                  United States Court of Appeals
                              For the Eighth Circuit
                         ___________________________

                                 No. 19-1723
                         ___________________________

                                      United States

                          lllllllllllllllllllllPlaintiff - Appellee

                                             v.

                                    Danny Ferguson

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                    for the District of South Dakota - Rapid City
                                     ____________

                              Submitted: May 12, 2020
                                Filed: July 27, 2020
                                   ____________

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

SHEPHERD, Circuit Judge.

      Following a jury trial, Danny Ferguson was convicted of one count of arson, in
violation of 18 U.S.C. §§ 81 and 1153, related to a fire at a trailer home on the Pine
Ridge Reservation. The district court1 sentenced Ferguson to time served,
approximately 19 months, and three years of supervised release. On appeal, Ferguson
challenges the district court’s denial of a motion to suppress incriminating statements
made during questioning after a polygraph examination and asserts that insufficient
evidence supports his conviction. Having jurisdiction under 28 U.S.C. § 1291, we
affirm.

                                          I.

      Ferguson’s conviction arises from the attempted burning of a trailer home on the
Pine Ridge Reservation in South Dakota. The trailer home belonged to Christy Pierce,
who lived there with two of her children and one grandchild. Pierce was known to
Ferguson, as she had a contentious relationship with Ferguson’s family. On the
evening of April 7, 2015, Pierce was inside her trailer home when she heard her dog
barking and smelled the odor of something burning. After looking outside and seeing
nothing amiss, Pierce ignored the barks and odor, believing that the odor came from
a space heater. The next morning, April 8, 2015, after Pierce’s son, Samuel Rios,
arrived for a visit, Pierce noticed burn marks on the front corner of her trailer home.
Pierce and Rios also discovered a bottle that smelled like gasoline or kerosene. Based
on these discoveries, Pierce believed that there had been a fire outside of her trailer
home and that someone had tried to “burn [them] out.”

       At approximately 5:00 p.m. that same day, Pierce observed Ferguson driving by
the trailer home on a motorcycle. Pierce and Rios then observed Ferguson drive his
motorcycle up to her trailer home. When they went outside to investigate, Rios
observed Ferguson place a blanket into the insulation under the trailer home and light


      1
       The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota, adopting the report and recommendations of the Honorable Daneta
Wollmann, United States Magistrate Judge for the District of South Dakota.

                                          -2-
the blanket on fire. Pierce observed the same scene, but did not see Ferguson light the
blanket; she observed flames only after the blanket had ignited. Pierce did not see
Ferguson’s face, but she recognized his hair, motorcycle, and jacket, having observed
him driving onto the trailer home’s yard moments earlier. Rios yelled at Ferguson,
who rode away on his motorcycle. Rios then went inside to warn his family to leave
the trailer home, before returning outside, pulling the burning blanket away from the
insulation, and smothering the fire.

      Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives
subsequently inspected Pierce’s property and concluded that both incidents had been
intentional, rather than accidental. The Federal Bureau of Investigation (FBI) initiated
an arson investigation. After Pierce and Rios identified Ferguson as the responsible
party, two FBI agents, Agent Michelle Gruzs and Agent Mark Lucas, interviewed
Ferguson at his home. The agents informed Ferguson he was not under arrest and
could ask the agents to leave at any time. During their discussion with Ferguson, the
agents made clear that they suspected Ferguson was responsible for the fires at Pierce’s
trailer home. In denying that he was responsible, Ferguson stated that he would be
willing to take a polygraph examination. At some point during the discussion,
Ferguson told the agents that they had crossed a line in their questioning, and he asked
them to leave. The agents complied with Ferguson’s request and left immediately.

      Following the interview, Agent Gruzs and Agent Jeff Goble set up a polygraph
examination for Ferguson. On the morning of the examination, Ferguson and his wife
arrived at the Justice Center in Pine Ridge, South Dakota, where the examination was
to take place. There, they met with John Witt, who, although not a licensed attorney,
was Ferguson’s tribal advocate.2 The Justice Center is a facility that houses the tribal


      2
        At the suppression hearing, Witt testified that he was a tribal advocate for the
Oglala Sioux, Pine Ridge Indian Reservation. Although he is not a licensed attorney,
Witt testified that he has been licensed to practice before the Oglala Sioux Tribal Court

                                           -3-
judicial system and offices of the Bureau of Indian Affairs. The facility is divided into
a public area and a secured area, which is where the Bureau of Indian Affairs space
is located. To access this secured area, a person must be admitted by a receptionist;
however, to exit the secured area, a person must simply walk back through the doors.
Ferguson’s polygraph examination took place in the secured area. Ferguson, his wife,
and Witt all waited in the public area while the agents prepared the examination room.

       Before the examination, Ferguson or Witt requested that Witt remain with
Ferguson for the polygraph examination. The agents denied the request as it was
against policy, the room was not large enough, and Witt’s presence would be
distracting to Ferguson. Only Agent Goble was in the room with Ferguson during the
polygraph examination. At the beginning of the examination, Agent Goble read
Ferguson a polygraph authorization form, which advised him he had the right to refuse
the examination, he could leave or terminate the examination at any point, he could
refuse to answer any questions, he had the right to remain silent, he had the right to
stop questioning at any time, anything he said could be used against him, he had the
right to consult with and have the presence of an attorney, and an attorney would be
provided to him if he could not afford one. Ferguson signed the form.

      During questioning, Agent Goble asked Ferguson about his medical history.
Ferguson stated that, in 2000, he had been in an accident and suffered a fractured skull
but did not offer any information about the effects of his skull fracture, nor was he
asked any follow-up questions. When questioned specifically about the fire, Ferguson
denied knowledge of it, but acknowledged that he understood he was being accused
of attempting to start it. After several minutes of questioning about the fire, Ferguson




since 1999, primarily practicing criminal law. Witt further testified that to be a tribal
advocate, he was required to have knowledge of the Tribal Code and pay an annual
licensing fee.

                                           -4-
again denied the allegations, told Agent Goble he was going to leave, and walked out
of the room.

      After leaving the room, Ferguson went to the parking lot. When Agent Gruzs
found Ferguson speaking with Witt in the parking lot, she asked Ferguson why he had
left the room, and Ferguson responded that he had needed to use the restroom.
However, according to Witt, Ferguson came to him to tell him he no longer wanted to
take the polygraph examination. After speaking with Agent Gruzs and Witt for a few
more minutes, Ferguson agreed to resume the polygraph examination. Upon
resumption of the examination, Ferguson told Agent Goble that he had gotten nervous
before leaving the room. Agent Goble again reminded Ferguson that he could leave
and did not have to answer questions. Ferguson chose to resume the polygraph
examination. Before the conclusion of the examination, Ferguson took one additional
break of approximately five minutes after asking to use the restroom. Agent Goble
then concluded the examination and asked Ferguson to give him a few minutes to score
the results. Ferguson returned to the public area where Witt was waiting. After less
than 10 minutes, Agent Gruzs brought Ferguson back to the examination room for a
post-polygraph interview. Witt was not aware that the agents were going to question
Ferguson independent of the polygraph examination, believing that all questioning
would be conducted as part of the polygraph examination. The agents did not bring
him to the examination room with Ferguson for this interview.

       Agent Goble told Ferguson that he failed the polygraph examination, meaning
that his answers had been “deceptive.” Upon being questioned about his “deceptive”
answers, Ferguson made incriminating statements, including that the trailer home
should not have been in the pasture where it was located; that he did not know anyone
would be home; that he did not mean to hurt anyone; that he would never do that again;
and answered questions about how he started the fire. Ferguson also stated several
times that he wanted to “plead the Fifth.” After Ferguson made statements about not
wanting to talk anymore or not wanting to talk about a specific topic, agents reminded

                                         -5-
him that it was his right not to answer questions and that he could end the interview.
When Ferguson finally asked whether the interview was being recorded and again
stated that he “just want[ed] to plead the Fifth,” the agents thanked Ferguson for
coming to talk to them and ended the interview.

       Ferguson was subsequently indicted on one count of arson for the April 7 and
April 8 fires. Before trial, Ferguson filed a motion to suppress the statements he made
to agents following the polygraph examination, arguing that he was in custody when
he was interrogated and he was not given Miranda3 warnings; that he was entitled to
the presence of counsel, but was denied that right; that the interrogation was coercive;
and that his statements were not voluntarily made. The district court, adopting the
magistrate judge’s report and recommendation, denied the motion. The district court
concluded that Ferguson was not in custody, so he did not have a Fifth Amendment
right to counsel or to remain silent and thus agents did not violate those rights. The
district court also considered the facts and circumstances surrounding the questioning
and concluded that Ferguson voluntarily made the incriminating statements.

      The case proceeded to trial. At the close of the evidence, Ferguson moved for
judgment of acquittal, which the district court granted with respect to the April 7 fire,
but denied with respect to the April 8 fire. The jury returned a guilty verdict.
Ferguson then filed two separate motions for judgment of acquittal or for a new trial,
arguing that the evidence was insufficient to sustain his conviction. The district court
denied both motions, and this appeal follows.




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

                                           -6-
                                           II.

        Ferguson asserts that the district court erred in denying his motion to suppress
on multiple grounds: (1) Ferguson was denied his right to have his attorney present
while he was being interrogated; (2) Ferguson’s lay tribal advocate qualified as an
attorney for the purposes of his right to have counsel present; (3) Ferguson invoked his
right to remain silent, which was ignored by the agents; and (4) Ferguson’s statements
were not made voluntarily based on his limited cognitive functioning and the repetitive
and deceptive questioning of agents. In reviewing the denial of a motion to suppress,
we review the district court’s factual findings for clear error and its legal conclusions
de novo. United States v. Giboney, 863 F.3d 1022, 1027 (8th Cir. 2017). “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.” Id. (alteration in original)
(internal quotation marks omitted).

      Although Ferguson raises numerous points of error, the determination of a single
issue disposes of nearly all of Ferguson’s claims with respect to the suppression
motion: whether he was in custody for the purposes of the Miranda protections.
“Miranda warnings are required only where there has been such a restriction on a
person’s freedom as to render him ‘in custody.’ It was that sort of coercive
environment to which Miranda by its terms was made applicable, and to which it is
limited.” United States v. LeBrun, 363 F.3d 715, 720 (8th Cir. 2004) (quoting Oregon
v. Mathiason, 429 U.S. 492, 495 (1977)). Thus, whether a person is in custody
dictates whether he is entitled to Miranda protections. Id.

      In making this determination, “the critical inquiry is not whether the interview
took place in a coercive or police dominated environment, but rather whether the
defendant’s freedom to depart was restricted in any way.” Id. (internal quotation
marks omitted). To resolve this inquiry, we consider the circumstances surrounding

                                           -7-
the questioning and whether, given those circumstances, a reasonable person would
have felt free to terminate the questioning and leave. Id. Our Court has identified six
factors to consider in making this determination:

      (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; (3) whether the suspect initiated contact with
      authorities or voluntarily acquiesced to official requests to respond to
      questions; (4) whether strong arm tactics or deceptive stratagems were
      employed during questioning; (5) whether the atmosphere of the
      questioning was police dominated; or, (6) whether the suspect was placed
      under arrest at the termination of questioning.

United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990).

       Here, the record reflects that Ferguson came voluntarily to the Justice Center;
that he was told his participation in the polygraph examination was voluntary and that
he could end it at any time; and that he was read and signed the polygraph
authorization form, which reiterated that he could refuse to take the test, decline to
answer questions, end the test at any time, and have an attorney present. The record
further demonstrates that Ferguson’s movement was not restrained, as evidenced by
the two breaks he took during the examination and his decision to return after each; his
termination of the interview after he began making incriminating statements; and the
agents ending the interview after Ferguson again reiterated his desire to “plead the
Fifth.”

      These factors counsel in favor of the conclusion that Ferguson was not in
custody during the polygraph examination or subsequent interview. Ferguson points
to the refusal of the agents to permit Witt to be present during the interview and their
purported misrepresentations about how many people could be in the examination

                                          -8-
room and about whether a post-examination interrogation would occur as
demonstrating the coercive and deceptive nature of the polygraph examination and
subsequent questioning. However, “some degree of coercion is part and parcel of the
interrogation process and [] the coercive aspects of a police interview are largely
irrelevant to the custody determination except where a reasonable person would
perceive the coercion as restricting his or her freedom to depart.” LeBrun, 363 F.3d
at 721. Thus, even assuming the agents used arguably deceptive tactics and exerted
some degree of coercion in questioning Ferguson, that does not undermine our
conclusion that Ferguson was not in custody, particularly where the evidence reflects
that Ferguson was aware of his freedom to leave and availed himself of this right at
least twice during the entire encounter. Indeed, Ferguson’s counsel conceded as much
at oral argument, stating explicitly that “[Ferguson] was not in custody.” Oral Arg.
5:50 - 6:00.

       Because Ferguson was not in custody, he was not entitled to the Miranda
protections of the right to remain silent and the right to counsel. United States v. Kelly,
329 F.3d 624, 630 (8th Cir. 2003). Having determined that Ferguson was not in
custody, and thus not subject to Miranda protections, we conclude that Ferguson’s
rights were not violated. We also need not determine whether Ferguson’s lay tribal
advocate qualified as an attorney for the purposes of the right to counsel where that
right had not yet attached.

       Finally, to the extent Ferguson asserts that his incriminating statements were
involuntarily made, primarily due to his low cognitive functioning, we agree with the
district court that Ferguson voluntarily provided the statements after the polygraph
examination. “Statements to law enforcement authorities are voluntary if they are the
product of an essentially free and unconstrained choice by [their] maker. A statement
is not considered involuntary unless the police extorted it from the accused by means
of coercive activity.” United States v. Vinton, 631 F.3d 476, 482 (8th Cir. 2011)
(alteration in original) (citation and internal quotation marks omitted). The record

                                            -9-
reflects, as discussed above, that a reasonable person in Ferguson’s position would
have understood that his participation in the interview was voluntary, that he did not
have to answer any questions if he did not wish to do so, that he was free to leave at
any point, and that he could terminate the questioning at any point. Ferguson’s
exercise of each of these options underscores the voluntary nature of his statements.
On this record, we conclude that Ferguson’s statements were voluntarily made.

      The district court thus did not err in denying Ferguson’s motion to suppress.

                                           III.

      Ferguson next challenges the district court’s denial of the motions for judgment
of acquittal based on the sufficiency of the evidence, which we review de novo.
United States v. Hill, 750 F.3d 982, 987 (8th Cir. 2014). “We view the evidence in the
light most favorable to the government, resolving evidentiary conflicts in favor of the
government, and accepting all reasonable inferences drawn from the evidence that
support the jury’s verdict.” Id. (quoting United States v. Cook, 603 F.3d 434, 437 (8th
Cir. 2010)).

      Under 18 U.S.C. § 81, “[w]hoever, within the special maritime and territorial
jurisdiction of the United States, willfully and maliciously sets fire to or burns any
building, structure or vessel, . . . or attempts or conspires to do such an act” is guilty
of the offense of arson. The statute also imposes an enhanced maximum sentence
where “the building [is] a dwelling or [] the life of any person [is] placed in jeopardy.”
Id. To convict Ferguson of this offense, the government was thus required to prove,
beyond a reasonable doubt, that (1) Ferguson set fire or attempted to set fire to or
burned a dwelling; (2) the dwelling belonged to the victim, Pierce; (3) Ferguson acted
willfully and maliciously; (4) Ferguson caused Pierce or her family members’ lives to
be placed in jeopardy; and (5) Ferguson is an Indian and committed the offense in
Indian country. R. Doc. 98, at 5. Ferguson asserts that the evidence was insufficient

                                          -10-
to prove every element beyond a reasonable doubt, specifically challenging the weight
of the evidence when the incriminating statements are excluded, arguing the witness
identifications of Ferguson as the perpetrator were unreliable, asserting that testimony
established Ferguson had an alibi for the relevant time frame, and alleging that no
evidence demonstrated that the trailer home actually ignited.

       First, as discussed in Part II, the district court did not err in denying the motion
to suppress. Thus, Ferguson’s incriminating statements were appropriately presented
to the jury and are included in the evidence we consider in evaluating Ferguson’s
challenge to the sufficiency of the evidence. These incriminating statements, which
include a description of how the fire was started and expressions of remorse, combined
with the testimony of other witnesses placing Ferguson at the scene and identifying him
as the perpetrator, provide a sufficient basis for a jury to find Ferguson guilty beyond
a reasonable doubt.

        Second, as to Ferguson’s argument regarding the testimony of Pierce and Rios
identifying Ferguson as the perpetrator and the testimony of other witnesses providing
Ferguson an alibi, “it is well established that the issue of witness credibility is virtually
unreviewable on appeal because it is preeminently the job of the finder of fact.” United
States v. Ziesman, 409 F.3d 941, 948 (8th Cir. 2005) (internal quotation marks
omitted); see also United States v. Wilson, 619 F.3d 787, 795 (8th Cir. 2010) (“[E]ven
[i]f the evidence adduced at trial rationally supports conflicting hypotheses, we [will]
refuse to disturb the conviction. We will overturn a verdict only if no reasonable jury
could have found the defendant guilty beyond a reasonable doubt.” (alterations in
original) (citation and internal quotation marks omitted)). We will not disturb the
jury’s credibility determinations and its decision to credit certain witness testimony
over other evidence. This is particularly true where, as here, the district court
instructed the jury regarding Ferguson’s alibi defense, how to evaluate Ferguson’s
statements and witness testimony, and how to determine what weight to afford specific
evidence.

                                            -11-
      Finally, as to Ferguson’s argument regarding the lack of evidence that the trailer
home actually ignited, Ferguson fails to acknowledge that the statute specifically
criminalizes attempted arson and the superseding indictment specifically charged
Ferguson with attempt. See 18 U.S.C. § 81; R. Doc. 71.

        Sufficient evidence supports the jury’s verdict. The district court thus did not
err in denying Ferguson’s motions for judgment of acquittal on this basis.

                                          IV.

      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




                                          -12-
