FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
L. Sultan, with whom Kerry A. Haberlin and Rankin &
Sultan were on brief, for appellant.
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,
Thompson, Dyk, [*] and Kayatta Circuit Judges.
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.
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.
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 Wilfredo
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.
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.
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.
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.
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 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.
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. Given the lack of other evidence, the
credibility of Torres and Olmo was crucial to the
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.
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."
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 sentenced to
151 months in federal detention, 5 years of supervised
release thereafter, and a monetary penalty of $100, 200.
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
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.
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 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
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
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). 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." 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.
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.
Id. at 127 (citations and quotation marks
omitted); see also United States v.
Wallace, 461 F.3d 15, 25 (1st Cir. 2006) (same);
Thiongo, 344 F.3d at 61 (same).
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
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
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
. . . .
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
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?
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 --
Court: He already said it was to set him up.
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.
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.