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 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 
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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. 
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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 cooperating government witnesses, Gerardo TorresRodriguez ("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 lawenforcement 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. 
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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 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 
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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 . . . 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)). 
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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 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-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). 
- 11 -

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). 
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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 -- 
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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 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. 

. . . . 
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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 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. 
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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 
- 17 -

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 lawenforcement 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 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 
- 19 -

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, 
- 20 -

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 
- 21 -

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. 
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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."). 
- 23 -

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 
- 24 -

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). 
- 25 -

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 
- 26 -

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 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 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 similarities between his 
- 27 -

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 

preserved errors should be considered as a group under harmless-
- 28 -

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" 
- 29 -

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 
- 30 -

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 
- 31 -

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 
- 32 -

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 
- 33 -

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–
- 34 -

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. 
- 35 -

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 
- 36 -

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.