United States v. Emily Hari

United States Court of Appeals
For the Eighth Circuit
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No. 21-3661
No. 22-1065
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Emily Claire Hari
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the District of Minnesota
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Submitted: December 14, 2022
Filed: May 10, 2023
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Before LOKEN, MELLOY, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
In August 2017, Emily Hari loaded a pickup truck with a 20 pound pipe bomb,
two assault rifles, and a sledgehammer and drove with two confederates from Illinois
to the Dar al-Farooq Islamic Center in Bloomington, Minnesota. The trio smashed
a window of the Imam’s office before the parishioners’ dawn prayer and threw
gasoline, diesel fuel, and the pipe bomb inside. The bomb detonated. No one was
injured; the building suffered fire and smoke damage. Hari and the others fled.
After an extensive investigation, the FBI arrested Hari, Joe Morris, and
Michael McWhorter, members of a white supremacist paramilitary organization
founded by Hari known as the “White Rabbits.”1 The jury convicted Hari of five
federal offenses. Four are at issue on appeal: Count 1, intentionally damaging
religious property because of its religious character in violation of 18 U.S.C
§ 247(a)(1); Count 2, obstructing by force the free exercise of religious beliefs in
violation of 18 U.S.C. § 247(a)(2); Count 3, conspiracy to commit Counts 1 & 2 by
means of fire or explosive in violation of 18 U.S.C. § 844(h, m); and Count 4,
carrying or using a destructive device during or in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1).
Prior to trial, Hari moved to dismiss Counts 1-4, arguing that § 247 is facially
invalid because it exceeds congressional authority conferred by the Commerce
Clause. Hari also argued Count 4 must be dismissed because the predicate
§ 924(c)(1) felonies, 18 U.S.C. §§ 247(a)(1) and (a)(2),2 include use of force against
1
Prior to Hari’s trial, McWhorter and Morris pleaded guilty to separate charges
brought in the Central District of Illinois in plea agreements that resolved both cases.
They testified for the government at Hari’s trial.
2
Section 247(a) provides:
(a) Whoever, in any of the circumstances referred to in subsection (b) of this
section --
(1) intentionally defaces, damages, or destroys any religious real property,
because of the religious character of that property, or attempts to do so; or
(2) intentionally obstructs, by force or threat of force, including by threat of
force against religious real property, any person in the enjoyment of that
person's free exercise of religious beliefs, or attempts to do so;
shall be punished as provided in subsection (d).
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one’s own religious property and are therefore broader than the definition of a federal
crime of violence in 18 U.S.C. § 924(c)(3). In a separate motion, Hari argued the
prosecution violated the Sixth Amendment when it received defense-strategy
materials protected by the attorney-client privilege before the trial.
In separate orders, the district court3 denied the two motions to dismiss,
concluding (i) Congress permissibly enacted § 247 under its Commerce Clause
powers as defined in United States v. Lopez, 514 U.S. 549, 558-59 (1995); (ii)
§§ 247(a)(1) and (a)(2) are not impermissibly broad under § 924(c)(3); and (iii) the
government neither knowingly intruded into privileged materials nor was there a risk
the prosecution would prejudicially use the materials at trial. The jury then convicted
Hari of all counts, and the court imposed a sentence of 636 months’ imprisonment.
Hari appeals, raising these same issues and arguing, with regard to the second, that
the Supreme Court’s recent decision in United States v. Taylor, 142 S. Ct. 2015
(2022), overruled the district court’s analysis of why §§ 247(a)(1) and (a)(2) are not
overbroad predicate felonies. We affirm.
I. The Commerce Clause Issue
The Constitution grants Congress the power to “regulate Commerce . . . among
the several States.” U.S. Const. art. I, § 8, cl. 3. In United States v. Lopez, the
Supreme Court clarified “three broad categories of activity that Congress may
regulate under its commerce power. First, Congress may regulate the use of the
channels of interstate commerce. . . . Second, Congress is empowered to regulate and
protect the instrumentalities of interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from intrastate activities. . . .
3
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota, adopting the Report and Recommendation of the Honorable
Hildy Bowbeer, United States Magistrate Judge for the District of Minnesota.
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Finally, Congress’ commerce authority includes the power to regulate those activities
having a substantial relation to interstate commerce.” 514 U.S. 549, 558-59 (1995).
In Lopez, the Court held that the federal statute prohibiting knowing possession
of a firearm in a school zone, 18 U.S.C. § 922(q)(1)(A), exceeded Congress’s power
to regulate interstate commerce. The majority opinion “quickly disposed of” the first
two categories, concluding the statute did not regulate the channels of interstate
commerce, prohibit interstate transportation of a commodity, or protect an
instrumentality or thing in interstate commerce. Id. at 559. After lengthy analysis,
the majority also concluded that § 922(q) could not be upheld under the third category
-- regulation of an activity that substantially affects interstate commerce. The Court
noted that § 922(q) “contains no jurisdictional element which would ensure, through
case-by-case inquiry that the firearm possession in question affects interstate
commerce.” Id. at 561. Three Justices joined in separate opinions.
In response to Lopez, Congress amended 18 U.S.C. § 247 to add a
jurisdictional element in § 247(b): “(b) The circumstances referred to in subsection
(a) are that the offense is in or affects interstate or foreign commerce.” It is well
established that the statutory phrase, “in or affects interstate or foreign commerce,”
is a “term of art that indicates a congressional intent to invoke the full extent of its
commerce powers.” United States v. Mosby, 60 F.3d 454, 456 (8th Cir. 1995). Hari
argues that § 247(a) was “ultra vires” and “amounts to no law at all”4 because it
exceeds Congress’s Commerce Clause powers. We join other circuits that have
considered and rejected similar contentions. See United States v. Roof, 10 F.4th 314,
382-84 (4th Cir. 2021), cert. denied, 143 S. Ct. 303 (2022); United States v. Ballinger,
4
These phrases, drawn from dicta in cases having no relevance to the issue on
appeal, are an obvious attempt to avoid deferential rational basis review of Hari’s
purported facial attack on the statute. See Gonzales v. Raich, 545 U.S. 1, 22 (2005).
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395 F.3d 1218 (11th Cir. 2005) (en banc); United States v. Grassie, 237 F.3d 1199,
1211 (10th Cir. 2001) (rejecting as-applied challenge).
We begin by noting the apparent absurdity of the notion that Congress lacked
Commerce Clause authority to make Hari’s criminal activity a federal offense. The
conspirators traveled from Illinois to Indiana to purchase explosives, then drove on
interstate highways to Minnesota for the purpose of bombing a prominent mosque
that is the religious, cultural, and economic center in the lives of its parishioners,
many of whom are immigrants from Somalia who were invited by the federal
government to settle in the United States when they fled their war-torn native country.
The international pursuit of religious freedom has economic roots.
For this reason, we agree with the government and our sister circuits that
§ 247(a) is a legitimate exercise of Congress’s power to punish offenders who “rely
on the channels and instrumentalities of commerce in committing criminal acts” -- the
first two categories of Commerce Clause power that were not at issue in Lopez.
Ballinger, 395 F.3d at 1229; see Roof, 10 F.4th at 386. The House Judiciary
Committee made its intent in this regard explicit:
[T]he Committee intends that where in committing, planning, or preparing to
commit the offense, the defendant either travels in interstate or foreign
commerce, or uses the mail or any facility or instrumentality of interstate or
foreign commerce, the statute will be satisfied.
H.R. Rep. No. 104-621, at 7 (1996). “[N]o additional showing of an interstate nexus
is necessary when a statute regulates an instrumentality of interstate commerce.”
United States v. Corum, 362 F.3d 489, 494 (8th Cir. 2004). Hari does not address this
issue. The Reply Brief simply asserts that “a facial challenge to § 247 under the
‘substantial effects’ category is permissible, with the corresponding four-part Lopez
[test] fully applicable.” The cited authority, United States v. Crenshaw, 359 F.3d 977,
985-86 (8th Cir. 2004), says no such thing.
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Turning to this third category that is the sole focus of Hari’s briefs, the
Supreme Court majority in Lopez identified four considerations in determining that
§ 922(q)(1)(A) did not substantially affect interstate commerce: it was a criminal
statute having nothing to do with commerce or an intrastate activity substantially
affecting commerce; it contained no express jurisdictional element limiting its reach
to activity having a connection with or effect on commerce; Congress made no
findings in the statute or legislative history regarding effects on interstate commerce;
and the link between gun possession and a substantial effect on interstate commerce
was attenuated. See United States v. Morrison, 529 U.S. 598, 610-13 (2000); United
States v. Anderson, 771 F.3d 1064, 1067–68 (8th Cir. 2014).
Hari argues that § 247(a) regulates “acts of property damage and obstruction,
targeted against and motivated by religion,” like the “paradigmatic common-law state
crime” of arson at issue in Jones v. United States, 529 U.S. 848 (2000).5 Thus, Hari
posits, “the regulated acts are traditional crimes of local concern, and unrelated to
economic activity or interstate commerce. . . . This first and ‘central’ factor strongly
cuts against the facial validity of § 247.” We disagree with the underlying premise.
As we noted in United States v. Rea, Congress intended the arson statute at issue in
Jones “to encompass all commercial property, including, among other things, schools,
police stations, and places of worship.” 300 F.3d 952, 960 (8th Cir. 2002), citing
Russell v. United States, 471 U.S. 858, 860-61 (1985). Church buildings are used for
a broad range of educational, recreational, and financial activities. See Grassie, 237
F.3d at 1204. The statute’s legislative history references numerous ways in which
houses of worship broadly contribute to commercial activities. See, e.g., 142 Cong.
Rec. S7908–04 at *S7909 (1996) (joint statement of floor managers).
5
Unlike § 247(b), the arson statute at issue in Jones, 18 U.S.C. § 844(i), applies
only to arson of property “used in” commerce or an activity affecting commerce. Id.
at 850.
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Even more important, while economic activity is certainly a “central” factor to
the Commerce Clause inquiry, the presence of a jurisdictional element in the statute
is perhaps the most important factor because it “allows application of the statute only
where the defendant’s conduct falls within the regulatory scope of the Commerce
Clause.” Roof, 10 F.4th at 383. Here, the statute specifically requires that the offense
“affects interstate or foreign commerce.” This “ensures, through a case-by-case
inquiry, that each defendant’s [offense] affected interstate commerce.” United States
v. Bausch, 140 F.3d 739, 741 (8th Cir. 1998). The jurisdictional element was added
to “mirror the Supreme Court’s articulation in Lopez of the nature and extent of the
commerce power.” Ballinger, 395 F.3d at 1234-35 (detailing legislative history).
In response, Hari properly notes that in United States v. Crenshaw, we declined
to “read [Lopez and Morrison] to say that the presence of a jurisdictional element per
se demonstrates that a statute meets the substantial effects test.” 359 F.3d 977, 985
(8th Cir. 2004). But in Crenshaw, we went on to reject the Commerce Clause
challenge to defendants’ convictions, so this passage was precautionary dicta,
consistent with cautions in Lopez, 514 U.S. at 557 n.2, and in Morrison, 529 U.S. at
613. The Fourth Circuit has not found, and we have not found, “any case in which
a federal criminal statute including an interstate commerce jurisdictional element has
been held to exceed Congress’s authority under the Commerce Clause.” Roof, 10
F.4th at 383 n.43 (quotation omitted). The prudent cautions in Lopez, Morrison, and
Crenshaw made no attempt to define when an express jurisdictional element should
be overruled or disregarded. Hari makes no attempt to fill the void. Given that
rational basis review applies to this issue, and the unanimous conclusions of our sister
circuits, we conclude the district court properly rejected Hari’s Commerce Clause
challenge to § 247.
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II. Crime of Violence Issues
Hari was convicted in Count 4 of knowingly carrying or using a destructive
device “during and in relation to any crime of violence.” 18 U.S.C. § 924(c)(1). As
relevant here, crime of violence is defined as “an offense that is a felony and . . . has
as an element the use, attempted use, or threatened use of physical force against the
person or property of another.” 18 U.S.C. § 924(c)(3)(A) (the “force clause”). Hari
argues that the two charged predicates, 18 U.S.C. §§ 247(a)(1) and (a)(2), are not
predicate “crimes of violence” because each is categorically broader than 18 U.S.C.
§ 924(c)(3). The government notes that Hari was charged with committing two
offenses that qualify as crimes of violence, Count 1 and Count 2. The jury convicted
Hari of both offenses; therefore, we need only conclude that one of these offenses is
a crime of violence under § 924(c)(3) to uphold the Count 4 conviction for using a
destructive device during and in relation to any crime of violence in violation of
§ 924(c)(1). We agree. We will begin with Hari’s contention that the violation of
§ 247(a)(2) (Count 2) is not a § 924(c)(3) crime of violence.
The parties agree on essential aspects of this inquiry. “To determine whether
an underlying offense has as an element the ‘use . . . of physical force’ against the
person of another, we apply a categorical approach that compares the elements of the
offense of conviction with the requirements of the ‘force’ clause. Where the statute
in question defines multiple crimes, we apply the modified categorical approach and
consider only the offense of which the defendant was convicted.” McCoy v. United
States, 960 F.3d 487, 489 (8th Cir. 2020) (citations omitted). Hari concedes that an
element of § 247(a)(2) is the use or threatened use of physical force against a person
but argues, relying in large part on the Supreme Court’s recent decision in United
States v. Taylor, that the statute is overbroad because it includes the use of physical
force to obstruct free exercise of the religious beliefs of any person by using a pipe
bomb to damage religious real property, whereas § 924(c)(3) is limited to the use of
physical force against “the person or property of another.”
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In Taylor, the Court held that a conviction for attempted Hobbs Act robbery did
not constitute a crime of violence because it did not necessarily involve the use of
force or threatened force as § 924(c)(3)(A) requires. 142 S. Ct. 2015, 2020-21
(2022). As applied to this case, Hari argues, Taylor held that “[t]he only relevant
question is whether the federal felony at issue always requires the government to
prove -- beyond a reasonable doubt, as an element of its case -- the use, attempted
use, or threatened use of [physical force against the person or property of another].”
Id. at 2020. Thus, Taylor casts substantial doubt on use of the “realistic probability”
test to determine whether a statute applies to conduct that falls outside the force
clause, a test we have repeatedly applied in interpreting various state and federal
offenses,6 on which the district court understandably relied in its pre-Taylor ruling.
Section 247(a)(1) (1) is violated by whoever “intentionally defaces, damages,
or destroys any religious real property, because of the religious character of that
property, or attempts to do so.” Hari’s argument as applied to Count 1 is
straightforward -- focusing on the literal breadth of the term “any religious real
property,” Hari argues the statute is unambiguously overbroad because it includes
damaging one’s own religious real property, here by use of a pipe bomb, whereas
§ 924(c)(3) is limited to the use of physical force against the property of another.
Section 247(a)(2) is violated by whoever “intentionally obstructs, by force or
threat of force, including by threat of force against religious real property, any person
in the enjoyment of that person's free exercise of religious beliefs, or attempts to do
so.” Hari extends the Count 1 argument to Count 2, contending that “in the form
charged here,” § 247(a)(2) is also overbroad because the prohibited use of force
6
See, e.g. United States v. Swopes, 886 F.3d 668, 671 (8th Cir. 2018) (en banc);
Mowlana v. Lynch, 803 F.3d 923, 925 (8th Cir. 2015). The impact of Taylor on these
otherwise controlling precedents is uncertain and need not be considered in this case.
See United States v. Bragg, 44 F.4th 1067, 1076 (8th Cir. 2022), cert. denied, No. 22-
6130 (S. Ct. Mar. 27, 2023).
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includes force “against religious real property” (the mosque), which again includes
one’s own religious property. There is a fatal flaw in this argument. In § 247(a)(2),
use of force against religious real property is only a means of committing the offense.
The element -- which is the focus of the Taylor inquiry -- is intentionally obstructing
by force or threat of force the enjoyment of a person's free exercise of religious
beliefs. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). Thus,
considering this offense under the modified categorical approach, the elements fall
within the force clause as defined in § 924(c)(3).
Having concluded that Hari’s § 247(a)(2) conviction in Count 2 was a crime
of violence conviction under § 924(c)(3), we need not consider the more complex
question whether the Supreme Court’s supervening decision in Taylor overruled the
district court’s decision that the § 247(a)(1) conviction in Count 1 was also a crime
of violence. See note 6, supra. We affirm Hari’s Count 4 conviction.
III. The Sixth Amendment Issue
In December 2019, the prosecution informed defense counsel that it had
accidently received materials protected under the attorney client privilege. In a
January 9, 2020 letter, an Assistant U.S. Attorney explained that, while reviewing
discovery materials for disclosure, another AUSA saw an FBI document summarizing
six recorded jail calls between Hari and defense counsel in February 2019, while Hari
was detained in an Illinois jail. The letter attached the summaries, which reflected
four calls in which Hari left a voicemail, and two calls in which Hari and counsel
discussed filing a motion to prevent Hari from being moved to Minnesota. The letter
stated the AUSA read only the header of the FBI summary.
The letter further stated that a government attorney and an FBI agent not part
of Hari’s prosecution team promptly conducted a privilege review of all reports
summarizing Hari’s jail calls. The review team found FBI “Serials” that included
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police officer summaries of Hari’s calls from an Illinois jail. The summaries noted
a call to an attorney but not the substance of the calls. Disks containing copies of
these jail calls and summaries were produced to the defense in February 2019. The
review team confirmed that no member of Hari’s prosecution team was exposed to
attorney-client information. The team removed the FBI document received in
December from the U.S. Attorney Office’s database and “walled off” the FBI agents
involved in the document from the prosecution team.
In February 2020, Hari moved to dismiss the indictment, claiming interference
with privileged communications that violated the Sixth Amendment. Supplemental
briefs to the district court disclosed that staff at the Anoka County, Minnesota jail,
where Hari was detained pending trial, conducted “shakedowns” of the cell because
Hari was considered an escape risk. In July 2019, jail staff seized two pages of
handwritten notes. Hari claimed the notes were made while reviewing discovery
following a meeting with counsel and reflected trial strategy review with counsel.
FBI Special Agent Brenda Kane received the document from jail staff on September
6, 2019 and forwarded it that night to the prosecution team. At 6:45 the next
morning, AUSA John Docherty told all recipients not to look at the document
because “[i]t is possible it is notes Hari took for an upcoming meeting with
[counsel].” The district court found that Agent Kane did not look at the document
and the three AUSAs did not open or view the document.
On October 9, 2020, the district court denied the motion to dismiss the
indictment because Hari “failed to demonstrate a Sixth Amendment violation.” There
was no showing the government knowingly intruded on Hari’s attorney-client
relationship. The government discovered it inadvertently received readings of jail
calls by Hari to counsel and immediately confirmed that prosecutors were not
exposed to the information. The notes found in Hari’s cell in July 2019 were
forwarded to Agent Kane in September, and the prosecution team was promptly
directed not to look at them. “Based on the record before the Court, there is no risk
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that the prosecution will use any substance of any of the attorney-client
communications at trial.” Hari’s ten-day trial began November 9, 2020.
Hari argues the district court erred in denying Sixth Amendment relief because
“governmental intrusions upon attorney-client privileged materials, pertaining to
defense and trial strategy, violate the Sixth Amendment right to effective assistance
of counsel.” To establish this violation, “a criminal defendant must show two things:
first, that the government knowingly intruded into the attorney-client relationship;
and second, that the intrusion demonstrably prejudiced the defendant, or created a
substantial threat of prejudice.” United States v. Singer, 785 F.2d 228, 234 (8th Cir.
1986) (citations omitted). This contention is without merit for several reasons.
First, the district court found Hari made no showing the government knowingly
intruded on the attorney-client relationship. Hari cites the general rule, “we review
claims of constitutional error de novo.” United States v. Sawatzky, 994 F.3d 919, 923
(8th Cir. 2021). True enough, but the relevant Sixth Amendment issue of law we
review de novo was established in Singer -- Hari must prove an act of “deliberate
intrusion” to establish the claim. United States v. Tyerman, 701 F.3d 552, 559 (8th
Cir. 2012). Whether the government knowingly intruded certainly looks like a
finding of fact we would review for clear error, though we have not found a case
addressing the issue. In addressing the merits of this issue, Hari simply argues that
jail staff knowing intruded and in Sawatzky, 994 F.3d at 923, we presumed the
actions of jailers who record jail calls and seize papers are imputed to the government
in deciding this issue. First, the opinion in Sawatzy said no such thing -- we simply
presumed without deciding the government knowingly intruded by seizing documents
from defendant’s cell and decided no prejudice was shown. Moreover, Hari failed to
prove knowing intrusion into the attorney-client relationship by jail staff or other
government officials. As the district court noted, nothing on the face of the notes
found during the security-focused July 2019 shakedown of Hari’s cell indicated
potential privilege.
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Second, in an order filed two months before trial, the district court found no
risk the prosecution will use the substance of attorney-client communications at trial.
Hari makes no showing the materials in question were even referred to at trial, much
less used as substantive evidence in the government’s case. “[W]hen conversations
with counsel have been overheard, the constitutionality of the conviction depends on
whether the overheard conversations produced, directly or indirectly, any of the
evidence offered at trial.” Weatherford v. Bursey, 429 U.S. 545, 552 (1977). Here,
Hari failed to “demonstrate that the information allegedly acquired . . . was used by
the state in some way.” Clark v. Wood, 823 F.2d 1241, 1249 (8th Cir. 1987).
Third, Hari must prove the second part of the Sixth Amendment inquiry,
prejudice or a substantial threat of prejudice. Sawatzky, 994 F.3d at 923. We review
the district court’s finding of no prejudice for clear error. Singer, 785 F.2d at 237.
As in Sawatzky, assuming, without deciding, that the government knowingly intruded
into the attorney-client relationship when officers seized privileged documents from
Hari’s cell, the district court did not clearly err in finding no prejudice. Hari argues
the notes seized in July 2019 related to defense strategy for dealing with cooperators,
and “the strategy information . . . may have made its way to McWhorter and Morris
in any number of ways.” Based on this speculation, which has no support in the
record, Hari urges us to vacate and dismiss the prosecution, or remand for a new trial.
“[A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the
indictment is plainly inappropriate.” United States v. Morrison, 449 U.S. 361, 365
(1981). And where, as in this case, defendant “has demonstrated no prejudice of any
kind, either transitory or permanent, to the ability of her counsel to provide adequate
representation in the[] criminal proceedings,” any Sixth Amendment violation
“provides no justification for interfering with the criminal proceedings.” Id. at 366.
The judgment of the district court is affirmed.
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