United States v. Hougen
| Docket Number | 21-10369 |
| Decision Date | 01 August 2023 |
| Citation | 76 F.4th 805 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ole HOUGEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding, D.C. No. 5:20-cr-00432-EJD-1
Tamara A. Crepet (argued) and Lara S. Vinnard, Assistant Federal Public Defenders; Jodi Linker, Federal Public Defender; Federal Public Defenders Office, Northern District of California; San Jose, California; Severa Keith, The Keith Law Office PC, San Francisco, California; for Defendant-Appellant.
Sydney A.R. Foster (argued) and Tovah R. Calderon, Attorneys; Kristen Clarke, Assistant Attorney General; United States Department of Justice, Civil Rights Division, Appellate Section; Washington, D.C.; Matthew M. Yelovich, Assistant United States Attorney; United States Department of Justice, Office of the United States Attorney; San Francisco, California; for Plaintiff-Appellee.
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and Edward R. Korman,* District Judge.
Opinion by Judge Gould;
OPINION
This appeal arises from Appellant Ole Hougen's conviction after a jury trial of one count of attempting to commit racially motivated violence, in violation of 18 U.S.C. § 249(a)(1). On appeal, Hougen contends that he is entitled to a new trial because the district court held his trial in violation of the public trial right, under United States v. Allen, 34 F.4th 789 (9th Cir. 2022). Hougen also contends that his prosecution was unconstitutional because 18 U.S.C. § 249(a)(1) exceeds Congress' authority under Section Two of the Thirteenth Amendment.1 For the reasons set forth herein, we affirm Hougen's conviction.
On July 5, 2020, three eyewitnesses observed Hougen, a white man, repeatedly and aggressively slashing a knife at the throat and chest of a Black man ("S.B.") at an intersection in Santa Cruz, California. Two of these witnesses called 9-1-1, and Santa Cruz police officers responded to the scene.
On the scene, law enforcement officers interviewed the eyewitnesses, S.B., and Hougen. According to S.B., Hougen had approached S.B. on the street and asked to buy marijuana. When S.B. declined, Hougen followed S.B., harassing him with racist and homophobic slurs and then charging at him with a knife. S.B. got away without sustaining injury.
No eyewitness saw the beginning of the fight, but all witnesses identified Hougen as the aggressor during the fight. One eyewitness told officers that he heard Hougen repeatedly yelling the N-word at S.B. while attacking him.
For his part, Hougen told officers that S.B. had a knife, which officers confirmed. However, S.B. told officers that it had fallen out of its sheath during the fight, and no eyewitness reported seeing S.B. with a knife.
Officers arrested Hougen and took him to the Santa Cruz Police Department. At the station, Hougen directed racial slurs at Officer Joshua Garcia, who is Hispanic, while Officer Garcia filled out Hougen's arrest paperwork. Officer Garcia then attempted to give Miranda warnings to Hougen, but Hougen responded by denigrating Officer Garcia as a "colored" person, a racist, and a liar before saying he did not want to speak to Officer Garcia. Garcia was unable to complete the Miranda warnings and stopped talking to Hougen. Another officer, Kevin Bailey, then tried to give Miranda warnings to Hougen. Hougen continued to respond belligerently and then requested his lawyer, at which point Officer Bailey stopped trying to talk to him.
Around October 2020, the FBI took over Hougen's case. FBI agents transferred Hougen to federal custody. During this trip, Hougen admitted to using the N-word in his fight with S.B.
In November 2020, a federal grand jury indicted Hougen on one count of attempting to commit racially motivated violence under 18 U.S.C. § 249(a)(1).
Jury selection for Hougen's trial began on April 2, 2021, and his trial lasted until April 9, 2021. Hougen's trial was held in the Northern District of California. At that time, the Northern District was operating under General Orders concerning public access to the courthouse, which had been issued in response to the COVID-19 pandemic. As relevant here, General Order 73 provided that: "only persons having official court business authorized by . . . a presiding judge of this court[ ] may enter any Northern District of California courthouse property." N.D. Cal. General Order 73: Continuing Temporary Restrictions on Courthouse Access due to COVID-19 Public Health Emergency (as amended May 21, 2020). This Order defined "persons having official court business" to include "attorneys, parties, witnesses, or other persons who are required or permitted to attend a specific in-person court proceeding." Id. General Order 73 also provided that "[m]embers of the press and public may observe proceedings by telephone or videoconference." Id. General Order 72-6 provided that "[j]ury trials may proceed in accordance with the logistical considerations necessitated by the Court's safety protocols." N.D. Cal. General Order 72-6: IN RE: Coronavirus Disease Public Health Emergency (Sep. 16, 2020). The only reference to public access in the record for Hougen's case comes in a Clerk's Notice entered on the docket before trial. This Clerk's Notice provided, among other things, dial-in information to be used for public access to the trial through an audio conference line (the "AT&T Line").
Neither Hougen nor anyone involved in his trial objected to, or otherwise discussed on the record, the General Orders, Clerk's Notice, or public access to his trial at any time before this appeal.
At trial, the prosecution argued to the jury that Hougen had long harbored violent racial animus toward Black people and assaulted S.B. because of that animus. The prosecution's evidence at trial consisted of: (1) testimony2 from four witnesses regarding three prior incidents where Hougen had committed racially motivated acts of violence, admitted under Federal Rule of Evidence 404(b) over Hougen's objection; (2) testimony by the three eyewitnesses that saw the incident between Hougen and S.B.; (3) testimony by Santa Cruz police officers regarding this incident, along with recordings of Hougen's statements made to Officers Garcia and Bailey; and (4) testimony by FBI Special Agent Elizabeth Green regarding her involvement in the investigation and the statements Hougen made while being transported to federal custody.
Hougen argued in response that S.B. was the aggressor, that Hougen acted in self-defense and not on account of S.B.'s race, and that law enforcement did not properly investigate the incident. In support of this theory, Hougen elicited testimony on cross-examination: (1) that none of the eyewitnesses saw the beginning of the fight; (2) that one of the eyewitnesses knew S.B. to be an aggressive person; and (3) that one of the responding officers knew that S.B. always carried a knife with him. Hougen called two Santa Cruz police officers involved in the incident to highlight alleged failures to investigate whether S.B. was the aggressor. Hougen also sought to admit evidence that, nine months after the incident with Hougen and in the weeks leading up to trial, S.B. had assaulted a separate person and misled police about the incident. The district court precluded this evidence under Federal Rules of Evidence 404(b) and 403 but permitted the victim to testify to S.B.'s reputation for aggression. The district court gave a self-defense instruction to the jury at Hougen's request.
The jury convicted Hougen of one count of attempting to commit racially motivated violence in violation of 18 U.S.C. § 249(a)(1) after the jury had deliberated for less than two hours.
After trial, Hougen filed a motion for acquittal and for a new trial and/or to dismiss the indictment for lack of subject matter jurisdiction. He raised issues concerning: (1) the sufficiency of the evidence; (2) the admission of Hougen's prior bad acts; (3) the admission of Hougen's statements in response to the Miranda warnings by Officers Garcia and Bailey; (4) the exclusion of evidence concerning S.B.'s alleged pre-trial assault; and (5) the asserted unconstitutionality of 18 § U.S.C. 249(a)(1) as applied to his case. The district court denied his motion in all respects.
This timely appeal followed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm Hougen's conviction of attempting to commit racially motivated violence in violation of 18 U.S.C. § 249(a)(1).
Hougen first contends that the district court barred in-person public access to his trial, limited public access to the AT&T Line, and that this limitation violated his right to a public trial under Allen. 34 F.4th 789. In Allen, we held that a district court's "decision to allow only audio access to the trial . . . effected a total closure" that violated the defendant's Sixth Amendment right to a public trial. Id. Hougen relies on the General Orders and Clerk's Notice in place during his trial as evidence that the courtroom was unconstitutionally closed and notes that these same Orders were in place during the trial at issue in Allen (). However, in sharp contrast to the defendant in Allen, Hougen did not raise this public trial issue before the district court. This distinguishes Hougen's case from Allen and raises a threshold issue of what standard of review applies to Hougen's claim. We hold that Hougen forfeited his public trial claim, that plain error review applies, and that reversal is not warranted under these circumstances.
We first address the standard of review. The government argues that Hougen, at least, forfeited his public trial claim and that plain error review applies. Hougen counters that we ought...
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