US v. Pereira
Filing
OPINION issued by Rogeriee Thompson, Appellate Judge; Timothy Belcher Dyk*, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. *Of the Federal Circuit, sitting by designation. [15-1669]
Case: 15-1669
Document: 00117113847
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Date Filed: 02/03/2017
Entry ID: 6067165
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.
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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
improper
as
a
result
questioning
that
of,
inter
compelled
alia,
him
to
the
prosecutor's
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")
Newark,
New
employees
flights
Jersey.
with
between
Many
baggage
San
of
Juan,
the
handling
Puerto
Rico,
co-conspirators
responsibilities
and
were
AA
who
had
and
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
conspirators.
for
This
pickup
by
other
conspiracy
began
previously
sometime
in
instructed
1999
and
continued for a decade, until September 2009, when authorities
arrested
and
subsequently
indicted
numerous
yielded
additional
conspirators.
These
evidence
against
arrests
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
Rodriguez
cooperating
("Torres")
government
and
Javier
witnesses,
Olmo-Rivera
Gerardo
("Olmo").
TorresThese
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
payments
well
to
as
and
providing
from
and
receiving
co-conspirators.
instructions
Torres
and
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
vacation).
in
The
furtherance
piece
of
of
paper
the
was
conspiracy
found
rather
during
a
than
search
a
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
conspiracy
with
Olmo,
undertaking
or
denied
them.
participating
Pereira
the
also
actions
in
denied
in
a
drug-smuggling
knowing
Torres
furtherance
of
or
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
cocaine,"
with
in
intent
violation
to
of
distribute
18
U.S.C.
five
§
[]
2
kilograms
and
21
of
U.S.C.
§§ 841(a)(1), 846. Def. Add. 58. On May 12, 2015, Pereira was
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sentenced
to
supervised
151
months
release
Page: 7
in
Date Filed: 02/03/2017
federal
thereafter,
and
detention,
a
5
monetary
Entry ID: 6067165
years
of
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.
engaged
in
Smith, 982 F.2d 681, 684 (1st Cir. 1993).
II.
We
first
address
whether
the
prosecutor
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
Sullivan,
.
.
85
.
will
F.3d
abide
743,
750
by
the
(1st
rule."
Cir.
United
1996)
States
(citations
v.
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
questions
of
are
government
improper."
witnesses
United
have
States
v.
found
that
Schmitz,
634
such
F.3d
1247, 1268 (11th Cir. 2011) (collecting cases).1 Such "were-theylying 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
aggregate
to
at
his
warrant
trial
a
are
new
sufficiently
trial
even
if
serious
they
in
the
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
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prosecutor's
questions
Entry ID: 6067165
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
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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
suitcases,
and
the
flight
that
information
Pereira
was
for
Prats's
the
smuggled
trusted
helper
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
occasion,
in
4
related
furtherance
to
Torres's
of
the
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conspiracy,
that
Pereira
on
one
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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
organization.
A. I did not do that.
Date Filed: 02/03/2017
of
this
Entry ID: 6067165
drug-trafficking
Finally, set 8 of the prosecutor's questions related
to Olmo's testimony that Pereira's activities in the conspiracy
included
delivering
Rodríguez,
and
drug
once
monies,
tipping
off
communicating
a
directly
co-conspirator
about
with
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
wanted,"
the
JA
other
1056,
person
provided
thought,
context
what
that
the
the
other
person
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
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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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Entry ID: 6067165
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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Document: 00117113847
answer.4
For
Pereira
had
example,
ever
Page: 21
with
met
respect
Date Filed: 02/03/2017
to
the
co-conspirator
issue
Camacho,
Entry ID: 6067165
of
whether
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
questioning
sustaining
or
objections
issuing
curative
to
improper
prosecutorial
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
Page: 22
government
Date Filed: 02/03/2017
argues
that
Pereira
Entry ID: 6067165
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
recollection."
Olmo
simply
Appellee
Br.
spoke
20,
22.
out
of
mistake
Thus,
according
or
hazy
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,
lying.
this
We
justifies
decline
to
asking
follow
whether
these
another
cases.
Our
witness
is
reasons
are
attention
any
several.
The
federal
cases
government
that
hold
does
that
not
call
a
direct
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to
our
conflict
in
witness
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testimony
renders
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Date Filed: 02/03/2017
was-the-witness-lying
questions
Entry ID: 6067165
appropriate.
Quite the contrary, this court and other circuits have clearly
held
that
witness
such
questions
testimony
did
are
improper
directly
in
conflict.
situations
For
where
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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Document: 00117113847
In
1995),
the
cocaine
in
United
States
defendant
his
Page: 25
v.
Boyd,
testified
possession
Date Filed: 02/03/2017
54
F.3d
868
that
he
never
held
while
two
Entry ID: 6067165
(D.C.
a
government
Cir.
bag
of
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
defendant's
where
testimony
there
and
is
a
a
direct
government
conflict
witness's
between
a
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
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"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 werethey-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
seeking
to
knowledge
mislead
the
of
"whether
tribunal,"
another
Harris,
is
471
intentionally
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 isthe-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
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between
his
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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 crossexamination
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
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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
instruction,
accidental,
and
the
the
likely
strength
of
effect
the
of
evidence
the
curative
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
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repeated
"setup"
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questions
constituted
severe
judicial
intervention
that
Date Filed: 02/03/2017
misconduct
when
significantly
Entry ID: 6067165
coupled
with
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
questions,
the
and
case
the
against
testimony
Pereira
generated
was
largely
by
those
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
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name
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and
phone
number
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and
the
Date Filed: 02/03/2017
fact
that
Entry ID: 6067165
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
questions
had
credibility
no
and
effect
battle
the
on
testimony
the
between
generated
jury's
Pereira
by
assessment
and
the
those
of
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
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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-thewitness-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
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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
2000)
between
difference
Cir.
the
(holding
two
that
standards
the
is
"main
that
practical
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,
because
the
court
evidence
linking
Fernandez
emphasized
the
defendant
is
the
to
clearly
other
his
distinguishable
strong
crimes.
government
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,
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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–
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Entry ID: 6067165
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
[Defendant's]
testimony
that
fate
"[t]his
hinged
presented
by
case
on
the
was
a
close
resolution
of
parties. . . .
one
In
the
a
. . . .
conflicting
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.
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Case: 15-1669
Document: 00117113847
Page: 35
Date Filed: 02/03/2017
Entry ID: 6067165
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
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Case: 15-1669
Document: 00117113847
Page: 36
Date Filed: 02/03/2017
Entry ID: 6067165
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
Pereira's additional objections on appeal.
CONVICTION VACATED AND REMANDED FOR NEW TRIAL.
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