### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 27, 2003 THOMAS K. KAHN CLERK

*Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

_________________________ No. 01-12416

_________________________ D.C. Docket No. 99-00258-C R-l-1-JOF

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus HOWARD WILLIAM

HARRISTON, III, a.k.a. Little

Bill, a.k.a. Little Geek, a.k.a. Young G

un, a.k.a. Mel

vin Johnson, Defenda nt-Appellant

.

_________________________ Appeal from t

he United States D

istrict Court for t

he Northern Distric

t of Georgia

_________________________ (March 27, 2003) Before HULL, FAY and GIBSON * , Circuit Judges.2

PER CURIAM: Howard Willia

m Harriston,

III appeals his con

viction of racketee

ring conspiracy in violation of 18 U.S. C. § 1962(d) and of conspiracy to distr ibute 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 f

orty years . On appeal, he points to a number of errors in both his conviction and sentenc

ing. Harriston ar

gues first, that the

racketeering and drug conspiracies had bee

n abandoned by May

25, 1994, and were

therefore barre

d by the statute of limitations; second, that his racketeering conspiracy conviction was unsupported by two

predicate acts,

and hence, did not m

eet the proof requir

ements of the indictme

nt; third, that the court erred by gr anting a “parti

al mistrial, ” in which it remov

ed two of the racke

teering acts alleg

ed in the indictm

ent, but left all four counts in the indic

tment; fourth,

that the district cou

rt erred in critic

izing defense counsel and t

he evidence in front

of the jury; f

ifth, that the cour

t erred by allowing governm

ent witness Eugene

Daniels to testify

against him despi

te the fact that Daniels invoked his Fifth Amendment privilege and refused to answer questions about the Bra

ntley murde

r; and sixth, that the

district court err

ed in its refusal to strike a

prejudicial, uns

upported alias from

the indictment.In addition,3

Harriston raises

several other arg

uments relatin

g to his conviction and se ntencing which we need not r

each. We rev

erse the conviction a

nd 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, an

d in 1992, he incorpora

ted Tommy

Gunn productions, a m

usic busi ness which he use d to l aund er the profi ts of t he dru g ente rpris e. That same year, Danie

ls offered the tee

n-aged Harriston a

n opportunity to m

ove to Atlanta from Los Ange

les to work with Da

niels and live at his to

wnhouse. Over the

next few years,

Harriston rem

ained in Atlanta w

ith Daniels, stay

ing with him on and off. Meanwhile, Daniels and Wade used a network of thirteen or fourteen individuals to buy dr

ugs from a supplie

r in Los Angeles an

d sell cocaine to distributors in cities throughout the southeastern United States, including Atlanta, Birmingham, Louisville, and Memphi s. On November 20, 1992, Daniels, Harriston, and E

dwin Nelson, Dan

iels' brother-in-law and associate, went to Damonne Brantley's apartm ent in Smyrna, Georgia, for the

purpose of collectin

g money fro

m Brantley

, who had taken a kilogram of cocaine Daniels had provided on consignment. When they arrived at the apartment

, they encounte

red Damonne' s brother, Aaron Brantley. A aron4

Brantley was

then bound with duct ta

pe and a coat hanger

, stabbed numer

ous times with a small knife, and shot to death. The group ransacked Dam onne's bedroom and took appro ximately $10,000 to $15,0 00 in cash that they fou nd there. The following y

ear, on Decem

ber 16, 1993, there

was a gun fight at D aniels and Wade's apartment on Piedmont R oad, 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 coca

ine and marij uana as well as dru g records and $80,000 in cash. Between December 1993 and May 1994, several of Daniels and W ade's drug couriers trave

led on some twe

nty occasions bet

ween Los Angeles

and Atlanta. On eac

h trip, the courier

carried five to te

n kilograms of cocaine and/or money. A

round this same ti

me, Sophia W

illis, a friend of

Wade's, arr

anged 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 Renai ssance Hotel in Atlanta. Patte

rson and another m

an, who was actu

ally an undercov

er agent, picked up Willis to take her to the hotel. Willis spoke with Wade by telephone, and at his direction,

counted the mone

y Patterson had

brought to purchase the cocaine. Willis then pag ed Wade, and both he and Dan iels came to the hotel. Once in the hotel ro om, Wade r emoved two kilog

rams of cocai

ne from the5

backpack he was ca

rrying. Task

force agents then r

ushed into the room

to arrest all involved. A gunf

ight erupted in which

Wade was shot tw

ice. He was ru

shed to the emergency room and later died in surgery. Following the shoot-ou

t at the Renaissanc e Hotel, Daniel s was among those arrested. Even after he was incarcerated, Daniels adm ittedly continued to conduct drug transactions w

ith other mem

bers of the enterpr

ise who remai

ned at large in order to make m

oney. While

in the penitentiary

, Daniels instruc

ted Harriston to collect money

owed to Daniels fr

om drug custom

ers and distributors.Harriston then delivered a bag

with $100,000 in cash t

o Andrea Walde

n. 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 tr

ied along with two c o-defendants, Ca rl Lee Clay a

nd Eric Wayne Stew

art. The trial consumed fourte en days, in whi

ch some forty

-five witnesses testifie

d. The jury

acquitted Clay

and Stewart on all

counts, but found Harriston guilty

on two of four counts,

racketeering cons

piracy and drug conspiracy.1 Harriston argues that the criminal enterprise led by W ade and Daniels disbanded in late 1993 or early 1994 based on the following facts: Harriston moved out of Daniels' house a

nd returned to California

for a month; two other associates moved back to Los Angeles, and Wade and Danie ls moved to another h

ouse, a location w

hich was not direc

tly implicate

d in any drug

transactions. 6 What we have out

lined above is suffic

ient to examine

the specific arguments that we must conside r in this appeal. I. A. Harriston first a

rgues that the distri

ct court erred in no

t applying a five-year statute of limit

ations to the rackete

ering and drug conspir

acy 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 a lleged conspiracies wer

e abandoned before t

his date, then the ind

ictment filed a

gainst Harriston would not have been timely. Harriston claims that both conspiracies were abandoned in D ecember 1993 a fter Wade wa

s shot outside the apar

tment on Piedmont Avenue. 1 We review de no

vo the district court' s interpretation and application of the statute of limitation s. United States v. Gilbert , 136 F.3d 1451, 1453 (11th Cir. 1998). Although the R

ICO statute itself

contains no time limit provision f or7

criminal prose

cutions of racketee

ring conspiracies,

we have applied the

general five-year statute of limitatio ns contained in 18 U.S.C. § 3282. United States v. Starrett , 55 F.3d 1525, 1544 ( 11th Cir. 1995). L ikewise, the lim

itations period for the drug conspirac y charge is five years. See United States v. Reed , 980 F.2d 1568, 1583 (11th Cir. 1993). The governmen

t is not required to pr

ove an overt act for

either a drug conspiracy under 18 U.S.C. § 846 or a RICO conspiracy under 21 U.S .C. §1962(d). See United States v. T erzado-Madruga

, 897 F.2d 1099, 1121 (11th Cir. 1990) (drug conspiracy); United States v. Coia , 719 F.2d 1120, 1124 (11th Cir. 1983) (RICO conspi

racy). The

government sati sfies the requirem ents of the statute of limit

ations for a non-over

t act conspiracy

if it alleges and pr

oves that the conspiracy continued into the limitations period. United States v. A rnold , 117 F.3d 1308, 1313 (11th Cir. 1997). The government only has to show, either directly or cir

cumstantially

, that a conspirac

y existed; that th

e defendant knew of the conspiracy;

and that with knowle

dge, the defendant became a par t of the conspiracy. Id. A conspiracy is deemed to have continued as long as the purposes of the conspiracy

have neither been a

bandoned nor accom

plished 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) (cit ing Coia , 7198

F.2d at 1124). A defendant can overcome this presumption of continued participation only by showing that he affirmatively withdrew fr om the conspiracy or that the final act i n furtherance of the co nspiracy has occurred. Reed , 980 F.2d at 1584. Harriston has fai

led to make such a showing in this case . He and his coconspirators did not ab andon the purpose of the conspiracy; H

arriston did not affirmative

ly withdraw; a

nd the final act in fu

rtherance of the c

onspiracy did not occur before May 26, 1994. First, Harrist

on argues that the con

spiracy had esse

ntially ended af

ter Wade was shot in Decem

ber 1993 to the extent t

hat there was no long

er an intact group of co-conspirators. The record suggests otherwise. The goal of the conspiracies was to obtain mon

ey for the ente

rprise by distri

buting drugs throughout A tlanta and the southeastern United States, a nd this purpose continued well beyond the December 199 3 shooting. The gover nment presente

d evidence that on Ma

y 26, 1994, Wade and Daniels participated in the drug transaction at the Renaissance Hotel, in which th

ey attempt

ed to sell several ki

lograms of coc aine to governme nt agents. After W

ade's death and Da

niels' arrest, o

n May 27, 1994, G

arcia flew to Atlanta, was pic

ked up at the airport by Andrea W alden, and was give

n a bag full of money w

hich had been retrie

ved from Dani

els' house. On Ma

y 28, 1994,9

Garcia returne

d to Los Angeles and d

elivered this m

oney to Javier C

hacon, Danie ls' dr ug su ppli er in C alifo rnia. Derri ck Wil liams t estif ied th at some time after Wade's

funeral, he lear

ned from Dani

els that Aliyah

Fard had a kilogram

of cocaine. Willi

ams went over

to Fard's house, pi

cked up the cocaine,

sold it, and gave some of the

proceeds to Roderic

k Bullock to pass on to D aniels' wife. T he actions of Wade, Daniels, Garcia, Walden, Chacon, Williams, Fard, and Bullock indicate that a cor

e group of co-conspir

ators remaine

d intact, that the pu

rpose of the conspiracies remained substantially the same, and that these conspiracies continued on unt il May 26, 1994 and afterward s. Second, Harris

ton contends that his dec ision in February

1994 to live with his girlfriend, ra

ther than with Dan

iels, and his lack of

participation in the Renaissance Hote

l drug transaction on M

ay 26, 1994 im

plicitly show tha

t he withdrew from

the conspiracy before that date. However, a def endant must “affirm atively withdr

aw” from the

conspiracy and n

ot just distance him

self from the participants. Reed , 980 F.2d at 1584. In any case, Harriston did not distance himself from his co-conspirators. There was testim ony from several witnesses that even after May 26, 1994, Harris ton took actions in furtherance of the co nspiracies. The governmen

t presented evidenc e that sometim e around May 27 or

May 28,2 While Walden did not testify as to the exact date that Harr ist on r etr iev ed t he b ag of mon ey, she stated that she rented a car for Harriston on May 25th and that he w ent and picked

up the money a few days later (which would put Harriston's delivery sometime after May 26, 1994). 10 1994, 2 Harriston went to

Daniels' house, p

icked up a bag full of money, an d delivered it to Andrea Walden; that in June 1994, Harriston attempted to collect drug money th

at was owed to Da

niels; and that a few

months later,

Harriston sold nine ounces of cocai ne to Lyndon Baines Williams. Finally, Har

riston asserts that h

is role in collecting

money afte

r May 26, 1994 was for Danie

ls' legal defense a

nd not part of the drug a

nd racketeering conspiracies. He claims that if anything, these acts constituted a separate “le gal defense fund” conspiracy. In deciding whether or not the evidence at trial supports the conclusion that a new conspira cy existed, w

e look at (1) whethe

r the new conspiracy shared a common goal with the previous conspiracies, (2) whether the nature of the sc

heme underly

ing the crimes r

emained the sa

me, and (3) whether the participa nts overlapped. Reed , 980 F.2d at 1582. S ince Harriston an d others were atte

mpting to collect

money for d

rugs Daniels had pre

viously provided on consignment and to deliver money Daniels owed to suppliers, the goal of their actions (obt

aining money

for the enterprise

through drug sales) a

nd the scheme underly

ing the crimes c

harged (purchase o f drugs from L os Angeles to be distributed in the Sout

heast) were prim

arily the sam

e. Likewise, the co-11

conspirators he wor

ked with (Walde

n, Garcia, Cha

con, William

s, Bullock, Fard) were all part of

the drug and rackete

ering conspiracies . Even though som e of the money collected might have been used for Daniels' legal defense, a r easonable jury could find that the efforts to collect money for Daniels after May 26, 1994 were part of the same racketeering and drug conspirac ies as detailed in th e indictment. We conclude that the district court pr operly denied H

arriston's mot

ion for acquittal on statu te of limitations grou nds. B. Second, Harris

ton argues that the dis

trict court erre

d in not granting his motion for acqui

ttal after the j ury found him guilty of racke

teering conspiracy

but not guilty of the sub stantive RICO off ense. He argues

that in order to convic

t him of racketeering conspiracy, the jury had to fin

d him guilty of

agreeing to com

mit two predicate acts. He claims that the district court's allowance of a conspiracy charge without proof

of his agreeme

nt to two predicate

acts constituted a constructive am

endment to the ind

ictment, broa

dening the bases for c

onviction under the indictment an d creating a per-se rever sible error. The Supreme Court has made clear that the conspiracy offense of 18 U.S.C. § 1962(d) has lesser proof requirements than the substantive RICO offense under § 1962(c). “The RICO conspiracy statute, § 1962(d), broadened conspiracy3 Count I of Harriston's indictment charged him with racketeering and included the following predicate acts: (1) the Atlanta-based drug conspiracy, (2) the kidnaping and

armed robbery of Aaron Bran tle y, (3) the murder of Aaron Brantley, and (4) th e Pied mont Road d rug se izur e. In Co unt II, 12 coverage by omitting the requirement of an overt act; it did not, at the sam e time, work the radical c

hange of requiring th

e Government to prove each conspir ator agreed that he would be the one to commit two predicate acts.” Salinas v. United States , 522 U.S. 52, 6

4 (1997). Rather,

the government can show an agreem ent to participate in a RICO conspiracy in one of two ways: (1) by providing evidence that the defendant a greed to commit two predicate act s, or (2) by providing evidence that the de fendant agreed to th e overall objective of t he conspiracy. United States v. A

bbell , 271 F.3d 1286, 129 9 (11th Cir. 2001), cert. denied , 123 S.Ct. 74 (2002). “If the gover nment can prove

an agreement

on an overall objective, it nee

d not prove a defenda

nt personally agr

eed to comm

it two predicate acts.” Id. And regardless of h ow the governme

nt proves the agreem

ent to the overall objective , it does not necessa rily have to show

that the defendant e

xplicitly agreed with his co-conspirators to commit the substantive RICO crimes as described in the in dictment. United States v. To , 144 F.3d 737, 744 (11th Cir. 1998). Count II of the indictment charged Harriston with participating in a RICO conspi racy. 3 The overall obje ctive of the enterp

rise, as stated in t

he indictmentthe government charged Harriston with parti cipating in a racketeeri ng conspiracy. The indictment stated that Harriston “did knowingly, willfully, and unlawfully combine, conspire, confederate, and agreetogether, and with co-rac keteers” to violate 18 U.S.C. § 1962(c) and “did agree to conduct and participate, directly and

indirectly, in the conduct of the affairs of such enterprise through a pattern of racketeering activity, consisting of the racketeering acts set out in Section E of Count One [the above-mentioned predicate acts].” 13 was (1) “to obt

ain money f

or the mem

bers and associates

of the enterprise, ” (2) “to organize a plan and scheme to enrich the defendants . . . by com mitting narcotics offens es,” and (3) “to pr eserve and pro tect th e power, territ ory, and t he moneymaking endeavors of the enterprise.” The governmen

t presented suffic

ient circumsta

ntial evidence that H

arriston agreed to all three

of these objective s. Several witn esses testified re

garding Harriston's efforts to obtain money for the enterprise. Desean Grice testified that he had owed Eugene Daniels $12,000 for cocaine purchases

and that Harriston visited Grice in Bi

rmingham,

Alabama in Jun

e 1994 and tried to coll

ect this money. Andrea Walden testified that in May 1994, Eugene Daniels contacted her from jail a

nd told her to page Ha

rriston and have Ha

rriston go by Da

niels' house and pick up a bag. Ha

rriston picked up the b ag and then brought it to her; she later discovered th e bag was full of money. The governmen

t also provided evidence that Harriston w as involved in committing narcotics offense s. Lyndon Baine s Williams te stified that he regu larly engaged in cocaine t

ransactions with D aniels and Wade, the leaders of the14

enterprise, and t

hat a few mont

hs after the May

26th arrest of Dan

iels, he met w

ith Harriston and paid h

im $5,500 for nin

e ounces of cocaine . Desean Gric e also testified that Harris ton was a drug “carrier” for Danie ls and Wade. Finally, seve

ral witnesses provi

ded evidence of Ha

rriston's comm

itment to preserving and prote

cting the territory

, power, and m

oney-makin

g endeavors of the racketeering enterprise. De rrick William

s testified that Ha

rriston and Edwin Nelson agreed to go with Daniels to collect money from a residence a t Camden Crest. Williams stated that he observed Daniels, Harriston, and Nelson drive off together and that Ha

rriston was carr

ying a long barre

l, 357 magnum

revolver at the time. Nelson

testified that Dan

iels had asked him

and Harriston to he

lp Daniels collect money

and that he and Har

riston both accom

panied Daniels to collect this money. Gabrielle Garcia stated that Harr iston later told her that he “jacked somebody and he smoked them” which she understood to mea n “he robbed somebody and he killed them.” We conclude that the governm ent provided sufficient evidence of Harriston's agreement to the overall objective of the RICO enterprise as stated in the indictment. II. A.15

Harriston argues that the district court should have granted a mistrial because the prosec

utor elicited inadm

issible testimony

relating to Harr

iston’s prior murder convict

ion in California. Harriston’s co unsel objected to the

testimony and promptly moved for a mistrial on th e entire indictment. Although recognizing the highly prej udicial nature of thi s inadmissible testimony,

the district court de

nied Harriston’ s motion for a m istrial as to all fou

r counts in the indictment. Instead, the district court granted only a “partial mistrial” on two of the four predicate acts listed under the substantive RICO offense, removed the two predicate acts from the indictm ent, and gave the jury curative instructi ons. This case is quite unusual as the district court actually recognized that serious prejudice

had occurred and gr

anted a partial m

istrial. During th

e crossexamination of Los Angeles Police Officer Darren Dupree, the prosecution asked a series of questions

which exposed that H

arriston had pled guil

ty to a murde

r in California. At that very m oment, the distr

ict court sua sponte

asked the jury

to step out of the courtr

oom and told the pr

osecution: “[t] here are some explanations for events that sim

ply can't be m

ade in front of a j ury and you ha ve put before this jury a convict

ion for a homici

de of a defendant on t

rial where one of

the4 We are not reviewing whether the district court abused its discretion in admitting the prior conviction, as t

he parti es agree the prior murder conviction was not admissible. Instead, we ar e reviewing whether the distr

ict court pro perl y d enied defendan t Harriston’s motio

n for a mistrial. “The decision of whether to grant a mistrial lies within the sound discretion of a trial judge as he or she is in the best pos

ition to evaluate the prejudicial effect of improper testimony.” United States v. Perez , 30 F.3d 1407, 1410 (11th Cir. 1994); see United States v. Holmes , 767 F.2d 820, 823 (11th. Cir. 1985) (quo ting United States v. Sat terfield, 743 F.2d 827, 848 (11th Cir. 1984). “We will not reverse a district court’s re fusal to grant a mistrial unless an abuse of discretion has occurred.” United States v. Perez , 30 F.3d at 1410; United States v. Christopher , 923 F.2d 1545, 1554 (11th Cir. 1991). Wh en a curative instruction has been given to address some improper and prejudici a l evidence, we will

reverse only

if the evidence “

is so highly p

rejudicial as to be

incurable by the trial court’s admonition.” United States v. Funt , 896 F.2d 1 288, 1295 ( 11th Cir. 1990) (quo ting United States v. Tenorio-Angel , 756 F.2d 1505, 1512 (11th Cir. 1985)). 16 allegations is m

urder.” Both sides

agreed that the re

marks had been w

holly improper. 4 The district court

reprimanded t

he prosecutor, sta

ting that in “30 y

ears” the court “had never seen a more ill-advised move.” T he district court then advised defense counsel “

don’t ask for it [a

mistrial] un

less you want it, ” as follows: Mr. HOWAR

D [defense counse

l]: Well, I don’t think I have a ny choice but to move

for a mistria

l. THE COURT : Don’t ask for it unless you want i

t. I’m not p

romising you you will g

et it but I’m

telling you, don’ t ask for it unless y ou want it. MR. HOWAR

D: I understand. I

should probably ta

lk with my c

lient, because I’ve been in this situation before and have had it granted when, perhaps, it wasn’t the best alternative. * * * THE COURT : Mr. Langway [prosecutor], all that I’m

capable of saying at the m

oment is that the

re are some e

xplanations for event

s that simply can’t be made in front of a j ury and you have put before this jury a con

viction for a hom

icide of a defenda

nt on trial where on

e of the allegations is murder.17 In all of my

life in the crim

inal justice sy

stem, 30 ye

ars, I have never seen a more ill-advised move. MR. LANGWAY: Can I just state the other rea son? This officer testified – THE COURT : There ain’t no good reason, Mr. L

angway, ther

e is none. No, no. MR. LANGW

AY: I apologize to

the Court. THE COURT : That ain’t good e nough, Counsel. I’ m afraid that you have wasted two weeks of the Court’s and jury’s tim e. After this colloquy

, Harriston’s

counsel made a

motion for a m

istrial on the entire indictment; the prosecution asked for curative instructions and/or an individual voir dire of

the jury. A

lthough the court appea

red inclined to grant

the mistrial, the court gave the defendants the weekend to think about whether they actually want

ed a mistrial.The court com pleted the testim

ony of the offen

ding government wit

ness and recessed th

e trial for the we

ekend. When the trial reconvened the following Tuesday, Harriston’s counsel requested a mistrial, bu t the dist rict court ultimately dec ided to de ny Harriston ’s motion for a m

istrial of the entir

e case. The cour

t granted a partial

mistrial as to two predicate ac

ts and removed on

ly predicate a

cts 2 and 3 (which inc

luded the kidnaping, armed robbery, and murder of Aaron Br antley) from the RICO substantive offense,

but left all four

indictment count

s against Harristo

n otherwise untouched. In justi

fying its mis

trial decision, the

court explained that

the prosecution's evidence was very weak on the predicate acts of kidnaping, armed18

robbery, and murder in the RICO substantive offense, and that there was a “ great likelihood” that the j ury would get out o f the prejudicial remarks that Harriston had murdered someone else, evidence which could “tilt the balance in a we ak case.” Howeve

r, the district cou

rt retained the pre

dicate acts involving drugs on the RICO substantive offense because it found that the prosecution had presented substantial evidence on these charges that was not affected by the improper remarks. The jury alr

eady had been giv

en a copy of the i

ndictment with the predicate acts of kidnaping, a

rmed robbery

, and murder.The district court thus had to give the jury a revised copy of the indictment with two of the racketee ring acts removed and had to instruct the

jury to disreg

ard any evidenc e the prosecution eli cited from Officer Dupree at the end of the cross-examination. The jury ulti

mately ac quitted Harriston’ s co-defendants on a ll counts. The jury also acqu

itted Harriston on t

he substantive RICO

and drug distribution counts. The jury, however, convicted Harriston on the drug conspiracy and RICO conspiracy counts. After considera

ble review, we

conclude that the ina

dmissible testim

ony about Harriston’ s murder convic tion not only was un

fairly prej udicial to Harrist on on the two predicate

racketeering ac

ts, but also was unf

airly prejudi

cial to19

Harriston on the RICO conspiracy and drug conspiracy counts as well. We rea ch this conclusion for several reasons. First, the RICO conspiracy and drug conspiracy in this case involved schemes wher

eby significant amounts of drugs r epeatedly we

re transported by various couriers from Los Angeles, California to Atlanta, Georgia and then distributed throughout t

he southeastern Uni

ted States. Dru

g proceeds, includin

g large amounts of currency totaling in excess of $1 million, in turn were transported by couriers bac

k to California. V

arious drug suppliers w

ere on the west coa

st, including California. The California connection was an integral part of the RICO conspiracy and d

rug conspiracy o f which Harristo n was convicted. T

hat Harriston was convicted of murder in California was as equally prejudicial to these RICO and drug conspiracy

counts as to the two st

ricken predicate acts in the substantive RICO count. Second, the inadm

issible prior Calif

ornia murder c

onviction was not tied in a particular fac

tual manner,

or any particul

arized way,

to the predicate ac

ts involving the armed robbery, kidnaping and murder of Aaron Brantley.If anything, the j ury heard evide nce of similar

violence taking plac e during the course of the RICO conspiracy and drug conspiracy of which Harriston was convicted. Moreover, as alr eady pointed out,

the RICO conspira

cy and drug20

conspiracy were tied directly to California; whereas, the Aar on Brantley murder occurred in Georg

ia. Again, ther

e was no factual or

reasonable basis to c

onclude that the inadmiss

ible evidence of the

California mu

rder conviction wa

rranted a mistrial on the p

redicate acts but n

ot on the entire indict

ment. Even though the prej udicial effect on t he other charges in t

he indictment was equal to that of

the predicate act

s, we still mu

st determine w

hether the prejudicial eff

ect of the inadm

issible California murder convict ion was sufficient to require a mi strial of the case. Despite the prej udice inherent in the erroneous use of a prior convic

tion, the introduction

of such evidence is no

t deemed per se justification for

a mistrial or r

eversal of a convic

tion. If the adm

ission of the prior conviction was harmless , we will not disturb Harri ston’s instant con victions. See , e.g. , United States v. Jones , 28 F.3d 1574, 1582 (11th Cir. 1994), modified on other grounds , 74 F.3d 275 (11th Ci r. 1996); United States v. Hosford , 782 F.2d 936, 939-40 (11th Cir.1986); United States v. Fortenberry , 971 F.2d 717, 722 (11th Cir. 1992); United States v. E ason , 920 F.2d 7 31, 735 (11 th. Cir. 199 0). We often have concluded that an error in admitting evidence of a prior conviction was harmless where there is overwh elming evidence of guil t. E.g. , Jones , 28 F.3d at 1582; Hosford , 782 F.2d at 939; Fortenberry , 971 F.2d at 722. This Court further has instructed that “

erroneous admi ssion of evidence does not warrant reve

rsal if21

the error had no substantial influence on the outcome and sufficient evidence uninfected by error supports the verdict.” Jones , 28 F.3d at 1582; Fortenberry , 971 F.2d at 722. The se harmless-e rror determi

nations are highly

fact-intensive and will vary from case to case. Given the seriousne ss of the type of p rior conviction in issu

e, the California connection between

the inadmissible

prior murder c

onviction and the char

ges on trial, and the natu

re of the evidence

against Harriston,

we believe that the

prior California murder conviction substantially influenced the jury. While there w as sufficient evidence to sustain Harriston’s convictions, we cannot say the evidence was so overwhelm

ing on the RICO consp

iracy and drug conspiracy counts to make this erro

r harmless. Indeed, the co-defendants were al l found not guilty,

and Harriston was acquitted on two of the four counts. Given the factual circumstance s, we also cannot s ay the jury likely disregar

ded the prior Calif

ornia murder convict

ion, especially

when testified to by

a police detective

from Los Angeles, Califor

nia, or that this ina

dmissible convic

tion had only a ver

y slight effect on the jury’s determination

. While we recog

nize the district co

urt’s understanda

ble attempt to c

ure the prejudice p roblem in a way th at did not mistry the enti re case, the d istrict co urt’s initial reactions that the eliciting of the inadmissible prior California murder22

conviction was highly

prejudicial, il

l-advised, and m

erited a mistr

ial were wellfounded. The inadm

issible California murder convict ion not only warr

anted a mistrial on the p

redicate acts as t

he district court pr

operly found, but

it also warranted a mistrial of the entire indictment under the particular factual circumstance s of this case. Th e district court’ s initial judgme nt—“don’t ask for it [a mistrial] unless you want it”—was the correct one. W e conclude the admitted highly prejudic

ial error here w

as not harmless

and that the district

court abused its discretio n in denying the motion fo r a mistrial. Th us, we vacat e Harriston ’s conviction and sentence on the RICO conspi racy and drug c onspiracy counts and remand for a n

ew trial. B. Harriston also argues that he was prejudiced by the district court's reprimand of d

efense counsel aft

er the court interp

reted counsel's que stioning of the witness as im

plying that the prosecutor fabricated evidence. The court directed defense counsel to either apologize to the prosecutor or provide evidence for the accusation.

Harriston claim

s that the court's r

emarks deprive

d him of his right to a fair tria

l. A trial judge is not limited to giving abstract instructions to the jury; he may assist the jury

by comm

enting on the evidence

or by drawing a

ttention to parts of23

the evidence that he thinks are important. United States v. J enkins , 901 F.2d 1075, 1082 (11th Cir. 1990).At the same ti me, the judge

must instruct the

jury that it remains the sol

e fact finder and t

hat it is not bound by h

is comment

s on the evidence. United States v. Hope, 714 F.2d 1084, 108 8 (11th Cir. 1983). Neutrality by

the judge is im

portant because “ [j]uries are extremely

sensitive to every word and intimation given by the judge.” United States v. Cox , 664 F.2d 257, 259 (11th Cir. 19 81). “Only when the judge's conduct strays f rom neutrality is the defendant thereby denied a constitutionally fair trial.” United States v. Harris , 720 F.2d 1259, 1262 ( 11th Cir. 1983) (quoti ng Moore v. United States , 598 F.2d 439, 442 (5th Ci r. 1979)). The exchange between Harriston's counsel, the prosecutor, and the district judge during the cro ss-examination of Officer Sm

ith went as follows : Q. So it is it fair

to say then that y

ou always rem

embered this conversation with Mr. Harriston but

last week is the fi

rst time that y

ou saw fit to share i

t with anyone pertaining to the prosecution of this case? A. It was the first time anybody ever asked me. Q. And the person who asked you and the person who you remem bered it for was Mr. Langway

, correct? MR. LANGWAY [Assistant U.S.Attorney]: Objection, your Honor. THE COURT : Overruled. MR. LANGWAY: It's a scandalous com ment, and the court directed counsel not to say any

thing. THE COURT : You didn't mean to suggest , did you, that Mr. Langway invented the testim ony and told it to the witn ess? You didn't mean to s uggest that, did you?24

MR. HOWARD [Harriston's counsel]: All I m ean to do -- THE COURT : Counsel, did you me an to suggest that? MR. HOWAR

D: I'm not sugge sting anything. I 'm asking questi

ons. THE COURT : You can suggest whatever you wish to suggest that's supported by the facts as to the witness. I si

mply want to know if y

ou intended by that comment to infe

r that the prosecutor is t

he architect of the e

vidence? I want to know if that is your ac cusation. MR. HOWARD: I have accused nobody of any thing. I've only asked questions. THE COURT : You either apologize to the prosecutor and state that you had no intention of making that or I will excuse t he jury and we will hav

e a hearing right now to see if you ha ve any basis in fact to m

ake an accusation against an officer of the court, an officer of the Unit ed States. Those are

your choices. MR. HOWARD: I have no further ques tions. (emphasis added ). Harriston has arg

ued that the judge' s remarks “ unfairly bolster

ed the Government's witness, negated the impeachment of O fficer Smith, and disparaged the integrity an

d credibility of

Harriston's defe

nse counsel in the pre sence of the jury.” Harriston's counsel was pursuing a line of questioning directed at whether Officer Sm

ith was truthful in te

lling Assistant U. S. Attorney L angway about a conversation Smith had with Harriston concern ing a drug deal in Atl anta. The court understood one of

these questions to im

ply that Langw

ay encouraged S

mith to lie. The judge's reprimand o f defense counsel cut short this line of questioning. However, after Langway conducted redirect exam ination of Smith, the court encouraged Harriston's counsel to recross-examine Officer Smith. T he court allowed Harriston's counsel to question Officer Smith about when Smith first me t25

with Langway

, what inform

ation Smith received from La ngway, how S

mith learned about the dr

ug charges, wheth

er Smith knew

about Langway

's lack of evidence on these cha

rges, and why Smith did not recall his conversation w ith Harriston the fir

st time he spoke w

ith Langway. The court overrul ed all of the scope and relevance objections made by the government throughout Harriston's

recross-exam

ination. The court

's willingness to per

mit extensive r

ecrossexamination af

ter its reprim

and of defense counse

l leads us to believe t

hat the court did not unfairly

bolster the governm

ent's witness or ne

gate the impea

chment of Officer Smith. At the same time, the court's insistence on having the defense attorney apologize to the prose

cution did disparage th

e credibility a

nd integrity of defense counsel. The disput

ed question was not so s evere as to requir e the public disciplining of Harriston's attorney. The implication that Langway told Officer Smith to lie was a questionable inference; the court did not even recognize it at first and overrule

d the government

's objection. O

nly after La

ngway said, “ [i]t's a scandalous comm

ent, and the court di

rected counsel not to

say anything, ” did the court intercede. Any concern th at the judge had over

this comme

nt could have been expressed to defense counsel in a bench conference. The court's demand that defense counsel apol

ogize in front of the

jury was dem

eaning and did nothing to5 After the jury was dismissed, the court again asked defe nse c ounsel for p roof of this accusation ag

ainst the Assistant U

.S. Attorney

and threatened

to hold defense

counsel responsible for his comment if defense counsel did not apologize directly on the record.

6 In Harris , we stated that although the trial judge was warranted in correcting the statement made by defense counsel , the “manner an d content” was “u

nnecessary

and improper” la

rgely be cause “[t]he blunt reprimand in the jury's presence served more to embarrass the attorney than to correct his impropriety.” 720 F.2d at 1262. We concluded that the questionable judicial condu ct d id not constitute reversible error because the judge's remarks did not vouch for the cre dibility of the witness, the judge distinguished the actions of defense counsel from the question of guilt, and the judge's comments had to be evaluated in the context of the entire trial. Id. 26 correct the impression that the government was encouraging the witness to lie. 5 If anything, the court's questions, asking whether counsel was suggesting that “Langway

invented the testim

ony and told the wi

tness” or that “

the prosecutor [was] the arc

hitect of this evidence,” brought furthe r unnecessary attention to this inference. Ha

d the court determ

ined that correcti

ve measures w

ere necessary

, it shoul d have a ddress ed the ju ry direct ly. In the end, while the court's remarks were unnecessary and im proper, they do not require revers al. See , e.g. , Harris , 720 F.2d at 1262. 6 The comm ents by the court were aimed at what it perceived to be an implicit attack on the Assistant U.S. Attorney and not

at bolstering the cr

edibility of the w

itness. Although the

remarks to defense counsel w

ere harsh, the co

urt allowed Harr

iston's counsel a full opportunity to im

peach the witness on

recross-exam

ination. The court

's response to defense counsel w

as in the context of a

two and a half wee

k trial in which the27

court was critical of bo th defense counsel and the government at di fferent times. We trust that this sit uation will not recu r on retrial. III. Aliases Harriston also ar

gues that the district

court’s refusa

l to strike the unsupported and prej udicial aliases fr om the indictm

ent constitutes reve

rsible

error. “If the Gover

nment intends to in

troduce evidence of

an alias and the use o f that alias is necessary to identify the defendant in connection with the acts charged in the indictment

, the inclusion of the

alias in the indictm

ent is both relevant and permissible, and a pretrial motion to strike should not be granted.” United States v. Clark , 541 F.2d 1016, 101 8 (4th Cir. 1976). See also United States v. Hines , 955 F.2d 1449,1454 (11th Cir. 1992) (“It is clear . . . [t]he use of an alias in an indictment is per

missible if it is

necessary to connect the defendant s with the acts charged.”). We agree with Harriston that the aliases “Youn

g Gun” and “Li

ttle Geek” were not supported by any evidence proffered during the trial. The trial witnesses referred to Harriston as “Little Bill” or “Melvin Johnson,” but no witness referred to Harriston as “Young Gun” or “Little Geek,” and no witness claim ed that Harriston used thes e aliases in the past . Indeed, even th e government re

ferred to7 We also need not reach the sentencing issues or Harriston’s claim that the district court erred

by allowing

government witn

ess, Eugene Da

niels, to testify

against him. 28 Harriston as “

Little Bill” and ne

ver used the aliases

“Young Gun” or

“Little Gee

k” in its closing argument. Thus, upon proper motion, these unsubstantiated aliases should have been rem

oved at the close of t

he evidence before

the indictment w

ent out with the jury. Given our reversal on other grounds, we need not resolve, however, whether these uns upported aliases remai ning in th e indictment affected th e defendan t’s substantial rights. 7 IV. Conclusion Accordingly,

we reverse and va

cate Harriston’ s conviction and senten ce and remand this ca

se for a new tria

l consistent with this opinion. REVERSED, VACATED, and REMANDED.