                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3294
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                              Craig Kendall Giboney

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                              Submitted: April 5, 2017
                                Filed: July 21, 2017
                                  ____________

Before SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.
                             ____________

SHEPHERD, Circuit Judge.

       Craig Giboney pled guilty to transporting, receiving, and possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(1), (a)(2), and (a)(5)(B). The
guilty plea was entered under Federal Rule of Criminal Procedure 11(a)(2), reserving
Giboney’s right to appeal the district court’s1 order dismissing his previously filed (1)
motion to suppress his pre- and post-arrest statements to law enforcement, and (2) pro
se motion to dismiss the indictment. Giboney now appeals that order and, for the
reasons discussed below, we affirm.

                                           I.

                           FBI Investigation of GigaTribe

       In January 2015, FBI Special Agent Kevin Matthews was working undercover
to investigate the sexual exploitation of children on the website GigaTribe.
GigaTribe is a peer-to-peer online forum for sharing videos, images, and music files.
A GigaTribe user can create a private network which the user controls by inviting
“friends” to join. Once a friend accepts an invitation to join the user’s network, both
users can browse and download files from each other’s shared folders. Additionally,
any GigaTribe user can create a “tribe” of users to share files with or to find other
users that have similar interests.

      On the morning of January 8, 2015, Agent Matthews was logged into
GigaTribe from an undercover account with the username “Pedocchio.” While
posing as Pedocchio, Agent Matthews observed a tribe called “Boytoys,” which
described itself as a tribe “[a]ll about the boys, young vids, pics, BIBCAMs.”2
Among the 551 users in the Boytoys tribe was “Jizzlobber11.” Agent Matthews,


      1
       The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri, adopting the report and recommendation of the Honorable
Shirley P. Mensah, United States Magistrate Judge for the Eastern District of
Missouri.
      2
     “BIB” stands for “boys in bedroom” and “BIBCAM” typically indicates
webcam videos of young boys.

                                          -2-
acting as Pedocchio, invited Jizzlobber11 and other members of Boytoys to join his
private network. Jizzlobber11 accepted, thereby granting Pedocchio access to
Jizzlobber11’s shared files. Agent Matthews downloaded 73 files directly from
Jizzlobber11. These files contained images and videos depicting minor children
engaged in lascivious displays of their genitals or involved in sexual acts.

       Agent Matthews was able to determine the IP address utilized by Jizzlobber11
and, after further investigation, traced the IP address to a residence in St. Charles,
Missouri. Police obtained a search warrant for that residence and, on February 26,
2015, six officers arrived at the residence to execute the warrant. Several individuals
occupied the house, including Giboney, who was found asleep on a couch in the
basement. The officers woke Giboney and escorted him upstairs to join the other
occupants in the garage. The officers then seized media equipment from the
basement including a laptop (which was found on a table in front of the couch where
Giboney was sleeping), two thumb drives, two cell phones, and one external hard
drive.

                          Giboney’s Pre-Arrest Statements

       While the other officers executed the search warrant, Detective Jacob Walk
with the Missouri Internet Crimes Against Children Task Force conducted an audio-
recorded interview of Giboney in the living room of the residence. Detective Walk
advised Giboney repeatedly during the interview that he was not under arrest and was
free to leave. Giboney was not placed in handcuffs or otherwise physically
restrained, and no weapon was drawn against him. Detective Walk was the only
officer questioning Giboney during the interview, although another officer, Sergeant
Chris Bosley, interrupted at one point to ask Giboney for the username and password
of the laptop in the basement. Giboney provided the information, allowing Sergeant
Bosley to log into the laptop and view its content.



                                         -3-
       While Detective Walk interviewed Giboney, officers learned that the laptop’s
IP address matched the IP address captured during Agent Matthews’s undercover
activity on GigaTribe. Sergeant Bosley informed Detective Walk of the match, which
suggested to Detective Walk that the basement laptop was the computer that had been
sharing videos and images of child pornography on GigaTribe. Detective Walk
decided to Mirandize3 Giboney at that time but, before he could do so, Giboney asked
to use the restroom. After confirming with other officers that the restroom had been
cleared, Detective Walk informed Giboney that (1) Detective Walk had to accompany
Giboney to the restroom because a search warrant was being executed, (2) Giboney
could not walk freely around the house, and (3) Detective Walk was not finished
questioning Giboney but it was Giboney’s decision whether to continue the interview.

       After using the restroom, Giboney stated that he wanted to go outside to smoke
a cigarette. Detective Walk accompanied Giboney to the garage, where he confirmed
that Giboney was still willing to talk to him. Detective Walk then advised Giboney
that he had developed new information and wanted to read Giboney his rights before
asking more questions. Giboney stated that if he was going to be arrested, he would
“take off” and Detective Walk would “have to come get [him].” Detective Walk
replied, “I’m not saying I’m going to arrest you; I was just wanting to know . . . if you
wanted to talk.” Giboney then began walking down the street. Detective Walk and
two other officers followed Giboney and took him into custody after informing
Giboney that he was under arrest.

                          Giboney’s Post-Arrest Statements

     At the police station, Detective Walk conducted a video-recorded interview of
Giboney. No lawyers were present. Detective Walk began by reading Giboney his
Miranda rights from a form titled “Your Constitutional Rights.” Giboney initialed


      3
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                          -4-
each right after Detective Walk read the right to him out loud. Giboney also verbally
acknowledged that he understood each right as it was read to him. When Detective
Walk asked whether Giboney understood his right to talk to a lawyer before the
interview and to have one present during the interview, Giboney jokingly asked “[s]o
does it stop now if I want to get an attorney?” Detective Walk responded, “[I]f at any
time you want to stop, man, just tell me and we’ll stop.”

       Detective Walk then asked Giboney to read the section of the form titled
“Waiver” out loud. Giboney complied but stated that he would not initial the waiver
because the waiver stated “I do not want a lawyer at this time.” Seeking clarification,
Detective Walk asked, “[A]re you saying that you don’t want to talk to me without
an attorney?” Giboney responded, “No, that’s not what I’m saying. I’m saying I do
want a lawyer and that’s saying I do not want a lawyer. . . . And that’s why I do not
want to initial that because I do want an attorney if I’m going to be charged with
this.” Seeking further clarification, Detective Walk asked, “So you want an attorney
with you during questioning here. Is that what you’re saying? . . . So are you saying
that you want a lawyer at this time?” (emphasis added). Giboney then replied, “Oh,
at this time. Alright. . . . Sorry.” (emphasis added). Giboney then initialed the
waiver section of the form, and Detective Walk asked, “[W]ith this waiver in mind,
do you want to talk to me?” Giboney replied, “I’ll talk to you.” The interview
proceeded and, though he denied any wrongdoing at first, Giboney ultimately
admitted that he had been viewing child pornography for fifteen years.

                             Guilty Plea and Sentencing

       In March 2015, a federal grand jury returned a two-count indictment charging
Giboney with receipt and possession of child pornography, 18 U.S.C. § 2252A(a)(2),
(a)(5)(B). A superseding indictment was later returned adding a charge of
transportation of child pornography, 18 U.S.C. § 2252A(a)(1). Giboney filed a pro
se motion to dismiss the indictment for lack of jurisdiction. Through counsel,

                                         -5-
Giboney also filed a motion to suppress his pre- and post-arrest statements to
Detective Walk. The district court denied both motions.

       On April 22, 2016—three days before his scheduled trial—Giboney pled guilty
to the three charges in the superseding indictment, reserving his right to this appeal.
See Fed. R. Crim. P. 11(a)(2). The district court accepted the plea and sentenced
Giboney to thirteen years in prison followed by a lifetime of supervised release.

                                          II.

       Giboney appeals the district court’s denial of his pro se motion to dismiss the
indictment for lack of jurisdiction. According to Giboney, the federal child
pornography statutes were unconstitutionally applied in this case because the child
pornography at issue was transmitted over the internet and thus did not physically
cross state lines. Without citing legal authority, Giboney argues that “Congress does
not have the power under the Commerce Clause to punish those who possess child
pornography when the pornography has not crossed state lines.”

       Giboney’s contention has no merit. The Commerce Clause confers regulatory
authority over the channels and instrumentalities of interstate commerce. E.g., United
States v. Morrison, 529 U.S. 598, 609 (2000) (citing United States v. Lopez, 514 U.S.
549, 558 (1995)). “The [i]nternet is an instrumentality and channel of interstate
commerce.” United States v. Havlik, 710 F.3d 818, 824 (8th Cir. 2013). Giboney
does not dispute that he used the internet to receive, possess, and transport child
pornography. In doing so Giboney participated in “a system that is inexorably
intertwined with interstate commerce and thus properly within the realm of
Congress’s Commerce Clause power.” United States v. Trotter, 478 F.3d 918, 921
(8th Cir. 2007) (per curiam) (internal quotation marks omitted). Accordingly,
Giboney’s Commerce Clause argument fails. The district court’s denial of the pro se
motion to dismiss the indictment is affirmed.

                                         -6-
                                         III.

      Giboney also appeals the district court’s denial of his motion to suppress
statements he made to law enforcement before and after his arrest. We review the
factual findings of the district court for clear error and its legal findings de novo.
United States v. Scott, 732 F.3d 910, 916 (8th Cir. 2013). “We will affirm the denial
of a suppression motion unless we find that the decision is unsupported by the
evidence, based on an erroneous view of the law, or the [c]ourt is left with a firm
conviction that a mistake has been made.” United States v. Donnelly, 475 F.3d 946,
951 (8th Cir. 2007) (internal quotation marks omitted).

                             A. Pre-Arrest Statements

       Giboney first argues that his pre-arrest statements should be suppressed
because Detective Walk extracted those statements without advising Giboney of his
Miranda rights. The Fifth Amendment requires that Miranda warnings be given when
a person is interrogated by law enforcement after being taken into custody. United
States v. Huether, 673 F.3d 789, 794 (8th Cir. 2012). As there is no uncertainty that
Giboney was interrogated by Detective Walk at Giboney’s residence, the only issue
is whether the interrogation was custodial.

       “The ultimate question in determining whether a person is in ‘custody’ for
purposes of Miranda is ‘whether there is a formal arrest or restraint on freedom of
movement of the degree associated with formal arrest.’” United States v. Czichray,
378 F.3d 822, 826 (8th Cir. 2004) (quoting California v. Beheler, 463 U.S. 1121,
1125 (1983) (per curiam)). This determination is not based on the interrogator’s
perspective; “the only relevant inquiry is how a reasonable man in the suspect’s
position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420,
442 (1984).



                                         -7-
        Six factors inform our analysis, although the factors are not exhaustive and
need not be applied “ritualistically” in every case. Czichray, 378 F.3d at 827. The
first three factors, which if present tend to show that Giboney was not in custody, are:

      (1) whether the suspect was informed at the time of questioning that the
      questioning was voluntary, that the suspect was free to leave or request
      the officers to do so, or that the suspect was not considered under arrest;
      (2) whether the suspect possessed unrestrained freedom of movement
      during questioning; [and] (3) whether the suspect initiated contact with
      authorities or voluntarily acquiesced to official requests to respond to
      questions.

United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990). The remaining factors,
if present, favor a finding that Giboney was in custody during the interrogation. Id.
Those factors are: “(4) whether strong arm tactics or deceptive stratagems were
employed during questioning; (5) whether the atmosphere of the questioning was
police dominated; [and] (6) whether the suspect was placed under arrest at the
termination of the questioning.” Id.

       The first factor is present and weighs heavily against a finding that Giboney
was in custody. Detective Walk repeatedly informed Giboney during the interview
that he was not under arrest, could end the interview whenever he wanted, and was
free to leave. Giboney confirmed his understanding with responses such as “Ok” and
“That’s fine.” As the court in Czichray explained, “That a person is told repeatedly
that he is free to terminate an interview is powerful evidence that a reasonable person
would have understood that he was free to terminate the interview.” 378 F.3d at 826.
“So powerful,” the court continued, “that no governing precedent of the Supreme
Court or [the Eighth Circuit] . . . holds that a person was in custody after being clearly
advised of his freedom to leave or terminate questioning.” Id.; see also United States
v. Perrin, 659 F.3d 718, 721 (8th Cir. 2011) (stating that the Eighth Circuit has “never



                                           -8-
held that a person was in custody after receiving” admonitions from law enforcement
that the person was free to leave).

       As to the second factor, Giboney argues that his freedom of movement was
restrained during questioning because Detective Walk escorted him to the restroom
and outside for a smoke. We fail to see how Detective Walk “restrained [Giboney’s]
freedom of movement to the degree associated with formal arrest” merely by joining
Giboney as he moved about and outside the house. See United States v. Laurita, 821
F.3d 1020, 1024 (8th Cir. 2016) (internal quotation marks omitted); see also
Czichray, 378 F.3d at 825, 830 (defendant who was accompanied by law enforcement
to his bedroom and bathroom during questioning was not in custody for purposes of
Miranda). Detective Walk explained to Giboney that he could not “just take off and
walk around the house” because of the ongoing execution of the search warrant.
Giboney was not handcuffed or otherwise physically restrained from moving around.
He did not request to go to the restroom or outside alone and did not object when
Detective Walk went with him. Thus we cannot say the district court erred in
determining that a reasonable person in Giboney’s position would not feel restrained
during the interview.

       Third, Giboney voluntarily acquiesced to Detective Walk’s questioning. When
asked at the beginning of the interview if he was “cool” with answering Detective
Walk’s questions, Giboney replied “That’s fine.” He also confirmed that he
understood that it was his choice whether to respond to the questions. When the two
went outside for Giboney to smoke a cigarette, Detective Walk stated, “Craig do you
still want to talk to me or no[?]” and Giboney replied, “Oh I’m talking to you.” To
further secure Giboney’s voluntary participation, Detective Walk then stated, “Ok,
Ok. You just mentioned downstairs like you know you weren’t sure or something,
so I just want to make sure that it was still cool to talk to me.” Giboney replied,
“That’s correct.” The third factor is therefore present and weighs against a finding
that Giboney was in custody.

                                        -9-
       As to the remaining factors, there is no evidence that officers used “strong arm
tactics or deceptive stratagems” while Giboney was being questioned. Griffin, 922
F.2d at 1349. We agree with Giboney that the atmosphere was police dominated. See
Perrin, 659 F.3d at 721 (“Any warrant search is inherently police dominated . . . .”).
But we have refused to find custody in circumstances where the atmosphere was
much more police dominated. See United States v. Sanchez, 676 F.3d 627, 631-32
(8th Cir. 2012) (defendant interviewed by two officers in the DEA’s “home turf”: a
“small, closed interview room” of a courthouse basement); United States v. Boslau,
632 F.3d 422, 424, 428, 429 (8th Cir. 2011) (defendant interviewed by two officers
for forty-three minutes at a police station in a “small, windowless interview room,
containing only a round table surrounded by four chairs”). And, while we also agree
with Giboney that the sixth factor is present—it is not disputed that Giboney was
arrested after the interview concluded—this factor alone does not establish that the
interview was custodial. See United States v. Flores-Sandoval, 474 F.3d 1142, 1146,
1147 (8th Cir. 2007) (defendant not in custody although he was arrested immediately
after being questioned by an ICE agent about his immigration status).

     After carefully considering the totality of the circumstances surrounding
Giboney’s pre-arrest interview, we conclude that the interview was not custodial.
Though some factors favoring Giboney are present, as we explained in Czichray:

      Where a suspect is questioned in the familiar surroundings of his home,
      and informed several times of his right to terminate the interview at will,
      we believe that strong evidence of restraint on freedom of movement of
      the degree associated with a formal arrest is necessary to overcome the
      natural inference that such questioning is non-custodial.

378 F.3d at 830. There is no such evidence of restraint in this case. Accordingly,
Detective Walk was not required to advise Giboney of his Miranda rights, and
Giboney’s statements during the pre-arrest interview need not be suppressed.

                                         -10-
                             B. Post-Arrest Statements

      Giboney next challenges the district court’s refusal to suppress his post-arrest
statements at the police department. According to Giboney, those statements should
be suppressed because the post-arrest interview continued after he invoked his Fifth
Amendment right to counsel. We disagree.

       “[W]e have consistently held that only a clear and unequivocal request for the
assistance of counsel may serve to invoke a defendant’s right.” United States v.
Kelly, 329 F.3d 624, 630 (8th Cir. 2003). While a defendant is not required to “speak
with the discrimination of an Oxford don, [the defendant] must articulate his desire
to have counsel present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for an attorney.” Davis
v. United States, 512 U.S. 452, 459 (1994) (citation omitted) (internal quotation
marks omitted). Giboney contends that the following exchanges illustrate that he
sufficiently invoked his right to counsel.

      Detective Walk: You have the right to talk to a lawyer, for advice,
      before we ask you any questions and have a lawyer present, with you,
      during questioning. Do you understand that?
      Giboney: Uh huh. So does it stop now if I want to get an attorney?
      Detective Walk: If it, [i]f it. Well[.]
      Giboney: I’m kidding Jake.
      Detective Walk: Well if at any time you want to stop, man, just tell me
      and we’ll stop. Ok[?]
      Giboney: Ok.


      Detective Walk: Can you read the waiver [of the right to counsel]
      aloud for me[?]



                                        -11-
      Giboney: I understand what my rights are. . . . I am going to answer
      questions or make a statement, knowing that I have these rights. I do
      not want a lawyer at this time. . . .
      Detective Walk: So initial, if you understand that.
      Giboney: Um. I’m not going to initial that because it says I do not
      want a lawyer at this time.
      Detective Walk: [A]re you saying that you don’t want to talk to me
      without an attorney?
      Giboney: No, that’s not what I’m saying. I’m saying[] I do want a
      lawyer and that’s saying that I do not want a lawyer.
      Detective Walk: Ok.
      Giboney: And that’s why I do not want to initial that because I do want
      an attorney if I’m going to be charged with this.


      Detective Walk: Ok, so this says, . . . I don’t want a lawyer at this time.
      So are you saying that you want a lawyer at this time?
      Giboney: Oh, at this time. Alright[.]
      Detective Walk: At this time. Right now[.]
      Giboney: Sorry. . . .
      Detective Walk: Fine. Ok, so um, with this waiver in mind, do you
      want to talk to me?
      Giboney: I’ll talk to you.

       We fail to find a “clear and unequivocal” assertion of the right to counsel in
Giboney’s post-arrest interview with Detective Walk. First, Giboney did not
sufficiently invoke the right to counsel by asking whether the interview would end
if he wanted an attorney because, by Giboney’s express admission, his question was
a joke. Second, the remaining discourse between Giboney and Detective Walk does
not reasonably show that Giboney wanted counsel present during the interview.
Rather, Giboney made clear that he only wanted an attorney in the event he was
charged with a crime. Once he realized that the waiver applied only during the
interview, he apologized for his confusion, stated that he would talk to Detective
Walk, and initialed the waiver. Giboney’s statements were, at best, ambiguous as to


                                         -12-
whether he desired to have an attorney present for the interview. He therefore failed
to sufficiently invoke his right to counsel, and Detective Walk was not required to
cease the questioning. See Davis, 512 U.S. at 461-62 (“If the suspect’s statement is
not an unambiguous or unequivocal request for counsel, the officers have no
obligation to stop questioning him.”). Accordingly, Giboney’s statements to
Detective Walk—including his admission to viewing child pornography for over a
decade—need not be suppressed. See Kelly, 329 F.3d at 630.

                                  IV. Conclusion

      For the reasons discussed herein, we affirm the district court’s order denying
Giboney’s pro se motion to dismiss the indictment and motion to suppress his pre-
and post-arrest statements to law enforcement.
                       ______________________________




                                        -13-
