders court relied

upon to conclude that the admission of the fingerprint evidence

was a harmless error was also presented in Price’s case. Other

evidence against Price included surveillance footage from Up Top

showing Price entering the apartment with a key, Price’s

fingerprints on physical evidence from CPD trash pulls, and the

testimony of his co-conspirators. (See, e.g., 03/04/14 Tr. 210:19–

211:7; 03/05/14 Tr. 262:20–263:7, 442:4–443:10; 03/06/14

Tr. 713:20–714:9; 03/10/14 Tr. 1042:15–22.) Because this is the

same evidence upon which the Seventh Circuit based its decision in

Saunders, see 826 F.3d at 370, even if Price’s attorney erred by

stipulating to the fingerprint evidence, the error was harmless.

E. Failure to Withdraw as Counsel

Price next claims that he was deprived of the effective

assistance of counsel because his attorney was under federal

criminal investigation and, as a result, harbored a conflict of

interest that harmed Price’s defense. The Court addressed these

potential conflicts with Price during a status hearing for post-

trial motions. The following exchange occurred:

THE COURT: Mr. Price, I understand you’re familiar with

the matters that involve Mr. Brindley.

THE DEFENDANT: Yes, sir.

THE COURT: You understand he’s been indicted in a case

that’s presently pending in court. Do you understand

that?

THE DEFENDANT: Yes, sir.

THE COURT: There’s a potential conflict of interest

because of that. The potential as I understand the

conflict is that Mr. -- a lawyer who is under criminal

investigation or indictment may seek to curry favor with

the prosecutor by not pressing the case as hard as a

person would; in other words, not taking full advantage

of every possible loophole or whatever. Do you

understand that?

THE DEFENDANT: Yes, sir.

THE COURT: So you’ve gone over that with Mr. Brindley;

is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: Do you with to have Mr. Brindley continue as

your attorney, or do you wish the Court to appoint

someone else to represent you?

THE DEFENDANT: I will continue.

(11/06/14 Tr. at 3:4–25.)

The Seventh Circuit has made clear that “[a] defendant who

knowingly and intelligently waives his attorney’s potential or

actual conflict of interest may not, under any circumstances, later

claim that such a conflict deprived him of his right to effective

assistance of counsel.” Harvey v. McCaughtry, 11 F.3d 691, 695

(7th Cir. 1993). A defendant makes a knowing and intelligent waiver

if it is made with “sufficient awareness of the relevant

circumstances and likely consequences.” United States v. Lowry,

971 F.2d 55, 60 (7th Cir. 1992) (quoting Brady v. United States,

397 U.S. 742, 748 (1970)). The defendant must make an informed

choice that allows him to understand the risks and benefits of

continued representation by counsel. Id. at 60–61.

In United States v. Lowry, the defendant learned that defense

counsel was under federal criminal investigation. 971 F.2d at 59.

The investigation raised potential conflicts of interest,

including that the attorney would “refrain from aggressive cross-

examination during the trial in order that he might gain the favor

of his potential prosecutors, or that he would be unduly hostile

toward them, losing objectivity, and thus harm [the defendant]’s

rapport with the jury.” Id. at 61. The defendant waived the

conflict of interest, but, on appeal after his conviction, argued

that his waiver was not knowing and intelligent and thus invalid.

Id. The trial court informed the defendant on the record that

counsel was under investigation and that the investigation

presented the risk that counsel may attempt to either curry favor

with or show aggression to the prosecution. Id. at 62. On appeal,

the Seventh Circuit held that the defendant possessed enough

information to appropriately weigh the risks and benefits of the

continued representation by that attorney. Id. “The court’s role

is to ensure that the defendant has been informed of the nature of

the conflict of interest and the risks inherent in the conflict,

and the court may exercise its discretion in fulfilling that role.”

Id. at 63. The defendant’s waiver was knowing and intelligent and

he forfeited any claim of ineffective assistance. Id.

Like the trial court in Lowry, this Court fully explained to

Price the risk that, because counsel was under federal criminal

investigation, counsel could use Price’s trial to curry favor with

the prosecution for counsel’s own criminal matters. Price

knowingly and intelligently waived the conflict of interest after

he obtained enough information from the Court to weigh the risks

and benefits. Price cannot now successfully claim ineffective

assistance of counsel because of that same conflict.

F. Counsel’s Absence at Hearing for Restitution and Forfeiture

Finally, Price argues that counsel’s physical absence at a

hearing for restitution and forfeiture constitutes ineffective

assistance of counsel. The second Strickland prong requires a

showing of prejudice before an attorney’s error is deemed

ineffective assistance, with one exception. McDowell v. Kingston,

497 F.3d 757, 761 (7th Cir. 2007). A court is to presume prejudice

where there is a complete denial of counsel at a critical stage of

a criminal proceeding, which is limited to instances in which

counsel is physically absent. Id. at 762. A critical stage of a

criminal proceeding “is one where potential substantial prejudice

to defendant’s rights inheres in the particular confrontation and

where counsel’s abilities can help avoid that prejudice.” United

States ex rel. Thomas O’Leary, 856 F.2d 1011, 1014 (7th Cir. 1988).

The Court need not reach the issue of whether restitution and

forfeiture hearings constitute “critical stages” in a criminal

proceeding because “relief under § 2255 is limited to issues of

custody and liberty.” Murphy v. United States, No. 07 C 3804, 2009

WL 424490, at *6 (N.D. Ill. Feb. 17, 2009). “[L]egal issues that

do not affect a liberty right are heard by the federal courts only

through direct appeal. This is true even if a prisoner has alleged

ineffective assistance of counsel in relation to the property

issues raised before the trial court.” Id. On August 10, 2017, the

Court sentenced Price to thirty-seven years’ incarceration.

(08/10/17 Tr. 333:8–9.) Counsel was present at this hearing. (Id.

at 269:4.) More than a month later, the Court granted the

Government’s motion for restitution and forfeiture. (09/26/17

Tr. 3:13–23.)

Because Price’s custodial sentence was not impacted by the

Court’s orders for restitution or forfeiture, a § 2255 motion is

improper grounds for relief as to Price’s financial matters. See

Murphy, 2009 WL 424490 at *6 (holding that, because the defendant’s

sentence was unrelated to the court’s forfeiture findings, the

issue of custody was not before the court).

Iv. CONCLUSION

For the reasons stated herein, Price’s § 2255 Petition is

denied, and the Court declines to grant him a Certificate of

Appealability.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Dated: 7/7/2021

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