United States v. Roy Dykes ( 2022 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4957
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEILA VARETTA HECTOR, a/k/a Leila Varretta Hector, a/k/a Leila Varetta
Hector-Dykes, a/k/a Rita Hector,
Defendant - Appellant.
No. 20-4052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROY LEE DYKES,
Defendant - Appellant.
No. 20-6414
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
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v.
LEILA VARETTA HECTOR, a/k/a Leila Varretta Hector, a/k/a Leila Varetta
Hector-Dykes, a/k/a Rita Hector,
Defendant - Appellant.
No. 20-6467
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROY LEE DYKES,
Defendant - Appellant.
Appeals from the United States District Court for the Western District of Virginia, at Big
Stone Gap. James P. Jones, District Judge. (2:18-cr-00003-JPJ-PMS-1; 2:18-cr-00003-
JPJ-PMS-2)
Submitted: January 31, 2022 Decided: February 9, 2022
Before MOTZ, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia; Peter L.
Goldman, SABOURA, GOLDMAN & COLOMBO, P.C., Alexandria, Virginia, for
Appellants. Daniel P. Bubar, Acting United States Attorney, Roanoke, Virginia, M.
Suzanne Kerney-Quillen, Special Assistant United States Attorney, OFFICE OF THE
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UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Roy Lee Dykes and Leila Varretta Hector (collectively,
“Defendants”), a married couple, of conspiring to distribute and possess with intent to
distribute a variety of controlled substances (Count 1s), in violation of 21 U.S.C.
§§ 841(b)(1), 846. The jury additionally convicted Defendants of distribution and
possession with intent to distribute, “as a principal and aider and abettor,” more than 5
grams of methamphetamine (Count 16s), in violation of 21 U.S.C. § 841(a)(1), and Dykes
alone of 16 additional counts of distribution and possession with intent to distribute various
controlled substances. Defendants appeal from their convictions and respective sentences,
which both included orders of forfeiture and a money judgment.
On appeal, Defendants argue that the district court erred by (1) improperly
instructing the jury; (2) denying their motions for mistrials and their postjudgment and
postsentencing motions for a new trial; and (3) entering a money judgment. Dykes
additionally challenges the district court’s denial of a motion in limine to exclude certain
firearms evidence, and Hector challenges the sufficiency of the evidence to support her
conviction on Count 16s. For the reasons set forth below, we affirm.
I.
First, Dykes argues that the district court erred in denying his motion in limine in
which he sought to exclude evidence of firearms and ammunition recovered during a search
of Defendants’ home. Dykes contends that the evidence was improper character evidence
unrelated to the charged crimes. The Government, on the other hand, argues that the
evidence was intrinsic to the charged drug offenses because it was directed toward showing
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Dykes’ involvement in the drug trade. We review the denial of a motion in limine for
abuse of discretion. United States v. Hornsby, 666 F.3d 296, 309 (4th Cir. 2012). We
further review evidentiary rulings for harmless error and will not reverse the district court’s
ruling so long as we “can say with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment was not substantially
swayed by the error.” United States v. Burfoot, 899 F.3d 326, 340 (4th Cir. 2018) (internal
quotation marks omitted).
Federal Rule of Evidence 404(b) provides that “[e]vidence of any other crime,
wrong, or act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). “The Rule 404(b) inquiry, however, applies only to evidence of other acts that
are extrinsic to the one charged. Acts intrinsic to the alleged crime do not fall under Rule
404(b)’s limitations on admissible evidence.” United States v. Palacios, 677 F.3d 234,
244-45 (4th Cir. 2012). “[U]ncharged conduct is intrinsic [if it] arose out of the same series
of transactions as the charged offense, or if evidence of the uncharged conduct is necessary
to complete the story of the crime on trial.” United States v. Siegel, 536 F.3d 306, 316
(4th Cir. 2008) (cleaned up). Regarding conspiracy offenses in particular, “the
[G]overnment is permitted to present evidence of acts committed in furtherance of the
conspiracy even though they are not all specifically described in the indictment.” Palacios,
677 F.3d at 245 (internal quotation marks omitted).
It is well established that firearms are “tools of the trade” in drug trafficking. United
States v. Manigan, 592 F.3d 621, 629 (4th Cir. 2010); see United States v. Lomax, 293 F.3d
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701, 705 (4th Cir. 2002) (describing ways firearms may further drug trafficking in context
of determining whether firearm had requisite connection to drug trafficking to support
§ 924(c) offense); United States v. Ricks, 882 F.2d 885, 892 (4th Cir. 1989) (“[E]vidence
of firearms is relevant in narcotics conspiracy cases.”). A Government witness testified,
based on his training and experience, to the connection between weapons and the drug
trade, and Dykes himself admitted that he had previously traded drugs for a firearm.
Accordingly, we conclude that the district court did not abuse its discretion in denying
Dykes’ motion in limine and in admitting the challenged evidence.
II.
Next, Dykes and Hector each challenge the district court’s jury instructions. Dykes
contends that the court erred by declining to issue a jury instruction on his proffered public
authority defense. Hector argues that the court erred by failing to fully instruct the jury on
the elements of a drug conspiracy. We discern no error in the court’s instructions.
A.
The “public authority defense” is an affirmative defense that requires a defendant
to establish that he reasonably relied on the actual authority of a government official to
authorize his otherwise illegal actions. United States v. Fulcher, 250 F.3d 244, 253-54 (4th
Cir. 2001) (explaining that a defendant’s alleged reliance on apparent authority of official
is insufficient). At trial, Dykes sought to argue that he conducted his illicit drug activities
on the orders of a Drug Enforcement Administration (“DEA”) agent named Ronnie Baffo.
“A defendant is entitled to an instruction as to any recognized defense for which there
exists evidence sufficient for a reasonable jury to find in his favor.” United States v. Ricks,
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573 F.3d 198, 200 (4th Cir. 2009) (cleaned up). However, where there is insufficient
evidence to support an element of an affirmative defense, the district court “can refuse to
instruct the jury on the . . . defense.” United States v. Sarno, 24 F.3d 618, 621 (4th Cir.
1994). “A district court’s refusal to instruct the jury on . . . a defense presents a question
of law that we review de novo.” Ricks, 573 F.3d at 200 (citing United States v. Perrin, 45
F.3d 869, 871 (4th Cir. 1995)).
After Dykes testified at trial that he had been acting as a confidential informant for
Baffo, the Government presented evidence that Baffo did not exist; that Dykes had never
served as a DEA informant; and that the DEA does not provide drugs to informants for
distribution. In declining to instruct the jury on the public authority defense, the district
court explained that even if the jury were to believe Dykes’ refuted testimony, he had not
produced any evidence that Baffo had the actual authority to authorize him to engage in
otherwise criminal acts. Because relying on the apparent authority of a government agent
is insufficient as a matter of law to establish a public authority defense, see Fulcher, 250
F.3d at 253-54, the district court did not err in declining to instruct the jury on the defense.
B.
Next, Hector argues that the district court reversibly erred by failing to include
“interdependence” as an essential element of a drug conspiracy in its instructions to the
jury. See United States v. Stewart, 256 F.3d 231, 250 (4th Cir. 2001) (listing elements of
conspiracy offense as “(1) an agreement with another person to violate the law,
(2) knowledge of the essential objectives of the conspiracy, (3) knowing and voluntary
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involvement, and (4) interdependence among the alleged conspirators”). But see United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc) (listing elements of conspiracy
offense as “(1) an agreement to [accomplish the unlawful drug activity] existed between
two or more persons; (2) the defendant knew of the conspiracy; and (3) the defendant
knowingly and voluntarily became a part of this conspiracy”).
A jury instruction is not erroneous if, “in light of the whole record, [it] adequately
informed the jury of the controlling legal principles without misleading or confusing the
jury to the prejudice of the objecting party.” United States v. Miltier, 882 F.3d 81, 89 (4th
Cir. 2018). Where, as here, the defendant failed to object in the district court, we review
for plain error. United States v. Cowden, 882 F.3d 464, 475 (4th Cir. 2018). To
demonstrate plain error, Hector must show that an error: (1) occurred, (2) was plain, and
(3) affected her substantial rights. Id. Even if Hector meets this standard, we will exercise
our discretion to correct the error only if it “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (cleaned up).
The fact that Stewart and Burgos articulate the elements of conspiracy differently
does not automatically render them inconsistent. See United States v. Ray, 61 F. App’x 37,
57 (4th Cir. 2003) (No. 00-4409) (argued but unpublished) (describing the cases as “two
equally correct formulations of the same basic elements of conspiracy”). The key inquiry,
then, is whether the jury instructions “adequately informed the jury of the controlling legal
principles without misleading or confusing the jury to the prejudice of the objecting party.”
Miltier, 882 F.3d at 89. Here, the court explained that in order to convict Defendants of
the charged conspiracy, the jury needed to find:
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[(1)] That at some time during the dates charged, two or more persons entered
into an agreement or understanding; [(2)] That the purpose or object of the
agreement was to do one or more of the criminal purposes charged; and
[(3)] That the defendant voluntarily joined the conspiracy knowing of its
purpose and intending to help accomplish that purpose.
(J.A. 1999). 1 The court also advised the jury that mere presence at a crime scene was
insufficient to establish a conspiracy. These instructions sufficiently informed the jury of
the necessary elements of a conspiracy and were neither misleading nor confusing.
Accordingly, the district court did not plainly err in instructing the jury.
III.
Hector next challenges the sufficiency of the evidence supporting her conviction on
Count 16s for distribution and possession with intent to distribute more than 5 grams of
methamphetamine “as a principal and aider and abettor.” She contends that the
Government failed to establish more than her “mere presence” at the transaction at issue.
Because Hector did not file a Fed. R. Crim. P. 29 motion for a judgment of acquittal in the
district court, we review this claim for plain error only. United States v. Wallace, 515 F.3d
327, 331-33 (4th Cir. 2008).
“A defendant bringing a sufficiency challenge must overcome a heavy burden,” as
reversal is “confined to cases where the prosecution’s failure is clear.” United States v.
Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015) (internal quotation marks omitted).
We will uphold a jury’s verdict if, viewing the evidence in the light most favorable to the
Government, substantial evidence supports it. Burfoot, 899 F.3d at 334. In reviewing the
1
“J.A.” refers to the joint appendix filed by the parties in this appeal.
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evidence, we ask whether “any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Robinson, 855 F.3d 265, 268
(4th Cir. 2017) (internal quotation marks omitted).
To convict a defendant of possession with intent to distribute a controlled substance
in violation of 21 U.S.C. § 841(a)(1), the Government must prove “that a defendant
(1) possessed a controlled substance; (2) knew of the possession; and (3) intended to
distribute the controlled substance.” United States v. Ath, 951 F.3d 179, 188 (4th Cir.),
cert. denied, 140 S. Ct. 2790 (2020). A conviction for distribution of a controlled substance
requires proof that “(1) the defendant knowingly or intentionally distributed the controlled
substance alleged in the indictment, and (2) at the time of such distribution the defendant
knew that the substance distributed was a controlled substance under the law.” United
States v. Howard, 773 F.3d 519, 526 (4th Cir. 2014) (cleaned up). “A defendant is guilty
of aiding and abetting if [she] has knowingly associated [herself] with and participated in
the criminal venture.” Burgos, 94 F.3d at 873 (internal quotation marks omitted).
Participation in every stage of an illegal venture is not required, only
participation at some stage accompanied by knowledge of the result and
intent to bring about that result. The same evidence establishing a
defendant’s participation in a conspiracy may support a conclusion that a
defendant participated in the principal’s unlawful intent to possess and
distribute drugs, thereby proving guilt of aiding and abetting as well.
Id. (cleaned up).
Here, the jury heard testimony from a coconspirator, James Cleghorne, that Hector
“was the money” in the charged conspiracy, explaining that “[n]othing was taken care of,
nothing was done that didn’t at least get asked or brought up to [Hector.]” (J.A. 663).
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Cleghorne further testified that he had sold methamphetamine to Hector on multiple
occasions and that Hector also provided him with oxycodone and hydrocodone and would
deduct the cost of the drugs from Cleghorne’s pay for construction work he performed for
Defendants. There was also evidence that Dykes referred customers seeking prescription
pills to Hector.
Although Dykes testified that he kept Hector out of his narcotics business, he
simultaneously stated that Hector would collect drug money on his behalf because Dykes
believed that she was protected by his alleged “agreement” with Baffo. The jury also heard
testimony that Hector routinely exited Dykes’ vehicle immediately before a drug sale and
returned to the vehicle immediately after the sale had been completed; a Government
witness testified that this was so routine that law enforcement officers considered it “a
signal” that a drug sale was about to occur. Specifically with regard to the sale of
methamphetamine charged in Count 16s, Hector accompanied Dykes to Virginia in a
vehicle containing over 80 grams of methamphetamine, and she falsely told investigators
that the almost $5,000 in marked bills from the sale, which were recovered from her purse,
was gambling money.
The jury was explicitly instructed that mere presence at the scene of a crime was
insufficient to establish aiding and abetting liability, and the jury is presumed to have
followed this instruction. United States v. Zelaya, 908 F.3d 920, 930 (4th Cir. 2018).
Viewing the evidence in the light most favorable to the Government, a rational factfinder
“could have found the essential elements of the crime beyond a reasonable doubt.”
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Robinson, 855 F.3d at 268 (internal quotation marks omitted). Hector has therefore failed
to establish plain error in the jury’s verdict on the basis of insufficient evidence.
IV.
During trial, Dykes and Hector each moved for a mistrial as the result of a
Government witness’s statement. In response to defense counsel’s question on cross-
examination that “[Hector] never admitted knowledge of what her husband did, did she?”,
the witness responded,
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.
(J.A. 601). Although neither Dykes nor Hector objected to the testimony, the district court
immediately issued a curative instruction, telling the jury to ignore the witness’s answer
beyond his acknowledgment that Hector had never admitted to the knowledge. The district
court denied the motions for mistrials, and Defendants subsequently filed postjudgment
motions for a new trial on the same ground, which the court also denied. Defendants
challenge the denial of their respective motions. In addition, Defendants challenge the
denials of additional motions for a new trial on the basis of new evidence.
Under the Federal Rules of Criminal Procedure, “[a] district court retains discretion
to grant a new trial if doing so is in the interest of justice.” United States v. Millender, 970
F.3d 523, 531 (4th Cir. 2020) (internal quotation marks omitted); see Fed. R. Crim. P.
33(a). However, “[a] trial court should exercise its discretion to award a new trial
sparingly, and a jury verdict is not to be overturned except in the rare circumstance when
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the evidence weighs heavily against it.” Burfoot, 899 F.3d at 340 (internal quotation marks
omitted). We review both “a district court’s denial of a motion for a mistrial and for a new
trial for abuse of discretion.” United States v. Saint Louis, 889 F.3d 145, 155 (4th Cir.
2018). In order to establish an abuse of discretion, Defendants must show prejudice;
prejudice does not “exist[], however, if the jury could make individual guilt determinations
by following” cautionary instructions given by the court. United States v. Wallace, 515
F.3d 327, 330 (4th Cir. 2008). When cautionary instructions are given, “[w]e presume that
juries follow [them.]” United States v. Johnson, 587 F.3d 625, 631 (4th Cir. 2009).
A.
Dykes contends that the district court’s curative instruction following the witness’s
statement was “vague and amorphous” and failed to properly guard against prejudice.
Hector similarly argues that the comment denied her a fair trial by unfairly placing her
character into evidence. The statement, although unfortunate, was a “singular stray
reference” to Dykes’ prior incarceration. See United States v. Smith, 919 F.3d 825, 841
n.12 (4th Cir. 2019) (rejecting contention that “passing reference by a Government witness
to [defendant] being previously ‘locked up’ . . . amount[ed] to prejudicial testimony
requiring a mistrial”). The district court immediately issued a curative instruction, and the
court later reminded the jury in its instructions that the jury could not refer to any statement
that the court had ordered it to disregard. The jury is presumed to have followed these
instructions. Johnson, 587 F.3d at 631. Moreover, Dykes himself later testified to his prior
felony convictions, ameliorating the potential prejudicial effect—informing the jury of
Dykes’ criminal history—that the statement may have had. Because neither Dykes nor
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Hector has demonstrated that the district court’s prompt curative instruction was
insufficient to protect against any potential prejudice, we discern no abuse of discretion in
the district court’s denial of Defendants’ motions for mistrials and for a new trial based on
the testimony.
B.
We similarly find that the district court did not abuse its discretion in denying
Dykes’ second postjudgment and Hector’s postsentencing motions for a new trial based on
newly discovered evidence. In order for new evidence to warrant a new trial:
(a) the evidence must be, in fact, newly discovered, i.e., discovered since the
trial; (b) facts must be alleged from which the court may infer diligence on
the part of the movant; (c) the evidence relied on must not be merely
cumulative or impeaching; (d) it must be material to the issues involved; and
(e) it must be such, and of such nature, as that, on a new trial, the newly
discovered evidence would probably produce an acquittal.
United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993). A new trial may be granted
solely on the basis of newly discovered impeachment evidence only in “an exceptional rare
case.” Id. (internal quotation marks omitted). This exception is narrow in scope, applying,
for example, where the Government’s case rested entirely on the uncorroborated testimony
of a single witness later discovered to have “lied consistently in a string of previous cases.”
United States v. Robinson, 627 F.3d 941, 949 (4th Cir. 2010). Because the evidence
proffered by Defendants—a local newspaper article about another drug conspiracy case
involving a man who Dykes alleged set him up at the behest of the Government; inmate
statements that other inmates said Cleghorne believed Dykes to be working with the police
and that Cleghorne was retaliating against Dykes and Hector; and a vague allegation that
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individuals were impersonating law enforcement agents in Georgia—does not meet this
standard, the district court did not abuse its discretions in denying the motions.
V.
Finally, Defendants contend that the district court’s money judgment of forfeiture
violates the principle established in United States v. Honeycutt, 137 S. Ct. 1626, 1633, 1635
(2017), that a coconspirator who did not personally obtain proceeds of the crime cannot be
held jointly and severally liable. 2 Any person convicted of a drug offense punishable by a
term of imprisonment in excess of one year “shall forfeit to the United States . . . any
property constituting, or derived from, any proceeds the person obtained, directly or
indirectly, as the result of such violation.” 21 U.S.C. § 853(a)(1). We review the district
court’s legal conclusions underlying a forfeiture calculation de novo and its factual findings
for clear error. United States v. Oregon, 671 F.3d 484, 490 (4th Cir. 2012).
In Honeycutt, the Supreme Court explained that “[f]orfeiture pursuant to § 853(a)(1)
is limited to property the defendant himself actually acquired as the result of the crime.”
137 S. Ct. at 1635. Here, however, in seeking the money judgment, the Government
emphasized that it sought the judgment against both Defendants because “[t]he weight of
evidence is that they worked together to manage their mobile narcotics buffet, with Dykes
focused principally on sales and Hector on bookkeeping and related communications on
the back end.” (J.A. 2080). The district court did not clearly err in its decision to adopt
2
Neither Dykes nor Hector raise any argument about the district court’s calculation
of the amount of the money judgment.
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this basis as its findings of fact and in concluding that both Dykes and Hector obtained the
proceeds from the conspiracy. See United States v. Cingari, 952 F.3d 1301, 1306 (11th
Cir. 2020) (upholding joint and several liability against married couple under different
forfeiture provision and differentiating from Honeycutt because “Honeycutt turned on the
employer-employee relationship: the employer, as owner of the business, obtained the
profits [of illegal sales]; the salaried employee never saw the fruits of his criminal labor”
contrasted with the Cingaris, a married couple “who jointly operated their fraudulent
business”).
VI.
Accordingly, we affirm the district court’s judgments and the orders denying Dykes’
and Hector’s motions for a new trial. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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