Competency ≠ Credibility: First Circuit Upholds Judicial Notice of Prior Plea Competency and Demands Timely Appeals from Rule 37 Indicative Rulings

Case: United States v. Vázquez‑Rijos (1st Cir.)

Introduction

This multi-defendant appeal springs from the notorious 2005 murder of Canadian entrepreneur Adam Anhang Uster in Old San Juan. The United States charged Aurea Vázquez Rijos (Anhang’s wife), her sister Marcia Vázquez Rijos, and Marcia’s boyfriend José Ferrer Sosa in a murder-for-hire scheme under 18 U.S.C. § 1958. A federal jury convicted Aurea of substantive murder-for-hire and all three defendants of conspiracy to commit murder-for-hire; each received life sentences. The First Circuit (Judge Thompson writing; Chief Judge Barron on the panel; Judge Lipez concurring in part and dissenting in part) affirmed across the board.

The appeal raised a wide array of issues: sufficiency of the evidence; denial of severance; evidentiary rulings (flight evidence, emails, hearsay and Rule 403 balancing); judicial bias; judicial notice relating to a cooperating witness’s prior competency to plead guilty; constructive amendment and variance; the “death resulted” sentencing element; and post-trial litigation over the witness’s mental health and the appellate mechanics of Rule 37 indicative rulings and Appellate Rule 12.1.

Key Holdings at a Glance

• Competency versus credibility: A district court may take judicial notice, under Evidence Rule 201, that a cooperating witness was found competent to plead guilty years earlier, without vouching for the witness’s trial credibility, where the notice is carefully time-limited and accompanied by standard instructions that the jury may accept or reject the noticed fact and remains the sole arbiter of credibility.
• Rule 37 indicative rulings: When a district court denies a Criminal Rule 37 motion for an indicative ruling, a defendant must file a separate, timely criminal notice of appeal under Fed. R. App. P. 4(b). Pending direct appeals do not obviate this requirement.
• “Facility of interstate commerce” under § 1958: Intrastate use of telephones and vehicles suffices after Congress amended the statute from “in” to “of” interstate commerce in 2004; no cross-border use is required.
• Severance: Strong federal preference for joint trials—especially in conspiracy cases—was properly applied; cautionary instructions cured any spillover prejudice.
• Death-resulted element: Omission of a specific jury finding on the “death results” aggravator was harmless beyond a reasonable doubt because death was uncontested and proved overwhelmingly.
• Evidentiary rulings: Admission of post-crime emails and flight evidence survived Rule 403; certain out-of-court statements were properly admitted for context, not truth.
• Judicial bias: No manifest abuse of discretion; isolated interjections were curative-instruction neutralized, and the judge appropriately managed an extended, contentious trial.
• Post-trial mental-health issues: Appellants’ challenges largely failed on timeliness, preservation, or record-absence grounds; no due-process right to the expansive post-conviction discovery they sought was established here.

Summary of the Opinion

The First Circuit affirmed all convictions and sentences. On sufficiency, it held that cooperating witness Alex “El Loco” Pabón’s testimony—naming Aurea, Marcia, and José as the hirers—permitted a rational juror to convict and that credibility challenges go to weight, not sufficiency. The court rejected severance claims given the strong preference for joint trials in conspiracy cases and the district court’s careful limiting instructions.

Evidentiary challenges failed: “flight” evidence was, at most, harmless given other incriminating proof; emails were relevant to the conspiracy and not unfairly prejudicial; and third-party statements in an email were admissible for context. The court rejected allegations of judicial bias and found no reversible error in judicial management or questioning.

Significantly, the court held there was no abuse of discretion in judicially noticing that the trial judge had found Pabón competent to plead guilty in 2008. Because competency and credibility are distinct concepts, and the notice was time- and subject-limited with clear instructions under Evidence Rule 201(f) and standard credibility directions, the court found no improper vouching. Judge Lipez dissented on this point, finding the notice improperly—and prejudicially—bolstered Pabón’s credibility as to Marcia and José.

Constructive-amendment and variance claims were rejected. On sentencing, the omission of a discrete “death resulted” finding was harmless; the jury returned “guilty as charged,” the indictments alleged death result, and defendants conceded death at trial. Finally, the court addressed extensive post-trial mental-health litigation over Pabón: it held separate timely appeals were required from the denial of Rule 37 indicative motions; many claims were forfeited or inadequately briefed; and the 2021 competency restoration evaluation was not part of the record on direct appeal.

Analysis

Precedents Cited and Their Influence

• Sufficiency: United States v. Maldonado-Peña (1st Cir. 2021) supplied the deferential standard—viewing evidence in the light most favorable to the government. United States v. Velazquez-Fontanez (1st Cir. 2021) confirmed that uncorroborated cooperating-witness testimony can suffice if not facially incredible.
• § 1958 interstate facility: United States v. Fisher (1st Cir. 2007) interpreted the 2004 change from “in” to “of” interstate commerce, confirming intrastate uses of phones/vehicles qualify. This undercut José’s border-crossing theory and his argument that Puerto Rico vehicles cannot be “facilities of interstate commerce.”
• Severance: Zafiro v. United States (1993) and United States v. Houlihan (1st Cir. 1996) established the strong preference for joint trials and the “extreme prejudice” requirement to sever, buttressed by curative instructions.
• Evidentiary topics: United States v. Sasso (1st Cir. 2012) on consciousness-of-guilt; Fed. R. Evid. 401 and 403 framed relevance and prejudice balancing; United States v. Cruz-Díaz (1st Cir. 2008) allowed contextual statements not for truth; Old Chief v. United States (1997) and United States v. Morales-Aldahondo (1st Cir. 2008) recognized the prosecution’s right to present its narrative.
• Judicial notice and jury’s province: Fed. R. Evid. 201(b), (f); United States v. Bello (1st Cir. 1999) and United States v. Dávila-Nieves (1st Cir. 2012) warned against directed findings; United States v. Devin (1st Cir. 1990) and United States v. Alicea (1st Cir. 2000) distinguished judicial gatekeeping of competency versus the jury’s credibility role. The majority leaned on this separation; the dissent emphasized the practical conflation risk.
• Judicial bias/intervention: United States v. Raymundí-Hernández (1st Cir. 2020) and United States v. Ayala-Vazquez (1st Cir. 2014) flagged dangers when judges appear to weigh credibility; Liteky v. United States (1994) taught that impatience/annoyance alone rarely equals bias. The majority found any intrusions cured; the dissent found the judicial-notice step uniquely prejudicial.
• Constructive amendment/variance: United States v. Katana (1st Cir. 2024) and United States v. Condron (1st Cir. 2024) supplied current standards; United States v. Marrero-Ortiz (1st Cir. 1998) clarified that indictments need not preview all evidence; trial proof can exceed listed overt acts.
• Death-resulted element: Burrage v. United States (2014) and United States v. Rabb (1st Cir. 2021) required jury-found aggravators; United States v. Pizarro (1st Cir. 2014) allowed harmlessness where overwhelming and uncontested; United States v. Razo (1st Cir. 2015) similar.
• Rule 37 / Rule 12.1 appellate mechanics: Fed. R. Crim. P. 37 and Fed. R. App. P. 12.1 require indicative-ruling procedures. The court cited United States v. Rivera-Carrasquillo (1st Cir. 2019), United States v. Reyes-Santiago (1st Cir. 2015), United States v. Graciani (1st Cir. 1995), and out-of-circuit cases to hold that a separate, timely criminal notice of appeal under Rule 4(b) is mandatory when a district court denies an indicative ruling. Eberhart v. United States (2005) and González‑Rodríguez (1st Cir. 2015) confirm the claims-processing nature but mandatory application when the government invokes it. Feinstein v. Moses (1st Cir. 1991) underscores that untimely motions for reconsideration do not toll appeal time, even if entertained.
• Post-conviction due process: District Attorney’s Office v. Osborne (2009) and Tevlin v. Spencer (1st Cir. 2010) frame the limited nature of post-conviction discovery rights; appellants did not carry the burden to expand those rights here.

Legal Reasoning

• Sufficiency and credibility allocation: The court repeatedly emphasized that disputes over whether to believe Pabón were for the jury. The defense highlighted inconsistencies and mental-health history; the First Circuit treated those as classic credibility issues.
• Interstate commerce element under § 1958: The panel reaffirmed Fisher’s interpretation of the 2004 amendment: a “facility of interstate commerce” includes intrastate use of phones and vehicles. This forecloses defense arguments that cross-border use or special Puerto Rico considerations are required.
• Severance: Given a conspiracy charge and overlapping evidence, joint trial was efficient and appropriate; any risk of spillover was neutralized by robust limiting/compartmentalization instructions that juries are presumed to follow.
• Evidence rulings:
  • Flight: Even assuming arguendo error, any prejudice was harmless given strong independent proof of guilty intent and planning.
  • Emails: Post-crime communications bore on motive, consciousness of guilt, ongoing financial expectations, and relationships among co-conspirators; Rule 403 balancing favored admission; specific third-party statements were admitted for context only with limiting instructions.
• Judicial notice of 2008 plea competency: The crux of the opinion. The district court took judicial notice that in 2008 it found Pabón competent to plead guilty. The panel held this was an adjudicative fact “not subject to reasonable dispute,” confined to the date and subject of the plea, and paired with Rule 201(f)’s instruction that the jury “may or may not” accept the noticed fact. The court stressed the conceptual line: competency is a legal threshold determined by the judge; credibility is a factual judgment reserved to the jury. The instructions on credibility explicitly kept that role with the jury. Because neither party sought a further explanatory instruction distinguishing competency from credibility, and both sides argued credibility vigorously at closings, the court found no abuse of discretion.
• Constructive amendment/variance: The court rejected claims that closing argument or instructions amended the indictment. The jury was repeatedly told Aurea was tried only on counts in the original indictment, consistent with extradition limits. Variance claims failed because the indictment put Marcia on fair notice that meetings with Pabón would be proven; trial proof need not mirror every overt act listed.
• Death-resulted element: Although the jury lacked a specific interrogatory, the error was harmless beyond a reasonable doubt: the indictments alleged death; verdict forms found defendants “guilty as charged”; defendants themselves conceded that Anhang died as a result of the attack; and the evidentiary record was undisputed.
• Rule 37 / Appellate Rule 12.1 and 4(b) — timeliness and preservation: The court set out a clear procedural roadmap. If the district court denies a Rule 37 indicative motion, a separate, timely criminal notice of appeal is required to secure appellate review of that denial. Staying a direct appeal and filing status reports does not substitute for a new notice. Untimely reconsideration motions do not toll the deadline. The government’s timely invocation of Rule 4(b) made the claims-processing rule mandatory.
• Post-trial mental-health claims: Many arguments were forfeited or inadequately briefed (e.g., failure to argue plain error). The 2021 competency restoration evaluation was outside the record on direct appeal; it could not support reversal. The court declined to recognize a broad due-process entitlement to post-conviction discovery or a compelled independent psychiatric exam on the record presented.

Impact

• For trial courts and practitioners: The opinion provides a carefully cabined template for judicial notice regarding a cooperating witness’s prior plea competency without invading the jury’s credibility function—so long as the notice is time- and subject-specific and accompanied by Rule 201(f) and robust credibility instructions. But the dissent warns of the real-world risk that lay juries conflate competency with credibility, especially where credibility is pivotal.
• Appellate practice: The court’s procedural holding is significant: when using Rule 37/Rule 12.1, parties must preserve appellate review with a separate, timely criminal notice of appeal from the denial of an indicative ruling. Counsel should not assume that a stayed direct appeal or periodic status reports suffice.
• § 1958 prosecutions: The reaffirmation that intrastate uses of phones and vehicles qualify as “facilities of interstate commerce” lowers the government’s burden on the jurisdictional element and aligns with congressional intent post‑2004 amendment.
• Sentencing elements: Even where harmlessness saved the day, prosecutors are reminded to secure explicit jury findings on aggravators (e.g., “death results”) to avoid appellate headwinds.
• Evidence strategy: The court’s acceptance of post-event emails and “flight” evidence—subject to limiting instructions and careful Rule 403 balancing—confirms prosecutors may tell a full narrative when probative, while defense teams must make targeted, preserved objections.
• Judicial management: The court endorsed active, even firm, trial management in lengthy, contentious conspiracy trials, while cautioning against actions that could be seen as commenting on credibility. The dissent underscores that line’s sensitivity.

Complex Concepts Simplified

• Competency vs. credibility: Competency is a legal threshold—does the person understand proceedings and can they participate (e.g., plead or testify)? It’s decided by the judge. Credibility is whether you believe the person’s account—decided by the jury. One can be legally competent yet an unpersuasive or untruthful witness.
• Judicial notice (Evidence Rule 201): A judge may tell the jury that a fact is established if it is not reasonably disputable (e.g., a docket entry). In criminal cases, the judge must instruct that the jury may accept or reject that fact.
• Constructive amendment vs. variance: A constructive amendment changes the charge itself—unconstitutional because it departs from what the grand jury approved. A variance is a mismatch between charged facts and proof; it’s reversible only if it prejudices substantial rights (e.g., surprise, double‑jeopardy risk).
• “Facility of interstate commerce” in § 1958: After 2004, the statute reaches use of facilities “of” interstate commerce, not “in.” Intrastate phone calls or use of a car suffice; the government need not prove crossing state lines.
• Rule 37 indicative rulings and Rule 12.1: When a case is on appeal, the district court can indicate how it would rule on a motion it cannot currently grant. If the court denies the motion (or says it would deny it), you must file a new, timely notice of appeal from that denial to secure review.
• Death-resulted element: Under Apprendi/Burrage principles, facts that raise the maximum sentence must be charged and found by the jury. If omitted, the conviction can still stand if the omission was harmless beyond a reasonable doubt because the fact was uncontested and overwhelmingly proved.

Discussion of the Dissent

Judge Lipez concurred in most respects but dissented on the judicial-notice issue, urging that the district court’s notice—telling the jury the judge found the cooperating witness competent to plead in 2008—impermissibly bolstered credibility on the central issue in a cooperating-witness case. He would vacate Marcia’s and José’s convictions, finding “serious prejudice” because the non‑Pabón evidence against them was thin, and the judicial imprimatur likely tipped the scales. He distinguished generic cautionary instructions as insufficient to neutralize the court’s perceived weighing-in. The dissent thus stands as a caution: even carefully worded judicial notice about a prior competency finding may, in certain contexts, be perceived by jurors as credibility endorsement.

Practice Takeaways

• If you seek judicial notice about a prior competency finding, limit it to date and context (e.g., “competent to plead in 2008”) and ensure Rule 201(f) and robust credibility instructions are delivered. Consider requesting an explicit instruction distinguishing competency from credibility.
• When credibility is central, be mindful of the dissent’s concerns: even properly framed judicial notice may be argued to have an undue bolstering effect. Preserve objections and propose clarifying instructions.
• For Rule 37/12.1 practice, calendar Rule 4(b) deadlines. If an indicative ruling is denied, file a separate, timely criminal notice of appeal. Do not rely on a stayed direct appeal or status reports to preserve review.
• In § 1958 cases, don’t over-litigate cross-border usage: intrastate phone/vehicle use suffices. Focus defense energy on intent, agreement, and credibility.
• Charge the “death results” element to the jury whenever exposure depends on it, even if proof seems obvious, to avoid harmless-error battles on appeal.
• Emails and “flight” evidence can be powerful; litigate Rule 403 with tailored limiting instructions and clear theories of relevance or contextual admission to mitigate prejudice and preserve issues.

Conclusion

United States v. Vázquez‑Rijos is notable for two reasons. First, it clarifies that a district court may, without committing reversible error, take judicial notice that a cooperating witness was competent to plead guilty years earlier, provided the notice is carefully confined and the jury is emphatically told that it remains the sole judge of credibility and may disregard the noticed fact. Second, it sharpens appellate procedure: defendants who lose on Rule 37 indicative motions must file separate, timely criminal notices of appeal to obtain review, irrespective of any stayed direct appeals.

Beyond these anchor points, the opinion reaffirms settled principles on joint trials, the breadth of “facility of interstate commerce” under § 1958, and the management of evidentiary issues in complex conspiracy prosecutions. The partial dissent underscores the thin line between permissible judicial case management and impermissible intrusion into credibility assessments—an enduring caution for trial judges when credibility is the trial’s fulcrum. As a whole, the decision supplies both doctrinal guidance and practical instruction to bench and bar across the First Circuit on how to try—and how to preserve and appeal—high-stakes murder-for-hire cases.