OVERVIEW
Jоse Arturo Armenta was indicted for conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Armenta entered a guilty plea conditioned on his right to appeal the trial court’s summary denial of his pretrial suppression motion. On appeal, a panel of this court remanded for an evidentiary hearing. Following the hearing on remand, the district court denied Armenta’s suppression motion. The court also denied Armen-ta’s motion to dismiss the indictment based on the government’s failure to ensure the availability of a material witness. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, and reverse and remand in part.
FACTS
In August 1991, Armenta’s eodefendant Vargas recruited codefendant Raygoza-Her-nandez to transport cocaine from California to New York. The cocaine belonged to Ar-menta. Ruth Araceli-Lewis (who was not a defendаnt in this case) rented a motor home for the trip.
On August 24, 1991, Raygoza-Hernandez and a confidential informant (“Cl”) drove the motor home from Chula Vista to Temecula, California. Armenta and codefendant Batiz-Guzman followed the motor home in a car. In Temecula, the parties switched vehicles, and Armentа and Batiz-Guzman thereafter drove the motor home to a house on Clifford Street (the “Clifford house”) in Rialto, California. They parked the motor home in the driveway of the house.
The Cl had informed the FBI of the drive, and the FBI had passed the information on to the Orange County Regional Narcotics Suppression Program (“RNSP”). RNSP officers followed the motor home from Temecu-la to the Clifford house and set up surveillance there. The officers observed numerous cars coming and going from the house. Ar-menta spent the night in the house.
On August 25, 1991, RNSP officers approached Armenta, Batiz-Guzman, and code-fendant de Jesus, who were in or around the motor home. After the officers identified themselves, Officer Serrato asked Armenta if he lived at the Clifford house and owned the *306 motor home. Armenia replied that he lived in Chula Vista and did not own the motor home. When Batiz-Guzman went into the house to retrieve her identification, Officer Felix asked to accompany her. According to Officer Felix and Officer Kraus, who both entered the house with Batiz-Guzman, she gave them consent to enter. Batiz-Guzman, on the other hand, executed a declaration in May 1992, stating that she had not given the officers consent. The district court found that she had given consent.
Once inside the house, Officer Kraus requested and received consent to check for other occupants of the house. While walking through the house, Officer Kraus observed several kilograms of what appeared to be cocaine lying on a bedroom floor, and packaging materials. He noticed that the house was barely furnished and exhibited few signs of habitation. For example, he could recall seeing no dishes in the kitchen, no towels in the bathroom, and the bedrooms were either empty or contained sleeping bags instead of beds.
The officers detained Armenia, Batiz-Guz-man, and de Jesus while Officer Kraus obtained a telephonic search warrant for the house, motor home, and another house on Alice Street. The search uncovered 71 kilograms of cocaine in the motor home, and 3 kilograms of cocaine and a loaded pistol in the Clifford housе.
Armenia, Batiz-Guzman, and de Jesus entered conditional guilty pleas in June 1992. They were sentenced to prison terms of 360 months, 120 months, and 121 months, respectively. Only Armenta appealed, arguing that the district court erred by summarily denying his pretrial suppression motion. He filed his notice of appeal on Septembеr 1, 1992, and his appeal was argued and submitted to a panel of this court on November 3, 1993.
While Amenta’s appeal was pending, Ba-tiz-Guzman asked the Office of International Affairs of the Department of Justice to transfer her to a Mexican prison, pursuant to the Treaty on the Execution of Penal Sentences, Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7399. By letter received May 4, 1993, the Office of International Affairs asked the prosecutor, William Gallo, to state any objections he had to Batiz-Guzman’s transfer. Gallo did not respond to the letter.
On November 30,1993, this court rendered its decision in Armenta’s appeal, remanding the case for a suppression hearing, and instructing that if Amenta’s suppression motion was successful, he must be allowed to withdraw his guilty plea. The panel’s decision was received in the prosecutor’s office on December 3. Also on December 3, Ar-menta’s attorney sent a letter to Gallo requesting the location of all of Armenta’s co-defendants. Gallo was out of the state at the time, however, so he did not receive either document until December 17, 1993. Upon his return, Gallo spoke with Amenta’s attorney, who stated that he wanted Batiz-Guz-man to testify at the suppression hearing. Gallo called the Office оf International Affairs and learned that Batiz-Guzman had been transferred to Mexico the prior week, on December 10, 1993. Gallo attempted to secure Batiz-Guzman’s voluntary return to the United States, pursuant to the Mutual Legal Assistance Cooperation Treaty, Dec. 9, 1987, U.S.-Mex., 27 I.L.M. 447 (entered into force May 3,1991), but shе refused to return.
The district court held a suppression hearing on April 25, 1994 and denied Amenta’s motion, finding that Amenta lacked standing to challenge the search. The court also denied Armenta’s motion to dismiss the indictment, concluding that Batiz-Guzman’s unavailability at the suppression hearing did not violate Armenta’s Fifth or Sixth Amendmеnt rights. Amenta timely appeals both rulings.
DISCUSSION
I. STANDARD OF REVIEW
Whether an indictment should be dismissed because the government failed to retain a witness is reviewed
de novo. United States v. Velarde-Gavarrete,
Whether a defendant has standing to contest the legality of a sеarch presents a
*307
mixed question of fact and law.
United States v. Singleton,
II MOTION TO DISMISS THE INDICTMENT
Following this court’s remand to the district court for a suppression hearing, Ar-menta moved for dismissal of the indictment. He alleged that the government’s failure to ensure Batiz-Guzman’s presence at the suppression hearing violated his Fifth Amendment right to due process and his Sixth Amendment right to compulsory process. He argues that Batiz-Guzman’s unavailability to testify prejudiced him during the hearing.
“In cases of constitutionally guaranteed access to evidence, wherein the Government loses potentially exculpatory evidence, ... the dеfendant must make an initial showing that the Government acted in bad faith
and
that this conduct resulted in prejudice to the defendant’s case.”
United States v. Bring,
The district court found that Armenta failed to prove a constitutional violation because he demonstrated neither bad faith by the prosecutor nor prejudice tо his case. We affirm on the ground that Armenta failed to prove bad faith on the part of the prosecutor.
Armenta argues that Gallo attempted to gain an unfair tactical advantage over him at the suppression hearing by securing Batiz-Guzman’s unavailability. Such an attempt, if proven, would demonstrаte bad faith.
See Bring,
Although Gallo did not object to Ba-tiz-Guzman’s transfer, he also took no affirmative steps to encourage her transfer: he did not even affirmatively state that he had no objections; he simply did not respond at all to the Office of International Affairs’ inquiry. 1 Gallo had no control over the transfer decision; he did not know when or even whether Batiz-Guzman’s request fоr a transfer would be granted. Moreover, Gallo was out of the state when the appellate decision was rendered and when Armenta made his request. Gallo thus did not receive either document until December 17, after Batiz-Guzman had already been transferred. In light of these circumstances, neither the fact that Batiz-Guzman was transferred, nor the timing of that transfer, amounts to bad faith conduct by Gallo.
Gallo’s conduct upon learning that Armen-ta wanted to call Batiz-Guzman as a witness at the suppression hearing further refutes Armenta’s claim that Gallo attempted to secure her absence: Gallo immediately attempted to have Batiz-Guzman voluntarily returned under the Mutual Legal Assistance Cooperation Treaty. 2 When that attempt was unsuccessful, Gallo offered to stipulate that if Batiz-Guzman were available to testify at the hearing, she would do so consistently with her declaration, which states that she *308 did not give the officers consent to enter the Clifford house.
Gallo’s conduct does not indicate an attempt to secure Batiz-Guzman’s unavailability or an attempt to “gain an unfair tactical advantage” at the suppression hearing.
See Dring,
III. MOTION TO SUPPRESS
Armenta cannot challenge the search of the Clifford house or motor home on Fourth Amendment grounds unless he demonstrates that he has “standing” to do so,
i.e.,
that he had a legitimate expectation of privacy in those places.
See Rakas v. Illinois,
A. The Clifford House
Armenta argues that he has standing to challenge the search at the Clifford house because he was an оvernight guest at the house.
See Minnesota v. Olson,
The district court held that this evidence was insufficient to demonstrate that Armenta was, in fact, an “overnight guest” at the Clifford house; the court accordingly held that Armenta lacked standing to challenge the search of the house. For the following reasons, we affirm.
Armenta’s bald assertion that he was an overnight guest (and Batiz-Guzman’s statement to that effect) is not sufficient to establish that he had a legitimate expectation of privacy in the house.
See United States v. Carr,
The totality of Armenta’s situation is vastly different from that of “overnight guests” who do have legitimate expectations of privacy in their hosts’ homes. In
Davis,
for example, in which we found a legitimate expectation of privacy, the guest had a key to the apartment, stored things there, and was free to come and go as he pleased. The guest took the precaution of storing his items in a locked safe in the owner’s apartment to ensure his privacy. The guest had previously lived in the apartment and continued to pay a portion of the rent.
We hold that Armenta has failed to demonstrate a legitimate expectation of privacy in the Clifford house, as an “overnight guest” or otherwise. Therefore, we affirm the denial of Armenta’s suppression motion as to the house.
B. The Motor Home
The district court never expressly ruled on Armenta’s suppression motion regarding the motor home, or his standing to assert a privacy interest in it. Accordingly, insofar as Armenta’s suppression motion relates to evidence seized from the motor home, we remand to the district court for further proceedings to determine whether Armenta had standing to object to the search of the motor home, and, if so, whether there existed probable cause to obtain the warrant under which the search was conducted.
CONCLUSION
We affirm the district court’s denial of Armenta’s motion to dismiss the indictment. We affirm the denial of Armenta’s motion to suppress as to the Clifford House, but we reverse and remand to the district court for further findings relevant to the motion to suppress evidence found in the search of the motor home.
Affirmed in part and reversed and remanded in part.
Notes
. Although Gallo's failure to respond to the Office of International Affairs’ inquiry may have been negligent, we hоld that a negligent failure to ensure a percipient witness' presence does not amount to a finding of bad faith.
Cf. Velarde-Gavarrete,
. Gallo testified that he could not compel Batiz-Guzman to return to the United States, and Ar-menta has not argued that Gallo could or should have done so.
. If Batiz-Guzman had authorify to use the house and if Armenta was her guest, Armenta might have a sufficient expectation of privacy under
Olson. See United States v. Elliott,