United States v. Olufemi Kotun

MEMORANDUM

1. Federal law prohibits taking bank property “by force and violence, or by intimidation, ... from the person or presence of another.” 18 U.S.C. § 2113 (a). The district court’s response to Jury Note Number 3 tracks this language, but Kotun claims it misstates the law because it allows conviction “even if the person from whom the money is taken is a co-conspirator.” But section 2113(a) prohibits taking property by force from “another,” a term broad enough to include a co-conspirator. See United States v. Vought, 69 F.3d 1498, 1502 (9th Cir.1995) (co-conspirators can be victims, justifying enhancement under Sentencing Guidelines § 3A1.3).

2. The testimony Kotun challenges was probative of the witnesses’ credibility on a key issue at trial and carried little risk of unfair prejudice. This isn’t “the rare exception when a district court’s decision to admit evidence under Rule 403 constitutes plain error.” United States v. Rizk, 660 F.3d 1125, 1132 (9th Cir.2011) (internal quotation marks omitted). For the same reasons, the district court didn’t abuse its discretion in rejecting Kotun’s prosecutorial misconduct claim. See United States v. Del Toro-Barboza, 673 F.3d 1136,…