United States v. Shlomo Cohen, Docket No. 04-0983-cr (2d Cir. Oct. 20, 2005) (Meskill, Cabranes, Nevas (by designation)): The Court principally rejects an IAC claim, following Cohen’s conviction for conspiring to import ectasy from Belgium and to distribute it in the United States, based on counsel’s failure to (1) object to the prosecutor’s off-hand reference, during summations, to the existence of unknown conspirators (“other people overseas”) whose existence may or may not have been supported by the evidence, and (2) object to the court’s charge, in which it may or may not have told the jury that a co-defendant was an actual co-conspirator rather than merely an alleged one. The Court found no error on either point, and thus no error in counsel’s failure to object. Additionally, given that “the evidence of defendant’s conspiracy with [a co-defendant who had pleaded guilty] was overwhelming — a point that defendant’s appellate counsel effectively conceded at oral argument” — Cohen could not satisfy the prejudice prong of Strickland.
The sole point of note is the Court’s response to a casual argument made in a footnote of Cohen’s appellate brief, in which he claimed that “there ‘may’ be ‘Due Process Clause, other Constitutional, or international law limitations on what Congress can make a crime regarding conduct outside the territorial jurisdiction of the United States.'” Op. at 6. Following the rulings of all the Circuits that have considered this issue, the Court rejected this “implied argument” and held that “21 U.S.C. §§ 846 and 963 may  be applied extraterritorially.” Op. at 7.