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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 4:02-cr-26-SPM-AK

OSCAR LEE LENTON,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 95, Motion to Vacate, by Oscar Lee Lenton. The

Government has filed its response, Doc. 103, and Defendant has filed a reply. Doc. 106. In

response to the Court’s order, the Government has filed its supporting exhibits, Doc. 113, and

Defendant has filed a response thereto. Doc. 114. This cause is therefore in a posture for

decision. Having carefully considered the matter, the Court recommends that the motion to

vacate be denied.

BACKGROUND

Defendant was originally indicted for possession of a firearm and ammunition by a prior

convicted felon. Doc. 1. Later, by superseding indictment, he was charged with possession with

intent to distribute crack cocaine, possession of a firearm in furtherance of a drug trafficking

crime, and possession of a firearm and ammunition by a prior convicted felon. Doc. 17. 

The day before the superseding indictment, Defendant filed a motion to suppress in

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which he argued that law enforcement entered his residence without a search warrant and

without permission. Doc. 16. The Court held a hearing on the motion, and afterward denied the

motion. Doc. 36. In denying the motion, the Court recognized that the “testimony at the

suppression hearing presented a factual dispute” and found the testimony of law enforcement to

be the “most credible.” Id. With that in mind, the Court concluded:

Lenton’s consent to search was freely and voluntarily given. Lenton was not

placed under arrest when he gave his consent. No coercive police procedures

were used. The officers knocked on the door and were led inside by [Valerie]

Miller [Defendant’s fiancee]. The officers did not display weapons or make any

show of authority to effect their entry. Miller voluntarily led them inside.

With Lenton, the officers still did not display weapons or make any show of

authority. They spoke with Lenton in a conversational tone of voice. Lenton was

being cooperative with the officers and understood he had a right to refuse

consent to search. In fact, he did revoke his consent after the officers found the

firearm and the drugs.

Lenton is familiar with the criminal justice system because he has a lengthy

criminal history. Before the officers found the firearm and drugs, Lenton made a

voluntary, tactical decision to cooperate with the officers by retrieving the $40

they came to find. Although his plan failed when the officers themselves found

the firearm and the drugs, Lenton’s consent given before then was nonetheless

voluntary. There is no basis for suppressing the evidence.

Id. The Court therefore found that “the officers were given consent by Miller to enter the home

and consent by Lenton to search it” and that their consent was freely and voluntarily given. Id.

After trial at which Defendant testified, the jury convicted him on all counts. He was

sentenced to 240 months on the drug conviction, concurrent with 300 months for being a felon in

possession of a firearm, and both sentences were consecutive to 60 months for possession of the

firearm in furtherance of a drug crime. Doc. 63.

On appeal, Defendant challenged the Court’s denial of the suppression motion “because

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he never consented to the police officers’ entry into his residence” and also argued that the Court

“had an obligation to revisit sua sponte it earlier denial of his motion to suppress” after the

Government “introduced evidence at trial which he claims demonstrated that the police

forcefully entered his home.” Doc. 90.

As to the denial of the motion to suppress, the court found: “The district court chose

between the competing versions of the events offered by Lenton and Miller on the one hand and

the officer on the other. This factual determination was the district court’s to make, and we will

not disturb it.” Id. It concluded: “[W]e accept the district court’s factual finding that the officers

had implied consent and did not make a show of force which negated the voluntariness of that

consent.” Id.

As to the Court’s obligation to sua sponte reconsider its suppression ruling, the Court

found that Defendant could not show that the failure to do so constituted plain error. Id.

DISCUSSION

1. Speedy trial.

In his first claim, Defendant contends that his speedy trial rights were violated and that

counsel was ineffective for failing to move to dismiss the indictment on this ground. According

to him, he was arrested on November 15, 2001, but was not indicted until May 8, 2002, far

outside the 30-day period in the Speedy Trial Act. See 18 U.S.C. § 3161(b) (indictment charging

individual with commission of offense shall be filed within thirty days from date on which such

individual was arrested in connection with such charges). 

For the 30-day time period of the Speedy Trial Act to commence, “a person must be held

for the purpose of answering to a federal charge.” United States v. Shahryar, 719 F.2d 1522,

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1524-25 (11th Cir. 1983). “Thus, if one is held by state officers on a state charge and

subsequently turned over to federal authorities for federal prosecution, the starting date for

purposes of the Act is the date that defendant is delivered into federal custody.” Id. at 1525.

Defendant was originally indicted on May 8, 2002. Doc. 1. At that time, he was in state

custody on state charges, see Doc. 6 (petition for writ of habeas corpus ad prosequendum

returned unexecuted for first appearance on indictment because Defendant was in state custody

“being tried on state charges in state court), and he was not taken into federal custody until

August 22, 2002.

Defendant’s claim is patently without merit, and counsel was not ineffective for failing to

challenge the indictment on this ground.

In his reply, Defendant makes a new claim that the failure to try him within 70 days after

the return of the indictment constituted a violation of § 3161(c)(1). That claim is equally without

merit, as the speedy trial clock ran, not from the date of indictment, but from the date “the

defendant has appeared before a judicial officer of the court in which such charge is pending.” 

In this case, the clock began running on August 22, 2002, with Defendant’s first appearance

before the Magistrate Judge. It then stopped with the filing of the motion to suppress on October

1, 2002, and remained stopped until the disposition of that motion, November 13, 2002. See 18

U.S.C. § 3161(h)(1)(F). Trial commenced a week later on November 20, 2002. At that time

only 48 days of the 70-day time period had passed. Thus, this claim should likewise be denied. 

2. Failure to communicate plea offer.

In this claim, Defendant charges that trial counsel, William Clark, rendered ineffective

assistance when he “failed to communicate to Movant a plea offer, or inform Movant of his right

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to enter a guilty plea without a plea agreement.” In his reply, Defendant states that “it is s in

[his] best interest to concede the claim....” Doc. 106. With the concession in mind, the claim

should be denied.

3. Failure to object to violation of right to confront witnesses.

In this ground for relief, Defendant maintains that counsel was ineffective when he failed

to object that a witness, Morris Ferrell, was not made available by the Government for crossexamination after the Government introduced a recording of the controlled buy which

undercover officers made from Ferrell, who bought the drugs from Defendant with money

provided by the officers. In his view, the introduction of the taped undercover transaction

between Ferrell and the officers violated Crawford v. Washington, 124 S.Ct. 1354 (2004). He

also claims that the Government was improperly allowed to present “hearsay testimony

concerning what Morris Ferrell told the agents with respect to the controlled buy.”

Having carefully considered the matter, the Court finds that the introduction of the tape

did not violate either the Confrontation Clause of the Constitution or the evidentiary rules

regarding hearsay, and thus, counsel was not ineffective for objecting to the tape on these

grounds. First, Ferrell’s statements on the undercover recording do not qualify as testimonial

evidence as contemplated by Crawford, as they were “neither testimony at a preliminary hearing,

nor testimony before a grand jury, nor testimony at a former trial, nor a statement made during a

police interrogation,” and they were not otherwise made “under circumstances which would lead

the declarant [Ferrell] to believe that the statement would be available for use at a later trial.” 

United States v. Underwood, 446 F.3d 1340, 1347 (11th Cir. 2006). Instead, the conversation

which occurred on the tape between Ferrell and the undercover officers was a drug buy

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negotiation, and “it is clear that [Ferrell] never would have spoken to [the officers] in the first

place” if he had known they were law enforcement officers since he was immediately arrested

for selling drugs to them. Id. Furthermore, when a statement is admitted for context, not for the

truth of what is said, the Confrontation Clause is not violated, and the statement is not hearsay. 

United States v. Wilson, 238 Fed. Appx. 571, 574-75 (11th Cir. 2007). Here, the recording put

the events of the evening in context and explained why the officers went to Defendant’s house

after Ferrell handed them two slabs of crack. Consequently, counsel had no grounds on which to

challenge the recording and was not ineffective for failing to advance these arguments. 

4. Failure to call Ferrell as witness.

Counsel was also not ineffective in failing to call Ferrell as a witness. According to

Defendant, Ferrell would have testified that “moments before the bust,” he left a black bag

containing a gun inside Defendant’s house. However, even if Ferrell had testified as Defendant

indicates–a conclusion which is doubtful given the statement by Defendant’s investigator, see

Doc. 113, Attach. 2--the outcome of the proceeding would not have been different. It is

immaterial as to whether the gun belonged to Ferrell or to Defendant, the only question being

whether Defendant either actually or constructively possessed the firearm. According to Ms.

Miller’s testimony at the suppression hearing, Defendant “had the black bag” after talking to

Ferrell. If Ferrell had testified that the gun was in the black bag, then Defendant had, at the very

least, constructive possession of the gun, and Ferrell’s testimony would not have helped him.

5. Failure to advise jury that firearm belonged to Ferrell.

As noted in the preceding section, even if counsel had been able to prove that the firearm

belonged to Ferrell, there is not a reasonable probability that the outcome of the proceeding

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would have been different. Defendant was not charged with owning the subject firearm but with

possessing it, two very different things, and it is of no consequence who the actual owner of the

gun was.

6. Failure of seek reconsideration of motion to suppress.

In this claim, Defendant charges that counsel acted ineffectively when he failed to seek

reconsideration of the Court’s suppression ruling after the tape of the events of the evening was

played for the jury. According to Defendant, the tape corroborated Miller’s testimony that she

did not give consent to the officers to enter the home. In particular, he points in his reply to the

fact that the officers can be heard knocking and announcing their presence.

In this Court’s view, the fact that the officers forcefully knocked and announced their

presence to the occupants of Defendant’s home does not affect the Court’s previous conclusion

that the officers did not use force or improper coercion to gain entrance into the home. Thus, the

Court does not discern any basis on which counsel could have made a motion for

reconsideration, and even if he had presented the motion, there is not a reasonable probability

that the Court would have retreated from its previous ruling simply because the officers followed

their constitutionally mandated duty to knock and announce.

7. Failure to object to Government’s vouching for witnesses.

In this ground, Defendant claims that counsel acted deficiently when he “failed to voice

an objection to the government’s impermissible and improper vouching for the credibility of the

testimony of the agents.” He does not, however, point the Court to any specifics, except to say

that the improper vouching occurred in opening statements, the Government’s case in chief, and

during closing arguments. He claims in his reply that an evidentiary hearing is necessary to flesh

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out this claim. Even without any guidance from Defendant, the Court has reviewed the trial

transcript and has discovered nothing approaching the elements necessary to show improper

vouching. See United States v. Sims, 719 F.2d 375, 377 (11th Cir. 1983) (improper vouching

occurs either by making explicit personal assurances of witness’ veracity or by indicating

implicitly that prosecutor has information not presented to jury to support witness’ testimony). 

Therefore, counsel did not act deficiently in failing to raise vouching as an issue.

8. Failure of counsel to file motion for judgment of acquittal.

In this claim, Defendant charges that counsel was ineffective for failing to move for a

judgment of acquittal as to the firearms counts. In particular, he claims that the Government did

not meet it burden of proof that the firearm furthered the drug trafficking offense or that he knew

about the gun or had constructive possession of it.

To determine whether the firearm was possessed in furtherance of a drug trafficking

crime, the Court would, on a motion for judgment of acquittal, have looked at such factors as the

type of drug activity, the accessability of the firearm, the type of firearm and whether it was

loaded, the proximity of the gun to drugs or drug proceeds, and the circumstances under which

the gun was found. United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002). It then

would have viewed the evidence in the light most favorable to the Government and drawn all

reasonable inferences from that evidence in the light most favorable to the Government. Under

those circumstances, there is not a reasonable probability that even if counsel had made the

motion, the Court would have granted it given the fact that the subject .38 caliber handgun, from

which the serial numbers had been removed, was loaded and was found in immediate proximity

to the drugs and buy money immediately after a drug buy.

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As to the issue of possession, again, there is not a reasonable probability that the Court

would have granted a judgment of acquittal if counsel had made the motion. The testimony from

the officers established that Defendant admitted having the buy money (though only because

someone asked him to hold it for him) and that he showed the officers the location of the money

under a bed in a bedroom where Defendant kept his clothes. The firearm was under the bed next

to the money and a plate with crack residue on it. This was sufficient to raise a jury issue as to

Defendant’s dominion and control over the gun.

9. Cumulative effect.

In this claim, Defendant argues that the cumulative effect of counsel’s errors deprived

him of due process. Because none of Defendant’s claims regarding counsel’s performance have

merit, there can be no cumulative harmful effect.

10. Failure of appellate counsel to raise trial counsel’s errors.

This claim is without merit. The competence of trial counsel cannot generally be raised

on direct appeal, and even so, trial counsel did not commit any errors which appellate counsel

should have raised.

CONCLUSION

Having carefully considered the matter, the Court finds no merit to any of Defendant’s

claims. Accordingly, it is respectfully RECOMMENDED that the motion to vacate, Doc. 95,

be DENIED.

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IN CHAMBERS at Gainesville, Florida, this 21st day of February, 2008.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings and recommendations.

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