Full opinion text
OPINION CLAY, Circuit Judge. Defendants Elie F. Abboud and Michel Abboud appeal the July 13, 2004 order of the United States District Court for the Northern District of Ohio convicting and sentencing Defendants for bank fraud in violation of 18 U.S.C. § 1344(1); money laundering in violation of 18 U.S.C. § 1957; conspiracy to commit money laundering in violation of 18 U.S.C. § 371; and failure to file income tax return in violation of 26 U.S.C. § 7203. Additionally, the order convicted and sentenced Defendant Michel Abboud for filing a false income tax return in violation of 26 U.S.C. § 7206. For the reasons set forth below, we AFFIRM the convictions on all counts, but we VACATE Defendants’ sentences and REMAND to the district court for resentencing. I. BACKGROUND A. PROCEDURAL HISTORY On June 14, 2002, a federal grand jury indicted Defendants Elie Abboud and Michel Abboud on twenty-seven counts of bank fraud, one count of conspiracy to commit bank fraud, forty-four counts of money laundering, and one count of conspiracy to commit money laundering. On December 11, 2002, a federal grand jury returned a superseding indictment that added tax charges for both Defendants and firearm charges against Defendant Michel Abboud. Specifically, the grand jury charged Defendant Elie Abboud with failure to file an income tax return in 1999 and 2000. The grand jury charged Defendant Michel Abboud with filing a false tax return in 1999, and failure to file a tax return in 2000. The district court grantéd Defendant Michel Abboud’s motion to sever the firearm counts from the other counts. Defendant Michel Abboud made a pretrial motion to suppress evidence seized from his home and his businesses. On April 7, 2003, the district court denied Defendant’s motion. With respect to Defendant’s request for an evidentiary hearing, the district court found that Defendant did not allege disputed issues of fact. Instead, Defendant made “general conclusions” and arguments “entirely legal in nature.” (J.A. at 235.) The district court also found that the warrant was supported by sufficient probable cause for the crimes of bank fraud, money laundering, and tax violations. (The district court found that the warrant also met the particularity requirement with respect to the items to be seized. The district court ruled, that, the warrant was not stale, as it described ongoing criminal activity. With respect to seizure of items outside of the scope of the warrant, the district court reasoned that, from a practical perspective, law enforcement officers could not be expected to sift through all documents to exclude those outside the scope of the warrant, and that, in any case, the warrant was not general in nature. With respect to Defendant’s claim of omissions from the search warrant, the district court ruled that Defendant could not prove deliberateness or recklessness in connection with the omissions, and even if the omissions were included in the search warrant, probable cause would have still existed. On September 5, 2003, the government made a motion in limine to prevent Defendants from presenting evidence of selective prosecution at trial. The district court granted the motion. On January 20, 2004, the government gave notice of its intent to offer Rule 404(b) evidence. The district court admitted this evidence. ■ On February 17, 2004, the jury found Defendants ■ guilty on all counts. Defendants filed a motion for a judgment of acquittal, a motion for a new trial, and a motion for arrest of judgment. On May 7, 2004, the district court denied these motions. With respect to the motion for a judgment of acquittal, the district court first rejected Defendants’ claim of multiplicity. Defendants’ claim was that they were im-permissibly indicted for each transaction of the bank fraud scheme. The district court found that Defendants had waived the argument, as they had not made a proper pretrial' motion. In addition, the district court found that the argument was substantively-incorrect, as the statute allowed separate counts for each transaction in the scheme. The district court also found evidence sufficient to support the convictions of bank fraud, money laundering, and tax violations. The district court rejected Defendants’ argument that the banks had allowed the practices at issue and that Defendants had acted in good faith. The district court found that the money laundering statute did not require concealment on the part of Defendants. The district court also found that Defendants failed to raise any issues with respect to the tax violations. The district court further ruled that the introduction of Rule 404(b) “other acts” evidence without a limiting instruction did not require a judgment of acquittal. The district court reaffirmed its position as to its decision to deny Defendant Michel Abboud’s motion to suppress. The district court rejected Defendants’ contention that expert witness testimony was improperly admitted. The district court found that Defendants’ arguments went to the weight and not to the admissibility of the evidence. With respect to the motion for a new trial, the district court reaffirmed its decision to exclude Defendants’ evidence that they were the target of selective prosecution. Specifically, Defendants alleged that they were targeted because of their Arab descent in the post-September 11 landscape. The district court found that Defendants did not make a selective prosecution claim via a pretrial motion, and that selective prosecution was not a matter for the jury. With respect to the motion for arrest of judgment, the district court found that the government charged and proved Defendant Michel Abboud’s guilt with respect to his filing of a false tax return. On July 13, 2004, the district court sentenced each Defendant to ninety-seven months of imprisonment, three years of supervised release, and charged criminal monetary penalties. Defendants timely filed notices of appeal. B. FACTS 1. Defendants’ Business Practices Defendants are brothers who own various “corner stores” that sell groceries and money orders, and offer check cashing services. Donald Slusher (“Slusher”) worked for Defendants from 1994 to 1996. During his employment, Defendants would instruct Slusher to deposit checks from their accounts into other accounts controlled by them. Defendants controlled seven or eight bank accounts. Slusher deposited the checks into the various accounts in order to cover checks written the previous day from the accounts. In other words, Defendants would write a check from Account 1 on Day 1. Defendants would then have Slusher deposit a check from Account 2 on Day 2 into Account 1 to cover the check from Day 1. Defendants determined the check amounts and in which accounts to deposit which checks. Slusher believed that the practice was check kiting. Slush-er had access to the check registers, and he found that the balances in the accounts were “very, very low.” (J.A. at 536-37.) Walter Ryder (“Ryder”) also worked for Defendants, from 1990 or 1991 ‘ to 1999. When Slusher left in 1996, Ryder inherited Slusher’s banking responsibilities. Defendants kept a separate book to track the true account balances versus the account balances shown by the banks, and Ryder was responsible for maintaining and informing Defendants of this difference. While the account balances given by the banks were usually positive, the actual balances tracked by Ryder were usually negative. Defendants gave instructions to Ryder similar to those given to Slusher. For example, Ryder would “tell [Defendant Elie Abboud] what the balance at National City [Bank] was, what needed to be deposited, based on what was clearing that day, and I would ask what we should deposit that day.” (J.A. at 555.) Defendant Elie Abboud would then' tell Ryder to deposit a certain amount of money from Parkview Federal Bank (“PVF”) accounts into the National City Bank (“NCB”) accounts. Ryder would then deposit various forms of checks, such as customer checks, rent checks, and checks drawn from Defendants’ other accounts into the PVF accounts. Ryder was also responsible for maintaining “Elie’s Special Report,” which was a summary of the accounts in terms of bank balance, outstanding checks, and actual book balancé. This report showed that although Defendants’ accounts had positive bank balances, they had negative actual balances. For example, on -"September 1, 1998, the bank balance was positive $1.3 million, but the actual balance was negative $2.3 million. In July of 1999, Defendants told Ryder that PVF had a policy change that disallowed Defendants from depositing PVF checks into PVF accounts. As a result, Defendants instructed Ryder to use accounts at other banks to make deposits into the PVF accounts. 2. Policy of the Banks Defendants had zero balance accounts in connection with a controlled disbursement system with NCB. The zero balance accounts entailed a system that had two types of accounts: a main account, and separate disbursement accounts. Defendants could write checks drawn from the disbursement accounts. In turn, the disbursement accounts would draw from the main account. If the main account was negative, then NCB would ask Defendants to cover the negative amount. Defendants had zero balance accounts with PVF as well, although with a different system. Defendants had specific accounts with PVF for use with their check cashing business. The mechanics of such an account was that Defendants would deposit customer checks that they had cashed into an account on Day 1. PVF would then give “instant credit” to Defendants, so that they could withdraw the full amount of the checks deposited on Day 1, even though PVF had not received credit from those checks. On Day 2, PVF would find out which checks deposited were actually good and which were returned by the computer. As a result, a possibility existed that Defendants’ account would be negative, if Defendants had withdrawn on Day 1, an amount that was greater than the actual amount credited on Day 2. PVF allowed these accounts to become negative, because it had $500,000 in collateral from Defendants. If the account was negative, Defendants on Day 2 had to deposit funds sufficient to place the balance at zero. PVF also charged a fee for the “instant credit” given to Defendants on Day 1. This was in connection with expenses in handling the accounts and for the time value of money. Defendants also had zero balance accounts with Star Bank. The policy was similar to that of the NCB controlled disbursement system in that there was a main account and disbursements accounts. Defendants could have a negative balance on the main account, so long as they corrected the negative balance at the bank’s request. 3. Investigation by the Banks Elizabeth Curschman (“Curschman”) was an assistant compliance officer at PVF. On June 29, 1999, Curschman noticed that Defendants’ accounts had checks being held for insufficient funds in the amount of $547,000. Curschman then noticed that Defendants paid funds into the account to cover these checks. Two days later, Curschman noticed two accounts where checks were being held for insufficient funds, also in large amounts. Curschman also noticed these checks were from one PVF account to another PVF account, so-called “on-us” checks. Cursch-man expressed her concern to John Schim-melman (“Schimmelman”), the checking account supervisor at PVF. The two then organized a meeting with Defendants to discuss the problem. At the meeting, Schimmelman asked Defendant Elie Abboud to explain the heavy transactions for the accounts. Defendant Elie Abboud could not offer an explanation. Schimmelman noted that the actual negative balance on PVF accounts was approximately $1.5 million. Schimmelman instructed Defendants to separate their checks so that on-us checks would be processed directly against the accounts. Schimmelman stated that the transactions looked like check kiting, and if check kiting was occurring, it had to stop. Defendant Elie Abboud stated that he had not been involved in the business recently, and that he would look into the situation. Defendants also said that they had brought in money and would bring in more to cover the balance. After this meeting, Curschman continued to monitor Defendants’ accounts. Curschman reported that Defendants began to use checks from other banks to continue to cover the negative balances. In her opinion, the problem had not stopped. Because of the continuing problem, John Male, president and CEO of PVF, held a meeting with Defendants in the beginning of September 1999. He told Defendants that he viewed the activity as check kiting, and the activity had to stop. The audit committee of PVF met twice to discuss the situation. Curschman noticed more check kiting activity on September 30,1999. On October 4, 1999, PVF officials held a meeting with Defendants. Defendants stated that they “had not presented an accurate picture of their finances” and needed an additional $1.8 million to cover the actual negative balances of the accounts. PVF officials decided to lock out Defendants’ accounts. PVF also submitted a suspicious activity report (“SAR”) to the FBI. On October 7, 1999, James Muraco (“Muraco”), a NCB vice president, noticed an overdraft of almost $1.3 million on Defendants’ accounts. Muraco set up a meeting with Defendants. Defendant Elie Ab-boud stated that he had just started to notice the shortage in the accounts two months prior. Muraco concluded that the overdraft was the result of “phony checks” being deposited into the NCB accounts. Muraco contacted Chris Feczko (“Fec-zko”), an NCB internal investigator, and told him about his suspicion that Defendants were engaged in check kiting. Fec-zko noticed several “red flags” that indicated check kiting, such as the cycling of checks between accounts. On October 12,1999, Muraco and Feczco held a meeting with Defendant Elie Ab-boud. The purpose of the meeting was to determine if there was an explanation for the activity, and to see if there was criminal activity occurring. At the meeting, Defendant Elie Abboud stated that the bookkeeping functions of the business had been entrusted to employees, and that he did not know how the situation had gotten out of hand. He also stated that he was the one who discovered the problem, and that he went to PVF to try to solve the problem. NCB also filed a SAR. 4. Investigation by the FBI After the FBI received SARs from PVF and NCB, the FBI began an investigation of Defendants. The FBI subpoenaed bank records and analyzed those records using the Check Kiting Analysis Software (“CKAS”). Special Agent Randall Wolverton testified as an expert witness at Defendants’ trial. He testified as to the general nature of a cheek kiting scheme. He testified that he had examined Defendants’ records and the results of the CKAS analysis, and he found that Defendants had engaged in check kiting from June 1999 to August 1999. He based this opinion on the disproportionate volume of checks written between Defendants’ accounts in comparison with third party checks. He also based his opinion on the disparity between Defendants’ check transaction volume and Defendants’ sales volume. Finally, Wolver-ton based his opinion on the substantial differences between the bank balance and the actual balance of the accounts. Special Agent David Morgan testified as to the “bleeding” of the kite, whereby Defendants would extract funds from the artificially inflated accounts. He testified specifically with respect to the transactions from June 1999 to August 1999. Defendants were making cash withdrawals, loan payments, and money order payments with the money from the check kite. Defendant Elie Abboud stipulated that in 1999 and 2000 he had income in excess of the statutory threshold so that he was required to file a tax return for those years. Defendant Michel Abboud stipulated that in 2000 he had income in excess of the statutory threshold so that he was required to file a tax return for that year. The government presented evidence that Michel Abboud did not report gambling winnings on his income tax return for 1999. The government also presented evidence that Defendant Michel Abboud did not report income from his businesses in that year. II. DISCUSSION A. THE DISTRICT COURT DID NOT ERR WHEN IT REJECTED DEFENDANTS’ MULTIPLICITY CLAIM 1. Preservation of the Issue Under Federal Rule of Criminal Procedure 12(b)(2), a defense or objection “based on defects in the indictment or information,” other than jurisdictional objections, must be raised by pretrial motion. If a defendant does not make such a motion, the defense or objection is waived, but the court may grant relief from the waiver for cause. Fed.R.Crim.P. 12(f). A conflict exists in this Court’s precedent on the issue of whether a defendant who does not raise a claim of multiplicity before trial waives the claim not only with respect to the error in the indictment but also to the error affecting substantive rights. One line of cases has found that where a defendant fails to make a pretrial motion claiming multiplicity in the indictment, the defendant waives not only the claim based on the technical correctness of the indictment, but also the claim of multiplicity based on substantive rights, such as duplicative sentencing. The seminal case for this line is United States v. Woods, 544 F.2d 242 (6th Cir.1976). There, the defendants argued that they had been incorrectly indicted and convicted of multiple counts of narcotics possession, when all of the narcotics seized were at the same location and from the same shipment. Id. at 250-51. The Court found that because the defendants had not made a pretrial objection to the indictment, their claims, including the claims of improper multiple sentences, were waived. Id. at 251. This view has been the more prevalent in the recent jurisprudence of this Court. See United States v. Hart, 70 F.3d 854, 859-60 (6th Cir.1995); United States v. Colbert, 977 F.2d 203, 208 (6th Cir.1992) (finding waiver of the defendant’s claim of improper multiple sentences for multiple counts of perjury). Under the opposing line of cases, this Court has found that waiver of a claim of error of multiplicity in the indictment was not a waiver of a claim of error affecting substantive rights. This line is rooted in United States v. Rosenbarger, 536 F.2d 715 (6th Cir.1976). The defendant in that case was a felon, and police found three guns in his home. Id. at 718. He was convicted for three counts of being a felon in possession of a firearm. Id. at 717. The Court vacated the convictions and sentences for two counts, because it found multiple gun possession amounted to only one violation of being a felon in possession of a firearm, unless the firearms were stored at different locations or acquired at different times. Id. at 721. The government argued that the defendant waived his multiplicity challenge by failing to make a pretrial motion. Id. The Court responded: The Government maintains that Fed. R.Crim.P. 12 should be applied in this case. Rule 12, provides, inter alia, that if the defense of multiplicity is not raised prior to trial, it is waived. The argument that one waives his right to object to the imposition of multiple sentences by his failure to object to the multiplici-tous nature of an indictment is a non sequitur. Rule 12 applies only to objections with regard to the error in the indictment itself; the effect of Rule 12 is that dismissal of a multiplicitous, indictment is not required; however, if sentences are imposed on each count of that multiplicitous indictment the defendant is not forced to serve the erroneous sentence because of any waiver. Id. at 721-22 (emphasis supplied). Although the defendant in Rosenbarger could not object to the indictment, he could object to the resulting substantive error of multiple sentences in violation of the Double Jeopardy Clause. This view has been acknowledged by the Court, both in the multiplicity context, see Moody v. United States, 580 F.2d 238, 239 (6th Cir.1978), and in the duplicity context, see United States v. Adesida, 129 F.3d 846, 849 (6th Cir.1997) (holding that a defendant who fails to object to a duplicitous indictment, i.e„ an indictment that charges two crimes under the same count, waives his challenge as to the technical error in the indictment but not to the substantive error with respect to his right to a unanimous jury verdict for each crime). These two lines of cases directly conflict and cannot be reconciled. Because this Court decided Rosenbarger before Woods, Rosenbarger controls. See Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir.1985) (“A panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”). The question then becomes whether Defendants made any substantive objections to the multiplicity in the indictment. In both the motion for judgment on acquittal and the briefs before this Court, Defendants only object to the form of the indictment: “It is clear that rather than charge the Defendants in one count ... the Government instead charged separate and distinct transactions as separate counts.” (J.A. at 294.) Defendants never claim violation of a substantive right, such as sentences in violation of double jeopardy. As a result, Defendants waived their claim of multiplicity with respect to the indictment. 2. Analysis Even assuming Defendants did not waive the claim of multiplicity, the claim lacks merit. Section 1344 of Title 18 of the United States Code makes illegal each execution or attempted execution of bank fraud. The circuits have been consistent in the determination that each check in a check kiting scheme is an execution or attempted execution, and thus each check may be charged in a separate count. United States v. Sirang, 70 F.3d 588, 596 (11th Cir.1995); United States v. Schwartz, 899 F.2d 243, 248 (3d Cir.1990); and United States v. Poliak, 823 F.2d 371, 372 (9th Cir.1987). In an unpublished opinion, this Court affirmed that view. United States v. Lucas, 68 F.3d 475, 1995 WL 598403, at *4-5 (6th Cir. Oct. 10, 1995) (unpublished decision). We likewise find that each check in a check kiting scheme is an execution or attempted execution of bank fraud and may be charged in a separate count. B. THE DISTRICT COURT DID NOT ERR IN DENYING DEFENDANT’S MOTION TO SUPPRESS 1. Preservation of the Issue Defendant Elie Abboud did not join Defendant Michel Abboud’s motion to suppress. A motion to suppress evidence must be made before trial. Fed.R.Crim.P. 12(b)(3)(C). If a defendant does not make such a motion, he waives the claim. Fed. R.Crim.P. 12(f). As a result, Defendant Elie Abboud waived his claim with respect to the evidence in question in Defendant Michel Abboud’s motion to suppress. Thus, we consider this claim only with respect to Defendant Michel Abboud. 2. Standard of Review When reviewing a district court’s denial of a motion to suppress, the Court reviews factual findings for clear error and legal conclusions de novo. United States v. Gillis, 358 F.3d 386, 390 (6th Cir.2004) (citing United States v. Harris, 192 F.3d 580, 584 (6th Cir.1999)). 3. Analysis a. Incorporation of the Affidavit The instant case presents a unique issue with respect to the incorporation of the affidavit into the search warrant. The application for the search warrant in this case stated: I David P. Morgan being duly sworn depose and say: I am a Special Agent of the Federal Bureau of Investigation and have reason to believe that on the property of premises known as ATTACHMENT A in the Northern District of Ohio there is now concealed a certain person or property, namely SEE ATTACHMENT B which is Property that constitutes fruits, evidence, and instrumentalities of crimes against the United States, concerning violation of Title 18 United States code, Section 1344. The facts to support the finding of Probable Cause are as follows: See attached Affidavit hereby incorporated by reference as if fully restated herein. (J.A. at 128.) The face of the warrant application only listed one crime, violation of 18 U.S.C. § 1344, on which the search warrant was based. The problem, however, is the affidavit incorporated to support the finding of probable cause for this single crime also listed additional offenses for which the affiant also found probable cause: violations of 18 U.S.C. §§ 341,1343, 1956, 1957 and violations of 28 U.S.C. §§ 7201, 7203, 7206(1), 7206(2). The question then becomes whether the warrant, in this specific form, was valid for a search for evidence of all of these crimes, as opposed to valid only with respect to evidence of a violation of 18 U.S.C. § 1344. The district court answered in the affirmative: “[T]he affidavit, expressly incorporated by reference on the cover of the warrant, sets forth evidence of tax crimes up to the date of the search, as well as more recent bank fraud and mail and wire fraud violations.” In response, Defendant erroneously claims that the search warrant does not contain an incorporation clause at all. The government does not even address the issue of incorporation in its brief to this Court. We disagree with the. district court and find that the incorporation clause was insufficient to incorporate the additional violations into the search warrant, and, as a result, the search warrant was only valid for evidence with respect to 18 U.S.C. § 1344. The Court’s jurisprudence with respect to incorporation of an affidavit into a search warrant almost exclusively addresses the particularity or probable cause requirement of a search warrant. See, e.g., United States v. Watkins, 179 F.3d 489, 494 (6th Cir.1999) (incorporation of an affidavit to provide sufficient particularity of place searched); and United States v. Blakeney, 942 F.2d 1001, 1024 (6th Cir.1991) (incorporation of an affidavit to provide probable cause). This Court has not addressed whether an affidavit incorporated for the purpose of supporting probable cause of a single violation may also be incorporated to establish probable cause for additional violations not listed on the face of the warrant but for which the affiant professes probable cause. Despite the lack of directly controlling case law, several factors militate in favor of disallowing such a broad incorporation of the affidavit. The natural reading of the search warrant is that the affidavit was incorporated only to show probable cause for violation of 18 U.S.C. § 1344. There is absolutely no indication on the face of the warrant that the affidavit was incorporated to show probable cause for the additional violations. We could foresee an incorporation clause that would have such effect; for example, if the face of the warrant stated, “See attached Affidavit hereby incorporated for the violations and underlying probable cause that constitute the basis of the search warrant.” The search warrant in this case, however, only states: Property that constitutes fruits, evidence, and instrumentalities of crimes against the United States, concerning violation of Title 18 United States code, Section 1344. The facts to support the finding of Probable Cause are as follows: See attached Affidavit hereby incorporated by reference as if fully restated herein. (J.A. at 128.) The affidavit is only referenced to establish probable cause for a violation of 18 U.S.C. § 1344. More importantly, this Court cannot determine whether the magistrate in this case found probable cause for all of the violations listed in the affidavit or for only the violation listed on the face of the warrant. The government bears the burden of showing probable cause in connection with a search warrant. Fed. R.Crim. P 41(c); United States v. Weaver, 99 F.3d 1372, 1377 (6th Cir.1996). Only if the magistrate finds probable cause can she issue a search warrant. Fed.R.Crim.P. 41(c); Weaver, 99 F.3d at 1377. In this case, the only certainty is that the magistrate found probable cause with respect to the violation of 18 U.S.C. § 1344. Three possible scenarios exist as to the magistrate’s treatment of the additional violations listed in the affidavit. Under scenario one, the magistrate reviewed the additional violations listed in the affidavit but not on the face of the warrant and found that the government had shown probable cause for each of the additional violations. She then either felt that the incorporation clause was sufficient to incorporate these additional violations or she failed to recognize that the additional violations were not listed on the face of the warrant. Under scenario two, the magistrate reviewed the additional violations and found that the government had not shown probable cause for any of the additional violations but had shown probable cause for violation of 18 U.S.C. § 1344. She then noticed that the face of the warrant only listed that violation, and that the incorporation clause only pertained to the probable cause for that violation. She signed the warrant, believing that the basis of the warrant was solely the violation of 18 U.S.C. § 1344. Under scenario three, the magistrate did not review the additional violations and the asserted probable cause in the affidavit because the face of the warrant only listed 18 U.S.C. § 1344. We cannot say that one scenario is more likely than the others. The government may argue that Attachment B, listing items to be seized, indicates that the magistrate found probable cause with respect to the other violations; for example, the list includes “[c]opies of all tax returns prepared on behalf of the above mentioned businesses and individuals,” (J.A. at 119), so that the list evidences that the magistrate found probable cause with respect to the tax violations. This item, however, can also be construed as evidence of a violation of 18 U.S.C. § 1344, bank fraud. In other words, the government sought these income tax returns not to show the individual Defendants violated income tax laws, but to show disparities between paper and actual wealth as evidence of the check kiting scheme. In fact, all of the evidence of these additional crimes could also be construed as evidence of bank fraud. The point is that we can only speculate as to whether the magistrate found probable cause with respect to the additional violations listed in the affidavit. This Court will not uphold a search warrant based on such tenuous ground. We are sympathetic to the argument that, in practical terms, Defendant was on notice of the additional violations and the evidence for these additional violations overlapped with the evidence of the violation of 18 U.S.C. § 1344. This argument, however, misses the point in that notice of evidence to be seized does not cure a lack of a probable cause determination. We also recognize that the exclusionary rule is meant to deter police misconduct: “[T]he exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges.” Illinois v. Gates, 462 U.S. 213, 263, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (White, J., concurring in the judgment). The government may argue that the magistrate erred when she did not clearly state for which violations she had found probable cause. We are more inclined to view the case as one of applicant error; the applicant simply forgot or otherwise failed to list the additional violations on the face of the warrant. As the party seeking the search warrant, the applicant maintains the responsibility of clearly setting out the violations for which he is searching for evidence. Specifically listing the additional violations on the face of the warrant would have required a minimal effort, and the resulting clarity would have made such effort worthwhile. Moreover, while the record does not indicate any misconduct on the part^of law enforcement in this case, a less than imaginative mind could conjure a scenario where law enforcement purposely placed hidden violations in the affidavit in order to bootstrap these violations to the magistrate’s probable cause determination. A better rule would be to require the applicant to list the violations on the face of the search warrant or, if incorporating an affidavit, to require the applicant to make clear with the incorporation clause on the face of the application that the affidavit contains the relevant violations. As a result, we find that the magistrate approved the search warrant only with respect to the violation of 18 U.S.C. § 1344. b. Probable Cause The Fourth Amendment requires probable cause for searches and seizures. U.S. Const, amend. IV. “Probable cause has been defined as ‘reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.’ ” United States v. Padro, 52 F.3d 120, 122-23 (6th Cir.1995) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990)). “To demonstrate probable cause to justify the issuance of a search warrant, an affidavit must contain facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search.” United States v. Frazier, 423 F.3d 526, 531 (6th Cir.2005) (internal quotations and citation omitted). Probable cause is based on the totality of the circumstances; it is a “practical, non-technical conception that deals with the factual and practical considerations of everyday life.” Id. (internal quotations and citation omitted). When reviewing probable cause, the Court may only look within the four corners of the affidavit. Id. (citation omitted). Additionally, the Court should give great deference to a magistrate’s determination of probable cause. United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)) (en banc). i. The Violation Because we find that the magistrate approved the warrant only with respect to bank fraud, we will limit our probable cause analysis to that violation. The affidavit stated more than sufficient probable cause for the charge of bank fraud in 1999. The FBI conducted a check kiting analysis for a three-month period in 1999. The analysis revealed that during the three months, Defendants made $300 million in deposits to their various accounts, and 85% of these deposits were kited funds. This analysis demonstrates probable cause for check kiting violations in 1999. On the other hand, the affidavit does not establish probable cause for bank fraud via check kiting in subsequent years. The affidavit lists the following evidence: (1) In 2000, Metropolitan Bank filed a Suspicious Activity Report (“SAR”) concerning Defendants’ accounts. (2) In March 2001, Curschman noted suspicious activity with respect to Defendants’ accounts. (3) In July 2001, a security officer at FirstMerit Bank became suspicious of activity in Michel Abboud’s account. (4) In January 2002, Curschman discovered Michel Abboud was using a bank account in violation of previously established guidelines. (5) In April 2002, PVF filed a SAR concerning Defendants’ accounts. (6) In May 2002, Merchant Express Money Order (“MEMO”) severed its relationship with Defendant Elie Ab-boud, and MEMO incurred a loss. Even when considered cumulatively, the above-referenced evidence does not meet the threshold of probable cause. Most of the evidence recites a third party’s suspicion of criminal activity on Defendants’ part. This evidence by its nature does not rise above mere suspicion insufficient to sustain a finding of probable cause. ii. Nexus with the Location Searched The probable cause inquiry of whether an individual committed a crime is related but distinct from the probable cause inquiry for a search warrant. Blakeney, 942 F.2d at 1025. “To demonstrate probable cause to justify the issuance of a search warrant, an affidavit must contain facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search.” Frazier, 423 F.3d at 531. Defendant’s argument that there was no nexus between the locations searched, his home and his businesses, and the evidence sought is without merit. One does not need Supreme Court precedent to support the simple fact that records of illegal business activity are usually kept at either a business location or at the defendant’s home. Likewise, personal financial records are also usually stored at a person’s home or place of business. Defendant’s claim that these were con-clusory statements based on the affiant’s “meager experience” misses the mark; the affiant is a seasoned FBI Special Agent whose primary concentration is in financial crimes. Certainly his insight as to the probable location of the evidence of the crimes in this case cannot be denigrated as “pathetic averments,” as Defendant so states. (Michel Abboud Def.’s Br. 14.) Quite the contrary, the magistrate correctly relied on the affiant’s experience in his assessment of the probable location of the evidence. c. Staleness The probable cause required for a search warrant “ ‘is concerned with facts relating to a presently existing condition.’ ” United States v. Spikes, 158 F.3d 913, 923 (6th Cir.1998) (quoting W. La-Fave, Search and Seizure § 3.7 at 338 (3d ed.1996)). “Thus, the critical question is whether the information contained in the affidavit, when presented to the ... judge, established that there was a fair probability that [evidence] would still be found at [the location of the search].” Id. In other words, a warrant is stale if the probable cause, while sufficient at some point in the past, is now insufficient as to evidence at a specific location. The staleness inquiry is tailored to the specific circumstances in each case. Id. (citing Sgro v. United States, 287 U.S. 206, 210-11, 53 S.Ct. 138, 77 L.Ed. 260 (1932)). “[T]he length of time between the events listed in the affidavit and the application for the warrant, while clearly salient, is not controlling.” Id. It is possible that even if a substantial amount of time had elapsed between “a defendant’s last reported criminal activity” and the issuance of the warrant, the warrant had not become stale. Id. This Court has outlined several factors to consider when analyzing staleness: (1) “the character of the crime (chance encounter in the night or regenerating conspiracy?)” (2) “the criminal (nomadic or entrenched?)” (3) “the thing to be seized (perishable and easily transferrable or of enduring utility to its holder?)” (4) “the place to be searched (mere criminal forum of convenience or secure operational base?).” Id. (quoting Andresen v. State, 24 Md.App. 128, 331 A.2d 78, 106 (Md.Ct.Spec.App.1975)). As explained above, the affidavit set forth sufficient probable cause with respect to bank fraud in 1999 but not with respect to any subsequent year. The question then becomes whether this probable cause had become stale, as the magistrate issued the warrant in 2002. By applying the factors listed above, we find that the probable cause was not stale when the magistrate issued the warrant. i.The Character of the Crime The bank fraud alleged in the affidavit was not a one-time occurrence but was rather a systematic transfer of funds between accounts held by Defendants. According to the FBI analysis for the period of June 1, 1999 to August 31, 1999, Defendant Michel Abboud alone was the signer of 1,276 checks involved in the check kite, with a total value of about $89 million. The Court has found that “[e]videnee of ongoing criminal activity will generally defeat a claim of staleness.” United States v. Greene, 250 F.3d 471, 481 (6th Cir.2001). In Greene, the magistrate issued a search warrant on January 8, 1999. Id. at 475. The search warrant was based on information supplied by an informant, who had last purchased narcotics at the defendant’s house in February 1997; however, he had purchased narcotics at least twelve times at the defendant’s house. Id. at 476. The Court found that the continuous and ongoing nature of the illegal activity was a sufficient answer to the defendant’s claim of staleness. Id. at 481. Likewise, in this case, the affidavit stated that Defendant Michel Abboud engaged in bank fraud numerous times during a three-month -period in 1999. While the affidavit did not list sufficient probable cause for any time after 1999, so as to establish a continuous criminal enterprise from 1999 to the issuance of the warrant in 2002, this Court’s jurisprudence suggests that ongoing criminal activity at a given time may be sufficient to defeat a claim of staleness. See id. at 481; see also United States v. Canan, 48 F.3d 954, 959 (6th Cir.1995) (finding ongoing activity at the defendant’s house four years prior to the issuance of the search warrant was sufficient to defeat a claim of staleness). ii. The Criminal The affidavit supported the fact that Defendant was entrenched. Defendant owned multiple convenience stores in the Cleveland area. Defendant owned- a home in the area. There was no indication that Defendant moved from place to place, so as to decrease the probability of finding evidence at a given location. iii. The Thing to be Seized The search warrant sought almost exclusively business and personal financial records from Defendant. This Court has found that old business records could reasonably be expected to be found at the defendant’s home or place of business. United States v. McManus, 719 F.2d 1395, 1400-01 (6th Cir.1983). In McManus, the magistrate issued a search warrant on January 7, 1980 in connection with tax violations for the years 1977, 1978, and 1979. In finding that the warrant was not stale, the Court stated, “It certainly would be reasonable for a magistrate to conclude that on January 7, 1980, defendant’s business records for the years 1977, 1978, and 1979 would be found at either his place of business or his residence.... ‘[Business records] are ... the sort which could be reasonably expected to be kept there for long periods of time.’” Id. at 1401 (quoting United States v. Freeman, 685 F.2d 942, 952 (5th Cir.1982)). This Court has found that business records are a type of evidence that defy claims of staleness. See United States v. Word, 806 F.2d 658, 662 (6th Cir.1986); United States v. Brownderville, No. 98-1874, 1999 WL 618067, at *4 (6th Cir. Aug. 2, 1999); see also United States v. Singh, 390 F.3d 168, 182 (2d Cir.2004); United States v. Farmer, 370 F.3d 435, 439-40 (4th Cir.2004); United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 148 (3d Cir.2002). We agree that in this ease, the magistrate was correct in believing that business and financial records with respect to 1999 would still be at Defendant’s home or businesses in 2002. As the Third Circuit viewed the situation, “where the items to be seized are created for the purpose of preservation, as are business records, the passage of time is ... less significant.” Id. iv. The Place to be Searched The affidavit requested the search of Defendant’s home and businesses. The bank fraud alleged centered around Defendant’s check cashing transactions conducted at these business locations. Furthermore, the affiant stated that business records were usually kept at home. These locations are not “mere criminal forum[s] of convenience;” but rather, the locations are at the heart of the criminal charge. v. Conclusion All factors weigh against a claim of staleness. We are especially persuaded by the fact that by nature one keeps business and financial records for extended periods of time. The entire point in creating such records is for preservation. As a result, the warrant was not stale. d. Omission of Material Facts Defendant claims the affiant omitted material facts from the affidavit, thus skewing the magistrate’s probable cause calculus. We disagree. In Franks v. Delaware, the Supreme Court created procedural protections for a defendant who claimed that the affidavit supporting the probable cause of a search warrant contained intentional or reckless falsehoods. The Court stated that it presumed the validity of the affidavit in support of the search warrant. 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The burden is on the defendant to show such falsehoods in the affidavit. Id. If the defendant meets this burden, then the question becomes whether the affidavit is sufficient to support probable cause without the falsehoods. Id. If it is sufficient, then the warrant is valid. Id. at 171-72, 98 S.Ct. 2674. If it is insufficient, then the defendant is entitled to a hearing concerning the probable cause in the affidavit. Id. at 172, 98 S.Ct. 2674. This Court has interpreted Franks to include omissions. Hale v. Kart, 396 F.3d 721, 726 n. 4 (6th Cir.2005) (citing Mays v. City of Dayton, 134 F.3d 809, 815 (6th Cir.1998)). Defendant claims three omissions: (1) PVF had not lost the millions of dollars as claimed in the affidavit; (2) Defendants’ accounts were fully collaterized; and (3) the banks involved knew of and approved of Defendants’ actions. We agree with the government that the evidence contained in (1) and (2) was not omitted in the affidavit. With respect to (1), paragraphs 20-23 of the affidavit detailed transfers made by Defendants to cover the negative balances in their checking accounts. With respect to (2), paragraph 17 of the affidavit stated that PVF had a positive equity position against Defendants’ collaterized real estate and that PVF also held $500,000 of stock belonging to Defendants. We agree with Defendant that the affidavit did not state that the banks involved knew of and approved of Defendant’s actions with respect to the check kiting system. As explained, infra, however, we disagree with Defendant’s contention that the banks in fact approved of the check kiting scheme. As a result, no harm occurred from this fact’s omission from the affidavit, and Defendant was not entitled to a Franks hearing. e. Particularity The Fourth Amendment requires that a search warrant “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. This requirement prevents a “ ‘general order to explore and rummage through a person’s belongings.’ ” Blakeney, 942 F.2d at 1026 (quoting United States v. Cook, 657 F.2d 730, 733 (5th Cir.1981)). “The degree of specificity required depends on the crime involved and the types of items sought.” Id. (citing United States v. Henson, 848 F.2d 1374, 1383 (6th Cir.1988)). In this case, law enforcement sought business and financial records in connection with bank fraud. In a business fraud case, the authorization to search for general business records is not overbroad. United States v. Henson is instructive in this regard. There, the defendants were charged and convicted of mail fraud and giving, or causing to give, a false odometer statement. 848 F.2d at 1376. The defendants were involved in a scheme of purchasing late model, high mileage cars and then tampering with the odometers. Id. The search warrant authorized the search for “any and all records” in connection with the businesses utilized in the scheme, as well as the records of the individual defendants. Id. at 1382. This Court upheld the validity of the warrant: In the instant case, although the warrant uses generic terms, [the law enforcement officer] could not have known at the time he applied for the warrant what precise records and files would contain information concerning the odometer-tampering scheme. “Where the precise identity of the goods cannot be ascertained at the time the warrant is issued, naming only the generic class of items will suffice.” The description in the warrant is directed toward items likely to provide information concerning the [defendants] involvement in the ... scheme and therefore did not authorize the officers to seize more than what was reasonable under the circumstances. Id. at 1383 (citation omitted). In this case, the warrant was specific in terms of the items to be seized; for example, it listed “[l]ogs or ledgers that reflect the recording of banking activity,” “[a]ll bank statements, deposit slips, withdrawal slips, official checks, money orders, cancelled checks, wire transfers and other documents for any and all bank accounts,” and other specific forms of records. (J.A. at 118-21.) Moreover, like in Henson, the law enforcement agents in this case could not have known the precise documents and records Defendants utilized in the check kiting scheme. The items listed in the warrant were items “likely to provide information” about Defendants’ check kiting scheme. A more specific alternative did not exist to the search warrant’s list of items to be seized. The problem, however; is the time frame the warrant allowed with respect to these records. The warrant authorized search for records from January 1996 to May of 2002; however, the warrant was valid only with respect to bank fraud for a three-month period in 1999, see supra. The only reference to 1996 in the affidavit is the fact that Defendants first began a relationship with the head teller at PVF’s Rockside branch in that year, a trivial fact. The first documented suspicion began on June 29, 1999. The FBI conducted a check kiting analysis for a three-month period in 1999. As stated, supra, insufficient evidence is listed in the affidavit to support probable cause for any subsequent years. The warrant was overbroad in this respect. “Failure to limit broad descriptive terms by relevant dates, when such dates are available to the police, will render a warrant overbroad.” United States v. Ford, 184 F.3d 566, 576 (6th Cir.1999) (citations omitted). Here, law enforcement knew that the evidence in support of probable cause in the affidavit revolved only around a three-month period in 1999; the authorization to search for evidence irrelevant to that time frame could well be described as “rummaging.” The question then becomes what relief Defendant is entitled to from this over-broad warrant. The' Court has held that the entire warrant need hot be invalidated: “Our finding of overbreadth ... does not require suppression of all of the items seized pursuant to the warrant. We believe the proper approach to this dilemma is to sever the infirm portion of the search warrant from the remainder-which passes constitutional muster.” Blakeney, 942 F.2d at 1027. Thus, all evidence seized irrelevant ■ to the three-month period in 1999 should have been suppressed, while evidence relevant to this period should be upheld. Defendant’s problem, however, is that he was only charged with and convicted of bank fraud for the three-month period in 1999. As a result, Defendant cannot show prejudice from the overbreadth of the warrant. The properly seized evidence, along with the goyernment’s evidence from other sources, proved beyond a reasonable doubt that Defendant had committed- bank fraud for the three-month period in 1999. Of most significance, Defendant never denied committing the acts that constituted the bank fraud; his defense was that the bank officials allowed the acts in question and that his actions were in good faith. See infra. This defense was not negated by the introduction of the illegally seized evidence, but instead was negated only by the testimony of the bank officials. As a result, ‘ the introduction of evidence seized pursuant to the overbroad portion of the warrant was harmless error. f. Reexamination of the Motion to Suppress Defendant urges this Court to reexamine the district court’s decision on the motion to suppress. His argument is based on his perceived inconsistency between the affidavit and the affiant’s testimony at trial, and testimony at trial that contradicted the affidavit. We disagree with Defendant that the affiant’s testimony at trial contradicted the affidavit. In his testimony, the affiant expressly affirmed what he stated in the affidavit; he testified that when he spoke to the magistrate, he stated that he believed or concluded that certain bank officials intentionally withheld information, and that one bank official devised a scheme to recoup the losses of Defendants’ scheme without informing the FBI of any losses. The affiant later testified that charges were not brought against these bank officials. The cogency of Defendant’s argument is somewhat suspect; Defendant seems to be asserting that because charges were not brought against the bank officials, the affi-ant was less than forthright in his statements to the magistrate that the bank officials were withholding information from the FBI. If this is the case, then Defendant’s argument fails; the fact that the bank officials were not prosecuted does not necessarily mean that the affiant lied to the magistrate when he stated that he suspected dishonesty on the part of the bank officials. In fact, Defendant’s own cross-examination insinuated that these charges were not brought because of the bank officials’ cooperation with Defendant’s prosecution, not because the charges were baseless. Defendant then relies on the trial testimony of Keith Swaney, an officer at FVF, where Swaney stated that he disagreed with the affiant’s statement in the affidavit that the bank officials intentionally withheld information from the FBI. Again, Defendant seems to argue that the affiant lied to the magistrate. As explained above, to obtain a Franks hearing, Defendant has the burden to prove the falsehoods made in the affidavit. The mere fact that a bank official disagreed with the affidavit is insufficient to meet this burden. g. Evidentiary Hearing Defendant challenges the district court’s refusal to hold an evidentiary hearing in connection with the motion to suppress. The district court based its decision on the fact that Defendant’s arguments were “entirely legal in nature,” and thus did not require a hearing. The district court’s decision was correct. An evidentiary hearing is required “only if the motion is sufficiently definite, specific, detailed, and non-conjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” United States v. Downs, No. 96-3862, 1999 WL 130786, at *3 (6th Cir. Jan. 19, 1999) (citing United States v. Unimex, Inc., 991 F.2d 546, 551 (9th Cir.1993)) (emphasis supplied). In his brief in support of his motion to suppress, Defendant for the most part did not contest factual issues; he contested the legal conclusions drawn by the magistrate from the facts. Under subpoint I, Defendant argued that the facts were insufficient to support probable cause; this contests a legal conclusion. Under sub-point II, Defendant argued that the affidavit omitted material information; however, as explained, swpra, this argument was simply incorrect and did not require an evidentiary hearing. Under subpoint III, Defendant argued that the probable cause was stale; this too was a challenge to a legal conclusion. Under subpoints IV, V, and VI, Defendant argued that the warrant was overbroad, another legal challenge. Defendant did not contest any facts, nor did he offer previously unheard facts. Simply put, Defendant did not agree with the magistrate’s legal decision based on the facts. This type of disagreement is not resolved through an evidentia-ry hearing. As a result, the district court did not err in its decision not to grant an evidentiary hearing. h. Good Faith Execution of a Search Warrant Even if a search warrant is defective, the Court will not suppress evidence seized pursuant to such warrant if the seizure was based on reasonable, good faith reliance on the warrant. United States v. Frazier, 423 F.3d 526, 533 (6th Cir.2005) (citing United States v. Leon, 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The Supreme Court explained the mechanics of the good faith exception: [0]ur good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization. In making this determination, all of the circumstances — including whether the warrant application had previously been rejected by a different magistrate — may be considered. Leon, 468 U.S. at 922-23 n. 23, 104 S.Ct. 3405. The rationale behind the exception is that the exclusionary rule is meant to deter unlawful police conduct. See supra. This policy of deterrence is not served by the exclusion of evidence seized in good faith by the police. Leon, 468 U.S. at 918-19, 104 S.Ct. 3405. On the other hand, the good faith exception does not apply in the following specific circumstances: “1) the supporting affidavit contained knowing or reckless falsity; 2) the issuing magistrate wholly abandoned his or her judicial role; 3) the affidavit is ‘so lacking in probable cause as to render official belief in its existence entirely unreasonable;’ or 4) where the officer’s reliance on the warrant was neither in good faith nor objectively reasonable.” Frazier, 423 F.3d at 533 (quoting Leon, 468 U.S. at 923, 104 S.Ct. 3405). With respect to the additional violations contained in the affidavit but not on the face of the warrant, a police officer could not reasonably rely on the affidavit to validate a search for evidence of these additional violations. The natural reading of the face of the warrant was that the affidavit was incorporated only for the purpose of establishing probable cause for bank fraud. Moreover, the warrant was unclear as to whether the magistrate did indeed find probable cause for these additional violations. Law enforcement may not take advantage of the warrant’s equivocal posture to illegally seize evidence. With respect to bank fraud in any year besides 1999, the affidavit’s lack of probable cause was obvious to the reasonably trained officer. The affidavit only listed suspicions of check kiting in these other years. i. Prejudice The ultimate question then becomes what harm Defendant has suffered from the illegality of the warrant. The record is less than clear as to what evidence seized through the warrant was actually used at Defendant’s trial. See Blakeney, 942 F.2d at 1027 (holding that the defendant did not suffer prejudice when the evidence illegally seized was not introduced at trial). For purposes of this analysis, we will presume the widest use of the illegal evidence. As stated earlier, the warrant was only valid with respect to bank fraud, and only bank fraud in 1999. This means that evidence with respect to the year 2000 should have been suppressed, possibly implicating Defendant’s conviction for violation of 26 U.S.C. § 7203, failure to file an income tax return in 2000. Unfortunately for Defendant, he stipulated to the fact that he did in fact make the threshold amount triggering the requirement to file a tax return. His only defense was lack of intent, which was negated by the government without use of any evidence seized via the over-broad search warrant. See infra. As a result, the admission of any of this illegal evidence would have been harmless error with respect to Defendant’s conviction for this charge. Also, with respect to Defendant’s conviction for violation of 26 U.S.C. § 7206, filing a false income tax return in 1999, the conviction rested on two forms of evidence: (1) evidence of a failure to report gambling income, and (2) evidence of a failure to report income from his businesses. The evidence listed in (1) was not seized pursuant to the warrant, and the evidence seized in (2) could properly be characterized as evidence of bank fraud legally obtained under the warrant. The evidence seized with respect to the 1999 bank frau