United States v. Vigeant

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


Nos. 98-1412

     98-1819



                          UNITED STATES,



                            Appellee,



                                v.



                        ROBERT A. VIGEANT,



                      Defendant, Appellant.


APPEALS FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



             [Hon. Mary M. Lisi, U.S. District Judge]


Before



                     Torruella, Chief Judge,

                Campbell, Senior Circuit Judge,

                   and Stahl, Circuit Judge.


John A. MacFadyen for appellant.

     Richard W. Rose, Assistant United States Attorney, with whom

Margaret E. Curran, United States Attorney, was on brief for

appellee.


May 14, 1999


STAHL, Circuit Judge. Defendant-appellant Robert A.

Vigeant appeals his conviction for being a felon in possession of

a firearm in violation of 18 U.S.C.  922(g)(1).  For the reasons

that follow, we vacate the conviction and remand to the district

court for proceedings consistent with this opinion.

                               I.

                             Facts

  The following facts are largely undisputed.  Vigeant, a

convicted felon, lived primarily at 24 Newport Lane, Narragansett,

Rhode Island.  In March of 1995, he opened a personal bank account

at Fleet Bank.  On the application for the account, he listed his

previous employer, but left blank the space calling for the name of

his current employer.  Fifteen months later, on June 12, 1996,

Vigeant opened two business accounts at the same bank.  He made an

initial deposit of $19,000 into one of the accounts in a mix of

large and small bills.  He then immediately transferred $18,500 of

this amount from one business account to the other.  Vigeant

promptly filed the Currency Transaction Report (CTR) required by

the Treasury Department for currency transactions exceeding

$10,000.  On July 17, 1996, Vigeant deposited an additional

$39,231.59 in the form of a cashier's check into one of the

business accounts.  He made no attempt to disguise the electronic

or paper trail of either transaction.

  Beginning some time in 1995, the government launched an

investigation of a drug dealing ring headed by Patrick M. Vigneau. 

Although the government never did charge Vigeant in connection with

the Vigneau conspiracy, Vigeant was a target of this investigation. 

On September 8, 1995, the government obtained a phone book

belonging to Vigneau.  The phone book contained a listing for

Vigeant, who had known Vigneau since grammar school.  Also in the

phone book, there were several scrap pages on which names and

initials -- among them "Bobby V." and "B.V." -- were listed

alongside various numbers, apparently dollar figures.  No dates

accompanied the information.  A confidential informant (CI), of

whose criminal record and general unreliability the government was

aware, informed the investigating agents, inter alia, that the

numbers and names memorialized drug deals, and that "B.V." and

"Bobby V." referred to Vigeant.  Subsequently, the government

obtained an indictment under seal charging Vigneau and six others

-- but not Vigeant   with money laundering and drug distribution

offenses.  

  On May 9, 1997, nearly a year after the Fleet Bank

business account transactions and shortly before the sealed Vigneau

indictment was to be made public, agents of the DEA, IRS and ATF

obtained search warrants for Vigeant's residence at 24 Newport

Lane, and for Vigneau's residence at 25 Kulas Road in West Warwick,

Rhode Island.  Both warrant applications were supported by the same

nine-page affidavit prepared by Special Agent Botelho of the IRS. 

The vast majority of statements in the affidavit concerned activity

related to Vigneau that had occurred two years earlier;

approximately two pages' worth of information related to Vigeant,

none of it more recent than seven months.  Because this warrant is

at the heart of Vigeant's appeal, we reproduce the portions of the

supporting affidavit relevant to Vigeant in their entirety:

      3 [Botelho avers that he is case agent

  in the investigation of the Vigneau drug

  distribution and money laundering conspiracy.]

  Charles ETHIER and Robert VIGEANT are subjects

  of the investigation but have not yet been

  charged.  The investigation continues into

  ETHIER, VIGEANT, and others.

      . . .

      6 This affidavit is submitted in

  support of the application for warrants to

  search the following residences:

      . . .

    b.  24 Newport Lane, Narragansett, RI, a two-

  story, wooden, residential structure, brown in

  color.  This home is the residence of Robert

  VIGEANT and business address of Versatile

  Investment Group, Inc. and City Wide, L.L.C. 

      7 The [Vigneau] indictment covers a

  marijuana and money laundering conspiracy

  which began in February 1995 and terminated in

  or about December 1995 . . . .

      14 Among those listed in the drug

  ledger[, the phone book seized previously from

  Vigneau,] is Robert VIGEANT.  THE CI has

  informed me that in August of 1995 he received

  $10,000 in cash from VIGEANT for payment of a

  load of marijuana.  That transaction is one of

  those listed in the drug ledger maintained by

  Vigneau.  VIGEANT is listed in at least one

  other transaction in the ledger.

      21 The evidence indicates that Robert

  VIGEANT has created front companies to

  personally launder his profits.  In March

  1995, Robert VIGEANT opened a personal bank

  account at Fleet Bank.  He listed his

  occupation as unemployed.  Also during 1995,

  as stated above, VIGEANT was engaged in drug

  trafficking.  VIGEANT has not filed tax

  returns for 1995 and 1996.

      22 On June 12, 1996, VIGEANT opened

  two business bank accounts.  One was in the

  name of Versatile Investment Group, Inc., and

  the other was in the name of City Wide L.L.C. 

  ROBERT VIGEANT lists himself as the President

  of both companies.  The business address is

  listed as 24 Newport Lane, Narragansett, RI. 

  The bank records are mailed each month to this

  business address.

      23 On June 12, 1996, VIGEANT deposited

  $19,000 in cash into a newly opened account in

  the name of Versatile Investment Group.  The

  cash was in small bills.  On the same day,

  June 12, 1996, he transferred $18,500 from the

  Versatile Investment Group, Inc. account to

  the City Wide L.L.C. account.  This appears to

  have been a layering transaction, with no

  apparent benefit for breaking the transaction

  into two transactions.  In addition to the

  $19,000 cash deposit, VIGEANT deposited a

  cashier's check on July 17, 1996.  The

  cashier's check was in the amount of

  $39,231.59.

      24 Within two months of opening these

  accounts, VIGEANT invested $25,000 of the

  funds.  He made a down payment on a 42-foot

  pleasure boat, and he made a down-payment on a

  piece of investment real estate.

      25 Based on the foregoing, there is

  probable cause to believe that Robert VIGEANT

  has laundered drug profits in violation of 18

  U.S.C.  1956 by concealing assets derived

  from illegal drug sales and evidence of this

  concealment . . . will be found at VIGEANT's

  home and business address at 24 Newport Lane,

  Narragansett, RI, 02882.



The warrant authorized the agents to look for all "original bank

records or copies" of Vigeant's business and personal accounts at

Fleet Bank.

  Based on this warrant, the agents raided Vigeant's home

at dawn on May 12, 1997.  They knocked, waited five to ten seconds,

and then used a battering ram to break down the door.  Vigeant was

handcuffed and placed half-naked in a chair in his bedroom.  During

their search, agents found a pistol in the night stand and another

weapon located behind a downstairs liquor cabinet.  Though he was

never charged with either money laundering or drug conspiracies,

Vigeant was indicted on two counts of being a felon in possession

of a firearm (the pistol and the second weapon, respectively) and

one count of possessing ammunition (in the loaded guns).

                              II.

                             Trial

  On July 10, 1997, Vigeant filed a motion to suppress the

seized guns and ammunition because the search warrant was defective

for failing to have established probable cause.  The district court

denied the motion.  The court acknowledged that there was very

little and perhaps no evidence of a continuing drug conspiracy. 

Nevertheless, because the bank records were potential evidence of

money laundering, and because the affidavit stated in a general way

that criminals engaged in money laundering tend to keep such

records, and because the records were continuously mailed to

Vigeant in the two years' elapsed time between the drug evidence

and the search, the court found that the warrant established

probable cause that the bank records the government sought were

still in the house.

  On September 2, 1997, Vigeant filed a motion for a

hearing under Franks v. Delaware, 438 U.S. 154, 155 (1978) (giving

defendants a right to a hearing to challenge the truthfulness of

statements made in an affidavit supporting a warrant application,

provided that the defendant makes a "substantial preliminary

showing" of a deliberate falsehood or affiant's reckless disregard

of the truth).  Vigeant alleged that the affidavit contained false

and misleading information supplied by affiant Botelho in reckless

disregard for the truth.  The motion was denied.  The district

court found that there was independent corroborating evidence of

the CI's information regarding Vigneau, which made his unreliable

record unimportant.  The court also found that all of the facts

regarding the "front companies" were true, though scanty.  After a

change in Vigeant's counsel, a motion to reconsider was filed,

which was also denied.

  A jury convicted Vigeant of possessing the downstairs

weapon and the ammunition, but not the pistol from the bedside

table.  The government then moved to dismiss the ammunition count

as duplicative.  Vigeant was sentenced to a lengthy prison term.

  After the sentence and a timely appeal, Vigeant's counsel

spoke with the CI, who recanted substantial portions of what he had

told the affiant.  On the basis of this new information, Vigeant

filed a "Motion for Further Franks Hearing Based on Newly

Discovered Evidence."  The district court treated the filing as a

motion for a new trial, which it denied.  Vigeant appealed the

denial pro se.  The two appeals were consolidated in the present

action.

                              III.

                         Probable Cause

  Vigeant argues that the affidavit offered in support of

the application for a warrant to search his house at Newport Lane

did not demonstrate probable cause.  We agree. 

  We review the question of probable cause de novo, see

Ornelas v. United States, 517 U.S. 690, 699 (1996), assessing the

information provided in the four corners of the affidavit

supporting the warrant application, see United States v.

Khounsavanh, 113 F.3d 279, 283 & n.1 (1st Cir. 1997).  The

information provided must "warrant a man of reasonable caution in

the belief that an offense has been or is being committed." 

Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (internal

quotation marks omitted).  "Probability is the touchstone." 

Khounsavanh, 113 F.3d at 283.  "Probable cause exists when the

affidavit upon which a warrant is founded demonstrates in some

trustworthy fashion the likelihood that an offense has been

committed . . . ."  United States v. Schaefer, 87 F.3d 562, 565

(1st Cir. 1996) (internal quotation marks omitted).  "[M]ere

suspicion, rumor, or strong reason to suspect [wrongdoing]" are not

sufficient.  United States v. Han, 74 F.3d 537, 541 (4th Cir. 1996)

(citation omitted).

  We will limit our inquiry to whether there was probable

cause to believe that Vigeant had committed the crime of laundering

drug proceeds in violation of 18 U.S.C.  1956, as alleged in the

affidavit.  We assume for present purposes that there was probable

cause that the evidence (in the form of bank records) of such a

crime would be found at 24 Newport Road.  See  United States v.

Zayas-Diaz, 95 F.3d 105, 110-11 (1st Cir. 1996) (A "warrant

application must demonstrate probable cause to believe that a

particular person has committed a crime--'the commission element'--

and that enumerated evidence relevant to the probable criminality

likely is located at the place to be searched--'the "nexus"

element.'") (emphasis in original).  We hold that the "commission"

element of the probable cause inquiry was not satisfied, for three

reasons: (1) there is no link, temporal or otherwise, between the

alleged drug dealing and the bank activity that took place more

than six months later; (2) the banking and investment activity was

not itself of a character sufficient to establish that the

"proceeds of some form of unlawful activity," 18 U.S.C.  1956,

were involved; and (3) the conclusory statements of the affiant

that might otherwise have helped create probable cause are entirely

without factual support.

  Links to Drug Activity.  In total, the affidavit states

that Vigeant was involved in at least one drug transaction that

took place two years before the warrant application was submitted

and six months before the allegedly suspicious financial

transactions.  This information was based on the word of a

confidential informant, whose reliability and credibility is

neither supported nor referred to in the affidavit.  There are no

"self-authenticating" details, such as extensive description, that

would suggest the report was not simply made up.  See Zayas-Diaz,

95 F.3d at 111.  Nor is there any indication that affiant Botelho

had other information independently corroborating the CI's

information so as to bolster the lack of a showing of reliability. 

See Gates, 462 U.S. at 233.  Indeed, the government's failure to

indict Vigeant along with Vigneau suggests that the government had

insufficient evidence of drug dealing activity on Vigeant's part. 

In any case, at the suppression hearing, the district court aptly

pointed out that there was virtually no evidence of a continuing

pattern of drug transactions.

  Even if there were such evidence in the affidavit, there

is simply no connection between the alleged drug activity (and any

proceeds therefrom) and the banking transactions.  There was a

significant temporal gap between the two events.  The amounts

deposited were not similar to those involved in the drug

transaction in which the CI had participated in 1995, nor to the

numbers in the "drug ledger" next to Vigeant's initials.  The

affidavit itself says that the drug distribution conspiracy in

which Vigeant was supposed to have played a part "terminated in or

about December 1995" -- well before the deposits alleged to be

layering.  Thus, we conclude that the government was unable to

identify with factual particulars any illicit source that might

cast doubt on otherwise legal 1996 transactions.

  Banking and Investment Transactions.  As we noted above,

the alleged laundering itself took place six months after the

meager evidence of past drug trafficking and well after the

affidavit itself says the Vigneau conspiracy terminated.  Absent

any link between the drug activity and the banking transactions,

the activity suggesting laundering comprised (1) the fact that the

defendant made a deposit of small bills in a bank account, the bulk

of which he moved on the same day to another bank account within

the same bank, (2) the fact that Vigeant was not employed outside

his two businesses, and (3) the "fact" -- which later proved untrue

-- that the defendant had not filed tax returns for 1995 and 1996. 

The affidavit does not aver that Vigeant tried to hide any of the

1996 transactions.  It does not say what steps, if any, the

government took to establish the source of the funds.  In the

absence of any link to an illicit source, see supra, the only

material fact alleged in the affidavit relative to the nature of

the banking transactions themselves that has a suspicious cast is

the reference to "small bills."  While somewhat suspicious, this

single factor is inadequate, either alone or taken in light of the

other allegation, to establish probable cause that the funds were

the proceeds of unlawful activity under the money laundering

statute. 

  The fact that Vigeant subsequently invested a portion of

the money in a boat and real estate nudges us no closer to the

conclusion that "probable criminality" occurred.  For one thing,

like the banking activity, there were no allegations that suggest

the purchases were made with the proceeds of unlawful activity. 

Second, activity of this type could be consistent with legitimate

business that might be transacted by a company named Versatile

Investment Group; that is, legitimacy is at least as reasonable an

inference from the allegations as is criminal activity.   For these

reasons, we do not see how this information makes more probable the

conclusion that money laundering occurred.  As we have said,

probability is the touchstone, and here there is no more than a

remote, speculative possibility that the Vigeant affidavit

evidenced money laundering activity.

  Agent's Conclusions.  There are, of course, the

conclusory statements of the affiant Botelho that the activity

described constituted "layering" and that the business accounts

were for "front companies."  Normally, where there is evidence to

support the conclusions of an experienced officer, we accord those

conclusions some weight.  See United States v. Hoffman, 832 F.2d

1299, 1306 (1st. Cir. 1987).  Here, we find no evidence that

supports any part of the officer's conclusion.  He does not, for

example, indicate whether he sought to find some legitimate benefit

for breaking the transaction into two transactions.  He does not

claim that Vigeant tried to hide the nature of these transactions. 

He does not argue that Vigeant attempted to structure the 1996

deposits in order to evade reporting requirements (with which

Vigeant in fact complied).  He indicates no investigative steps

that brought him to the conclusion that Vigeant's businesses were

"front companies," such as monitoring Vigeant's activity (or

inactivity), even though the agents had conducted extensive

surveillance of Vigeant's home.  Nor does the government -- below

or on appeal -- offer any evidence or investigation in this regard. 

Indeed, the district court wryly concluded that the affidavit was

"not loaded with facts to support" the idea that Vigeant's

businesses were "front companies."  In sum, Botelho's unsupported

conclusions are not entitled to any weight in the probable cause

determination.  See Gates, 462 U.S. at 239 ("Sufficient information

must be presented to the magistrate to allow that official to

determine probable cause; his action cannot be a mere ratification

of the bare conclusions of others."); Aguilar v. Texas, 378 U.S.

108, 113-14 (1964) (affidavit that provides affiant's conclusions

without also providing some underlying factual circumstances is

equivalent to the "bare bones" affidavits rejected in, inter alia,

Nathanson v. United States, 290 U.S. 41 (1933)).

  For the three reasons stated above, we conclude that the

affidavit failed to establish probable cause to search 24 Newport

Lane for evidence of money laundering.  Cf. Gates, 462 U.S. at 236

(requiring that affidavit include particularized facts indicating

that a search "would uncover evidence of wrongdoing")(emphasis

added).

                              IV.

                           Good Faith

  In United States v. Leon, the Supreme Court held that

even in the absence of probable cause, the exclusionary rule should

apply only where excluding evidence would have a substantial

deterrent effect on the police.  See 468 U.S. 897, 906, 918 (1984). 

Thus, the police are not entitled to rely on a warrant where, inter

alia, the issuing magistrate "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 924. 

The Court called for a case-by-case analysis of this inquiry.  Id.

at 918.  We believe this is a case in which excluding the evidence

will have a substantial deterrent effect on the police.  Our

conclusion rests on the fact that a finding of good faith is

inconsistent with the numerous material omissions excluded from --

and false and misleading statements included in -- the underlying

affidavit.  Cf. id.  at 923 (citing Franks, 438 U.S. at 154). 

Because of the fact-intensive, case-by-case nature of this inquiry,

we detail at length the factual basis for our conclusion.

  In doing so, we focus on the good faith of affiant and

warrant applicant Botelho, because the Supreme Court expressly

stated that "[i]t is necessary to consider the objective

reasonableness, not only of the officers who eventually executed a

warrant, but also of the officers who originally obtained it or who

provided information material to the probable-cause determination." 

Leon, 468 U.S. at 923 n.24.  Thus, in Malley v. Briggs, the Court

held that the relevant question was "whether a reasonably well-

trained officer in petitioner's position would have known that his

affidavit failed to establish probable cause and that he should not

have applied for the warrant."  475 U.S. 335, 345 (1985).  "[I]f

no officer of reasonable competence would have requested the

warrant, i.e., his request is outside the range of professional

competence expected of an officer," id. at 346 n.9, then the fact

that the magistrate approved the application is of no help to him. 

The applying officer "cannot excuse his own default by pointing to

. . . the magistrate."  Id.; see also United States v.

Ricciardelli, 998 F.2d 8, 16 (1st Cir. 1993).  For this reason, the

government's suggestion that we must accord deference to the

probable cause finding of the magistrate is misplaced in this case.

  We have followed the Supreme Court's guidance in like

circumstances.  In Ricciardelli, we found the Leon good-faith

exception inapplicable where the shortcomings in probable cause

were attributable to "the inspectors' omissions in the warrant-

application process."  998 F.2d at 16.  In United States v.

Fuccillo, 808 F.2d 173, 178 (1st Cir. 1987), we held that the 

good-faith exception was not available where, "with regard to the

affidavit prepared for the warrant . . ., the agents were reckless

in not including in the affidavit information which was known or

easily accessible to them." 

  Accordingly, we begin by examining whether the government

has shown objective good faith on the part of affiant Botelho. 

Cf. United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996)

(examining good faith of affiant, where affiant omitted material

facts and gave information that, while not false, was "almost

calculated to mislead"); United States v. Weber, 923 F.2d 1338,

1346 (9th Cir. 1990) (examining good faith of affiant and finding

none); United States v. Baker, 894 F.2d 1144 (10th Cir. 1990)

(same).  As in Ricciardelli, we conclude that the government has

not met its burden.  Specifically, Botelho's numerous omissions of

material facts were at least reckless.  See Reilly, 76 F.3d at 1280

(citing Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991)

for proposition that "recklessness may be inferred when omitted

information was 'clearly critical' to assessing the legality of the

search").  An enumeration of Botelho's omissions follows.  

  First, and most important, Botelho neglected to mention

the CI's long criminal history, his numerous aliases, his recent

plea agreement, and other indicia of his unreliability.  Cf.

United States v. Baxter, 889 F.2d 731, 734 (6th Cir. 1989) (barring

application of the good-faith exception where affiant implied that

CI was credible and reliable when affiant had no basis for the

implication).  Second, Botelho failed to note that Vigeant had

filed the necessary CTR, yet included such minute details about the

transaction as that it involved "small bills" -- a fact he

presumably obtained from the CTR.  Filing a CTR, like failing to

"structure" the transaction to avoid the reporting requirement, is

evidence manifestly inconsistent with money laundering.  Third,

Botelho mentioned an additional deposit by cashier's check, but

neglected to say that Vigeant's grandmother, who was above

suspicion in this case, was the purchaser of the check.  Fourth,

Botelho could have (but did not) obtain Vigeant's employment status

from the probation office, apparently deciding instead to infer

(without informing the magistrate that he had done so) Vigeant's

present unemployment from a blank space marked "current employment"

on a two-year-old bank application.  Fifth, Botelho stated that

"the evidence indicates that Robert Vigeant has created front

companies," which implies the existence of underlying evidence not

disclosed.  Such evidence did not, in fact, exist.  Sixth, Botelho

stated that the CI "identified" the $10,000 transaction in the

"drug ledger," when in fact the CI only identified Vigeant by his

initials and suggested that the numbers listed next to the initials

represented dollar amounts, none of which was $10,000.  Sixth, the

government failed to note that the supposed "pleasure boat"

mentioned in the affidavit was, in fact, a stripped-down craft in

poor condition in need of considerable repair and refurbishing

before it could be sold at a profit.  Seventh, the affidavit

implies that the CI personally witnessed a marijuana transaction

and personally received $10,000; neither is true.  According to the

contemporaneous DEA Report of Investigation on which the affidavit

was based, the CI in fact said that Vigeant gave Vigneau 

approximately $4,000, which Vigneau then gave to the CI.  The CI

does not report witnessing an exchange of marijuana.

  Moreover, as we indicated at length in several of

Botelho's statements -- regarding "front companies" and "layering"

-- were "foundationless expert testimony."  United States v. Weber,

923 F.2d 1338, 1346 (9th Cir. 1990).  Such circumstances weigh

against our finding objective good faith.  See id.; see also State

v. Thompson, 369 N.W.2d 363, 372 (N.D. 1985) (no good faith,

because "the affidavit in the instant case does not supply anything

more than a most tenuous and conclusory suggestion that the

[defendants] were involved in criminal activity").

  The government offers no rational explanation for these

omissions and foundationless conclusions.  Instead, the government

argues in its brief -- with information obtained after the search

in question -- that Vigeant is a bad person.  Be that as it may,

even unsavory persons have constitutional rights.  We conclude that

a reasonable officer in Botelho's position -- that is, in

possession of the omitted information -- would have known that he

"should not have applied for the warrant," Malley, 475 U.S. at 345,

at least not without further investigation.

  This case is similar to United States v. Weaver, 99 F.3d

1372 (6th Cir. 1996).  Based on information from a reliable CI, the

officer in Weaver prepared an affidavit that stated an address and

description of the house to be searched and recited that the CI had

personally observed -- within the prior three days -- a quantity of

marijuana controlled by the defendant "for the purpose of

distribution."  The magistrate issued the warrant and the police

discovered numerous firearms on the described property.  At trial,

Weaver moved to suppress on the ground of lack of probable cause. 

The district court denied the motion, finding, inter alia, the

averments in the affidavit were not false.

  The Sixth Circuit reversed, finding that 

    the only claim of possible wrongdoing [in the

  affidavit] is the averment that, within three

  days prior to the affidavit date, the

  informant was on the suspect premises and,

  while there, he saw some quantity of marijuana

  "expressly for the purpose of unlawful

  distribution." [The affiant] presents no

  underlying factual circumstances to support

  the informant's knowledge regarding

  distribution, nor the detective's own "belief"

  that these quantities of marijuana were

  present "for the purpose or with the intention

  of unlawful possession, sale, or

  transportation."

 

Weaver, 99 F.3d at 1378 (quoting affidavit; citations to record

omitted).  The officer had excluded the underlying factual

circumstances in order to protect the identity of the CI. 

  In the present case, we have no recency of first-hand

observation of wrongdoing, no plausible excuse for omitting the

material, and no informant on the premises who was first-hand

witness to the wrongdoing cited in the warrant application -- in

this case, money laundering.  It follows then, in light of the more

egregious circumstances in our case, that we also must vacate the

conviction here.

  In holding today that the good faith exception does not

apply, we emphasize that our holding is limited to the facts of

this particular case, where we have determined that exclusion would

serve as an effective deterrent.  See Leon, 468 U.S. at 918.  We

certainly do not hold that every unexplained exculpatory material

omission in an affidavit necessarily warrants a finding of a lack

of good faith.

                               V.

                           Conclusion

  For the foregoing reasons, the judgment of conviction is

vacated, and the case is remanded to the district court for

proceedings consistent with this opinion.