United States of America v. Laquan Octavous Draper

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4471
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAQUAN OCTAVOUS DRAPER,
Defendant - Appellant.
No. 13-4478
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANGELO MARQUIS DRAPER,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:12-cr-00090-RGD-DEM-1; 2:12-cr-00090-RGD-
DEM-2)
Submitted: May 27, 2014 Decided: June 16, 2014
Before KEENAN, DIAZ, and FLOYD, Circuit Judges.

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Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Norfolk, Virginia; George H. Yates, GEORGE
H. YATES, P.C., Virginia Beach, Virginia, for Appellants.
Sherrie Scott Capotosto, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Laquan Draper and his brother Angelo were convicted
after a jury trial of one count of conspiracy to commit Hobbs
Act robbery, twelve counts of Hobbs Act robbery, all in
violation of 18 U.S.C. § 1951(a) (2012); and one count of using,
carrying, and discharging a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c) (2012). Laquan was
also convicted of one count of attempted Hobbs Act robbery, and
one count of felon in possession of a firearm, in violation of
18 U.S.C. § 922(g) (2012). The district court sentenced Laquan
to a total of 413 months of imprisonment, and sentenced Angelo
to a total of 300 months of imprisonment.
On appeal, counsel have filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but raising two issues for
review. First, counsel question whether the district court
abused its discretion when it asked several witnesses whether
the stores at which they were employed sold items from out of
state. Second, counsel question whether the court abused its
discretion in refusing to give an instruction proposed by the
defense regarding eyewitness identification, relying on this
court’s decision in United States v. Holley, 502 F.2d 273 (4th
Cir. 1974). Laquan and Angelo were informed of their right to
file a pro se supplemental brief. Angelo filed a brief in which

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he merely repeats the arguments in the Anders brief regarding
the district court’s questioning of witnesses. Angelo also
filed a supplemental brief in which he asserts that the district
court erred in admitting expert testimony based on this Court’s
recent decision in United States v. Garcia, __ F.3d __, No. 13-
4136, 2014 WL 1924857 (4th Cir. May 15, 2014). Laquan was
granted two extensions of time in which to file a supplemental
brief, but has not filed a brief.
Because the appellants preserved their objections
properly, this Court reviews their claim that the district court
has improperly interfered with their right to a fair trial for
abuse of discretion. United States v. Smith, 441 F.3d 254, 268
(4th Cir. 2006). Although a district court must control the
presentation of evidence and is permitted to question witnesses,
Fed. R. Evid. 614(b), “the court must not create an appearance
of partiality by continued intervention on the side of one of
the parties or undermine the effective functioning of counsel
through repeated interruption of the examination of witnesses.”
United States v. Castner, 50 F.3d 1267, 1272 (4th Cir. 1995)
(internal quotation marks, alterations, and citations omitted).
“A new trial is required only if the resulting prejudice was so
great that it denied any or all the appellants a fair, as
distinguished from a perfect, trial.” United States v.
Villarini, 238 F.3d 530, 536 (4th Cir. 2001) (internal quotation

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marks omitted). Additionally, jury instructions may cure the
taint of any improper questioning. Id. at 537.
Our review of the record leads us to conclude that the
district court did not abuse its discretion in questioning
witnesses, but merely acted to manage the flow of information in
a lengthy trial that involved a significant amount of evidence.
See United States v. Weaver, 282 F.3d 302, 314-15 (4th Cir.
2002) (no abuse of discretion where district court told
Government counsel to provide documentary evidence of FDIC
insured status of victim bank); United States v. Parodi, 703
F.2d 768, 775-78 (4th Cir. 1983). The district court’s limited
questioning of witnesses did not deny appellants a fair trial,
and this claim provide no grounds for relief.
Turning to the appellants’ second argument, this Court
reviews the denial of a requested jury instruction for abuse of
discretion. United States v. Shrader, 675 F.3d 300, 308 (4th
Cir. 2012). An abuse of discretion in the refusal of a defense
instruction requires that “the defendant’s proposed instruction
must be (1) correct; (2) not substantially covered by the
court’s charge; and (3) dealing with some point in the trial so
important, that failure to give the requested instruction
seriously impaired the defendant’s ability to conduct his
defense.” Id. In conducting its analysis, the court considers
the district court’s instructions in their entirety. Id. An

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instructional error is subject to harmless error analysis.
Neder v. United States, 527 U.S. 1, 18 (1999). Such error will
be found harmless if it is “clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty absent the
error.” Id.
We conclude that the district court did not abuse its
discretion in refusing to instruct the jurors regarding
identification testimony in the manner set forth in Holley,
because “this was not a case wholly dependent on eyewitness
identification.” United States v. Patterson, 150 F.3d 382, 388
(4th Cir. 1998). In fact, there was significant other evidence
pointing to appellants as the perpetrators of the two robberies
for which eyewitness identification evidence was admitted.
Further, in light of this significant other evidence, even if we
assume that the court erred in failing to give any instruction
on eyewitness identification, the error was harmless under the
Neder standard.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We conclude that Angelo’s argument based on Garcia is
without merit. We therefore affirm appellants’ convictions and
sentences. This Court requires that counsel inform appellants
in writing, of the right to petition the Supreme Court of the
United States for further review. If either appellant requests

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that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on appellant.
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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