NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10369
Plaintiff-Appellee, D.C. No. 5:20-cr-00432-EJD-1 v.
OLE HOUGEN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding
Argued and Submitted March 28, 2023 San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and KORMAN,** District Judge. Dissent by Judge IKUTA.
Hougen appeals his 2021 conviction on one count of attempt to commit
racially motivated violence, in violation of 18 U.S.C. § 249(a)(1). We have
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. jurisdiction under 28 U.S.C. § 1291, and we affirm.1
1. Hougen contends that his conviction should be overturned because the
admission into evidence of certain statements that he made to Santa Cruz police
officers, and testimony and argument referring to the same, violated his Fifth
Amendment right to silence. In these statements, Hougen made several racist and
belligerent comments before he said he did not want to talk to the officers and asked
for a lawyer.
We disagree that reversal is required. “[R]egardless whether the Miranda
warnings [are] actually given, comment on the defendant’s exercise of his right to
remain silent [is] unconstitutional.” United States v. Bushyhead, 270 F.3d 905, 912
(9th Cir. 2001) (citing United States v. Whitehead, 200 F.3d 634, 638 (9th Cir. 2000)
(alterations in original)). Any such error “requires reversal unless the prosecution
demonstrates, beyond a reasonable doubt, that the error was harmless.” United
States v. Caruto, 532 F.3d 822, 827 (9th Cir. 2008) (citation omitted). However,
“when the defense does not object to the prosecutor’s conduct during trial, we review
for plain error,” even where, as here, the defendant raised the challenge post-trial.
United States v. Atcheson, 94 F.3d 1237, 1244 (9th Cir. 1996), as amended on denial
of reh’g (Oct. 3, 1996).
1 We set forth the factual background of Hougen’s appeal in the opinion filed contemporaneously with this memorandum disposition and do not repeat it here.
2 Hougen did not object, before or during trial, to the admission of his
statements, nor to testimony or argument referring to the same (apart from one piece
of testimony discussed separately below). Reviewing these unpreserved challenges
for plain error, see id., we decline to reverse Hougen’s conviction. Hougen must
show that the error affected his substantial rights—in other words, that it “affected
the outcome of the district court proceedings.” United States v. Olano, 507 U.S.
725, 734 (1993). Hougen has not done so. “When deciding whether a prosecutor’s
reference to a defendant's post-arrest silence was prejudicial, we consider the extent
of comments made by the witness, whether an inference of guilt from silence was
stressed to the jury, and the extent of other evidence suggesting defendant’s guilt.”
United States v. Lopez, 500 F.3d 840, 845 (9th Cir. 2007) (citation omitted). The
prosecution did not ask the jury to infer Hougen’s guilt from any invocation of his
right to silence or failure to make a statement to police. Instead, the prosecution
stressed Hougen’s hostile and racist language to police, as well as evidence of
Hougen’s racist and aggressive demeanor on the day in question. The prejudice
from any implied reference to Hougen’s silence was minimal.
Likewise, Hougen’s sole preserved challenge—to testimony from a law
enforcement officer referring to Hougen’s failure to give a statement as a reason that
the officer concluded that Hougen was the aggressor—does not entitle Hougen to
relief because it was harmless beyond a reasonable doubt. The trial court
3 immediately gave a curative instruction reminding the jury about Hougen’s right to
silence, the prosecution did not rely on this stray comment in closing, and the other
evidence of Hougen’s guilt was overwhelming. See Lopez, 500 F.3d at 845.
Reversal is not warranted.
2. Hougen next contends that the district court erroneously admitted evidence
and testimony regarding three prior incidents in which Hougen assaulted Black men
while using racist language. Reviewing for abuse of discretion, United States v.
Flores-Blanco, 623 F.3d 912, 919 (9th Cir. 2010), we affirm.
Rule 404(b) prohibits the introduction of evidence of “other crimes, wrongs,
or acts . . . to prove the character of a person in order to show action in conformity
therewith,” but permits such evidence to be introduced for other purposes, including
“proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b). Even if the evidence is
admissible under Rule 404(b), it “may still be excluded” under Federal Rule of
Evidence 403 if “its probative value is substantially outweighed by the danger of
unfair prejudice.” Flores-Blanco, 623 F.3d at 919 (citation omitted).
Here, the other acts evidence was offered and admitted for the purpose of
showing that Hougen’s motive in assaulting the victim in this case (“S.B.”) was
because S.B. is Black. Hougen’s motive was relevant to Hougen’s prosecution
under 18 U.S.C. § 249(a)(1). The district court did not abuse its “wide discretion”
4 in concluding that this evidence made it more likely than Hougen was motivated to
commit violence against Black men, and did so against S.B., because of race. Id.;
c.f. United States v. Curtin, 489 F.3d 935, 951 n.5 (9th Cir. 2007) (en banc). It
likewise did not abuse its discretion in refusing to exclude the evidence under Rule
403. Any prejudice to Hougen was inherent in the prior incidents’ relevance to
Hougen’s motive and not unfair under Rule 403. That is not the kind of unfair
prejudice requiring exclusion under Rule 403. See United States v. Cruz-Garcia,
344 F.3d 951, 956 (9th Cir. 2003).
3. Hougen next asserts that the district court abused its discretion in
precluding evidence that S.B. assaulted another person and misled the police about
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10369
Plaintiff-Appellee, D.C. No. 5:20-cr-00432-EJD-1 v.
OLE HOUGEN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding
Argued and Submitted March 28, 2023 San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and KORMAN,** District Judge. Dissent by Judge IKUTA.
Hougen appeals his 2021 conviction on one count of attempt to commit
racially motivated violence, in violation of 18 U.S.C. § 249(a)(1). We have
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. jurisdiction under 28 U.S.C. § 1291, and we affirm.1
1. Hougen contends that his conviction should be overturned because the
admission into evidence of certain statements that he made to Santa Cruz police
officers, and testimony and argument referring to the same, violated his Fifth
Amendment right to silence. In these statements, Hougen made several racist and
belligerent comments before he said he did not want to talk to the officers and asked
for a lawyer.
We disagree that reversal is required. “[R]egardless whether the Miranda
warnings [are] actually given, comment on the defendant’s exercise of his right to
remain silent [is] unconstitutional.” United States v. Bushyhead, 270 F.3d 905, 912
(9th Cir. 2001) (citing United States v. Whitehead, 200 F.3d 634, 638 (9th Cir. 2000)
(alterations in original)). Any such error “requires reversal unless the prosecution
demonstrates, beyond a reasonable doubt, that the error was harmless.” United
States v. Caruto, 532 F.3d 822, 827 (9th Cir. 2008) (citation omitted). However,
“when the defense does not object to the prosecutor’s conduct during trial, we review
for plain error,” even where, as here, the defendant raised the challenge post-trial.
United States v. Atcheson, 94 F.3d 1237, 1244 (9th Cir. 1996), as amended on denial
of reh’g (Oct. 3, 1996).
1 We set forth the factual background of Hougen’s appeal in the opinion filed contemporaneously with this memorandum disposition and do not repeat it here.
2 Hougen did not object, before or during trial, to the admission of his
statements, nor to testimony or argument referring to the same (apart from one piece
of testimony discussed separately below). Reviewing these unpreserved challenges
for plain error, see id., we decline to reverse Hougen’s conviction. Hougen must
show that the error affected his substantial rights—in other words, that it “affected
the outcome of the district court proceedings.” United States v. Olano, 507 U.S.
725, 734 (1993). Hougen has not done so. “When deciding whether a prosecutor’s
reference to a defendant's post-arrest silence was prejudicial, we consider the extent
of comments made by the witness, whether an inference of guilt from silence was
stressed to the jury, and the extent of other evidence suggesting defendant’s guilt.”
United States v. Lopez, 500 F.3d 840, 845 (9th Cir. 2007) (citation omitted). The
prosecution did not ask the jury to infer Hougen’s guilt from any invocation of his
right to silence or failure to make a statement to police. Instead, the prosecution
stressed Hougen’s hostile and racist language to police, as well as evidence of
Hougen’s racist and aggressive demeanor on the day in question. The prejudice
from any implied reference to Hougen’s silence was minimal.
Likewise, Hougen’s sole preserved challenge—to testimony from a law
enforcement officer referring to Hougen’s failure to give a statement as a reason that
the officer concluded that Hougen was the aggressor—does not entitle Hougen to
relief because it was harmless beyond a reasonable doubt. The trial court
3 immediately gave a curative instruction reminding the jury about Hougen’s right to
silence, the prosecution did not rely on this stray comment in closing, and the other
evidence of Hougen’s guilt was overwhelming. See Lopez, 500 F.3d at 845.
Reversal is not warranted.
2. Hougen next contends that the district court erroneously admitted evidence
and testimony regarding three prior incidents in which Hougen assaulted Black men
while using racist language. Reviewing for abuse of discretion, United States v.
Flores-Blanco, 623 F.3d 912, 919 (9th Cir. 2010), we affirm.
Rule 404(b) prohibits the introduction of evidence of “other crimes, wrongs,
or acts . . . to prove the character of a person in order to show action in conformity
therewith,” but permits such evidence to be introduced for other purposes, including
“proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b). Even if the evidence is
admissible under Rule 404(b), it “may still be excluded” under Federal Rule of
Evidence 403 if “its probative value is substantially outweighed by the danger of
unfair prejudice.” Flores-Blanco, 623 F.3d at 919 (citation omitted).
Here, the other acts evidence was offered and admitted for the purpose of
showing that Hougen’s motive in assaulting the victim in this case (“S.B.”) was
because S.B. is Black. Hougen’s motive was relevant to Hougen’s prosecution
under 18 U.S.C. § 249(a)(1). The district court did not abuse its “wide discretion”
4 in concluding that this evidence made it more likely than Hougen was motivated to
commit violence against Black men, and did so against S.B., because of race. Id.;
c.f. United States v. Curtin, 489 F.3d 935, 951 n.5 (9th Cir. 2007) (en banc). It
likewise did not abuse its discretion in refusing to exclude the evidence under Rule
403. Any prejudice to Hougen was inherent in the prior incidents’ relevance to
Hougen’s motive and not unfair under Rule 403. That is not the kind of unfair
prejudice requiring exclusion under Rule 403. See United States v. Cruz-Garcia,
344 F.3d 951, 956 (9th Cir. 2003).
3. Hougen next asserts that the district court abused its discretion in
precluding evidence that S.B. assaulted another person and misled the police about
it nine months after the incident with Hougen.
Hougen argues that the evidence of S.B.’s assault on a third party is admissible
because it corroborates Hougen’s self-defense theory that S.B. was the initial
aggressor. We disagree. Evidence of a victim’s violent acts is admissible to support
a self-defense theory only if it tends to show the defendant’s “state of mind—
specifically, to show that [the defendant] had good reason to fear [the
victim].” United States v. Garcia, 729 F.3d 1171, 1178 (9th Cir. 2013). Where, as
here, the defendant did not know of the violent acts by the victim, which post-dated
the crime, then the violent acts “could not have affected the defendant’s state of
mind” and therefore are not relevant. Id. at 1178–79 (citing United States v. Keiser,
5 57 F.3d 847, 853 (9th Cir. 1995)).
Hougen also contends that this evidence demonstrates bias on Hougen’s part
and investigative failure. However, the second incident took place in very different
circumstances and well after the one with Hougen. If S.B. improperly assaulted a
different person in this other incident, that had minimal relevance to what happened
six months before that between S.B. and Hougen. It was not an abuse of discretion
for the district court to conclude that the risk that this evidence would confuse the
real issues at trial substantially outweighed its limited relevance under Rule 403. See
United States v. Espinoza-Baza, 647 F.3d 1182, 1190 (9th Cir. 2011).
4. Finally, Hougen argues that reversal is warranted because of cumulative
error. “In some cases, although no single trial error examined in isolation is
sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors
may still prejudice a defendant.” United States v. Frederick, 78 F.3d 1370, 1381
(9th Cir.1996). We conclude such prejudice is absent here. The evidence of
Hougen’s guilt was heavy and not undermined by any isolated errors that may have
occurred in his trial.
AFFIRMED.
6 FILED United States v. Hougen; No. 21-10369 AUG 1 2023 IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I dissent for the reasons set forth in my dissent to the published opinion filed
concurrently with this memorandum disposition. See United States v. Hougen, No.
21-10369, – F.4th – (9th Cir. 2023).