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United States v. Pereira

United States Court of Appeals, First Circuit

February 3, 2017

UNITED STATES OF AMERICA, Appellee,
v.
NELSON PEREIRA, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

          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.

          Before Thompson, Dyk, [*] and Kayatta Circuit Judges.

          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 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.

         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 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. 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 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 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)).

         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] 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.

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.

         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 --
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. ...

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