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3d 164
Following a jury trial in the United States District Court for the Southern
District of New York (George B. Daniels, Judge), defendant Shlomo Cohen
was convicted on two counts of conspiring to distribute and import pills
containing a detectable amount of 3, 4-methylenedioxymethamphetamine, the
drug commonly known as "ecstasy," in violation of 21 U.S.C. 846 and 21
U.S.C. 963. On February 11, 2004, the District Court sentenced defendant
principally to 72 months' imprisonment and three years' supervised release. On
appeal, defendant challenges his conviction and sentence on the grounds that
(1) he received ineffective assistance of counsel; (2) part of the District Court's
jury charge constituted plain error; and (3) he is entitled to a remand to permit
the District Court to decide whether to resentence him pursuant to United States
v. Crosby, 397 F.3d 103 (2d Cir.2005). For the following reasons, we affirm the
In November 2001, Cohen was arrested by the DEA and subsequently charged
with (1) conspiracy to distribute and possess with intent to distribute
approximately 30,000 ecstasy pills in violation of 21 U.S.C. 846; (2)
conspiracy to import ecstasy into the United States in violation of 21 U.S.C.
963; and (3) possessing ecstasy with intent to distribute in violation of 18
U.S.C. 2 and 21 U.S.C. 812, 841(a)(1), and 841(b)(1)(C). Shtoukhamer,
who had been charged with one count of conspiracy to distribute ecstasy,
pleaded guilty in May 2002 and was sentenced principally to 46 months'
imprisonment by the District Court. Cohen then proceeded to a trial by jury,
which convicted him of both conspiracy charges under Counts One and Two
but acquitted him on the substantive offense of possession with intent to
distribute under Count Three. On February 11, 2004, the District Court
sentenced Cohen to two concurrent terms of 72 months' imprisonment,
followed by three years' supervised release. This appeal followed.
DISCUSSION
5
On appeal, Cohen contends that his conspiracy convictions were the result of
ineffective assistance of counsel because his trial counsel failed to object to (1)
the Government's argument in summation that Cohen's co-conspirators may
have included, in addition to Shtoukhamer, "other [unnamed] people overseas";
and (2) the District Court's charge instructing the jury to determine whether
Cohen had conspired with "Eli Shtoukhamer and/or others who were not acting
as agents of law enforcement." We consider each claim in turn.
I. Ineffective Assistance of Counsel
You have to find that the defendant conspired with at least one person other
than Nadav Dagan[, a government cooperator who, by law, would not have
qualified as a member of the alleged conspiracy, see, e.g., United States v.
Medina, 32 F.3d 40, 43-45 (2d Cir.1994)]. Now, clearly you have Eli
[Shtoukhamer] here. The defendant is conspiring or agreeing to commit these
crimes with Eli. And we submit to you there are also other people overseas,
but, of course, we don't know what their names are, who they are. But at the
very least you have the defendant conspiring or agreeing with Eli to commit the
crimes charged in the indictment.
10
11
12
13
Defendant maintains in the alternative that even if 846 and 963 reach acts
committed abroad, the evidence presented at trial did not support the
Government's suggestion that "other people overseas" had in fact conspired
with defendant to distribute and import ecstasy pills into the United States. This
argument, however, is based on a fundamental misreading of the Government's
summation. As is apparent from the full context of the Government's remarks
quoted above, the Government did not rest its case principally on a theory that
defendant had conspired with unnamed individuals in Belgium. Rather, the
Government emphasized defendant's relationship with Eli Shtoukhamer, of
which there was direct and overwhelming evidence in the form of recorded
conversations about drug dealing,1 arguing that "at the very least" defendant
had conspired with Shtoukhamer, independent of any implied conspiracy with
"other people overseas." See Trial Tr. 844 ("Now, clearly you have Eli
[Shtoukhamer] here. The defendant is conspiring or agreeing to commit these
crimes with Eli.").
15
Moreover, defendant's contention that there was "no evidence" supporting the
involvement of any co-conspirators in Belgium is not supported by the trial
record, which included the testimony of Nadav Dagan that he believed
defendant was "paying somebody to watch" the drugs in Belgium, Trial Tr.
418, defendant's own recorded statement about how much the "storage" of the
drugs in Belgium was "costing" him,2 and the commonsense notion that 30,000
ecstasy pills could not have been stored, secured, and imported from a foreign
country without the knowing involvement of one or more individuals abroad.
See United States v. Harris, 8 F.3d 943, 946 (2d Cir.1993) ("[W]here advanced
plans are made regarding the sale of narcotics in wholesale quantities, the
participants in the transaction may be presumed to know that they are part of a
broader conspiracy.") (internal quotation marks omitted); United States v.
Medina, 944 F.2d 60, 65 (2d Cir.1991) (doctrine that mere "buyer-seller"
relationship is insufficient to establish distribution conspiracy not applicable
where "there is advanced planning among the alleged co-conspirators to deal in
wholesale quantities of drugs obviously not intended for personal use"). We
have noted previously that the Government "has broad latitude in the inferences
it may reasonably suggest to the jury during summation," United States v.
Edwards, 342 F.3d 168, 181 (2d Cir.2003) (internal quotation marks omitted),
17
19
If you are satisfied that the conspiracy charged in the indictment existed, you
must then ask yourselves who the members of that conspiracy were. . . . You
need not determine the identity of all co-conspirators. However, you must
determine whether it has been proven that the defendant was a member of a
conspiracy with Eli Shtoukhamer and/or others who were not acting as agents
of law enforcement.
20
21
Absent actual error in the District Court's instruction, and in light of the
overwhelming evidence presented at trial that defendant had conspired with Eli
Shtoukhamer to distribute and import ecstasy into the United States, trial
counsel's failure to object to the jury charge did not constitute ineffective
assistance of counsel. See United States v. Frampton, 382 F.3d 213, 222 n. 8
(2d Cir.2004) ("Having found no error in [the district court's] instruction, we
hold [defendant's] claim [of ineffective assistance] must fail.").
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23
CONCLUSION
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Notes:
*
The Honorable Alan H. Nevas, United States District Judge for the District of
Connecticut, sitting by designation
Defendant met three times with Dagan and Shtoukhamer to negotiate the terms
of the smuggling operation, actively discussing issues such as the costs of the
proposed deal, Gov't Trial Ex. 6T at 14 ("And a five . . . is expenses . . . ."); the
timing of the operation,id. at 24 ("As far as I'm concerned, the sooner the
better. . . . Try . . . to arrange this, like towards Monday, Tuesday."); the
obligations of the courier, id. at 23 ("[S]he comes, they give her, they take, they
say hello and goodbye. . . . She arrives, she finishes the job, it's correct, she
receives whatever is due her, goodbye."); and the status of the preparations in
Belgium, Gov't Trial Ex. 8T at 9 ("Over there everything is ready. One only
needs to come and take it."). In addition, after the deal was called off, Cohen
was recorded on a government wiretap of Shtoukhamer's phone authorizing
Shtoukhamer to retrieve the money given to Dagan to pay for the courier's
airplane ticket to the United States.
2
Emphasizing his need to find a courier to transport the drugs from Belgium to
the United States in response to Dagan's effort to negotiate more favorable
terms under the deal, Cohen is recorded as stating to Dagan, "We have the
merchandise there, stuck. . . . I don't have a choice. It's already costing me
storage there and its costing me everything. You understand? A dollar and [a]
half, plus the shipping, plus the storages there, and all that." Gov't Trial Ex.
13T at 5, 9