                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 98-11097
                         _____________________

          UNITED STATES OF AMERICA,

                                 Plaintiff-Appellee,

          v.

          MARVIN B CHERNA,

                                 Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
_________________________________________________________________

                             August 4, 1999

Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

KING, Chief Judge:

     Defendant-appellant Marvin B. Cherna appeals his conditional

plea of guilty to one count of mail fraud in violation of 18

U.S.C. § 1341 on the ground that the district court erred in

denying his motion to suppress evidence obtained pursuant to an

allegedly unconstitutional search warrant.       Because we find that

the executing officers acted in objectively reasonable good-faith

reliance on the warrant, we affirm.

                  I.   FACTUAL AND PROCEDURAL HISTORY

     In 1997, defendant-appellant Marvin B. Cherna was the

executive director of Help Hospitalized Children’s Fund (HHCF)

and American Veterans’ Relief Fund (AVRF), two charities based in

Dallas, Texas.    On May 19, 1997, Special Agent Loretta Smitherman
of the Federal Bureau of Investigation (FBI) applied to

Magistrate Judge John Tolle of the Northern District of Texas for

a warrant to search Cherna’s business and residence, both of

which, she alleged, were located at 7610 Meadow Oaks Drive in

Dallas, Texas.   The application for the warrant referred to two

documents:   Attachment A, which set forth the place to be

searched, and Attachment B, which described the evidence to be

seized.    Smitherman’s affidavit in support of probable cause was

also attached to the application.     Without hearing oral

testimony, Magistrate Judge Tolle issued a search warrant that

authorized officers to search the premises described in

Attachment A and to seize the property described in Attachment B.

Attachment A stated that the “offices of HELP HOSPITALIZED

CHILDREN’S FUND (HHCF) and AMERICAN VETERANS’ RELIEF FUND (AVRF)

are located at 7610 Meadow Oaks Drive, Dallas, Texas including

all rooms/parts of the residence and the attached garage.”

Attachment B described the evidence subject to seizure thus:

“Records and items related to Fraud by Wire and Mail Fraud as

described in the affidavit of FBI agent Loretta Smitherman,

within the premises of 7610 Meadow Oaks Drive, Dallas, Texas,

including, but not limited to the following, however maintained,”

followed by a list of twenty-six categories of evidence,

primarily written and electronic documents.     Smitherman’s

affidavit was not, however, physically attached to the search

warrant.




                                  2
      The next day, May 20, 1997, six FBI agents executed the

search warrant under Smitherman’s direction.    The agents were

required by FBI policy to read the warrant, the accompanying

documents, and the affidavit prior to participating in the search

and to sign the back of the warrant to show that they had done

so.   Smitherman did not know whether several other FBI employees

who assisted in the search but did not participate in seizing

evidence read the affidavit.    Cherna was given a copy of the

warrant and Attachments A and B but, although it was present in

Smitherman’s vehicle throughout the search, he was not shown the

affidavit because it had been placed under seal.    Upon entering

the premises at 7610 Meadow Oaks Drive, the agents determined

that four rooms were being used as office space and that the

garage had been converted into a telemarketing room and a storage

room for records.    They did not limit their search to only these

rooms, however, but also searched all areas in the residence

where records might be stored, including the bedroom, kitchen,

and living room.    At the conclusion of the search, the agents

left with Cherna the warrant, the attachments, and an inventory

of seized property.

      On March 3, 1998, a grand jury in the Northern District of

Texas returned an indictment charging Cherna with thirteen counts

of mail fraud perpetrated by soliciting funds for two non-profit

entities and then converting the contributions received to his

own use.   Cherna filed a motion to suppress all evidence seized

in the May 20, 1997 search.    The district court denied this


                                  3
motion, concluding that “Attachment B to the search warrant sets

out with sufficient particularity twenty-six types of items to be

seized so as to remove the warrant from the purview of a general

warrant” and, in the alternative, that “the officers executing

the warrant acted in good faith and in reasonable reliance upon

the warrant’s validity, thereby avoiding the Fourth Amendment’s

exclusionary rule.”   Cherna then entered a conditional plea of

guilty to one count of the indictment, reserving his right to

appeal the district court’s adverse ruling on his motion to

suppress.   The district court sentenced him to a four-year prison

term and a $12,500.00 fine.        Cherna appealed.

                      II.    STANDARD OF REVIEW

     When reviewing the denial of a motion to suppress, we review

factual findings for clear error and the trial court’s

conclusions as to the constitutionality of law enforcement action

and the sufficiency of a warrant de novo.           See United States v.

Kelley, 140 F.3d 596, 601 (5th Cir.), cert. denied, 119 S. Ct.

186 (1998).   The district court’s determination of the

reasonableness of a law enforcement officer’s reliance upon a

warrant issued by a magistrate--for purposes of determining the

applicability of the good-faith exception to the exclusionary

rule--is also reviewed de novo.           See United States v.

Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992).

                            III.    DISCUSSION

     On appeal, Cherna attacks the search warrant on two grounds.

First, he contends that it is an unconstitutional general


                                      4
warrant.    Cherna argues that the warrant’s general grant of

authority to seize “[r]ecords and items related to Fraud by Wire

and Mail Fraud as described in the affidavit of FBI agent Loretta

Smitherman . . . , including, but not limited to” twenty-six

categories of evidence does not describe the evidence sought with

sufficient particularity.    Although the warrant refers to

Smitherman’s affidavit, Cherna contends, the affidavit cannot

save the warrant because it was neither attached thereto nor

shown to Cherna.    Second, Cherna maintains that the warrant was

unsupported by probable cause.

     We employ a two-step process for reviewing a district

court’s denial of a motion to suppress when a search warrant is

involved.    See United States v. Lampton, 158 F.3d 251, 258 (5th

Cir. 1998), cert. denied, 119 S. Ct. 1124 (1999).    First, we

determine whether the good-faith exception to the exclusionary

rule announced in United States v. Leon, 468 U.S. 897 (1984),

applies.    If so, we end our analysis and affirm the district

court’s decision to deny the motion to suppress.    See

Satterwhite, 980 F.2d at 320.    If not, we proceed to the second

step, in which we “‘ensure that the magistrate had a substantial

basis for . . . concluding that probable cause existed.’”       United

States v. Pena-Rodriguez, 110 F.3d 1120, 1129 (5th Cir.) (quoting

Illinois v. Gates, 462 U.S. 213, 238-39 (1983)), cert. denied,

118 S. Ct. 71 (1997).    If the good-faith exception applies, we

need not reach the question of probable cause.     See id.; see also

United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988)


                                  5
(“Principles of judicial restraint and precedent dictate that, in

most cases, we should not reach the probable cause issue if a

decision on the admissibility of the evidence under Leon will

resolve the matter.”).

     We begin our analysis of the good-faith exception with Leon.

In that case, the Supreme Court held that the Fourth Amendment

does not require the suppression of evidence obtained as a result

of objectively reasonable reliance on a warrant, even if the

warrant is subsequently invalidated.    See Leon, 468 U.S. at 922.

Although the Court noted that “[w]hen officers have acted

pursuant to a warrant, the prosecution should ordinarily be able

to establish objective good faith without a substantial

expenditure of judicial time,” id. at 924, it also cautioned that

“the officer’s reliance on the magistrate’s probable-cause

determination and on the technical sufficiency of the warrant he

issues must be objectively reasonable, and it is clear that in

some circumstances the officer will have no reasonable grounds

for believing that the warrant was properly issued,” id. at 922-

23 (footnotes and citation omitted).    Thus, the good-faith

exception does not apply when “the magistrate or judge in issuing

a warrant was misled by information in an affidavit that the

affiant knew was false or would have known was false except for

his reckless disregard of the truth.”    Id. at 923.   Similarly,

suppression remains an appropriate remedy where the issuing

magistrate “wholly abandoned his judicial role in the manner

condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979);


                                6
in such circumstances, no reasonably well trained officer should

rely on the warrant.”   Id.    Nor is the exception available to an

officer who relies on a warrant based on an affidavit “‘so

lacking in indicia of probable cause as to render belief in its

existence entirely unreasonable.’”     Id. (quoting Brown v.

Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring)).

“Finally, depending on the circumstances of the particular case,

a warrant may be so facially deficient--i.e., in failing to

particularize the place to be searched or the things to be

seized--that the executing officers cannot reasonably presume it

to be valid.”   Id.

     Cherna contends that the last three situations obtain here.

First, he asserts that “the Warrant represents a complete

abdication by the Magistrate Judge of his authority to determine

what can and cannot be seized.”    As we explained above, Leon

teaches that the good-faith exception will not apply where the

magistrate conducted himself as did his counterpart in Lo-Ji

Sales.   In that case, an investigator purchased two films from a

so-called “adult” bookstore, concluded that they violated state

obscenity laws, and applied for a warrant to search the store,

representing that not only copies of the films but other “similar

items” would be found there.     See Lo-Ji Sales, 442 U.S. at 321.

The town justice viewed the films and issued a search warrant

authorizing seizure of copies of the two films and “[t]he

following items that the Court independently [on examination] has

determined to be possessed in violation of Article 235 of the


                                   7
Penal Law,” followed by a blank space.     Id. at 321-22.   The

justice then accompanied law enforcement officers to the store

and conducted a six-hour search during which he examined films,

books, and magazines free of charge and ordered the officers to

seize such items as he thought there was probable cause to

believe obscene.   See id. at 322-23.    The Supreme Court held that

the search violated the Fourth Amendment.    It concluded that

although “a warrant authorized by a neutral and detached judicial

officer is a more reliable safeguard against improper searches

than the hurried judgment of a law enforcement officer engaged in

the often competitive enterprise of ferreting out crime,” id. at

326 (internal quotation marks omitted), the town justice in Lo-Ji

Sales “did not manifest that neutrality and detachment demanded

of a judicial officer when presented with a warrant application

for a search and seizure,” id.   Instead, he conducted himself as

an “adjunct law enforcement officer.”     Id. at 327.

     After carefully reviewing the record, we conclude that there

is no evidence that the issuing magistrate in this case abandoned

his role as a neutral and detached judicial officer within the

meaning of Lo-Ji Sales.   Indeed, Cherna does not so much as

allege that Magistrate Judge Tolle was biased.     Cf. United States

v. Breckenridge, 782 F.2d 1317, 1321 (5th Cir. 1986) (“The

‘absence of a neutral and detached magistrate’ exception to

Leon’s good faith may also extend to situations in which officers

while presenting the affidavit realize that the magistrate served

only to rubber-stamp a previous decision reached by the


                                 8
police.”).    Nor does he assert that the magistrate judge

participated in the seizure of evidence so as to become an

“adjunct law enforcement officer.”     Lo-Ji Sales, 442 U.S. at 327;

cf. United States v. McKeever, 906 F.2d 129, 131-32 (5th Cir.

1990) (considering defendant’s argument that evidence should be

suppressed because magistrate was a former reserve police officer

and visited the site of the search).    We simply see no evidence

that Magistrate Judge Tolle “wholly abandoned his judicial role

in the manner condemned in Lo-Ji Sales . . . .”     Leon, 468 U.S.

at 923.1

     Cherna also argues that the good-faith exception does not

apply in this case because the warrant was insufficiently

supported by a showing of probable cause.    Under Leon, an officer

may not reasonably rely on a warrant “so lacking in indicia of

probable cause as to render belief in its existence entirely

unreasonable.”    Leon, 468 U.S. at 923 (internal quotation marks

omitted).    In general, “[a]n officer may rely in good faith on

the validity of a warrant so long as the warrant is supported by


     1
        Cherna does suggest that Magistrate Judge Tolle abandoned
his judicial role by issuing a search warrant that was
insufficiently particular and supported by probable cause to pass
Fourth Amendment muster. Under Leon, however, excessive
generality and lack of probable cause are independent reasons not
to apply the good-faith exception, and we therefore consider
Cherna’s arguments in this regard below. Cf. United States v.
Tedford, 875 F.2d 446, 449-50 (5th Cir. 1989) (analyzing as a
single issue defendant’s contentions that judge “abandoned his
detached and neutral role by merely ratifying the officers’
conclusions and issuing the warrant on the basis of ‘bare bones’
affidavits” and that “officers’ reliance on the warrant was
unreasonable because the underlying affidavits were completely
‘lacking in indicia of probable cause’”).

                                  9
more than a bare bones affidavit.”    United States v. Cisneros,

112 F.3d 1272, 1278 (5th Cir. 1997) (internal quotation marks

omitted).    In evaluating whether the affidavit in this case

justifies application of the good-faith exception, however, we

must keep in mind that it is more difficult to demonstrate

probable cause for an “all records” search of a residence than

for other searches.    United States v. Humphrey, 104 F.3d 65, 68-

69 (5th Cir.), cert. denied, 520 U.S. 1235 (1997).    In Humphrey,

a fraud case, we upheld a warrant authorizing the seizure of all

of the defendants’ financial and business records from their

residence because a three-page affidavit from an FBI agent

demonstrated that the fraud was pervasive, that there was

considerable overlap between the defendants’ personal and

business lives, especially in that they used their home as an

office, and that the defendants provided services about which

there had been many complaints, cashed a large number of

cashier’s checks, and stored cash under their mattress.     Id.   We

emphasized, however, that our holding “should not be read as a

broad authorization for the issuance of all records searches of

homes. . . . [I]t is only in extreme cases, such as the one

before us today, that we will uphold warrants of this type.”      Id.

at 69 n.2.

     Even in light of the fact that the warrant in this case

authorized an all records search of Cherna’s home, we do not

think probable cause was so lacking as to “render official belief

in its existence entirely unreasonable.”    Leon, 468 U.S. at 923


                                 10
(internal quotation marks omitted).   The search warrant

application included an eleven-page affidavit from FBI Special

Agent Loretta Smitherman.    Smitherman stated that she had been an

FBI agent for six years.    She had investigated Cherna, executive

director of HHCF and AVRF.   She discovered that in 1995 and 1996,

HHCF solicited donations by representing that the money would

benefit hospitalized children in the donor’s community and that

HHCF was a member of certain prestigious charitable

organizations.   In many instances, however, HHCF representatives

were unable to name any hospitals that would receive donations,

and hospital administrators in the relevant communities denied

having heard of or receiving assistance from HHCF.    Furthermore,

representatives of several charitable organizations in which HHCF

claimed membership stated that HHCF neither belonged to those

groups nor had permission to use their names.   HHCF maintained

numerous local bank accounts, despite its own accountant’s advice

that it was financially and logistically preferable to have only

one account, because, in Cherna’s words, “the donors want to feel

as if the money they are pledging is being spent in there [sic]

area of the country.”   Smitherman also discovered that, although

tax records showed that HHCF executives served without

compensation, HHCF regularly paid Cherna and an HHCF board member

thousands of dollars, and numerous checks for what appeared to be

personal expenses had been written on HHCF’s account.

      In addition, Smitherman related that she had reviewed

ninety-three affidavits, provided to her by the Massachusetts


                                 11
Attorney General’s Office, in which private citizens described

how AVRF telemarketers urged them to donate money, representing

that (1) their donations would benefit local veterans’ hospitals,

(2) retired veterans would pick up the donations, and (3) the

donations would be used to purchase medical supplies for

hospitalized veterans.   In fact, AVRF donated only $650.00 to

Massachusetts veterans’ hospitals during the years 1994 through

1996.   AVRF’s nationwide donations to hospitals run by the United

States Department of Veterans’ Affairs for the tax year ended

January 31, 1996 totaled only one-tenth of one percent of its

total income.

     Finally, Smitherman averred that she had reason to believe

that HHCF and AVRF had been and still were being operated out of

Cherna’s residence because, on February 13, 1997, two employees

of Thomas Ewbank’s accounting firm had been inside Cherna’s home,

where they observed two rooms set up as offices for HHCF and

AVRF, and an auditor from the firm was scheduled to meet with

Cherna there on the date Smitherman executed her affidavit, May

19, 1997.   Furthermore, on April 18, 1997, a woman identifying

herself as an AVRF employee accepted service of process at

Cherna’s home, and as of May 11, 1997, the electric account for

the residence was listed in HHCF’s name.   Smitherman concluded

that, after reviewing her affidavit in light of Humphrey with two

Assistant United States Attorneys, she believed that Cherna’s

business activities were “merely a scheme to defraud” and that




                                12
there was “obviously considerable overlap of Cherna’s personal

life and business life.”

     Smitherman’s affidavit was not so “bare bones” as to render

all belief in the existence of probable cause for an all records

search unreasonable.   Smitherman averred that Cherna operated his

businesses from his home, that he used business funds to pay for

what appeared to be personal expenses, and that HHCF and AVRF

misrepresented the nature and amount of their charitable work in

an effort to increase donations.     She requested permission to

seize all records and items relating to the mail and wire fraud

scheme she believed to be in progress.     Cf. Humphrey, 104 F.3d at

68-69 (finding probable cause for an all records search of

defendants’ home based on evidence that they used residence as

office, engaged in suspicious financial transactions and provided

services about which there had been many complaints).     Although

many of the misrepresentations described in Smitherman’s

affidavit took place in 1995 and 1996, one to two years before

Smitherman applied for the warrant, she explained that, based on

her conversations with employees of Ewbank’s accounting firm, the

acceptance of process by an AVRF employee at Cherna’s residence

only a month before the application, and the evidence that, a

week before the search, the electric account for Cherna’s

residence was in the name of HHCF, it was likely that the records

sought were still located at Cherna’s home.     Especially in light

of the facts that HHCF and AVRF were ongoing businesses and that

financial records typically are retained for long periods of


                                13
time, we cannot say that Smitherman’s affidavit was based on

stale information.   See United States v. Webster, 734 F.2d 1048,

1056 (5th Cir. 1984) (“[W]hen the information of the affidavit

clearly shows a long-standing, ongoing pattern of criminal

activity, even if fairly long periods of time have lapsed between

the information and the issuance of the warrant, the information

need not be regarded as stale.”); United States v. Freeman, 685

F.2d 942, 952 (5th Cir. 1982) (recognizing that bank records are

likely to be kept for long periods of time).   Of course, there

could be, as Cherna argues in his brief, innocent explanations

for the evidence Smitherman discovered, but an affidavit need not

present a watertight criminal case to support good-faith reliance

on a warrant.2

     Finally, Cherna maintains that the warrant is so lacking in

particularity that the executing officers could not reasonably

have presumed it to be valid.   Cherna points out that the warrant

authorized the seizure of “[r]ecords and items related to Fraud

by Wire and Mail Fraud as described in the affidavit of FBI

Loretta Smitherman” but failed to include the affidavit as an

attachment.   No law enforcement officer, he claims, could

reasonably believe that a warrant for records and items relating

     2
        Indeed, we have emphasized that probable cause to search
is present where there is adequate “‘information to allow the
conclusion that a fair probability existed that seizable evidence
would be found’” on the premises. Cisneros, 112 F.3d at 1279
(quoting United States v. Restrepo, 994 F.2d 173, 189 (5th Cir.
1993)). While Cherna’s arguments might have been convincing to a
jury had he gone to trial, they do not convince us that the lack
of probable cause was so obvious as to deprive the officers of
the good-faith exception to the exclusionary rule.

                                14
to the broad crimes of mail and wire fraud is sufficiently

particular to satisfy the Fourth Amendment.

      The seminal Supreme Court case on particularity and the

good-faith exception is Massachusetts v. Sheppard, 468 U.S. 981

(1984).   That case concerned a warrant authorizing a search for

“controlled substances” that was accompanied by a detailed

affidavit indicating that the affiant wished to search for

evidence relating to a homicide investigation.     See id. at 985-

86.   The defendant complained that the warrant was insufficiently

particular.   See id. at 987.    It was undisputed, however, that

the issuing judge and the executing officers knew the contents of

the affidavit and the focus of the search and that the affiant

had, in fact, pointed out the discrepancy to the judge, who had

assured him that the necessary corrections would be made.     See

id. at 986.   The Court concluded that the officers’ good-faith

reliance on the warrant was objectively reasonable because the

affiant prepared an affidavit that was reviewed and approved by

the district attorney, presented the affidavit to a neutral

judge, who found that it established probable cause for the

search requested by the affiant, and informed the judge that

changes might need to be made.    He then observed the judge made

some changes and received the warrant and the affidavit.     See id.

at 989.   “At this point, a reasonable police officer would have

concluded . . . that the warrant authorized a search for the

materials outlined in the affidavit.”     Id.




                                  15
     We have considered similar situations in this circuit.    In

United States v. Beaumont, 972 F.2d 553, 560 (5th Cir. 1992), for

example, the warrant contained only a generalized statement that

“evidence of the commission of a criminal offense as well as

contraband abd [sic] the fruits of crime” were to be seized.     The

warrant was accompanied by an affidavit that contained a detailed

description of the items sought, but it did not refer to the

affidavit at all.   See id.   We found that although a warrant that

relies on an affidavit to meet the Fourth Amendment particularity

requirement must incorporate the affidavit by reference, see id.

at 560-61, the good-faith exception applied:

          In the instant case, there was a probable cause
     determination made by the state judge, the affidavit
     provided specific information of the objects of the search,
     the executing officer was the affiant, the additional
     officers making the search knew what was to be searched for,
     and, finally, the warrant could easily have been made valid
     by the insertion of the phrase “see attached affidavit.”

Id. at 561 (footnote omitted).   For the same reasons, we held in

United States v. Shugart, 117 F.3d 838, 845-46 (5th Cir.), cert.

denied, 118 S. Ct. 433 (1997), that officers reasonably could

have relied on a warrant that was insufficiently particular on

its face and did not incorporate the affidavit on which it was

based.

     This precedent convinces us that the warrant in this case

was not so lacking in particularity that the executing officers

could not reasonably presume it to be valid.   As in Sheppard,

Beaumont, and Shugart, the issuing judge in this case made a

probable cause determination, the affidavit explained in detail


                                 16
the alleged mail and wire fraud scheme that was the target of the

investigation and search, the officer in charge of the search,

Smitherman, was the affiant, and the other FBI agents who

participated in the search read the affidavit before beginning

it.   Even assuming that the absence of the affidavit rendered the

warrant constitutionally defective, this defect could have been

remedied with only minor corrections, such as the attachment of

the affidavit.   Cf. Sheppard, 468 U.S. at 990 n.7 (“This is not

an instance in which ‘it is plainly evident that a magistrate or

judge had no business issuing a warrant.’ . . . Indeed, Sheppard

admits that if the judge had crossed out the reference to

controlled substances, written ‘see attached affidavit’ on the

form, and attached the affidavit to the warrant, the warrant

would have been valid.”); Shugart, 117 F.3d at 845-46 (noting

that a warrant that did not “incorporate” an affidavit could have

been made valid with minor corrections, such as a reference to

and attachment of the affidavit); Beaumont, 972 F.2d at 562

(“[T]he warrant could easily have been made valid by the

insertion of the phrase ‘see attached affidavit.’”).   Smitherman

was prevented from attaching her affidavit to the warrant or

serving it on Cherna, however, because it had been placed under

seal.   In issuing a search warrant and sealing the affidavit on

which the warrant is based, the magistrate judge was essentially

assuring Smitherman that the warrant, unattached to the

affidavit, was sufficient to authorize the search she had

requested.   The Fourth Amendment does not demand that the


                                17
executing officers question his decision and determine for

themselves whether the warrant is, in fact, valid.   “Whatever an

officer may be required to do when he executes a warrant without

knowing beforehand what items are to be seized, we refuse to rule

that an officer is required to disbelieve a judge who has just

advised him, by word and by action, that the warrant he possesses

authorizes him to conduct the search he has requested.”

Sheppard, 468 U.S. at 989-90 (footnote omitted).

     Nor is this a case in which the non-attachment of

Smitherman’s affidavit made the warrant so obviously defective

that the officers could not reasonably have relied on it.    First,

Attachment B, expressly mentioned in the warrant and attached

thereto, referred to Smitherman’s affidavit and described in

considerable detail twenty-six categories of evidence to be

seized.   A reasonable executing officer, relying on the

magistrate judge’s issuance of the warrant and sealing of the

affidavit, could have believed that the reference to the

affidavit and the rather lengthy list that followed satisfied the

Fourth Amendment’s particularity requirement.   Cf. United States

v. Moser, 123 F.3d 813, 823 (5th Cir.) (approving search warrant

authorizing seizure of “[r]ecords relating to the production,

advertising, ordering, sale, mailing and shipment of material

involved in the use of ‘Certified Money Orders’ by U.S.A. First

and O.M.B., W.D. McCall.   Such records, files and promotional

material include but are not limited to . . . .”), cert. denied,

118 S. Ct. 613 (1997).


                                18
     Second, as Cherna concedes, where a warrant relies on an

affidavit to specify the objects of the search, it is not

entirely clear from circuit precedent that the affidavit must be

physically attached to the warrant or served on the defendant.

Compare United States v. Haydel, 649 F.2d 1152, 1157 (5th Cir.

Unit A July 1981) (“If, as is the case here, the warrant is

ambiguous, but fairly directs attention to the place actually

searched, and if the affidavit supporting the warrant is attached

to the warrant when issued, the affidavit may be considered to

clarify an ambiguity on the face of the warrant.   The affidavit

must be attached to the warrant so that the executing officer and

the person whose premises are to be searched both have the

information contained in the affidavit, in addition to what is

said on the face of the warrant.”) (citation omitted and emphases

added), opinion corrected on reh’g on other grounds, 664 F.2d 84

(5th Cir. Unit A Dec. 1981), with Shugart, 117 F.3d at 845 (“In

addition, this court has held that the particularity requirement

may be satisfied ‘by reliance on an affidavit when the affidavit

is incorporated by reference into the warrant.’”) (quoting

Beaumont, 972 F.2d at 561) (emphasis added); United States v.

Wuagneux, 683 F.2d 1343, 1351 n.6 (11th Cir. 1982) (noting,

shortly after the Eleventh Circuit split from the Fifth, that

“although the record in Haydel was not entirely clear on whether

the affidavit was physically attached, the record did indicate

that it was available at the search site and that the searching

agents knew what they were looking for” and opining that Haydel


                               19
“mandates a more flexible approach” than a strict requirement

that the affidavit be physically attached to the warrant or

served on the defendant); United States v. Cook, 657 F.2d 730,

736 (5th Cir. Unit A Sept. 1981) (“The affidavit, which was

referred to and which accompanied the warrant, supplied a

particular description . . . .”) (emphasis added).   But see

United States v. McGrew, 122 F.3d 847, 850 (9th Cir. 1997) (“If

the government wishes to keep an affidavit under seal, it must

list the items it seeks with particularity in the warrant itself.

It is the government’s duty to serve the search warrant on the

suspect, and the warrant must contain, either on its face or by

attachment, a sufficiently particular description of what is to

be seized. . . . If the ‘incorporated’ affidavit does not

accompany the warrant, agents cannot claim good faith reliance on

the affidavit’s contents.”); United States v. Dahlman, 13 F.3d

1391, 1395 (10th Cir. 1993) (holding that affidavit could not

cure particularity problem because, inter alia, there was no

indication in the record that affidavit had been “physically

attached to the warrant”).   Given the state of the law in this

circuit, we cannot say that the executing officers could not

reasonably rely on the magistrate judge’s issuance of the

warrant, even though he simultaneously sealed the affidavit on

which it was based.

     Finally, we must address Cherna’s contention that

Smitherman’s testimony at the suppression hearing “clearly




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demonstrates the absence of objective good faith.”    According to

Cherna,

     Agent Smitherman candidly acknowledged that she drafted the
     Warrant to allow her the unfettered discretion to seize
     whatever she deemed to be of interest. That is precisely
     the type of governmental “roaming” that the Fourth
     Amendment’s particularity requirement was designed to
     prohibit. Thus, regardless of Agent Smitherman’s subjective
     intent, the objective record demonstrates that the good
     faith exception cannot save this Warrant.

(citation omitted).    We note as an initial matter that this

argument is more correctly characterized as an allegation that

Smitherman acted in “subjective,” not “objective,” bad faith:

Cherna claims that Smitherman drafted the warrant so as

intentionally to flout the Fourth Amendment’s particularity

requirement.    The district court, however, found that “the

officers executing the warrant acted in good faith.”    At the

suppression hearing, the following colloquy took place between

Smitherman and Cherna’s counsel:

     Q. Can you think of one thing that wouldn’t relate to it?
     If his entire life is consumed by fraud, wouldn’t everything
     inside 7610 Meadow Oaks, based upon your affidavit, be
     subject to seizure under the terms of that warrant?

     A. Photographs of his children wouldn’t be seized, you
     know, religious materials.
          You want me to make up a list of things that wouldn’t
     be seized?

     Q.   No.   I think--

     A. Anything that didn’t have to do with fraud wouldn’t be
     seized.

     Q. But the question I have is, how would you draw the line
     if he paid for the camera that took those pictures, paid to
     develop--cost of those picture with the proceeds of
     charitable donations, you could seize anything under the
     terms of this warrant.


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     A. No, only things that had to do--that were evidence of
     mail fraud and wire fraud.

     Q.   Okay.    As set forth in your affidavit?

     A.   Yes.

     Q. And your affidavit just--I’m going to make this very
     clear, was never given or supplied to Mr. Cherna?

     A.   That’s right.

     Q. So he had absolutely no way to determine what the scope
     of your search would ultimately be?

     A. No, he did because I gave him the attachment B that is
     entitled Property to be Seized.

     Q. Which describes the property seized to be records and
     items related to fraud by wire and mail fraud as described
     in your affidavit, which was not supplied to him?

     A. Yes. But then there are--there is several pages
     describing the items that will be seized.

     Q. Well, are those all of the items that will be seized?
     Your paragraph--your lead-in paragraph to attachment B says
     including but not limited to the following.

     A.   It’s--

     Q. Doesn’t that provide you with the discretion to
     determine precisely what related to mail fraud or wire
     fraud?

     A. Yes. In case I neglected to put something in important
     on the list and I found an important piece of evidence, I
     wouldn’t want to be precluded from being able to seize it.

     Q.   Exercise discretion on site to seize that item?

     A.   Yes.

While we agree that this testimony is sometimes equivocal, we

cannot say that the district court clearly erred in finding that

Smitherman acted in good faith.     Smitherman did not admit that

she had drafted the warrant to give her complete discretion to

seize any item she wished; instead, she stated repeatedly that

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the warrant authorized the seizure only of evidence related to

mail and wire fraud as described in her affidavit.       While she did

testify that the warrant permitted her to exercise some

discretion with respect to identifying such evidence, she

apparently also believed that Attachment B adequately identified

the scope of her search.   Quite simply, Cherna can point to no

testimony establishing that Smitherman intended to violate the

Fourth Amendment.   We decline to disturb the district court’s

finding that she acted in good faith.

     We conclude that the good-faith exception to the

exclusionary rule applies in this case.       “The officers in this

case took every step that could reasonably be expected of them.”

Sheppard, 468 U.S. at 989.   Smitherman prepared a detailed

affidavit that was reviewed by two Assistant United States

Attorneys.   She then presented the affidavit to a neutral

magistrate judge, who found it sufficient to support probable

cause to search Cherna’s residence and issued a warrant

authorizing such action.   Although he sealed the affidavit, the

warrant referenced it and contained a list of twenty-six

categories of evidence subject to seizure.       All the officers who

participated in seizing evidence read the affidavit and,

therefore, were familiar with the objects of the search.       Our law

simply does not require a reasonable officer to do more.

                           IV.   CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.


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