Does the failure to mention that identification other than by serial number constitute an omission as to potentially applicable law?

First, the failure to mention that identification other than by serial number could have been authorized under 27 C.F.R. 179.102 was an omission as to potentially applicable law, not an omission as to an element of the offense. Since Javino did not request that the court instruct the jury with respect to this regulation, his present challenge is waived. Moreover, even had he requested such a charge, its omission would not have been error, since the court is not required to give an instruction for which there is no evidentiary basis in the record. See, e.g., United States v. Paccione, 949 F.2d 1183, 1200 (2d Cir.1991); United States v. Leonard, 524 F.2d 1076,

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B. The Claim of Ineffective Assistance of Counsel