                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 05-13206                FEBRUARY 14, 2006
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                     D. C. Docket No. 04-00156-CR-CB

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   versus

SHANNON MCCULLOUGH,
a.k.a. Shannon McCullough Boyington,

                                                       Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                       _________________________


                             (February 14, 2006)

Before ANDERSON, BIRCH and CARNES, Circuit Judges.

PER CURIAM:

     Shannon McCullough appeals her convictions for transporting and harboring
an illegal alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (iii). We affirm.

      In 2003, McCullough and her boyfriend, Rosalio Venegas Sanchez, a

Mexican citizen, were living together at McCullough’s house in Foley, Alabama.

In December of 2003, Venegas returned to Mexico to visit his family. In January

of 2004, McCullough traveled to Mexico and helped Venegas obtain a B-2 visitor

visa so that he could come back to the United States. McCullough then

accompanied Venegas to the border at Hidalgo, Texas. On January 6, 2004, the

United States Customs and Border Protection Office (“USCBP”) denied Venegas

permission to enter the United States because he had previously entered the

country illegally. The USCBP cancelled Venegas’ visitor visa, informed him that

he could not legally enter the United States, and allowed him to return to Mexico.

      On March 5, 2004, Senior Border Patrol Agent Kevin Douglas learned that

Venegas had returned to Foley, Alabama and was again living with McCullough.

Administrative checks revealed that Venegas was not legally admitted into the

United States. On May 10, 2004, Douglas stopped Venegas after he left

McCullough’s residence and questioned him. Venegas told Douglas that he had

entered the United States illegally at Hidalgo, Texas in February of 2004. In a

sworn written statement, Venegas stated that McCullough, knowing that he was an

illegal alien, had picked him up in Houston and paid a smuggler for transporting



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him to the United States. Douglas later swore in an affidavit that he did not coerce

Venegas into providing the statement.

      Venegas was informed that he could be charged administratively for

violating immigration laws, or he could waive his procedural due process rights

and be eligible for an immediate, voluntary return to Mexico. Venegas chose the

latter and was returned to Mexico on May 13, 2004. McCullough was indicted on

one count of transportation of an illegal alien and one count of harboring and

concealing an illegal alien on July 29, 2004.

      On November 8, 2004, the government sent a letter to McCullough’s

attorney, Riguer R. Silva, stating that it had filed for permission for Venegas to

reenter the United States as a witness and would pay for his travel and lodging.

The government requested that Silva provide additional contact information for

Venegas, including his full name, address, telephone numbers, and any unique

identifying numbers, before November 12, 2004, so that it could complete his

travel arrangements.

      On November 12, 2004, McCullough filed a motion to dismiss the

indictment, alleging that Agent Douglas had arranged for Venegas to leave the

United States before she had an opportunity to depose and cross examine him,

compromising her ability to obtain evidence for her defense. In support of her



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motion, McCullough filed the affidavit of Silva, in which he swore that he had

made numerous attempts to contact Venegas in Mexico, but was able to speak with

him only once because he did not have a telephone and lived in a remote area

without a mailing address. Silva stated that Venegas had told him that the sworn

statement he gave to Douglas was false and coerced, and that he had never told

Douglas that McCullough knew that he was an illegal alien. Silva further stated

that he did not have the resources or time to secure contact information for

Venegas.

      At a November 30, 2004 hearing on McCullough’s motion to dismiss the

indictment, the district court stated that it was McCullough’s burden to prove that,

at the time the government facilitated Venegas’ return to Mexico, his testimony

would have been favorable to her. The court observed that the government had

tried to bring Venegas to the United States for trial. McCullough stated that the

four days the government had given her was not enough time to obtain Venegas’

contact information, and that she only knew “half” of the information requested by

the government. The government responded that it had been in contact with Silva

since August or September and had discussed the need for more information about

Venegas on several occasions, and that the November 12, 2004 deadline was

chosen to give the government enough time to bring Venegas to the United States



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before the trial, which was scheduled for November 30, 2004. McCullough then

argued that the government had acted in bad faith by allowing Venegas to leave.

The court responded: “What . . . difference does it make that there was bad faith,

arguably, even if everything you say is true and that . . . amounts to bad faith, if in

fact at the time the statements he made were favorable to the government?”

      The district court entered an order denying McCullough’s motion to dismiss

the indictment, finding that there was an insufficient basis to support the

allegations in the motion. After a bench trial, the district court found McCullough

guilty on both counts of the indictment. The district court sentenced McCullough

to one day of imprisonment and four months of home confinement.

      On appeal, McCullough contends that the district court abused its discretion

in denying her motion to dismiss the indictment because she was denied her Sixth

Amendment right to confront witnesses when the government facilitated Venegas’

return to Mexico. She argues that she was not required to prove that the

government had acted in bad faith in allowing Venegas to leave, and that the court

erred when it took this factor into consideration. She argues that she made a

plausible showing that Venegas’ testimony would have been material and

favorable because Silva’s affidavit established that Venegas would have testified

that his statement was coerced and that McCullough had no knowledge that he was



                                            5
an illegal alien. Finally, she argues that if she must prove bad faith, the

government’s actions in allowing Venegas to leave exhibited bad faith.

      We review a district court’s denial of a motion to dismiss an indictment for

an abuse of discretion. United States v. Waldon, 363 F.3d 1103, 1108 (11th Cir.

2004), cert. denied, 125 S. Ct. 208 (2004). The Constitution provides that, “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to have compulsory

process for obtaining witnesses in his favor.” U.S. Const., Amend. VI. In United

States v. Valenzuela-Bernal, 458 U.S. 858, 872, 102 S. Ct. 3440, 3449 (1982), the

Supreme Court considered this issue and concluded that the executive branch’s

responsibility to execute immigration policy “justifies the prompt deportation of

illegal-alien witnesses upon the [e]xecutive’s good-faith determination that they

possess no evidence favorable to the defendant in a criminal prosecution.” The

Court stated that the mere fact of deportation was not enough for a violation of the

Compulsory Process Clause of the Sixth Amendment or the Due Process Clause of

the Fifth Amendment. Id. “A violation of these provisions requires some showing

that the evidence lost would be both material and favorable to the defense.” Id. In

other words, the defendant must show “some reasonable basis to believe that the

deported witness would testify to material and favorable facts.” United States v.

Saintil, 753 F.2d 984, 987 (11th Cir. 1985) (internal marks omitted).



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      McCullough has not satisfied this burden. First, the record does not show

that Venegas was deported. See id. (noting that giving an illegal alien the option of

either leaving voluntarily or being detained does not amount to deportation).

Venegas, like the illegal alien in Saintil, was given the option of leaving

voluntarily or being detained.

      Second, it appears that the district court’s reason for requiring McCullough

to show that Venegas’ testimony would have been favorable to her when the

government allowed him to leave was based on its concern that the government

had not acted in bad faith. The Supreme Court and this Court have suggested that

bad faith is an important consideration in determining whether a constitutional

violation has occurred. See Valenzuela-Bernal, 458 U.S. at 872; 102 S. Ct. at 3449

(stating that it is permissible for the government to deport an illegal-alien witness if

the government has made a good faith determination that the witness possesses no

evidence favorable to a criminal defendant); United States v. Avila-Dominguez,

610 F.2d 1266, 1270 (5th Cir. 1980) (noting, upon denying relief, that “the

[g]overnment neither acted in bad faith nor purposefully deprived defendants of

their rights”). The government did not act in bad faith when it allowed Venegas to

leave the United States voluntarily because at that time, Venegas had only

provided incriminating statements about McCullough and there was no reason to



                                           7
believe that Agent Douglas had coerced these statements. Furthermore, the

government made every effort to procure Venegas’ appearance for trial, contacting

Silva on several occasions regarding Venegas’ contact information.

      Because the evidence shows Venegas was not deported and that the

government did not act in bad faith in allowing him to leave, the district court did

not abuse its discretion by denying McCullough’s motion to dismiss the

indictment.

      AFFIRMED.




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