U.S. v. Harriston, 01-12416.

• Decision Date: 27 March 2003
• Docket Number: No. 01-12416.,01-12416.
• Citation: 329 F.3d 779
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard William HARRISTON, III, a.k.a. Little Bill, a.k.a. Little Geek, a.k.a. Young Gun, a.k.a. Melvin Johnson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

329 F.3d 779

UNITED STATES of America, Plaintiff-Appellee, v. Howard William HARRISTON, III, a.k.a. Little Bill, a.k.a. Little Geek, a.k.a. Young Gun, a.k.a. Melvin Johnson, Defendant-Appellant.

No. 01-12416.

United States Court of Appeals, Eleventh Circuit.

March 27, 2003.

As Amended April 28, 2003.

COPYRIGHT MATERIAL OMITTED

James W. Howard (Court-Appointed), Tucker, GA, for Defendant-Appellant.

Amy Levin Weil, Richard M. Langway, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HULL, FAY and GIBSON^*, Circuit Judges.

PER CURIAM:

The government's motion to amend the court's opinion which was issued on March 27, 2003, is granted, and the following opinion is substituted in its place.

Howard William Harriston, III appeals his conviction of racketeering conspiracy in violation of 18 U.S.C. § 1962(d) and of conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. § 841 and § 846. The district court sentenced Harriston to twenty years on each count to run consecutively for a total sentence of forty years. On appeal, he points to a number of errors in both his conviction and sentencing. Harriston argues first, that the racketeering and drug conspiracies had been abandoned by May 25, 1994, and were therefore barred by the statute of limitations; second, that his racketeering conspiracy conviction was unsupported by two predicate acts, and hence, did not meet the proof requirements of the indictment; third, that the court erred by granting a "partial mistrial," in which it removed two of the racketeering acts alleged in the indictment, but left all four counts in the indictment; fourth, that the district court erred in criticizing defense counsel and the evidence in front of the jury; fifth, that the court erred by allowing government witness Eugene Daniels to testify against him despite the fact that Daniels invoked his Fifth Amendment privilege and refused to answer questions about the Brantley murder; and sixth, that the district court erred in its refusal to strike a prejudicial, unsupported alias from the indictment. In addition, Harriston raises several other arguments relating to his conviction and sentencing which we need not reach. We reverse the conviction and remand for a new trial.

Harriston's prosecution was based on his participation in a criminal enterprise led by Eugene Daniels and Maximillian Wade, both of whom were distributing drugs out of Atlanta. Daniels had come to Atlanta from Los Angeles in October 1991, and in 1992, he incorporated Tommy Gunn productions, a music business which he used to launder the profits of the drug enterprise. That same year, Daniels offered the teen-aged Harriston an opportunity to move to Atlanta from Los Angeles to work with Daniels and live at his townhouse. Over the next few years, Harriston remained in Atlanta with Daniels, staying with him on and off. Meanwhile, Daniels and Wade used a network of thirteen or fourteen individuals to buy drugs from a supplier in Los Angeles and sell cocaine to distributors in cities throughout the southeastern United States, including Atlanta, Birmingham, Louisville, and Memphis.

On November 20, 1992, Daniels, Harriston, and Edwin Nelson, Daniels' brother-in-law and associate, went to Damonne Brantley's apartment in Smyrna, Georgia, for the purpose of collecting money from Brantley, who had taken a kilogram of cocaine Daniels had provided on consignment. When they arrived at the apartment, they encountered Damonne's brother, Aaron Brantley. Aaron Brantley was then bound with duct tape and a coat hanger, stabbed numerous times with a small knife, and shot to death. The group ransacked Damonne's bedroom and took approximately $10,000 to $15,000 in cash that they found there.

The following year, on December 16, 1993, there was a gun fight at Daniels and Wade's apartment on Piedmont Road, in which Wade was shot several times. When the police arrived and entered the apartment to search for suspects, they discovered a large amount of cocaine and marijuana as well as drug records and $80,000 in cash.

Between December 1993 and May 1994, several of Daniels and Wade's drug couriers traveled on some twenty occasions between Los Angeles and Atlanta. On each trip, the courier carried five to ten kilograms of cocaine and/or money. Around this same time, Sophia Willis, a friend of Wade's, arranged for Wade to sell two to three kilograms to of cocaine to Willis' next-door neighbor, Mr. Patterson. They agreed to meet on May 26, 1994 at the Renaissance Hotel in Atlanta. Patterson and another man, who was actually an undercover agent, picked up Willis to take her to the hotel. Willis spoke with Wade by telephone, and at his direction, counted the money Patterson had brought to purchase the cocaine. Willis then paged Wade, and both he and Daniels came to the hotel. Once in the hotel room, Wade removed two kilograms of cocaine from the backpack he was carrying. Task force agents then rushed into the room to arrest all involved. A gunfight erupted in which Wade was shot twice. He was rushed to the emergency room and later died in surgery.

Following the shoot-out at the Renaissance Hotel, Daniels was among those arrested. Even after he was incarcerated, Daniels admittedly continued to conduct drug transactions with other members of the enterprise who remained at large in order to make money. While in the penitentiary, Daniels instructed Harriston to collect money owed to Daniels from drug customers and distributors. Harriston then delivered a bag with $100,000 in cash to Andrea Walden. On May 27, 1994, Andrea Walden picked up Gabrielle Garcia, one of the couriers from Los Angeles, at the airport in Atlanta and gave her the bag containing the money. And on May 28, 1994, Garcia delivered the money to Daniels' Los Angeles supplier, Javier Chacon.

Harriston was tried along with two co-defendants, Carl Lee Clay and Eric Wayne Stewart. The trial consumed fourteen days, in which some forty-five witnesses testified. The jury acquitted Clay and Stewart on all counts, but found Harriston guilty on two of four counts, racketeering conspiracy and drug conspiracy.

What we have outlined above is sufficient to examine the specific arguments that we must consider in this appeal.

I.

A.

Harriston first argues that the district court erred in not applying a five-year statute of limitations to the racketeering and drug conspiracy offenses. Since the indictment in this case was filed on May 26, 1999, the government had the burden to provide evidence that the conspiracies occurred within the previous five years (i.e. on or after May 26, 1994). 18 U.S.C. § 3282 (2000). If the alleged conspiracies were abandoned before this date, then the indictment filed against Harriston would not have been timely. Harriston claims that both conspiracies were abandoned in December 1993 after Wade was shot outside the apartment on Piedmont Avenue.¹

We review de novo the district court's interpretation and application of the statute of limitations. United States v. Gilbert, 136 F.3d 1451, 1453 (11th Cir. 1998). Although the RICO statute itself contains no time limit provision for criminal prosecutions of racketeering conspiracies, we have applied the general five-year statute of limitations contained in 18 U.S.C. § 3282. United States v. Starrett, 55 F.3d 1525, 1544 (11th Cir.1995). Likewise, the limitations period for the drug conspiracy charge is five years. See United States v. Reed, 980 F.2d 1568, 1583 (11th Cir.1993).

The government is not required to prove an overt act for either a drug conspiracy under 21 U.S.C. § 846 or a RICO conspiracy under 18 U.S.C. § 1962(d). See United States v. Terzado-Madruga, 897 F.2d 1099, 1121 (11th Cir. 1990) (drug conspiracy); United States v. Coia, 719 F.2d 1120, 1124 (11th Cir.1983) (RICO conspiracy). The government satisfies the requirements of the statute of limitations for a non-overt act conspiracy if it alleges and proves that the conspiracy continued into the limitations period. United States v. Arnold, 117 F.3d 1308, 1313 (11th Cir.1997). The government only has to show, either directly or circumstantially, that a conspiracy existed; that the defendant knew of the conspiracy; and that with knowledge, the defendant became a part of the conspiracy. Id. A conspiracy is deemed to have continued as long as the purposes of the conspiracy have neither been abandoned nor accomplished and the defendant has not made an affirmative showing that the conspiracy has terminated. United States v. Gonzalez, 921 F.2d 1530, 1548 (11th Cir.1991) (citing Coia, 719 F.2d at 1124). A defendant can overcome this presumption of continued participation only by showing that he affirmatively withdrew from the conspiracy or that the final act in furtherance of the conspiracy has occurred. Reed, 980 F.2d at 1584.

Harriston has failed to make such a showing in this case. He and his co-conspirators did not abandon the purpose of the conspiracy; Harriston did not affirmatively withdraw; and the final act in furtherance of the conspiracy did not occur before May 26, 1994.

First, Harriston argues that the conspiracy had essentially ended after Wade was shot in December 1993 to the extent that there was no longer an intact group of co-conspirators. The record suggests otherwise. The goal of the conspiracies was to obtain money for the enterprise by distributing drugs throughout Atlanta and the southeastern United States, and this purpose continued well beyond the December 1993 shooting. The government presented evidence that on May 26, 1994, Wade and Daniels participated in the drug transaction at the Renaissance Hotel, in which they attempted to sell several kilograms of cocaine to government agents. After Wade's death and Daniels' arrest, on May 27, 1994, Garcia flew to Atlanta, was picked up at the airport by Andrea Walden, and was given a bag full of money which...