United States District Court, W.D. Virginia, Big Stone Gap Division
K. Munro, Assistant United States Attorney, M. Suzanne
Kerney-Quillen, Special Assistant United States Attorney,
United States Attorney's Office, Abingdon, Virginia, for
the United States; Melvin L. Hill, Melvin L. Hill, P.C.,
Roanoke, Virginia, for Defendant Roy Lee Dykes; Jay H.
Steele, Lebanon, Virginia, for Defendant Leila Varretta
OPINION AND ORDER
P. JONES, UNITED STATES DISTRICT JUDGE
defendants, Roy Lee Dykes and Leila Varretta Hector, have
each filed a Motion for New Trial based on alleged unfairly
prejudicial testimony by a law enforcement witness during
cross-examination. I previously denied the defendants'
oral Motion for Mistrial as to this issue and I similarly
find that the defendants are not entitled to a new trial.
five-day jury trial, the defendants were convicted of
conspiracy to distribute or possession with intent to
distribute controlled substances. Hector was convicted of one
count of distributing or possessing with intent to distribute
50 grams or more of methamphetamine. Dykes was convicted of
one count of distributing or possessing with intent to
distribute various controlled substances, as well as
seventeen counts of distributing or possessing with intent to
distribute methamphetamine, heroin, cocaine, oxycodone, and
third day of trial, the government called William Corey Duke,
a special agent with the Bureau of Alcohol, Tobacco, Firearms
and Explosives (“ATF”), to testify in its
case-in-chief. Duke's testimony during direct examination
focused on his surveillance of the defendants prior to their
arrests, his role in arresting Dykes, and his pre-arrest
interview of Hector.
cross-examination, Hector's counsel asked Duke whether
Hector had admitted knowledge of Dykes' drug trafficking
activity during her interview. Trial Tr. 24, ECF No. 625.
Duke answered as follows:
No, she did not. She just said that she knows he did things
and that she was attracted to him because he'd been in
prison before and was kind of a bad guy. But that as far as
specific knowledge of this activity, she just said that she
tried to mind her own business.
neither Dykes' nor Hector's attorney objected to
Duke's answer, I promptly instructed the jury,
Ladies and gentlemen, I think the question was asked, what -
she never admitted knowledge of what her husband did. And the
agent answered that and [s]he said no. Then he went on to say
something, certain other things. I want you to disregard
those. Those don't have anything to do with this case.
Put them out of your mind. They were not asked and
they're irrelevant to the issues in this case.
Id. at 24-25.
the conclusion of Duke's testimony, outside of the
presence of the jury, both defendants orally moved for a
mistrial based on Duke's statement indicating that Dykes
had been in prison and was a “bad boy, ” a
characteristic that Hector admired. The government responded
that the court's curative instruction was sufficient to
address any potential undue prejudice. The government also
asserted that Duke's testimony was not prejudicial
because Dykes had forecasted his intent to testify in his
counsel's opening statement, and the government planned
to impeach him with his criminal history. I denied the
Motions for Mistrial, and I stated on the record that my
immediate curative instruction was sufficient to mitigate the
potential prejudice. I also noted that Duke's statement
was not elicited by government counsel.
later did testify in his own defense and was impeached by the
government with his extensive criminal record. Hector did not
testify. At the close of the trial, I issued the following