United States v. Pereira ( 2017 )


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  •             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
    - 2 -
    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.
    - 3 -
    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.
    - 5 -
    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
    - 7 -
    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)).
    - 8 -
    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
    - 9 -
    
    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).
    - 10 -
    
    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).
    - 11 -
    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 --
    - 12 -
    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.
    . . . .
    - 13 -
    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.
    - 15 -
    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
    - 16 -
    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
    - 17 -
    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
    - 18 -
    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,
    - 19 -
    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
    - 20 -
    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.
    - 21 -
    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.").
    - 22 -
    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
    - 23 -
    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).
    - 24 -
    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
    - 25 -
    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"
    - 28 -
    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
    - 32 -
    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.
    - 36 -