United States v. Shannon McCullough

[DO NOT PUBLISH]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
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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
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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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