818 710 FEDERAL REPORTER, 3d SERIES
[14, 15] We therefore hold that de-
mand was required on all of Gomes’s de-
rivative claims. After Werbowsky, partic-
ipation by directors in alleged wrongdoing
is not sufficient to excuse demand. There-
fore, the district court correctly dismissed
Gomes’s complaint. Because Gomes failed
to make the required demand, we need not
address whether he adequately pleaded
that the alleged RICO violations proxi-
mately caused the Fund’s losses.
* * *
The judgment of the district court is
affirmed.
, To invoke his right to counsel under
UNITED STATES of America,
Plaintiff–Appellee,
v.
Neil E. HAVLIK, Defendant–Appellant.
No. 12–1294.
United States Court of Appeals,
Eighth Circuit.
Submitted: Sept. 21, 2012.
Filed: March 28, 2013.
Background: After his motion to sup-
press was denied, 2009 WL 2136166, de-
fendant was convicted in the United States
District Court for the Eastern District of
Arkansas, Susan Webber Wright, J., of
receipt and possession of child pornogra-
phy, and was sentenced to 144 months’
imprisonment. Defendant appealed.
Holdings: The Court of Appeals, Colloton,
Circuit Judge, held that:
(1) defendant’s statements to interrogat-
ing officers did not invoke the right to
counsel under Edwards;
(2) defendant voluntarily waived his Mi-
randa rights;
(3) defendant was not entitled to a jury
instruction on entrapment; and
(4) evidence was sufficient to prove the
jurisdictional element of the child por-
nography offenses.
Affirmed.
1. Criminal Law O411.85, 411.86(6)
When a suspect requests counsel dur-
ing an interrogation, police must cease
questioning until counsel has been made
available or the suspect reinitiates commu-
nication with the police. U.S.C.A. Const.
Amend. 5.
2. Criminal Law O411.80
Edwards, a suspect 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;
there is no requirement that an officer
must ask clarifying questions when a sus-
pect makes an ambiguous statement re-
garding counsel. U.S.C.A. Const.Amend.
5.
3. Criminal Law O411.81
Defendant’s question, ‘‘I don’t have a
lawyer. I guess I need to get one, don’t
I?,’’ in response to an officer’s statement
that he had the right to counsel, was not
an unequivocal or unambiguous request for
counsel, and therefore was insufficient to
invoke the right to counsel under Ed-
wards; a reasonable officer could have un-
derstood defendant’s response to be a re-
quest for advice about whether to seek
counsel, rather than a request for counsel.
U.S.C.A. Const.Amend. 5.
4. Criminal Law O411.81
Defendant’s statement to an interro-
gating officer, ‘‘I guess you better get me a
lawyer then,’’ was not an unequivocal or
unambiguous request for counsel, and
therefore was insufficient to invoke the
 U.S. v. HAVLIK
Cite as 710 F.3d 818 (8th Cir. 2013)
right to counsel under Edwards. U.S.C.A.
Const.Amend. 5.
5. Criminal Law O410.77, 411.92
A court considers the totality of the
circumstances, including the conduct of the
officers and the characteristics of the ac-
cused, in determining whether a suspect’s
waiver of rights or statements were the
product of an overborne will; the inquiry is
essentially the same for both the Miranda
waiver and the inculpatory statements.
U.S.C.A. Const.Amend. 5.
6. Criminal Law O411.96
Defendant voluntarily waived his Mi-
randa rights, and his statements to offi-
cers were voluntary, despite the number of
officers involved in the search of defen-
dant’s home, the injury defendant suffered
to his chest while being secured, and the
officers’ persistence in reading defendant’s
rights under Miranda; sprawling layout of
defendant’s property, the threats posed by
the terrain, and the presence of large dogs
required a significant team of officers to
execute the search warrants, and only
three of those officers participated in ques-
tioning defendant, defendant signed the
Miranda waiver after the last of three
medical specialists concluded that he had
‘‘calmed down’’ and was not seriously in-
jured, and the officers were justified in
their persistence because defendant inter-
rupted their initial inquiries while assert-
ing a mistaken belief that Miranda applied
only after a formal arrest. U.S.C.A.
Const.Amend. 5.
7. Criminal Law O37(2.1), 330, 569
Entrapment is an affirmative defense
that requires a defendant to present evi-
dence that a government agent implanted
in an innocent person’s mind the disposi-
tion to commit a criminal act; only then
does the burden shift to the prosecution to
prove beyond reasonable doubt that the
defendant was disposed to commit the
819
criminal act prior to first being approached
by government agents.
8. Criminal Law O772(6)
A defendant who requests an entrap-
ment instruction is entitled to have it given
whenever there is sufficient evidence from
which a reasonable jury could find entrap-
ment.
9. Criminal Law O37(3), 772(6)
Where agents simply offer a subject
the opportunity to commit a crime, and the
subject promptly avails himself of the
criminal opportunity, an entrapment de-
fense typically does not warrant a jury
instruction.
10. Criminal Law O772(6)
Defendant was not entitled to a jury
instruction on entrapment in his trial for
receipt and possession of child pornogra-
phy, where the government introduced evi-
dence of defendant’s predisposition to com-
mit the crime, including evidence that the
Federal Bureau of Investigation (FBI) dis-
covered defendant’s name in customer rec-
ords of a company that processed credit
cards for commercial child pornography
websites, and evidence that the search of
defendant’s property produced multiple
video tapes containing child pornography.
11. Obscenity O210(13)
Evidence that after defendant ordered
video tapes containing child pornography,
the tapes were mailed interstate from
Indiana to Texas, and then transported
from Texas to Arkansas, was sufficient to
satisfy the jurisdictional element of statute
criminalizing receipt of child pornography.
18 U.S.C.A. § 2252(a)(2).
12. Obscenity O210(12)
Evidence that defendant downloaded
child pornography from the Internet was
sufficient to satisfy the jurisdictional ele-
ment of statute criminalizing possession of
820 710 FEDERAL REPORTER, 3d SERIES
child pornography, as the Internet was an
instrumentality and channel of interstate
commerce. 18 U.S.C.A. § 2252(a)(4)(B).
Andrea L. Smith, argued, Kirkwood,
MO, for appellant.
Marsha Wardlaw Clevenger, Assistant
United States Attorney, argued, Little
Rock, AR, for appellee.
Before RILEY, Chief Judge, SMITH
and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
A jury convicted Neil E. Havlik of re-
ceipt and possession of child pornography,
in violation of 18 U.S.C. § 2252(a)(2) and
(a)(4)(B). The district court 1 sentenced
him to 144 months’ imprisonment, to be
followed by 15 years’ supervised release.
Havlik appeals the conviction on several
grounds, and we affirm.
I.
The Federal Bureau of Investigation
learned of Havlik’s possible involvement
with child pornography in 2005 during a
large-scale undercover investigation of
commercial child pornography websites.
The Bureau forwarded Havlik’s name to
the United States Postal Inspection Ser-
vice. In 2007, as part of a mail-based
testing program, Postal Inspector Thomas
Henderson sent Havlik a solicitation letter
in which Henderson posed as a distributor
of child pornography and invited Havlik to
request a catalog. Havlik mailed a re-
sponse to the solicitation in which he re-
quested catalogs and asserted that he was
‘‘not a law enforcement officer.’’ After
Havlik received a catalog, he returned an
order form for the purchase of three child
1. The Honorable Susan Webber Wright, Unit-
ed States District Judge for the Eastern Dis-
pornography videos and enclosed a person-
al check as payment.
Postal inspectors arranged for a con-
trolled delivery of the child pornography
videos to Havlik’s local post office and
secured a search warrant for Havlik’s resi-
dence. After Havlik returned home with
the contraband, officers entered the prop-
erty and ordered Havlik to the ground.
When Havlik did not comply, an officer
forced him to the ground with a ‘‘bladed
forearm strike’’ and handcuffed him. An
emergency medical technician then exam-
ined Havlik, who was complaining of chest
pain. During the execution of the war-
rant, officers subdued Havlik’s large dogs
to secure the area.
Three law enforcement agents attempt-
ed to read Havlik the rights prescribed by
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966). Havlik, how-
ever, repeatedly asserted that he did not
understand why the officers were reading
the rights to him if he was not under
arrest, questioned the officers’ right to be
on his property, and complained of chest
pain. When an officer informed Havlik of
his right to counsel, Havlik replied: ‘‘I
don’t have a lawyer. I guess I need to get
one, don’t I?’’ The officer continued by
advising Havlik that an attorney would be
appointed for him if he could not afford
one. Havlik responded, ‘‘I guess you bet-
ter get me a lawyer then.’’ The officer
continued reading the Miranda rights, but
eventually stopped when Havlik’s health
complaints prompted the officers to sum-
mon medical personnel. After the medical
examination, a postal inspector read Hav-
lik the Miranda rights, obtained Havlik’s
waiver of those rights, and began to inter-
view him. Havlik then made inculpatory
statements.
trict of Arkansas.
 U.S. v. HAVLIK
Cite as 710 F.3d 818 (8th Cir. 2013)
In their search of Havlik’s property, of-
ficers seized the three VHS tapes that
Havlik had received during the controlled
delivery, as well as other VHS tapes con-
taining 491 images of child pornography
and 24 video clips totaling 57 minutes of
child pornography. These images and vid-
eo clips had been copied and downloaded
from the Internet through Havlik’s
WebTV system.
A grand jury returned a three-count
indictment against Havlik that included
one count of receipt of child pornography,
in violation of 18 U.S.C. § 2252(a)(2), and
one count of possession of child pornogra-
phy, in violation of 18 U.S.C.
§ 2252(a)(4)(B). Havlik moved to sup-
press statements he made during the ex-
ecution of the search warrants, and to
dismiss all charges on the basis of en-
trapment. The court denied the motions,
and the case proceeded to trial. During
trial, Havlik moved for judgment of ac-
quittal, arguing among other things that
there was insufficient evidence to prove
the jurisdictional element of the child
pornography offenses. The court denied
the motion, and a jury convicted Havlik
on both child pornography counts. Hav-
lik was acquitted on a third count that
charged him with witness tampering.
The district court sentenced Havlik to
144 months’ imprisonment, to be followed
by 15 years of supervised release. Hav-
lik appeals.
II.
A.
[1] Havlik appeals the district court’s
denial of his motion to suppress state-
ments on two grounds. The most substan-
tial is Havlik’s claim that the interrogating
officers violated the rule of Edwards v.
Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68
L.Ed.2d 378 (1981), by continuing to ques-
tion him after he invoked his right to
counsel. When a suspect requests counsel
821
during an interrogation, police must cease
questioning until counsel has been made
available or the suspect reinitiates commu-
nication with the police. Id. at 484–85, 101
S.Ct. 1880.
[2] The Supreme Court clarified the
Edwards rule in Davis v. United States,
512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d
362 (1994), saying that ‘‘if a suspect makes
a reference to an attorney that is ambigu-
ous or equivocal in that a reasonable offi-
cer in light of the circumstances would
have understood only that the suspect
might be invoking the right to counsel, our
precedents do not require the cessation of
questioning.’’ Id. at 459, 114 S.Ct. 2350.
To implicate Edwards, a suspect ‘‘must
articulate his desire to have counsel pres-
ent sufficiently clearly that a reasonable
police officer in the circumstances would
understand the statement to be a request
for an attorney.’’ Id. There is no require-
ment that an officer must ask clarifying
questions when a suspect makes an ambig-
uous statement regarding counsel. Id. at
461, 114 S.Ct. 2350. Applying these prin-
ciples, the Court in Davis held the state-
ment ‘‘[m]aybe I should talk to a lawyer’’
was equivocal, and not an invocation of the
right to counsel for purposes of Miranda
and Edwards. Id. at 462, 114 S.Ct. 2350.
[3] Havlik claims that he twice invoked
the right to counsel with sufficient clarity
to implicate the Edwards rule. In re-
sponse to an officer’s statement that he
had the right to counsel, Havlik respond-
ed: ‘‘I don’t have a lawyer. I guess I need
to get one, don’t I?’’ This question is insuf-
ficient to trigger an obligation to cease
questioning. In Dormire v. Wilkinson,
249 F.3d 801 (8th Cir.2001), we held that a
similar question—‘‘Could I call my law-
yer?’’—was ambiguous, because a reason-
able officer could have understood the sus-
pect to be ‘‘merely inquiring whether he
had the right to call a lawyer.’’ Id. at 805.
822 710 FEDERAL REPORTER, 3d SERIES
Similarly here, a reasonable officer could
have understood Havlik’s response to be a
request for advice about whether to seek
counsel, rather than a request for counsel.
See Mueller v. Angelone, 181 F.3d 557,
573–74 (4th Cir.1999).
[4] Havlik also contends that he in-
voked his right to counsel when he said, ‘‘I
guess you better get me a lawyer then.’’
The phrase ‘‘I guess’’ is ‘‘used to indicate
that although one thinks or supposes
something, it is without any great convic-
tion or strength of feeling.’’ The New Ox-
ford American Dictionary 755 (Elizabeth
J. Jewell & Frank Abate, eds. 2001). As a
transitive verb, to ‘‘guess’’ means to ‘‘esti-
mate or suppose (something) without suffi-
cient information to be sure of being cor-
rect.’’ Id. In other contexts, the phrase ‘‘I
guess’’ has been viewed as equivocal. E.g.,
Culkin v. Purkett, 45 F.3d 1229, 1233 (8th
Cir.1995) (describing a witness’s ‘‘I guess’’
response to a court’s question as ‘‘equivo-
cal’’); United States v. Nelson, 450 F.3d
1201, 1212 (10th Cir.2006) (describing the
phrase ‘‘I guess I’m ready to go to jail
then’’ as ‘‘at best an ambiguous or equivo-
cal statement’’ in applying Davis to an
alleged invocation of the right to remain
silent); United States v. Wiggins, 131 F.3d
1440, 1442 (11th Cir.1997) (describing the
phrase ‘‘I plead guilty I guess’’ as ‘‘equivo-
cal’’); cf. Burket v. Angelone, 208 F.3d 172,
197–98 (4th Cir.2000) (concluding that ‘‘I
think I need a lawyer’’ is not an unequivo-
cal request for counsel). Havlik’s state-
ment is thus not materially different from
the statement ‘‘[m]aybe I should talk to a
lawyer,’’ which the Supreme Court held
ambiguous in Davis, 512 U.S. at 462, 114
S.Ct. 2350.
In sum, Havlik’s statements to the inter-
rogating officers were not an unequivocal
or unambiguous request for counsel, and
the police were not required to ask clarify-
ing questions. Accordingly, there was no
violation of the Edwards rule.
[5] Second, Havlik makes two related
contentions about the voluntariness of his
admissions. He contends that his waiver
of rights under Miranda was involuntary
and the product of police coercion, such
that his admissions should be suppressed.
See Colorado v. Connelly, 479 U.S. 157,
169–70, 107 S.Ct. 515, 93 L.Ed.2d 473
(1986). And he maintains that even if
there was a valid waiver of rights, his
statements during the search were none-
theless involuntary, such that they should
have been suppressed based on a violation
of the Due Process Clause. See Schneck-
loth v. Bustamonte, 412 U.S. 218, 225–26,
93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). We
consider the totality of the circumstances,
including the conduct of the officers and
the characteristics of the accused, in deter-
mining whether a suspect’s waiver or
statements were the product of an over-
borne will. Wilson v. Lawrence Cnty., 260
F.3d 946, 952 (8th Cir.2001). The inquiry
is essentially the same for both the Mi-
randa waiver and the inculpatory state-
ments. Connelly, 479 U.S. at 170, 107
S.Ct. 515.
[6] The facts surrounding Havlik’s
waiver and statements demonstrate volun-
tariness. Havlik points to the number of
officers involved in the search, the injury
he suffered while being secured, and the
officers’ persistence in reading his rights
under Miranda. But the government
showed that the sprawling layout of Hav-
lik’s property, the threats posed by the
terrain, and the presence of large dogs
required a significant team of officers to
execute the search warrants. Despite the
presence of a team of officers on the prop-
erty, only three of those officers participat-
ed in questioning Havlik. See Simmons v.
Bowersox, 235 F.3d 1124, 1132–33 (8th Cir.
2001). The government also proved that
Havlik’s chest injury did not undermine
the voluntariness of his waiver or admis-
 U.S. v. HAVLIK
Cite as 710 F.3d 818 (8th Cir. 2013)
sions. Three different medical specialists
evaluated Havlik, and he signed the Mi-
randa waiver after the last specialist con-
cluded that he had ‘‘calmed down’’ and was
not seriously injured. The officers were
justified in their persistence, because Hav-
lik interrupted their initial inquiries while
asserting a mistaken belief that Miranda
applied only after a formal arrest. Havlik
never demonstrated an inability to under-
stand the substance of the warnings. We
thus conclude that Havlik voluntarily
waived his rights under Miranda, and that
his statements to the officers were volun-
tary.
B.
[7, 8] Although he did not request a
jury instruction on entrapment, Havlik
now argues that the evidence was insuffi-
cient to convict him, because the govern-
ment did not prove beyond a reasonable
doubt that he was not entrapped. Entrap-
ment is an affirmative defense that re-
quires a defendant to present evidence
that a government agent ‘‘implant[ed] in
an innocent person’s mind the disposition
to commit a criminal act.’’ Jacobson v.
United States, 503 U.S. 540, 548, 112 S.Ct.
1535, 118 L.Ed.2d 174 (1992). Only then
does the burden shift to the prosecution to
‘‘prove beyond reasonable doubt that the
defendant was disposed to commit the
criminal act prior to first being approached
by Government agents.’’ Id. at 549, 112
S.Ct. 1535. A defendant who requests an
entrapment instruction is entitled to have
it given ‘‘whenever there is sufficient evi-
dence from which a reasonable jury could
find entrapment.’’ Mathews v. United
States, 485 U.S. 58, 62, 108 S.Ct. 883, 99
L.Ed.2d 54 (1988). But Havlik seeks to
challenge the sufficiency of the evidence on
the basis of an affirmative defense without
having objected to the lack of a jury in-
struction on that defense at trial. So we
review for plain error and ‘‘consider
whether the absence of a jury instruction
823
on entrapment was an obvious error that
affected the defendant’s substantial rights
and seriously affected the fairness, integri-
ty or public reputation of judicial proceed-
ings.’’ United States v. Wilder, 597 F.3d
936, 944 (8th Cir.2010).
[9] Havlik contends that the govern-
ment implanted the disposition to obtain
child pornography in his mind by subject-
ing him ‘‘to a bombardment of e-mails
containing pornography.’’ Yet the Postal
Inspection Service did not send Havlik a
single e-mail prior to Inspector
Henderson’s e-mail that confirmed Hav-
lik’s mail order for child pornography vid-
eos. During the investigation, Henderson
did mail Havlik one solicitation letter invit-
ing him to request a catalog of child por-
nography. Havlik promptly requested a
catalog, and Henderson replied to that re-
quest. ‘‘Where agents simply offer a sub-
ject the opportunity to commit a crime,
and the subject promptly avails himself of
the criminal opportunity, an entrapment
defense typically does not warrant a jury
instruction.’’ Id. at 945.
[10] The government also introduced
evidence of Havlik’s predisposition. The
FBI discovered Havlik’s name in customer
records of a company that processed credit
cards for commercial child pornography
websites. The search of Havlik’s property
produced multiple VHS tapes containing
child pornography, which Havlik acquired
from sources other than the government.
When a defendant exhibits such predispo-
sition to commit the crime, the district
court need not instruct the jury on entrap-
ment. United States v. Cooke, 675 F.3d
1153, 1156 (8th Cir.2012). For these rea-
sons, there was no plain error in declining
to instruct the jury on entrapment.
[11] Havlik next challenges the suffi-
ciency of the evidence to prove the juris-
dictional element of the child pornography
824 710 FEDERAL REPORTER, 3d SERIES
offenses. On the receipt count, the juris-
dictional element is satisfied if the govern-
ment proves that a ‘‘visual depiction’’ of
child pornography was ‘‘receive[d] TTT us-
ing any means or facility of interstate or
foreign commerce or that has been mailed,
or has been shipped or transported in or
affecting interstate or foreign commerce.’’
18 U.S.C. § 2252(a)(2). The government
presented evidence that Havlik mailed an
order form for the VHS tapes from Arkan-
sas to Indianapolis, Indiana, where Inspec-
tor Henderson was based. Henderson
then sent the tapes from Indiana to anoth-
er postal inspector in Houston, Texas, and
the second inspector delivered them to
Havlik’s post office in Arkansas. Havlik
argues that because he ‘‘received’’ the
tapes from his local post office, the tapes
‘‘were not shipped to him by mail or other-
wise carried in interstate commerce from
Indiana to him.’’ But the statute does not
require proof that the child pornography
was shipped to him by mail; it is enough
that he received material ‘‘that has been
mailed’’ or ‘‘has been TTT transported in
TTT interstate TTT commerce.’’ Id. The
government presented evidence that after
Havlik ordered the tapes, they were
mailed interstate from Indiana to Texas,
and then transported from Texas to Ar-
kansas. That was sufficient to satisfy the
jurisdictional element of the statute. See
United States v. Acosta, 421 F.3d 1195,
1197–98 (11th Cir.2005); United States v.
Moore, 916 F.2d 1131, 1138 (6th Cir.1990);
United States v. Dornhofer, 859 F.2d 1195,
1197–98 (4th Cir.1988).
[12] On the possession count, the juris-
dictional element of the statute is met if
the defendant ‘‘knowingly possesses’’ child
pornography that has been ‘‘shipped or
transported using any means or facility of
interstate TTT commerce.’’ 18 U.S.C.
§ 2252(a)(4)(B). The government present-
ed evidence that Havlik downloaded child
pornography from the Internet using a
WebTV system. The Internet is an in-
strumentality and channel of interstate
commerce. United States v. Trotter, 478
F.3d 918, 921 (8th Cir.2007). A reasonable
trier of fact therefore could find that Hav-
lik possessed child pornography that had
been transported using a means or facility
of interstate commerce.
* * *
The judgment of the district court is
affirmed. We decline to address Havlik’s
claim of ineffective assistance of counsel,
which should be raised, if Havlik so de-
sires, in a collateral proceeding under 28
U.S.C. § 2255. See United States v.
Bauer, 626 F.3d 1004, 1009 (8th Cir.2010).
,
Catherine L. TAYLOR, Plaintiff–
Appellant,
v.
TENANT TRACKER, INC., also known
as Result Matrix, Inc., Defendant–
Appellee.
Catherine L. TAYLOR,
Plaintiff–Appellee,
v.
Tenant Tracker, Inc., also known as
Result Matrix, Inc., Defendant–
Appellant.
Nos. 11–3466, 11–3648.
United States Court of Appeals,
Eighth Circuit.
Submitted: Sept. 20, 2012.
Filed: March 28, 2013.
Background: Applicant for federal hous-
ing assistance brought action against con-
sumer reporting agency, alleging it failed