            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.
            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

                                             - 2 -
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.



                                         - 3 -
              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

                                        - 4 -
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.



                                                - 5 -
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

                                       - 6 -
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

                                             - 7 -
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)).

                                           - 8 -
             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



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
                             - 9 -
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).
                                    - 10 -
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).
                                      - 11 -
          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 --
                                - 12 -
     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.
     . . . .

                                     - 13 -
     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

                                     - 14 -
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.
                             - 15 -
     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

                                   - 16 -
        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   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

                                           - 17 -
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

                                        - 18 -
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,

                                        - 19 -
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




                                        - 20 -
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.
                                     - 21 -
           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.").
                                  - 22 -
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

                                             - 23 -
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).



                                    - 24 -
            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

                                          - 25 -
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 were-
       they-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 is-

the-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

                                      - 26 -
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 cross-

examination     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-

                                     - 27 -
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"

                                           - 28 -
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

                                       - 29 -
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

                                           - 30 -
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-the-

witness-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

                                  - 31 -
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



                                           - 32 -
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–
                             - 33 -
             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.
                                         - 34 -
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

                                             - 35 -
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.




                                   - 36 -
