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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 91-7367
Summary Calendar

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD FARRELL SINGER,
Defendant-Appellant.

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

(August 21, 1992)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Clifford Farrell Singer appeals his conviction and sentence
for conspiracy to possess and distribute cocaine and aiding and
abetting a violation of the narcotics laws. We affirm.
I
The arrest and prosecution of Clifford Singer were the product
of a cooperative effort among Texas, California, and federal
authorities. In January of 1990 United States Postal Inspectors,
pursuant to a search warrant, opened a package addressed to Brian
Bader of Arlington, Texas. They found a plastic bag containing a
substance that Postal Inspector Meyers recognized, and later

confirmed by the lab to be cocaine. Shortly after the package
containing the cocaine was delivered to Bader on the following day,
police officers entered Bader's residence. The officers found
Bader seated at a table processing the cocaine. A search turned up
documents linking Bader to defendant Singer. Upon his arrest Bader
agreed to cooperate with the government in the prosecution of
Singer, the man he identified as the source of the cocaine.
Pursuant to a warrant, police officers arrested Singer the next day
and searched his California residence. The officers found shipping
forms, moneygrams, checks, a scale, and a large amount of cash and
silver during the search. Singer and Bradley Howard Friedman were
charged in a two count indictment. Singer was charged in count 1
with conspiracy to possess with intent to distribute and
distribution of cocaine in violation of 21 U.S.C. 846 and in count
2 with aiding and abetting a violation of 21 U.S.C. § 841(a)(1).
Bader and Singer's co-defendant Friedman testified on behalf
of the government at trial. Bader testified that he regularly
ordered cocaine from Singer over the phone. According to Bader,
Singer sent cocaine via UPS and U.S. Mail for which he paid by
sending moneygrams to Singer in California. Bader testified that
Singer sold him approximately six ounces of cocaine a week during
the year preceding Bader's arrest. Friedman testified that he
served as a middleman for cocaine purchases between Singer and
other persons, including Bader. Friedman testified that Singer had
shipped from three to seven ounces of cocaine a week to Dallas
since the middle of 1988, with Friedman receiving a fee for each
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ounce. The government supplemented this testimony by introducing
moneygrams and a check which Bader and Friedman stated they sent to
Singer as payment for cocaine.
The jury found Singer guilty on both counts and he was
sentenced to two concurrent 108-month prison terms plus a four-year
term of supervised release.
II
Singer raises several points of error on appeal. First,
Singer maintains that the district court should have excluded
evidence seized at his California residence. Second, he contends
that the district court erred in failing to respond to the
government's lack of compliance with discovery orders and the
Jencks Act, 18 U.S.C. § 3500, with appropriate sanctions. Third,
he argues that the evidence adduced at trial was insufficient to
support his conviction. Singer finally challenges the sentence
imposed by the district court. We find these objections meritless
and affirm Singer's conviction and sentence.
A.
Singer challenges the search of his California residence on
three grounds. First, he claims that the warrant authorizing the
search of the home was invalid because the supporting affidavit
contained an intentional falsehood. Second, he claims that the
district court also should have excluded all the evidence seized
from his home because the government did not comply with Fed. R.
Crim. P. 41(a). Singer's third objection seeks the suppression of
only that evidence obtained from two automobiles located on his
3

property. He argues that even if the search of his residence was
proper, the cars were ouside the scope of the warrant. We examine
these arguments in turn.
Singer first contends that the affidavit supporting the
warrant authorizing the search of his California residence contains
an intentional falsehood. A court must disregard any intentional
or reckless misrepresentation in a warant affidavit in determining
whether the affidavit establishes probable cause. See Franks v.
Delaware, 438 U.S. 154 (1978); United States v. Namer, 680 U.S.
1088, 1093 (5th Cir. 1982). Singer argues that once the affidavit
is purged of the challenged falsehood, probable cause no longer
exists, and the district court should not have admitted the fruits
of this search into evidence.
Singer's argument rests on an apparent discrepancy between the
affidavit and a DEA report. Officer Sullivan's affidavit states
that "Bater [sic] further stated that . . . Singer told Bater that
he maintained supplies of cocaine at his residence." The DEA
report contains this statement: "[Blank] reports that Singer does
not keep his supply of cocaine inside his residence. Singer
supposedly conceals the cocaine in a storage safe built into the
floor of his garage or keeps it at this girlfriend's residence."
The district court concluded that the challenged statement was not
false and denied the motion to suppress. We cannot disagree.
As this court stated in United States v. Hare, 772 F.2d 139,
141 (5th Cir. 1985), "[a] statement in a warrant affidavit is not
false merely because it summarizes or characterizes the facts in a
4

particular way." As in Hare, we find that the "challenged
statement, though ambiguous, reasonably could and should be read
truthfully." Hare, 772 F.2d at 141. Here, the term "residence"
could reasonably and sensibly be read to include Singer's garage,
thereby removing the facial inconsistency on which Singer relies.
Singer relies heavily upon United States v. Bennett, 905 F.2d
931 (6th Cir. 1990). Bennett, however, presents a different case,
for there the affiant himself testified that the challenged
statements were false. Bennett, 905 F.2d at 934. As in Namer but
not in Hare or the present case, "the challenged statement could
not reasonably have been read in a truthful way." Hare, 772 F.2d
at 141. The district court did not err in rejecting Singer's
argument.
Singer next contends that the involvement of federal
authorities, along with California and Texas police officers, in
the investigation made it federal, subject to the strictures of the
Federal Rules of Criminal Procedure. Asserting that the officers
conducting the search of his residence did not comply with Rule
41(a), Singer argues that the evidence obtained from his residence
must therefore be suppressed.
The warrant authorizing the search of Singer's residence was
issued by a state judge at the request of a state police officer.
In United States v. McKeever, 905 F.2d 829, 833 (5th Cir. 1990) (en
banc), this Court held that "Rule 41 only applies to warrants
issued upon the request of a federal law enforcement officer or
attorney for the government." The district court properly held
5

that Rule 41(a) does not apply in this case. See also United
States v. Shaw, 920 F.2d 1225, 1229 (5th Cir.), cert. denied, 111
S.Ct. 2038 (1991).
Singer attempts to escape the effect of McKeever's broad rule
by asserting that here there was collusion between state and
federal officers, an issue the McKeever court left open. 905 F.2d
at 833 ("No issue of collusion between state and federal officers
in procuring the warrant to avoid Rule 41 is implicated in this
case."). Cooperation among federal and state authorities does not,
however, constitute the sort of "collusion" cited in McKeever.
McKeever itself held that "no issue of collusion . . . is
implicated" even though federal authorities joined state officers
in executing the very search at issue. 905 F.2d at 830. By
contrast, no federal authorities were involved in the search of
Singer's home in this case. Singer offers no evidence of collusion
beyond his contentions that the investigation was essentially a
"federal operation." Thus, assuming arguendo that a demonstration
of collusion between state and federal officials would render the
requirements of Rule 41 applicable to a search warrant obtained by
a state police officer, a question we do not decide, Singer has
made no such showing. The district court did not err in refusing
to exclude the evidence obtained from the search.
Singer also argues that evidence obtained through a search of
two automobiles located on his property must be suppressed. He
maintains that the omission of any express mention of automobiles
in the warrant makes their search warrantless. We agree with the
6

district court, however, that the cars were within the legitimate
scope of the warrant authorizing a search of the "premises." This
court has consistently held that a warrant authorizing a search of
"the premises" includes vehicles parked on the premises. United
States v. Cole, 628 F.2d 897, 899 (5th Cir. 1980), cert. denied,
450 U.S. 1043 (1981). See, e.g., United States v. Freeman, 685
F.2d 942, 955 (5th Cir. 1982) (holding that "the warrant for a
search 'on the premises known as 256 Seadrift Road' was
sufficiently particular to permit a search of [a jeep] parked on
the premises off the street and close to the house"); United States
v. Napoli, 530 F.2d 1198, 1200 (5th Cir.) (holding that "the
reference to 'on the premises known as 3027 Napoleon Avenue' was
sufficient to embrace the vehicle parked in the driveway on those
premises"), cert. denied, 429 U.S. 920 (1976). The district court
did not err in refusing to suppress evidence obtained through this
search.
B.
Singer next contends that the government failed to comply with
the district court's discovery orders and did not provide Singer
with materials required under the Jencks Act, 18 U.S.C § 3500. He
argues that the district court erred in refusing to impose
sanctions on government for these violations, or at least grant
Singer a continuance. The government concedes that it did not
comply fully with the discovery orders, but argues that the court's
responses, which included sanctions in certain instances, were
appropriate.
7

Rule 16 of the Federal Rules Criminal Procedure governs the
discovery process. Errors are subject to review under an abuse of
discretion standard; reversal is appropriate only if the defendant
can show prejudice to his substantial rights. United States v.
Ellender, 947 F.2d 748, 756 (5th Cir. 1991); United States v.
Garcia, 917 F.2d 1370, 1374 (5th Cir. 1990).
Singer offers no showing of prejudice to his substantial
rights beyond generalized assertions of "extreme prejudice" and
"ambush." Singer cites several instances in which the government
sought to introduce materials of which Singer was unaware. The
record reflects, however, that on each occasion the district court
conducted a careful inquiry into the nature of the material, the
reasons for its lateness, and whether defense counsel was unaware
of this material. With one minor exception (Singer's driver's
license), the court excluded any material that defense counsel
claimed it had not earlier received. Similarly, the district court
granted defense counsel a continuance in the only instance where
Singer alleged that the government had not provided Jencks
materials. Singer has not demonstrated prejudice to his
substantial rights or that the district court abused its
discretion.
C.
Singer also claims that the evidence introduced by the
government at trial is insufficient to support his conspiracy
conviction. Since Singer did not move for a judgment of acquittal
at any time during the trial, see Fed. R. Crim. P. 29, our review
8

of the evidence is limited. We may set aside the conviction only
if its affirmance would result in a "manifest miscarriage of
justice." United States v. Hernandez, 962 F.2d 1152, 1156 (5th
Cir. 1992); United States v. Pruneda-Gonzalez, 953 F.2d 190, 193
(5th Cir. 1992); United States v. Robles-Pantoja, 887 F.2d 1250,
1254 (5th Cir. 1989). Under this standard, Singer's conviction may
be reversed only if "the record is 'devoid of evidence pointing to
guilt." Pruneda-Gonzalez, 953 F.2d at 194 (quoting Robles-Pantoja,
887 F.2d at 1254).
To establish the elements of a conspiracy conviction under 21
U.S.C § 846, the government must show, beyond a reasonable doubt,
that (1) an agreement existed between two or more persons to
violate the narcotics laws; (2) the defendant knew of the
conspiracy and intended to join it; and (3) that defendant
voluntarily participated in this conspiracy. United States v.
Guerra-Marez, 928 F.2d 665, 674 (5th Cir.), cert. denied, 112 S.Ct.
322 (1991). We find that there is sufficient evidence in the
record to support the jury's verdict.
Much of the evidence supporting Singer's conspiracy conviction
at trial consisted of the testimony of Bader and Friedman, his
former partners. Singer argues that this testimony is insufficient
as a matter of law, citing this court's statement that "the
existence of a conspiracy must be proven by corroborating evidence
independent of that of the alleged co-conspirators." Guerra-Marez,
928 F.2d at 674 n.10. Guerra-Marez was, however, not referring to
the sufficiency of the evidence in a conspiracy trial, but to the
9

admissibility of out-of-court statements made by co-conspirators
under an exception to the hearsay rule, an entirely different
matter. The uncorroborated testimony of an accomplice or co-
conspirator will support a conviction, provided that this testimony
is not incredible or otherwise insubstantial on its face. See,
e.g., Hernandez, 962 F.2d at 1157; United States v. Osum, 943 F.2d
1394, 1405 (5th Cir. 1991); United States v. Gardea Carrasco, 830
F.2d 41, 44 (5th Cir. 1987).
During the trial the government introduced moneygrams, checks,
and shipping receipts tying Singer to Bader and Friedman. These
documents, along with the testimony of Bader and Friedman, are
sufficient to support Singer's conviction.
D.
Singer challenges the 108-month sentence imposed by the
district court. He contends that the district court misapplied the
Sentencing Guidelines in increasing his sentence for obstruction of
justice and his role as an organizer/leader. Singer also charges
that the court erred in failing to decrease the sentence for his
acceptance of responsibility.
Sentencing determinations often involve issues of credibility,
United States v. Franco-Torres, 869 F.2d 797, 800 (5th Cir. 1989)
(obstruction of justice); United States v. Barreto, 871 F.2d 511,
512 (5th Cir. 1989) (organizer/leader). United States v. Brigman,
953 F.2d 906, 909 (5th Cir. 1992). We find that none of these
challenged determinations is clearly erroneous and affirm Singer's
sentence.
10

Singer challenges the two-level increase for obstruction of
justice imposed by the district court. The guidelines provide that
such an increase is warranted "[i]f the defendant willfully impeded
or obstructed, or attempted to impede or obstruct, the
administration of justice during the investigation, prosecution, or
sentencing of the instant offense . . . ." U.S.S.G. § 3C1.1. The
presentence report stated that Singer made several threats against
Friedman and Bader in order to keep them from testifying against
him. Singer denies making such threats, and stresses that a
defendant's "statements or testimony should be evaluated in a light
most favorable to the defendant." § 3C1.1 n.1. Rather than
directing the court to accept the defendant's account in instances
of disagreement, however, this "note simply instructs the
sentencing judge to resolve in favor of the defendant those
conflicts about which the judge, after weighing the evidence, has
no firm conviction." Franco-Torres, 869 F.2d at 801. The district
court's reliance on the presentence report rather than "defendant's
version of the facts" thus is not clearly erroneous. United States
v. Beard, 913 F.2d 193, 199 (5th Cir. 1990).
Singer next challenges the two-level increase assigned by the
district court for his role as an organizer or leader. Such an
increase is warranted "[i]f the defendant was an organizer, leader,
manager, or supervisor in any criminal activity . . . " § 3B1.1(c)
The district court adopted the findings of the presentence report,
which stated that Singer was the organizer of a conspiracy to
distribute cocaine, and "used a chain of command in his
11

distribution scheme" with "Friedman as a middleman and Bader as a
cocaine distributor." The district court's finding that Singer's
conduct met the organizer requirement is not clearly erroneous
under the relevant statutory factors. See § 3B1.1 n.3; Barreto,
871 F.2d at 512.
Singer finally contends that the district court erred in
failing to award a two-level reduction for his acceptance of
responsibility. A reduction is proper when "the defendant clearly
demonstrates a recognition and affirmative acceptance of personal
responsibility for his criminal conduct." U.S.S.G. § 3E1.1. The
district court found that Singer refused to discuss the offense
conduct with his probation officer, and that the only evidence
offered by Singer at the sentencing hearing, a letter, contained
nothing approaching an acceptance of responsibility.
Singer contends that the Sentencing Guidelines' acceptance of
responsibility provision impermissibly requires individuals to
admit guilt in order to receive a sentence reduction. Citing
United States v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989), Singer
urges that the Fifth Amendment bars the state from conditioning an
important benefit such as a sentence reduction on a defendant's
willingness to incriminate himself. See also United States v.
Oliveras, 905 F.2d 623 (2d Cir. 1990).
The cases cited by Singer hold that the government may not
require defendants to accept responsibility for offenses of which
they have not been convicted as a condition for sentence reduction.
However, a defendant "must accept responsibility for all facets of
12

the crime to which he either pled guilty or of which he was
convicted." Oliveras, 905 F.2d at 629; Perez-Franco, 873 F.2d at
463. Thus, even if this court were to follow these decisions, but
cf. United States v. Mourning, 914 F.2d 699, 707 (5th Cir. 1990),
Singer would not prevail. The district court did not err in
declining to reduce Singer's sentence based on his acceptance of
responsibility.
III
We find that each of the objections raised by Singer lacks
merit. His conviction and sentence are therefore AFFIRMED.
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