On June 20, 2012, the U.S. Attorney’s Office for the Eastern District of Virginia indicted Laquan Draper and Angelo Draper for their alleged participation in an eight-week robbery spree in July of 2011, spanning Norfolk to Roanoke, VA.

As alleged in the indictment, the brothers, concealing their identities with shirts tied around their faces, entered 7-11 convenience stores with either firearms or replica firearms, jumped over the counter and took money from store employees. The men are also alleged to have robbed employees of two McDonald’s, a Wendy’s, an ABC Store, and a Fast Auto Loans location. In addition, at Got It Video in Norfolk, the Drapers entered with a third person, shattering the locked front glass door by shooting out the bottom half. They then held customers and employees at gun-point and took money from the store registers.

The brothers were arrested in Chesapeake on August 25, 2011 after they crashed the stolen Saturn Vue they were driving into a police vehicle. A .22 caliber hand-gun was found in the passenger floor board of the stolen vehicle when the men were removed. Additional evidence recovered from the car was linked forensically to several of the crime scenes.

The Draper brothers were charged with conspiracy to commit robbery, 16 counts of interference with commerce by robbery, and three firearm charges. Laquan Draper has also been charged with possession of a firearm by a felon. If convicted, they face a maximum of 20 years in prison for each of the robbery and conspiracy charges, and a total of 60 mandatory years on the firearm charges.

The government’s decision to charge the brothers with conspiracy places the defendants at a serious disadvantage. Most importantly, that the government can prosecute the brothers together in a single trial. This is especially important if one of the brothers was only a minor participant because now the jury will see all of the evidence at trial, not just the evidence pertaining to the minor participant’s role in the conspiracy.

Conspiracy also allows the government to introduce hearsay evidence against the brothers under the co-conspirator hearsay exception. This means that statements made by one brother in furtherance of the conspiracy can be used against the other brother.

Perhaps the most important disadvantage facing the brothers is that each may be responsible for the substantive crimes committed by the other during the course of the conspiracy. This concept is known as vicarious liability and was upheld by the Supreme Court in Pinkerton v. United States, 328 U.S. 640 (1946). Not only can the brothers face jail time for the crimes they personally committed, they can be convicted for the offenses committed by the other brother if they were committed during the term of the conspiracy.

Managing both the scope of the conspiracy and the flow of admissible evidence by the government will be very important for the defense. Also important will be communicating to the prosecutor if one brother was in fact only a minor participant in the conspiracy (e.g., one brother coerced the other, less capable brother, to participate in the conspiracy).

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

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