U.S. v. Singer

• Citation: 970 F.2d 1414
• Decision Date: 21 August 1992
• Docket Number: No. 91-7367,91-7367
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifford Farrell SINGER, Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1414

970 F.2d 1414

UNITED STATES of America, Plaintiff-Appellee, v. Clifford Farrell SINGER, Defendant-Appellant.

No. 91-7367

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 21, 1992.

Mike Aranson, Daniel M. Shapiro, Aranson & Associates, Dallas, Tex., for defendant-appellant.

J. Michael Worley, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

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

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PATRICK E. 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 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 property. He argues that even if the search of his residence was proper, the cars were outside 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 warrant affidavit in determining whether the affidavit establishes probable cause. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); United States v. Namer, 680 F.2d 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 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 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, --- U.S. ----, 111 S.Ct. 2038, 114 L.Ed.2d 122 (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 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, 101 S.Ct. 1763, 68 L.Ed.2d 241 (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"), ...