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United States v. Dykes

United States District Court, W.D. Virginia, Big Stone Gap Division

December 11, 2019

UNITED STATES OF AMERICA
v.
ROY LEE DYKES, ET AL., Defendants.

          Kari 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 Hector.

          OPINION AND ORDER

          JAMES P. JONES, UNITED STATES DISTRICT JUDGE

         The 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.

         I.

         After a 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 alprazolam.

         On the 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.

         During 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.

Id.

         Although 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.

         Following 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.

         Dykes 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 ...


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