United States v. Cho

── United States v. Cho ── Court: Court of Appeals for the Ninth Circuit Date: April 15, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-5185 D.C. No. Plaintiff - Appellee, 2:23-cr-00149-FLA-1 v. MEMORANDUM* DAEKUN CHO, AKA DK, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Fernando L. Aenlle-Rocha, District Judge, Presiding Argued and Submitted March 3, 2026 Pasadena, California Before: WARDLAW and DE ALBA, Circuit Judges, and BROWN, District Judge.** Daekun Cho appeals his convictions for extortion and attempted extortion under 18 U.S.C. § 1951(a) and aiding and abetting carjacking under 18 U.S.C. §§ 2(a) and 2119(2). Cho also appeals his sentencing enhancement under United * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jeffrey Vincent Brown, United States District Judge for the Southern District of Texas, sitting by designation. States Sentencing Guidelines Manual (U.S.S.G.) § 3A1.1(b). As the parties are familiar with the facts, we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291. We affirm. We review a district court’s decision to exclude evidence for abuse of discretion, United States v. Smith, 735 F.2d 1196, 1198 (9th Cir. 1984), and a district court’s findings of fact for clear error. See United States v. Olsen, 21 F.4th 1036, 1040 (9th Cir. 2022) (per curiam). “A non-constitutional error requires reversal unless there is a fair assurance of harmlessness, or stated another way, unless it is more probable than not that the error did not materially affect the verdict.” United States v. Lopez, 913 F.3d 807, 825 (9th Cir. 2019) (citation modified). 1. Assuming the district court improperly admitted the uncharged shooting and gang affiliation evidence, any error is harmless given the overwhelming evidence of Cho’s guilt. See United States v. Smith, 638 F.2d 131, 134 (9th Cir. 1981). Multiple victims testified that they paid Cho out of fear, that Cho threatened or attacked them when they failed to pay, and that Cho participated in the charged carjacking. Cho argues that the “quality” of the victim witnesses’ testimony was low because the government offered the witnesses immigration assistance. Yet Cho does not show that any witness testimony was tainted by such assistance, if any. 2 24-5185  Cho also argues that Yun Soo Shin’s testimony that one of the two masked assailants who beat him was Cho is improbable and inconsistent with statements he made to a police officer. With respect to improbability, Cho argues that Shin only testified that he recognized Cho’s eyes during the attack. However, Shin also testified that he recognized Cho by his voice, a fact Cho does not challenge despite Appellee’s reliance on this fact. Cho has therefore forfeited his argument with respect to improbability. See Maciel v. Cate, 731 F.3d 928, 932 n.4 (9th Cir. 2013). As to inconsistency, a police officer—testifying based on her review of a police report prepared by her partner rather than her own recollection—stated that Shin described his assailants as two Black men. However, a doctor who treated Shin at the hospital testified that Shin had been given