In United States v. Hougen, --- F.4th ---, No. 21-10369 (9th Cir. 2023), a divided Court affirmed Ole Hougen’s conviction for attempting to commit racially motivated violence, in violation of 18 U.S.C. § 249(a)(1).
First, reviewing for plain error, the Court rejected Hougen's claim that the district court violated his right to a public trial based on restrictions to access due to the COVID-19 pandemic: "In sum, the balance of costs in this case counsels against reversal. In the absence of evidence of any harm to the fairness of Hougen’s trial flowing from the alleged public trial error and in light of the costs that would be imposed by reversal, we conclude that the drastic relief that Hougen seeks is unwarranted. For these and all of the foregoing reasons, we decline to reverse on this ground."
Second, the majority rejected Hougen's argument that § 249(a)(1), as applied to his case, exceeds Congress’ authority under the Thirteenth Amendment. The majority held "that § 249(a)(1) is a constitutional exercise of Congress’ enforcement authority under Section Two of the Thirteenth Amendment." In reaching this conclusion the majority determined that Congress rationally determined that violence (or attempted violence) perpetrated against victims on account of the victims’ race is a badge or incident of slavery is well established.
