Federal Court Reverses Drug Convictions -Prosecutorial Misconduct

The Court's Ruling

On February 3d, 2017, the First Circuit Court of Appeals in Boston reversed felony drug convictions for conspiracy to smuggle cocaine from Puerto Rico to the continental United States, because of the prosecutor's improper witness questioning during trial. USA v. Pereira, No. 15-1669 (1st Cir. Feb. 2, 2017). The prosecution had based its case primarily upon the testimony of two "cooperating witnesses" (a/k/a "rats"), Torres and Olmo, who implicated Periera in the conspiracy.

The Drug Conspiracy

The conspirators smuggled cocaine into the United States on American Airlines flights. How? "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." So much for the effectiveness of a "wall" in securing our borders.

The Prosecutorial Misconduct

When Pereira took the stand and denied involvement in the conspiracy, the prosecutor repeatedly badgered him about whether he thought that the rats, Torres and Olmo, had "made up" their story, and whether they had attempted to "set up" Pereira.

The Court pointedly accused the prosecutor in this case of ignoring or disregarding 25 years of case precedents admonishing prosecutors for engaging in this particular form of misconduct: "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.'" The Court cited case precedents from 1991, 1996, 2003, and 2015.

Ted Lothstein Litigated Same Issue in 2007

Indeed, 9 years ago, Attorney Lothstein litigated this exact issue in the NH Supreme Court and won a ruling from that Court that it is improper to ask a witness if another witness is telling the truth or if another witness is believable.

Convictions Reversed

Many courts, dealing with issues similar to this one, gently admonish the prosecutor but uphold the convictions based on the doctrine of "harmless error." In this month's decision from the First Circuit, however, the Court sent a strong message to federal prosecutors who believe they are above the law, by reversing Pereira's convictions and ordering a new trial.

Read the Court's decision in USA v. Pereira.