cases will be all the previously announced and the times will be one of the counsel the first case today is number one five one six six nine united states versus nelson herrera good morning every serve two minutes rebuttal please yes they please the court nelson pereira was convicted of conspiracy and aiding and abetting based on his alleged involvement in a cocaine smuggling operation the government's case against pereira rested on the testimony of two cooperators almost and torres who pled guilty and testified in the hopes of getting a more lenient sentence herrera who testified in his own defense denied knowing all mole or torres so the case really came down to a credibility contest unfortunately the that that contrast the credibility contest was rendered unfair by a combination of prosecutorial misconduct and judicial error and the appearance of bias which tilted the playing field skewed to juries consideration of credibility and render prayers trial unfair there were really three principal manifestations of this during the trial that occurred first during career was cross examination by the government second during almost cross examination by defense counsel and third during the prosecutor's closing arc now while prayer was being cross examined by the government he was questioned pervasively about the truthfulness of the testimony given by  pervasive throughout the cross which has been well settled in this circuit for at least twenty five or thirty years is grossly improper it impinged upon the jury's exclusive terminator credibility and a ach the testifying defendant into a lose lose situation of essentially having to accuse the government's witnesses of line which really alters the burden of proof so  defense counsel said he's not the right person to be testifying about what was in the witnesses mind he basically he articulated a number of bases for the objection he did not specifically say you cannot ask witness a about the testimony of witness d but he all but said that he certainly said enough to alert the judge and the prosecutor what was wrong with this line of questioning and indeed just two days earlier during defense counsel's cross examination of all know that side bar the very same prosecutor said to the judge any first year law student knows that it is improper to ask one witness about the testimony of another witness so the prosecutor well knew this during the government's cross basically piling on and creating an appearance of by so that was the first serious problem that tilted the playing field in this case second during almost cross examination  this trial is not of your concern is it now and of course almost said oh no your honor it's not now and the judge then precluded any further inquiry by counsel along those same lines now we're talking about credibility this is really all of defense counsel has in a case like this is to attack the credibility of the witnesses this is a credibility contest and the judge by intervening by asking a question which might well b but that's a totally inappropriate for the judge to to intervene in that matter clearly with a leading question which essentially shuts off that line that critical line of questioning in a credibility contest that was grossly improper was there a connection to the judge's intervention without question there was not an intervention objection to that but as this court said in the case the two thousand and fourteen case of rivera rodriguez which i think it bears a tremendous similarity of this case a case with which two members of this panel are certainly familiar with this court set the standard for showing serious prejudice where there is an appearance of bytes by the trial judge is very much the same as the same the plane or a standard is not strictly speaking plainer but the standard essentially is is highly comparable that's what the court said in a footnote because basically you have to show on the defense side that there was appearance of bias which testified to understand a trial and what he had told the probation officer during his three sentence interview and the prosecutor objected said it is improper to use a pre sentence report  it well i would say no your honor because it related to whether or not we're talking about credibility i mean it relates to whether or not this witness was essentially puffing up was pretending to  exaggerating his role in your fence on the stand and minimizing it with with probation if you establish that he's basically skewing the facts based upon the audience that very well could affect the jury's view of of his credibility which is really the key issue in the case and the third point is during the closing argument of the prosecutor the prosecutor referred to magic sleight of hand distractions  and mirrors essentially disparaging defense counsel and defense counsel's defense in a case that is grossly inappropriate argument and to compound the matter when the prosecutor misstated the duration of herrera's trip to puerto rico and defense counsel objected the trial judge yelled at defense counsel in the presence of the jury again showing an appearance of bias and stealing the case against  sidebar objected to the courts yelling at him he referred to multiple instances i went for looking at the written record i can't there's nothing in the written record which which says anything else about yelling but defense counsel referred  to multiple instances of yelling in response to jackson's that defense counsel major in a trial that's really the only thing on the record other than the trial judge's acknowledgment that on this particular occasion that he did in fact  specifically in relation to some photographs that the witness had provided to the government but those were seized and see that that question which the judge did not sustain was in itself that's the question that lists all of the others which at least in my mind should have been sustained but at the time the objection that was placed before the court was that the witness did not have specific knowledge and for that particular and being hidden planted in the conspiracy was that he was set up and consistently throughout this testimony and the questions posed by the prosecutor he volunteered answer saying it's not true questions it was just sort of unprofessional and puts this issue now before us i don't understand how that happens certainly how you are using is just we're not saying that i iq an explanation of how his rights were affected by this line of questions in light of the rest of the evidence we have a trial that lasted twenty seven days and certainly the he had already identified as his personal phone number one that he had used from the year two thousand all the way to the way that he testified during trial in the year two thousand and twelve and that piece of paper was obtained through a we have to make the inference that based on a piece of paper that you do is on this issue would have been different and that for the government we understand that the rest of the evidence through light the fact that these organization he would take him to also to treatments and and he would engage also in this with franklin pratt's not only that he was a coworker at the beginning of his testimony he just the name of national data and the number used her personal phone number so and it's making reference because he was he's a piece of stationary that belong to the person that was identified as  what was wrong with the the way the court the different wanted to use the recent record i mean the court treated the pre sentence report itself as if it was somehow sacrosanct that you couldn't figure that one out why couldn't it why isn't particularly troubling and i think it should trouble the court that again two days earlier during the defendant's cross co defendants cross of almost the same prosecutor who did went through this pervasive deliberate line of questioning which the court is and i quote any first year law student knows you cannot ask a witness who is testifying about the testimony of another witness it's an impermissible question they knew that that they couldn't do this but they didn't anyway i mean there end there are rules that have to be followed and a trial and and this deliberate gross violation of the rules really should not be countenanced if you if you focus on the prejudiced point because i think that because here you've got a case where it's obvious to everyone who's listening that one of the other is lying because it's not one of those things that slide by each other in the night this is directly conflicting testimony in the cooperating witnesses and the defendant so so given that how does making express what is obvious to everyone in the room actually cause prejudice while the prejudice is it forces the defend reasonable doubt they want to quit that's one of the reasons why this court and others has said you can't question the defendant in this manner it's it's improper and it and to and to compound the prejudice the judge piled on the judge asked the two people testified about herrera and torres they had a piece of paper the piece of paper which is in the appendix is a list of phone numbers and names none of the other phone numbers and names are not all related to this conspiracy allegedly there was no evidence that phone number was ever used by anybody in the course of this can see that piece of paper by itself could not have convicted anyone and it was no other evidence other than