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United States v. Giboney

United States Court of Appeals, Eighth Circuit

July 21, 2017

United States of America Plaintiff- Appellee
Craig Kendall Giboney Defendant-Appellant

          Submitted: April 5, 2017

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

          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's[1] 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.


         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, 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.

          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 Mirandize[3] 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 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, 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 ...

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