USA v. Hougen

529 F.Supp.3d 1072

USA, Plaintiff,

v.Ole HOUGEN, Defendant.

Case No. 5:20-cr-00432-EJD-1

United States District Court, N.D. California, San Jose Division.

Signed March 30, 2021

Marissa Harris, Assistant US Attorney, U.S. Attorneys Office, San Jose, CA, Michael Johnson Songer, Assistant US Attorney, U.S. Department of Justice, Washington, DC, for Plaintiff.

Severa Keith, Public Defender, Office of the Federal Public Defender San Jose Office, San Jose, CA, for Defendant.

ORDER DENYING MOTION TO SUPPRESS WITNESS STATEMENTS OR DISMISS INDICTMENT

Re: Dkt. No. 68

EDWARD J. DAVILA, United States District Judge

On November 17, 2020, Ole Hougen was indicted on one count of committing a hate crime in violation of 18 U.S.C. Section 249(a)(1). Dkt. No. 13. On February 24, 2021, Hougen filed the current motion to suppress witness statements and related evidence, or, alternatively, to dismiss the indictment. Amended Motion to Dismiss [to Suppress Witness Statements or Dismiss Indictment, in Light of Fifth Amendment Due Process Violations Committed by Law Enforcement], Dkt. No. 68 ("Motion"). The Government filed an opposition, Dkt. No. 85 ("Opposition," "Opp'n") and Hougen filed a reply, Dkt. No. 108 ("Reply"). For the reasons given below, the Court DENIES the motion.

I. Background

According to the Motion, on or about July 5, 2020, Hougen was involved in a physical and verbal altercation with S.B. at a public intersection in Santa Cruz, CA. See Motion at 1–8. This altercation gave rise to the hate crime charge now brought against Hougen. See id.

Santa Cruz Police Department ("SCPD") officers arrived at the scene and conducted interviews with witnesses. See id. In the Motion, Hougen highlights three incidents that occurred as police officers carried out these interviews. See id. Hougen also highlights a separate incident when an FBI agent was having a phone conversation with one of the witnesses of Hougen's alleged hate crime. See id. These incidents are described further below.

Hougen argues that the cited conduct of the police officers violated his Fifth Amendment Due Process rights to a fair trial. See id. at 1. Specifically, Hougen argues that the SCPD engaged in "leading, biased, and improperly suggestive questioning ... of witnesses, including the alleged victim, giving rise to a substantial likelihood of tainted, false, and misleading testimony." Id. at 1. Hougen argues that the Court should suppress certain "tainted" portions of the witness interviews, as well as any evidence obtained therefrom. See id. at 10–21.

Hougen argues in the alternative that the Court should use its inherent supervisory authority to dismiss the indictment because "the government's conduct ... caused substantial prejudice to the defendant and [was] flagrant in its disregard for the limits of appropriate professional conduct." See id. at 21–24. In support of this argument, Hougen cites the conduct of the police officers, and also a separate incident in which an FBI agent, who was investigating the hate crime allegation, acted in a way that was "willfully blind" to a victim-witness's misconduct, raising the possibility that evidence regarding the victim-witness's credibility was effectively suppressed. See id.

A. First Highlighted Incident – C.S.’s Interview

Hougen describes SCPD Officer Dewees's interview with C.S., who witnessed the altercation from a levee above the intersection. See id. at 2–3 (citing Exhibit A). During the interview, C.S. stated that he "didn't hear much," but that Hougen and S.B. "kept calling each other bitches." Id. at 2. At the end of the interview, Officer Dewees asked whether C.S. had heard "anything like racially motivated." Id. C.S. responded, "I just heard him say dumb nigger and fucking shit like shit like that. And he was like fuck you, dude. Like what'd I do to you? Like I didn't fucking do anything to you." Id. Officer Dewees then asked, "You think this guy approached that guy just because ... of his race? Or was it a factor?" Id. C.S. responded, "Oh yeah ... yeah, or if he, may have just been in a bad mood and that ... he just threw that out there." Id. at 2–3. Officer Dewees responded, "But this guy brought up a whole bunch of racial stuff? ... He say the N word? ... Hard R?" C.S. responded, "Uh, sounded like it. I couldn't hear very well." Id.

Hougen argues that Officer Dewees's questioning of C.S. was biased, misleading, and improperly suggestive, with the result that C.S.’s statement became more focused on racial descriptions than it would have been otherwise. Id. at 14–15.

B. Second Highlighted Incident – W.C.’s Interview

Hougen describes Officer Garcia's interview with W.C. Id. at 3. S.B. was present during at least part of this interview. See id. Officer Garcia asked W.C. what she saw. W.C. responded, "Uh, well, I was just pulling up to make a right hand turn and I saw the guy [Hougen]¹ trying to stab him [S.B.], um, and him just trying to walk through, and he [Hougen] was just coming after him with the knife." Id. Officer Garcia asked W.C. how many times Hougen attempted to stab S.B. See id. W.C. responded, "Oh, te-, I mean he was bobbing and weaving." Id. S.B. then interjected and said, "Probably like 7 and 8 [attempted stabbings]." Id. W.C. then said, "Yeah. Like 10. He was like ..." Id. Officer Garcia then said, "Oh, remember, separate statements." Id.

Hougen argues that Officer Garcia's questioning of W.C. in the presence of S.B. was improper because it allowed for conferral between W.C. and S.B. during the interview, and because it allowed S.B. to hear W.C.’s accounting of the altercation before S.B. had been fully interviewed. Id. at 15–16.

C. Third Highlighted Incident – S.B.’s Interview

Hougen relates several parts of S.B.’s interview. See id. at 3–8. At certain points during this interview, Officers Forbus, Dewees, and Garcia conferred with each other regarding their understanding of the incident. See id. Hougen's description of the interview highlights portions of the officers’ questioning of S.B. as well as portions of the officers’ conferrals with each other. See id. Two of the three cited parts of the interview involve the question of whether S.B. had a knife on his person during the altercation with Hougen, and, if so, whether he drew out the knife intentionally. See id.

Hougen cites an exchange between Officers Forbus and Dewees, regarding S.B. See id. at 4–5. Officer Forbus asked, "Is there a knife on him [S.B.]?" Id. at 4. Officer Dewees responded, "He didn't see any knife. I haven't searched him or anything." Id. Later during this exchange, Officer Forbus said, "As long as he doesn't have a knife, we can corroborate the fact it's not self-defense [i.e., we can corroborate the fact that Hougen's alleged attack against S.B. was not made in self-defense]." Id. Shortly after this exchange, Officer Forbus also stated to at least one other officer, "Okay. So as long as we can corroborate that he [S.B.] was the victim, he was the suspect and that guy was the defendant." Id. at 5. Officer Forbus went on to state, "So we have him, RP, and a witness saying that S[ ]’s the victim.... So let's make sure we just clean that part up.... So that way there's no questions at all that, uh...." Id. at 5–6.

Hougen cites an exchange during S.B.’s interview when Officer Forbus asked S.B., "[D]id you ever reach for that knife [the knife that was on S.B.’s person] at any point?" Id. at 6. S.B. responded that he did not reach for his knife during the altercation because his knife had fallen to the ground during the altercation. See id. After S.B. said "It fell on the ground while, during the whole thing that happened," id. , Officer Forbus responded, "Perfect." Id. Officer Forbus then asked the following: "So what I'm trying to do is, is understand, and I have a good idea of what happened, is you know I, it sounds like you were attacked. What I do is gotta make sure that during this process that a if this happened so rapidly that you weren't able to grab your knife in defense, it fell out. Um, I don't want him to claim that you pulled a knife on him if you didn't. And I don't have anyone saying that, but I just need you to kinda walk us through it." Id. at 6.

Hougen cites another exchange that occurred later during S.B.’s interview. Officer Forbus asked, "So the only time it [the knife] was in your hands is when you picked it up and put it back [in its holster][?]" Id. at 7. S.B. responded, "Yes." Id. S.B. also said, "And I admit the knife was in my hand like this for a second...." Id. Officer Forbus said, "Okay. But you're never charging him, you're never yelling anything, you just put it back in." Id. S.B. responded, "I was yell-, I was yelling at him, but I didn't charge at him with the knife, no." Id. Officer Forbus responded, "Okay. Gotcha. So he never, in his experience, he, he never would assume that you were trying to stab him ‘cause you put it away?" Id. S.B. responded, "Not that I ... think no." Id. S.B. later said that he put his knife away because he wanted to avoid stabbing someone. See id. Officer Forbus responded, "[I]t's a good decision.... Obviously worked out [for] the best.... He goes to jail. You know, we're gonna get you some resources and stuff." Id.

In sum, Hougen argues that "the police questioning with regard to S.B. was intended to ensure that S.B. would endorse the preferred narrative in which (1) race was the cause of Mr. Hougen's conduct; (2) S.B. did not draw his weapon, but merely picked it up off the ground when it fell out of the holster[;] and (3) Mr. Hougen was not acting in self-defense." See id. at 16–19.

D. FBI Agent Green's Telephone Conversation with S.B.

Hougen also cites a separate incident that occurred on September 1, 2020. See id. at 8. S.B. had previously expressed to FBI Agent Green that he had doubts about his ability to act as a witness in the trial against Hougen due to S.B.’s involvement with criminal activity. See id. In the phone call, S.B. "began to tell [Agent Green] about...