# United States v. Price

> District Court, N.D. Illinois · July 7, 2021

URL: https://www.frixlaw.com/law-library/cases/10144979

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** July 7, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10144979

## Opinion text

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

-_ 32 -_

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10144979. Public record. Not legal advice.