United States v. Pereira ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-1669
UNITED STATES OF AMERICA,
Appellee,
v.
NELSON PEREIRA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Dyk,* and Kayatta
Circuit Judges.
James L. Sultan, with whom Kerry A. Haberlin and
Rankin & Sultan were on brief, for appellant.
Olga B. Castellón-Miranda, Assistant United States
Attorney, Criminal Division, with whom Rosa E. Rodríguez-Vélez,
United States Attorney, Mariana E. Bauzá-Almonte, Assistant
United States Attorney, Chief, Appellate Division, and Juan
Carlos Reyes-Ramos, Assistant United States Attorney, were on
brief, for appellee.
February 3, 2017
* Of the Federal Circuit, sitting by designation.
DYK, Circuit Judge. Nelson Pereira was convicted of
conspiring to possess cocaine with the intent to distribute, and
aiding and abetting others to possess cocaine with the intent to
distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C.
§§ 841(a)(1), 846. On appeal, Pereira contends that a new trial
is warranted as a result of, inter alia, the prosecutor's
improper questioning that compelled him to comment on the
veracity of two cooperating government witnesses, a problem that
was exacerbated by improper judicial intervention in support of
the prosecutor's questions. For the reasons that follow, we
vacate Pereira's conviction and remand for a new trial.
I.
Pereira does not challenge the legal sufficiency of
the evidence supporting his conviction, and in such situations,
there is a "lack of clear consensus in this circuit whether to
recite the facts in the light most favorable to the verdict."
United States v. Vázquez-Larrauri, 778 F.3d 276, 280 (1st Cir.
2015). Because the manner of review of the facts would make no
difference to this appeal, we elect to present them in a neutral
and balanced way.
This case stems from a conspiracy to smuggle drugs
from Puerto Rico into the continental United States. The
government's evidence established the following. A group led by
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Wilfredo Rodríguez-Rosado ("Rodríguez") conspired to transport
drugs and drug-trafficking proceeds in luggage onboard American
Airlines ("AA") flights between San Juan, Puerto Rico, and
Newark, New Jersey. Many of the co-conspirators were AA
employees with baggage handling responsibilities and who had
knowledge of airport security as well as access to nonpublic
airport areas. Rodríguez masterminded the scheme from Puerto
Rico, while Frank Prats ("Prats"), an AA employee at Newark
Liberty International Airport, oversaw the Newark side of the
operation.
The scheme involved packaging drugs or drug proceeds
inside suitcases, smuggling these suitcases aboard AA flights,
and relaying the flight information and suitcase location to
conspirators at the destination airport. These conspirators
would then arrange for the suitcases' unloading into the baggage
claim area for pickup by other previously instructed
conspirators. This conspiracy began sometime in 1999 and
continued for a decade, until September 2009, when authorities
arrested and indicted numerous conspirators. These arrests
subsequently yielded additional evidence against other
individuals who were not initially indicted, including defendant
Pereira.
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On March 15, 2013, Pereira was indicted for conspiring
to possess cocaine with intent to distribute in violation of 21
U.S.C. §§ 841(a)(1), 846, and for aiding and abetting possession
of cocaine with the intent to distribute in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Pereira, who worked at Newark Airport, was alleged to
have participated in this conspiracy by orchestrating the
baggage handling at Newark to ensure that the drug suitcases
were properly picked up upon arrival, by giving instructions to
the co-conspirators making the pickups, and by stepping in for
Prats when he was unavailable to receive instructions and
payments from Rodríguez.
At trial, the primary evidence against Pereira came
from two cooperating government witnesses, Gerardo Torres-
Rodriguez ("Torres") and Javier Olmo-Rivera ("Olmo"). These
individuals had previously pleaded guilty to participating in
the conspiracy. Torres's role in the conspiracy was to receive
money and make payments in Puerto Rico, to relay the flight and
suitcase information from Puerto Rico to the Newark conspirators
(Prats and Pereira) once the flights had departed San Juan, and,
on a few occasions, to fly to Newark with suitcases containing
cocaine and to bring back suitcases containing money. Olmo's
role in the conspiracy was to physically transport on his person
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drugs or monies onboard AA flights and to prepare the cocaine
for shipments from San Juan to Newark. Torres and Olmo both
testified that Pereira was the right-hand man of Prats (who
oversaw the Newark operations), with a crucial role in the
conspiracy to ensure the smooth pickup of the drug suitcases at
Newark, as well as providing and receiving instructions and
payments to and from co-conspirators. Torres testified
specifically that Pereira had once allowed him access to the AA
locker room to exchange a bag of drug money. Olmo testified
specifically that Pereira had warned a co-conspirator against
picking up a drug suitcase on one occasion due to law-
enforcement monitoring, and that Pereira had traveled to Puerto
Rico to meet with Rodríguez to provide AA luggage tags for use
in furtherance of this conspiracy.
Beside the testimony of Torres and Olmo, the
government's sole evidence connecting Pereira to the conspiracy
was a piece of Prats's stationery containing Pereira's first
name and phone number and evidence that Pereira took an
unusually short trip to Puerto Rico (supporting an inference
that it was in furtherance of the conspiracy rather than a
vacation). The piece of paper was found during a search of
Rodríguez's house and was used to link Pereira to Rodríguez.
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Given the lack of other evidence, the credibility of Torres and
Olmo was crucial to the government's case.
During the trial, Pereira testified in his own
defense. He admitted knowing Rodríguez and Prats as fellow AA
employees, but denied participating in a drug-smuggling
conspiracy with them. Pereira also denied knowing Torres or
Olmo, or undertaking the actions in furtherance of the
conspiracy that they had attributed to him. Pereira did admit to
having taken a short trip to Puerto Rico as one of several such
short vacations that he enjoyed as an AA employee who received
free airfare and discounted hotel rates.
On cross-examination, the prosecutor inquired into the
stark discrepancy between Pereira's testimony and Torres's and
Olmo's testimony. The central question is whether the prosecutor
engaged in improper conduct when he repeatedly asked whether
Pereira thought Torres or Olmo had "made up" these allegations
as a part of a "setup."
On April 14, 2014, the jury found Pereira guilty of
"[c]onspiracy to possess with the intent to distribute five []
kilograms or more of cocaine," and "[a]iding and abetting in
possession with intent to distribute five [] kilograms of
cocaine," in violation of 18 U.S.C. § 2 and 21 U.S.C.
§§ 841(a)(1), 846. Def. Add. 58. On May 12, 2015, Pereira was
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sentenced to 151 months in federal detention, 5 years of
supervised release thereafter, and a monetary penalty of
$100,200.
On appeal, Pereira contends that he is entitled to a
new trial because the prosecutorial questions about whether the
cooperating government witness testimony was "made up" or was a
part of a "setup" improperly compelled Pereira to comment on
Torres's and Olmo's veracity.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review preserved objections of prosecutorial misconduct for
harmless error. United States v. Carpenter, 736 F.3d 619, 630
(1st Cir. 2013). Under harmless error analysis, "[a] new trial
is unwarranted so long as we are able to conclude with a high
degree of confidence that the alleged prosecutorial misconduct
did not affect the outcome of the trial." United States v.
Smith, 982 F.2d 681, 684 (1st Cir. 1993).
II.
We first address whether the prosecutor engaged in
misconduct by asking whether Pereira thought Torres and Olmo had
"made up" testimony against him as a part of a "setup." At oral
argument, the government agreed that by asking the defendant
whether he thought he was being "set up" by the witness or
whether he thought the witness "made up" testimony about the
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defendant, the prosecutor was effectively asking the defendant
whether he thought the government witnesses were lying. See also
United States v. Alcantara-Castillo, 788 F.3d 1186, 1192 (9th
Cir. 2015) (holding that questions phrased in the form of
"making that up" or "inventing stories about you" are equivalent
to asking if the witness was lying).
Over the past twenty-five years, this court has
consistently held that "counsel should not ask one witness to
comment on the veracity of the testimony of another
witness. . . . We expect that the office of the United States
Attorney . . . will abide by the rule." United States v.
Sullivan, 85 F.3d 743, 750 (1st Cir. 1996) (citations and
footnote omitted). Other cases, utilizing similar language, also
make the same point. See, e.g., United States v. Thiongo, 344
F.3d 55, 61 (1st Cir. 2003) ("This Court has held it is improper
for an attorney to ask a witness whether another witness lied on
the stand. Underlying this rule is the concept that credibility
judgments are for the jury, not witnesses, to make." (citation
omitted)); United States v. Akitoye, 923 F.2d 221, 224 (1st Cir.
1991) ("[I]t is not the place of one witness to draw conclusions
about, or cast aspersions upon, another witness' veracity. The
'was-the-witness-lying' question framed by the prosecutor . . .
should never [] be[] posed." (citations omitted)).
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This circuit is not alone in reaching this conclusion.
"[M]ost of the federal courts of appeals that have examined the
propriety of questions posed to a criminal defendant about the
credibility of government witnesses have found that such
questions are improper." United States v. Schmitz, 634 F.3d
1247, 1268 (11th Cir. 2011) (collecting cases).1 Such "were-they-
lying questions invade the province of the jury." Id. at 1269;
see also United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir.
1995) (holding that questions about whether another witness
would "make up" testimony impermissibly infringes "on the jury's
right to make credibility determinations"). These types of
questions are also improper because Rule 608(a) of the Federal
Rules of Evidence "does not permit a witness to testify that
another witness was truthful or not on a specific occasion."2
1 The Ninth Circuit in fact holds that asking such questions
constitutes plain error. See, e.g., Alcantara-Castillo, 788 F.3d
at 1192, 1195 (holding that questioning the defendant about
whether a government witness was "making that up," "lying in his
testimony," or "inventing stories about you" constituted plain
error); United States v. Combs, 379 F.3d 564, 572 (9th Cir.
2004) (holding that forcing a defendant to call a government
witness a liar is plain error).
2 Fed. R. Evid. 608(a) provides that "[a] witness's credibility
may be attacked or supported by testimony about the witness's
reputation for having a character for truthfulness or
untruthfulness, or by testimony in the form of an opinion about
that character." Courts have held that although this rule
"permits testimony concerning a witness's general character or
reputation for truthfulness, it prohibits any testimony as to a
witness's truthfulness on a particular occasion." United States
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Schmitz, 634 F.3d at 1268. Such questions also "ignore other
possible explanations for inconsistent testimony . . . [which]
put the testifying defendant in a 'no-win' situation [of] . . .
either accus[ing] another witness of lying or undermin[ing] his
or her own version of events." Id. at 1269. Finally, these
"were-they-lying questions are argumentative, and often their
primary purpose is to make the defendant appear accusatory." Id.
The danger is that the prosecutor first forces the defendant to
label government witnesses as liars who are making up stories,
and then, after laying this groundwork, seeks to convince the
jury that it is the accusatory defendant—and not the prosecution
witnesses—who is unworthy of belief.
In United States v. DeSimone, 699 F.3d 113 (1st Cir.
2012), this court clarified that although
[i]t is improper for an attorney to ask a witness
whether another witness lied on the stand[,] . . .
[i]t is not improper to ask one witness whether
another was "wrong" or "mistaken," since such
questions do not force a witness to choose between
conceding the point or branding another witness as a
liar. There is no error in simply asking a witness if
he agreed with or disputed another witness's
testimony.
v. Charley, 189 F.3d 1251, 1267 n.21 (10th Cir. 1999) (quotation
marks omitted); see also United States v. Pandozzi, 878 F.2d
1526, 1532 (1st Cir. 1989) (explaining that Rule 608(a) bars
asking a witness to evaluate another witness's veracity).
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Id. at 127 (citations and quotation marks omitted);3 see also
United States v. Wallace, 461 F.3d 15, 25 (1st Cir. 2006)
(same); Thiongo, 344 F.3d at 61 (same).
Against this background, Pereira contends that by
"compelling [him] to comment on Torres's and Olmo's veracity[,]
. . . each instance of prosecutorial misconduct was designed to,
and did, unfairly undercut Pereira's credibility and bolster[]
that of Torres and Olmo." Appellant Br. 33–34. He also argues
that, under the cumulative-error doctrine, see United States v.
Sepulveda, 15 F.3d 1161, 1195–96 (1st Cir. 1993), the errors
that occurred at his trial are sufficiently serious in the
aggregate to warrant a new trial even if they would not
necessitate such relief if viewed individually.
A.
We have excerpted and numbered the relevant question
sets below in chronological order. While the excerpts from the
testimony are lengthy, setting them out in full provides the
necessary context.
3 At the same time, the DeSimone court held that "[t]he
government correctly concedes that [t]he instances of
'untruthful testimony' . . . and 'giving false testimony' . . .
are somewhat closer to the line. Indeed, they went over the
line." 699 F.3d at 128 (alterations in original) (quotation
marks omitted).
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Set 1 of the prosecutor's questions related to
Pereira's denial of any knowledge of or connection to Torres.
The prosecutor asked, on cross-examination, why, if that was the
case, Torres would have had a photograph of Pereira (as Torres
had earlier testified). JA 1055-59.
Q. Do you have any idea why Gerardo Torres . . . would
have this picture of you? Do you have any idea?
A. I can't answer why, but I can answer how. . . . He
went to my Facebook account, and that's my profile
picture.
. . . .
Q. My question is: Do you have any idea why Gerardo
Torres would be going to your Facebook page? . . . Do
you know why?
Defense: Your Honor, this is calling for speculation.
The witness is not here. He's asking for what the
other person thought, what the other person wanted.
That's beyond the direct.
Court: I don't think it's beyond the direct. I'll
allow the question.
Q. Do you? . . . . Do you have think [sic] idea why
Gerardo Torres would be going to your Facebook page
and getting your photo off your page?
Defense: That's calling for speculation, Your Honor,
"Do you have any idea?" That's an improper question.
Q. Do you know why?
Court: Do you know?
A. The only reason why is probably to set me up.
Q. So he set you up?
A. Yes.
Q. Okay. And he set you up back in 2010 prior to your
arrest in this case; right?
A. I guess.
Q. So it was part of an elaborate plan to set you up;
right?
A. I cannot answer for him.
. . . .
Q. But you have no idea why Gerardo Torres would have
gotten your photo other than to set you up; right?
Defense: Objection, Your Honor. It's calling also for
speculation. What ideas --
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Court: He already said it was to set him up.
Overruled.
Q. Right?
Court: Other than that reason, there's no other reason
why Mr. Torres would get your picture off Facebook.
That's the question. That you know of.
. . . .
A. I don't know what he was thinking.
Set 2 related to Torres's testimony that his
interactions with Pereira during the conspiracy entailed calling
Pereira about the flight information for the smuggled drug
suitcases, and that Pereira was Prats's trusted helper in
handling the drug suitcases. JA 1088–92.
Q. During the years 2001 to 2005, you never received a
call from Gerardo Torres pertaining to suitcases full
of drugs. Correct? That's your testimony?
A. That's correct.
Q. So this was part of Mr. Torres's setting you up
when he testified about that?
A. I can't answer for him.
Q. You heard him testify about that, didn't you?
A. Yes. He wasn't telling the truth.
. . . .
Q. Okay. And when he testified that you were one of
the people that Franklin Pratts [sic] put in charge of
the whole suitcases -- bringing them to the carrousel,
that wasn't true either; right? That's your testimony?
. . . .
A. . . . I'm not understanding what the question is.
. . . .
Q. So the statement that he was the one who arranged
the job and put people he could trust in charge of the
job, you being one of them -- that's not true; right?
A. He also said I was downstairs picking up the bags,
and then he also said I was upstairs helping him with
the bags.
Q. So that can't be true can it; right?
A. You can't be in two places at the same time.
. . . .
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Q. And so the statement that you were one of Frank
Pratts's [sic] trusted people who could handle the
suitcases full of drugs -- that wasn't a true
statement; right? . . . .
A. That was not a true statement.
Q. That was not a true statement because you were not
one of Frank Pratts's [sic] trusted people, were you?
A. No. I guess I wasn't one of his trusted people.
. . . .
Q. And you weren't always outside to help the person
pick up the suitcase then. Right? That was another
statement of Gerardo Torres. That wasn't true at all,
was it?
A. The only way I could be outside picking up bags was
if there was a crew chief that would allow me to get
away from my assigned work so I could go upstairs and
help somebody pick up bags.
Set 3 related to Torres's testimony that, to help
ensure smooth pickups of the drug suitcases, Pereira would meet
co-conspirators picking up the suitcases at the baggage carousel
to provide further instructions. JA 1094.
Q. Because you didn't know Gerardo Torres, the fact
that he met you, Frank Pratts [sic] . . . that never
happened either; right?
. . . .
A. No. It did not happen.
Q. So that's not correct then. That was another thing
that Mr. Torres made up; right?
Defense: Your Honor, questions as to what Mr. Gerardo
Torres made up or didn't make up, it's like bringing
something out.
Court: Overruled.
. . . .
Q. That's something else that Gerardo Torres made up
and put against you.
A. Yes. It's a good story, but it didn't happen.
Set 4 related to Torres's testimony that on one
occasion, in furtherance of the conspiracy, Pereira allowed
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Torres and co-conspirator Camacho inside an AA locker room to
exchange a bag of drug money to be smuggled to Puerto Rico. JA
1096-98.
Q. If Gerardo Torres said that you were with Gerardo
and Mr. Camacho, once again, that's another thing he's
making up against you; right? Right?
A. Can I explain that one, sir?
Q. Is it something he's making up against you?
Court: Is he making that up? . . . . The question is
if Mr. Torres said that you were with him and Mr.
Camacho, whether that's true or not.
A. That wasn't the question he asked me. But no,
that's not true.
. . . .
Q. . . . [B]ut you've never seen Carlos Camacho before
until you got to court; right?
A. Correct. I never met Carlos Camacho.
Q. So that's something he made up; right?
A. You're answering your own question.
Q. No. I'm asking you what the question is.
Court: Let's not get into an argument here. The
question is [if that's] something that[] Mr. Torres
made up.
Defense: But he is not the person to say that Mr.
Torres made it up or not. He is not Mr. Torres.
Court: Overruled. . . . If it's not true, then it's
something Mr. Torres made up.
A. Correct. It's a lie.
Set 5 related to Olmo's testimony that Pereira was
part of the conspiracy. JA 1099.
Q. So Mr. Javier Olmo -- [you] were also present for
his testimony, sir?
A. Yes, I was.
Q. And once again, is he also involved in the same
setup as Mr. Gerardo Torres against you?
A. I can't say what they're--
Defense: Objection, Your Honor. We're objecting to the
setup. That's improper. We don't know what they did,
but it's proper [sic] saying they were set up.
Prosecution: I'm using his own words, Your Honor.
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Court: He's using the witness's own language. I think
the witness understands what he means.
Defense: Your Honor, this is testimony as to Olmo.
Prosecution: I'm asking him.
Court: Yes. He said it about Mr. Torres. Now the
question is about Mr. Olmo, whether what Mr. Olmo said
was trying to get at you. Do you know that?
A. I don't personally know that.
Set 6 related to Olmo's testimony that Prats and
Pereira were known as "catchers" among the conspirators because
they were the ones who would receive and unload the drugs off
the airplanes. JA 1103-04.
Q. . . . [W]hen Javier Olmo described you and Frank
Pratts [sic] as catchers -- do you remember when he
testified about that?
A. Yes.
Q. And once again, that was something he made up;
right? With regard to you.
. . . .
A. Yes. He made that up.
Set 7 related to Olmo's testimony that Pereira was the
stand-in for Prats when Prats was absent, in delivering and
receiving drugs and payments in furtherance of the conspiracy.
JA 1104-05.
Q. And so when Javier Olmo said that you would be the
deliverer of large payments in cash when Frank Pratts
[sic] wasn't around, that's something he made up;
right?
Defense: That's an improper question.
Court: Overruled.
. . . .
Q. And Javier Olmo said that you would be the person
to deliver large amounts of cash from drugs, that was
something he made up about you; right? . . . . You
didn't do that; right? You didn't deliver money to
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anybody who was a member of this drug-trafficking
organization.
A. I did not do that.
Finally, set 8 of the prosecutor's questions related
to Olmo's testimony that Pereira's activities in the conspiracy
included delivering drug monies, communicating directly with
Rodríguez, and once tipping off a co-conspirator about law-
enforcement monitoring of a drug suitcase. JA 1106.
Q. And these are all things that Javier Olmo, if he
said, would have had to have been made up.
A. Correct.
B.
The government argues that "[a]lthough defense counsel
objected to" some of the questions at issue as "allegedly
speculative, [defense] did not argue (as Pereira does on appeal)
that the question[s] violated the general rule proscribing a
lawyer from asking a witness whether another witness was lying.
Thus, this objection did not preserve Pereira's argument on
appeal." Appellee Br. 13 n.4 (citation omitted).
We disagree with the government that such objections
did not preserve this ground for appeal at least as to question
sets 3–8.
With respect to question set 1, as we discuss below in
Section D, we do not decide whether the questions were improper
(due to the defendant's having used the setup language in the
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first instance). Under these circumstances, we need not address
whether Pereira preserved an objection. With respect to question
set 2, there were no proper objections, thus making the error
unpreserved.
In question set 3, the defense objected that "Your
Honor, questions as to what Mr. Gerardo Torres made up or didn't
make up, it's like bringing something out." JA 1094. The
objection focused on "what Mr. Gerardo Torres made up or didn't
make up," which identified the problem with the prosecutor's
questions. Moreover, the context of earlier objections in
question set 1, particularly the objection "Your Honor, this is
calling for speculation. The witness is not here. He's asking
for what the other person thought, what the other person
wanted," JA 1056, provided context that the defendant was
objecting in question set 3 based on speculation.
With respect to question sets 4 and 5, the objections
were explicit. In question set 4, the defense objected: "But he
is not the person to say that Mr. Torres made it up or not. He
is not Mr. Torres." JA 1098. In question set 5, the defense
objected: "Objection, Your Honor. We're objecting to the setup.
That's improper. We don't know what they did, but it's proper
[sic] saying they were set up." JA 1099. It is clear that these
objections are on the grounds that Pereira should not be
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required to speculate as to whether other witnesses are making
up testimony or setting him up.
In question set 7, the defense objected "[t]hat's an
improper question." JA 1104. It is clear from earlier objections
and the context that this was in response to a "make up"
question.
Finally, the defense did not object during question
sets 6 and 8 after counsel had repeatedly objected to similar
questions earlier in the examination. The court "must . . . have
realized [the prior objections'] applicability . . . as covering
the [entire] testimony" on the issue, and the defense
undoubtedly felt that "further objection would be futile" at
this point. United States v. Elkins, 774 F.2d 530, 536 (1st Cir.
1985). Therefore, having objected repeatedly to "setup" and
"made up" questions in these instances during cross-examination,
we conclude that the defense counsel sufficiently preserved an
objection based on speculation for question sets 3, 4, 5, 6, 7,
and 8.
As for the sufficiency of the speculation ground for
objection, the very rationale for the were-they-lying-questions
rule is that witness "credibility judgments are for the jury,
not witnesses, to make." Thiongo, 344 F.3d at 61. Objections
that the questions asked for speculation about other witnesses,
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or that Pereira "is not the person to say that Mr. Torres made
it up or not," JA 1098, fit precisely within the heart of the
rule's rationale. We agree that such objections suffice because
the defense "demonstrate[d] . . . that the ground for the
objection was obvious from the context in which it was made."
Boyd, 54 F.3d at 872; see also Elkins, 774 F.2d at 536
(recognizing that when a court realizes that an objection covers
the entire testimony, further objections are unnecessary).
C.
We next consider whether the questions in sets 3–8
were improper. Each of these six sets contains questions that
effectively asked Pereira whether he thought Torres or Olmo was
lying—seven times in questioning the witness about Torres's
testimony and six times in questioning the witness about Olmo's
testimony (including the follow-up questions posed by the
court). The government does not dispute that these questions
violated the general rule prohibiting a prosecutor from asking a
witness whether another witness was lying, and the government
could hardly argue otherwise.
The prosecutor's improper questions were further
exacerbated by judicial intervention that compelled Pereira to
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answer.4 For example, with respect to the issue of whether
Pereira had ever met co-conspirator Camacho, the court
interjected and asked directly: "The question is [if that's]
something that[] Mr. Torres made up." JA 1097. The court went on
to further rephrase: "If it's not true, then it's something Mr.
Torres made up." JA 1098. In another example, the court expanded
the prosecutor's "setup" questions about Torres to be used in
the questions about Olmo. When the defense counsel objected, the
court overruled, reasoning that "[y]es[,] [h]e said it about Mr.
Torres. Now the question is about Mr. Olmo, whether what Mr.
Olmo said was trying to get at you. Do you know that?" JA 1099.
Instead of sustaining objections to improper prosecutorial
questioning or issuing curative instructions, judicial
intervention here seemed to have reinforced the prosecutorial
misconduct.
D.
In response, the government makes two arguments as to
why this general rule should be inapplicable here.
4 Pereira contends that this judicial intervention, along with
other actions of the district court, violated his due process
right to a fair trial. See Appellant Br. 36–43. Given the
conclusions we reach, we need not address this argument. The
district court's conduct in questioning Pereira is, however, a
relevant consideration in the analysis of the issues that we do
reach.
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First, the government argues that Pereira himself
opened the door to these "setup" questions during the cross
examination. This may have merit with respect to set 1, where
the government asked why Torres would go into Pereira's Facebook
page and obtain his photo, and the defendant answered—without
inducement—that the reason was "probably to set me up." JA 1056.5
The problem is that with respect to question sets 3 and 4, the
government seized upon Pereira's answers in question set 1, and
veered into asking the witness similar questions about other
subjects of Torres's testimony as to which Pereira had not
suggested a "setup" motivation.
Moreover, even if we were to agree with the government
that "Pereira himself opened the door to the prosecutor's
questions by freely testifying that Torres set him up," Appellee
Br. 19, as to the questions concerning Torres's testimony, the
government certainly engaged in prosecutorial misconduct when it
followed up during question sets 5, 6, 7, and 8, asking whether
the other government cooperating witness (Olmo) also "made up"
testimony as a part of a "setup." With respect to Olmo, the
5 Some cases have held or suggested that such questions may be
permissible "if a defendant opened the door by testifying on
direct that another witness was lying." United States v. Harris,
471 F.3d 507, 512 (3d Cir. 2006); Boyd, 54 F.3d at 871, n.*
("Had [defendant] testified on his own that the [witnesses] were
lying, such questioning might be proper.").
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government conceded that the defendant did not introduce any
answers on his own that would justify such questions. See Oral
Arg. 11:08–11:17 (agreeing that "[t]he defendant didn't open up
that line of questioning as to Olmo."). We therefore reject the
government's argument that the extension of testimony after set
1 was permissible because Pereira had opened the door.
Second, the government argues that because Pereira and
the cooperating government witnesses gave directly contradictory
testimony, this "left open only the suggestion that Torres and
Olmo were making up stories," rather than "an interpretation
that Torres and Olmo simply spoke out of mistake or hazy
recollection." Appellee Br. 20, 22. Thus, according to the
government, because of the clear conflict, it was proper for the
prosecution to ask the defendant whether the government
witnesses were lying. The government relies on two state law
cases, State v. Hart, 15 P.3d 917 (Mont. 2000), and People v.
Overlee, 666 N.Y.S.2d 572 (N.Y. App. Div. 1997), to support its
proposed rule that where there exists a direct contradiction in
testimony, this justifies asking whether another witness is
lying. We decline to follow these cases. Our reasons are
several.
The government does not call to our attention any
federal cases that hold that a direct conflict in witness
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testimony renders was-the-witness-lying questions appropriate.
Quite the contrary, this court and other circuits have clearly
held that such questions are improper in situations where
witness testimony did directly conflict. For example, in
Sullivan, we held the following exchange to be improper:
Q: So, I take it you would deny that you ever stated
to [witness] that you wished you didn't have so many
people involved in the robbery? . . .
A: I certainly do, yes.
Q: I take it that, when [witness] testified to that,
you would say he was lying? . . . I take it you would
say that that was a lie, that you never said anything
like that.
A: You take that correctly, yes.
Sullivan, 85 F.3d at 749 n.2. Similarly, in United States v.
Fernandez, 145 F.3d 59 (1st Cir. 1998), we held the following
exchange to be improper:
Q: You showed the agent a roll of money you had in
your pocket, didn't you, sir?
A: No, negative.
Q: So, [witness] who testified yesterday[,] he's
lying?
A: I don't know why he said that, but I did not show
it. . . .
Q: Sir, you did state that that place was full of
Customs agents, didn't you?
A: God, I haven't said anything like that. . . .
Q: So, [witness] who testified yesterday that you said
that is lying, right? . . . So [witness] is making all
that up, right, sir?
A: I don't know what I could say. I didn't say
anything as to that matter.
Id. at 64 n.1 (second alteration in original).
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In United States v. Boyd, 54 F.3d 868 (D.C. Cir.
1995), the defendant testified that he never held a bag of
cocaine in his possession while two government witnesses
testified that he did, which prompted the prosecutor to ask the
defendant why the government witnesses would be "making this
up." Id. at 37. In United States v. Harris, 471 F.3d 507 (3d
Cir. 2006), "the prosecutor restated various assertions of
police witnesses that directly contradicted Harris'[s] testimony
and then asked Harris if it was his testimony that the police
witnesses were lying." Id. at 510. And in United States v.
Combs, 379 F.3d 564 (9th Cir. 2004), the government witness
testified that the defendant had stated that he manufactured
methamphetamine, while the defendant denied making this
statement, which prompted the prosecutor to ask the defendant if
he thought the government witness was "lying in his testimony."
Id. at 567. In each of these exchanges, there was certainly a
direct contradiction between two witnesses, and in each
instance, the questioning was held to be improper.
Even where there is a direct conflict between a
defendant's testimony and a government witness's testimony,
asking if one of these witnesses is lying still runs counter to
important policies of the rule. One of the policies behind this
prohibition is to not force a witness "to choose between
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conceding the point or branding another witness as a liar."
United States v. Gaines, 170 F.3d 72, 82 (1st Cir. 1999). Such
accusatory answers, if required, would put a defendant in a
disadvantageous position in front of the jury.
The very structure of the question is designed to pit
the testifying witness against every other adverse
witness, suggesting to the jury that someone is
deliberately deceiving the court . . . . [T]he were-
they-lying questions . . . prejudicially force the
testifying defendant to accuse or not. Even worse, the
defendant's answer often does not matter because the
predomina[nt] purpose of such questions is to make the
defendant look bad.
Schmitz, 634 F.3d at 1269. Another policy behind prohibiting
such questions is "because they seek an answer beyond the
personal knowledge of the witness." Id. at 1268. A witness would
lack personal knowledge of "whether another is intentionally
seeking to mislead the tribunal," Harris, 471 F.3d at 511,
regardless of whether his or her testimony is in conflict with
the other witness's. Therefore, where there is a direct conflict
in testimony, important policies behind this rule are still
implicated.
Finally, restricting the government from asking is-
the-witness-lying questions does not unreasonably impair the
government's ability to question a witness fully. We recognize
that "it is often necessary on cross-examination to focus a
witness on the differences and similarities between his
- 26 -
testimony and that of another witness," and this is proper if
the defendant "is not asked to testify as to the veracity of the
other witness." Schmitz, 634 F.3d at 1269 (quoting Harris, 471
F.3d at 512). The objective of highlighting the conflict can be
achieved by "[a]sking a witness whether a previous witness who
gave conflicting testimony is 'mistaken[,]' [to] highlight[] the
objective conflict without requiring the witness to condemn the
prior witness as a purveyor of deliberate falsehood, i.e., a
'liar.'" United States v. Gaind, 31 F.3d 73, 77 (2d Cir. 1994).
For example, in Gaines, when the government witnesses identified
the defendant as the drug dealer but the defendant denied these
allegations—a direct contradiction—this court approved of cross-
examination questions where "[t]he prosecutor . . . did not
. . . ask the witness whether he believed the others had lied.
Instead, he asked whether the other witnesses . . . were
'wrong,' rather than 'lying.'" 170 F.3d at 81–82.
We conclude that the government's questions in this
case in sets 3–8 were both extensive and improper. In these
circumstances, we do not have to consider whether question set 1
was improper or whether question set 2 constituted plain error.
"[W]hen there are both preserved and unpreserved errors,
cumulative-error analysis should proceed as follows: First, the
preserved errors should be considered as a group under harmless-
- 27 -
error review. If, cumulatively, they are not harmless, reversal
is required." United States v. Caraway, 534 F.3d 1290, 1302
(10th Cir. 2008). As we now discuss, the preserved errors were
not harmless.
III.
"That this [was-the-witness-lying-question] rule was
violated by the prosecution is not the end of the analysis. The
[next] question is whether the violation of the rule was
harmless." Sullivan, 85 F.3d at 750. "In deciding whether a new
trial is required [] because [of] prosecutorial misconduct . . .
[,] we consider the severity of the misconduct, whether it was
deliberate or accidental, the likely effect of the curative
instruction, and the strength of the evidence against the
appellants." United States v. Cox, 752 F.2d 741, 745 (1st Cir.
1985); see also Sepulveda, 15 F.3d at 1182 (holding that
harmless error analysis is a "case-specific inquiry considering,
among other things, the centrality of the tainted material, its
uniqueness, its prejudicial impact, the uses to which it was put
during the trial, [and] the relative strengths of the parties'
cases").
Here, the repeated and numerous occasions in which the
prosecutor engaged in these was-the-witness-lying questions were
surely deliberate. So too the prosecutor's repeated "setup"
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questions constituted severe misconduct when coupled with
judicial intervention that significantly exacerbated the
misconduct (as discussed further below). There were no curative
instructions for any of the improper questions. Nor was there
substantial untainted evidence against Pereira.
In assessing the strength of the evidence, we look at
the record excluding the improper questions and the testimony
generated by those questions. See, e.g., Fernandez, 145 F.3d at
64–65 (holding that "[m]uch of the case against Fernandez rested
on undisputed evidence" not generated by the improper questions,
and concluding that "[g]iven the strength of the government's
case, it stretches credulity to believe that the improper . . .
questions affected the outcome of the trial."). Excluding the
improper questions and the testimony generated by those
questions, the case against Pereira was largely dependent
precisely on the assessment of Pereira's credibility versus the
credibility of Torres and Olmo. The testimony of Torres and
Olmo, moreover, had little self-corroborating substance, and the
circumstances presented a basis to infer that they had a reason
to lie. The testimony of Torres and Olmo was essential and
primary to the government's case. Beside their testimony, the
only other evidence against Pereira was a piece of Prats's
stationery found at Rodríguez's house containing Pereira's first
- 29 -
name and phone number and the fact that Pereira took an
unusually short trip to Puerto Rico. There was no other evidence
that could support a conviction. In short, this was a case in
which we cannot conclude with a high degree of confidence that
the improper questions and the testimony generated by those
questions had no effect on the jury's assessment of the
credibility battle between Pereira and the prosecution
witnesses. In the context of such a case, which hinged on the
outcome of a swearing contest that would well have been affected
by improper questions, it is difficult to see how the improper
questions in sets 3–8 could be harmless error under the
prevailing test.
Nevertheless, relying on Sullivan, the government
recycles the argument that the prosecutor's questions here only
made clear to the jury that the opposing witness testimony was
directly contradictory.
In Sullivan, the government primarily relied on
testimony from two cooperating witnesses who had participated in
a robbery with the defendant to convict Sullivan of armed
robbery. 85 F.3d at 746–47. At trial, a secondary government
witness testified that the defendant had made a tangential
remark about the robbery, which Sullivan denied having said,
prompting the prosecutor to ask whether Sullivan thought the
- 30 -
witness was lying. Id. at 749 n.2. This court held that the
question was improper but harmless, because there were a total
of six witnesses who testified against the defendant and the
improper question only pertained to a single tangential remark
made by a secondary witness, which made the court conclude that
"the error was on a minor point." Id. at 750; see also United
States v. Moreland, 622 F.3d 1147, 1160 (9th Cir. 2010) (holding
that two witnesses "were peripheral witnesses because they
testified regarding matters of minor importance to the case").
While Sullivan mentioned in passing that it "was obvious" that
"there was a contradiction between [the government witness's]
testimony and" the defense testimony, 85 F.3d at 750, Sullivan
cannot be read to suggest that in every case the existence of
directly contradictory testimony renders the questions harmless.
The government also relied on two other cases,
Fernandez, 145 F.3d at 64, and United States v. Robinson, 473
F.3d 387, 396 (1st Cir. 2007), which contained improper was-the-
witness-lying questions that were reviewed under a plain error
standard. In plain error review, the standard for finding an
error harmless is less demanding, at least in the sense that the
defendant bears the burden of showing prejudice. United States
v. Olano, 507 U.S. 725, 734 (1993) (holding that the "important
difference" between plain error review and harmless error review
- 31 -
is that, in the former, "[i]t is the defendant rather than the
Government who bears the burden of persuasion with respect to
prejudice"); see also United States v. Gandia-Maysonet, 227 F.3d
1, 5 (1st Cir. 2000) (holding that the "main practical
difference between the two standards is that plain error
requires not only an error affecting substantial rights but also
a finding by the reviewing court that the error has seriously
affect[ed] the fairness, integrity, or public reputation of
judicial proceedings" (alteration in original) (quotation marks
omitted)).
Like Sullivan, Fernandez is clearly distinguishable
because the court emphasized the other strong government
evidence linking the defendant to his crimes. Moreover, the
questions were limited in number and scope, and only pertained
to tangential, corroborated testimony. 145 F.3d at 61–64.
Robinson also held that such questioning was harmless. 473 F.3d
at 395–96. The Robinson court discussed the directly conflicting
nature of the testimony in finding an absence of prejudice from
these questions. Id. at 395–96. However, like Sullivan, Robinson
is distinguishable because the government had other strong
evidence linking the defendant to the crime. Furthermore, there
were only two improper questions, they both pertained to
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tangential testimony, and an objection was sustained as to one
of the two. See id. at 391–92, 395–96.
DeSimone, not relied on by the government, is also
distinguishable. There, the questions concerning whether prior
witness testimony was "false" or "untruthful" were held to be in
error but found to be harmless. 699 F.3d at 128. While the court
relied on the rationale that "[t]here were obvious
inconsistencies between DeSimone's testimony and that of other
witnesses which were apparent to the jury" for finding harmless
error, id., the untainted evidence against DeSimone was
substantial, including evidence of flight to avoid prosecution,
id. at 118–123. In fact, the DeSimone court cited prior case
authority recognizing that "the greater the weight of the other
evidence against the defendant, the less likely it is that a
given error swayed the jury." United States v. Cudlitz, 72 F.3d
992, 999 (1st Cir. 1996).
Most important from a harmless error perspective, in
none of these cases (Sullivan, Fernandez, Robinson, and
DeSimone) was the improper questioning nearly as extensive as it
was here,6 and in none of these cases did the district court
participate in the improper questioning.
6 Two improper questions were posed in Sullivan, 85 F.3d at 749
n.2, four in Fernandez, 145 F.3d at 64 & n.1, two in Robinson,
473 F.3d at 395, and two in DeSimone, Brief for Appellant at 57–
- 33 -
This case is far more similar to United States v.
Geston, 299 F.3d 1130 (9th Cir. 2002), where even applying a
plain error review, the Ninth Circuit held that permitting the
prosecutor to ask defense witnesses whether they thought the
government witnesses were lying was an error that required
reversal. In Geston, the case rested on conflicting testimony,
in which four eyewitnesses testified for the government and two
for the defense. Id. at 1135–36. The prosecutor asked the two
defense witnesses whether they thought the government witnesses
were lying. On appeal, the court held that "it is reversible
error for a witness to testify over objection whether a previous
witness was telling the truth." Id. at 1136. The court went on
to explain that "[t]his case was a close one . . . .
[Defendant's] fate hinged on resolution of the conflicting
testimony presented by the parties. . . . In a case where
witness credibility was paramount, it was plain error for the
court to allow the prosecutor to persist in asking witnesses to
make improper comments upon the testimony of other witnesses."
Id. at 1136–37 (citation omitted).
As we have discussed, witness credibility was also
paramount in this trial. In his closing argument, the prosecutor
58, United States v. DeSimone, 699 F.3d 113 (1st Cir. 2012) (No.
11-1996), 2012 WL 1572561, at *57–58.
- 34 -
emphasized the improper questioning by referring to the "pretty
elaborate setup," and telling the jury that if it "believe[s]
that [setup], then [it] can't believe Javier Olmo, and . . .
can't believe Gerardo Torres. It's that simple." Add. 33–34. The
government itself recognized the core credibility contest on
which the case against Pereira hinged, and the important role
that the "setup" questions played.
Finally, and perhaps crucially, here, as in Combs, the
"prejudicial effect of the improper questioning was compounded
when the district judge placed upon it [his] imprimatur." 379
F.3d at 573. In Combs, the district court "twice . . .
instructed [the defendant] to answer the prosecution's question
about the truthfulness of [the government witness's] trial
testimony." Id. at 573–74. Here, the district court was even
more actively involved than in Combs. For example, in question
sets 4 and 5, the court directly asked Pereira—over objection—
the improper questions that the prosecutor had been asking
Pereira. Thus, the error of the improper prosecution questions
was further exacerbated by judicial intervention.
The ultimate test for harmless error is that "[a] new
trial is unwarranted so long as we are able to conclude with a
high degree of confidence that the alleged prosecutorial
misconduct did not affect the outcome of the trial." Smith, 982
- 35 -
F.2d at 684. Given the severity of the misconduct, the dearth of
other evidence, the repeated questions by the government, the
evidently deliberate nature of this conduct, the absence of a
curative instruction, and the participation of the district
court in these questions, we are unable to conclude with a high
degree of confidence that the prosecutorial misconduct here did
not affect the outcome of the trial. We therefore hold that a
new trial is warranted.
IV.
In light of our disposition, we need not address
Pereira's additional objections on appeal.
CONVICTION VACATED AND REMANDED FOR NEW TRIAL.
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