United States Court of Appeals For the Eighth Circuit ___________________________ No. 21-3661 No. 22-1065 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Emily Claire Hari lllllllllllllllllllllDefendant - Appellant ____________ Appeals from United States District Court for the District of Minnesota ____________ Submitted: December 14, 2022 Filed: May 10, 2023 ____________ Before LOKEN, MELLOY, and KOBES, Circuit Judges. ____________ 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). -2- 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 …
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