Competency Is Not Credibility: First Circuit Approves Limited Judicial Notice of Prior Plea Competency and Clarifies Appellate Practice for Rule 37 Motions in United States v. Vázquez-Rijos

Introduction

The First Circuit’s decision in United States v. Vázquez-Rijos stems from the 2005 killing of Canadian entrepreneur Adam Anhang in Old San Juan and the ensuing multi-year investigation and prosecution of his wife, Aurea Vázquez Rijos (“Aurea”), her sister, Marcia Vázquez Rijos (“Marcia”), and Marcia’s boyfriend, José Ferrer Sosa (“José”). A federal jury convicted Aurea of murder-for-hire and all three defendants of conspiracy to commit murder for hire in violation of 18 U.S.C. § 1958(a); each received a life sentence. The appeals presented a wide array of issues—sufficiency of the evidence, joinder and severance, the admissibility of “flight” and email evidence, judicial intervention and bias, the court’s use of judicial notice concerning a witness’s prior competency to plead guilty, constructive amendment/variance, the omission of a “death resulted” finding by the jury, and significant post-trial litigation framed by Criminal Rule 37 and Appellate Rule 12.1 regarding the cooperating hitman’s mental health.

Writing for the court, Judge Thompson (joined by Chief Judge Barron and Judge Lipez in large part) affirmed across the board. Of particular prospective significance are two holdings: first, that a district court may take judicial notice under Evidence Rule 201 of a cooperating witness’s prior competency to enter a plea—so long as the notice is carefully limited (here, to 2008) and accompanied by clear instructions that credibility remains for the jury; and second, that litigants must independently and timely appeal denials of indicative rulings under Criminal Rule 37—direct-appeal jurisdiction does not automatically reach those post-trial decisions. Judge Lipez dissented in part, concluding that the judicial notice improperly bolstered the witness’s credibility as to Marcia and José and warranted a new trial for them.

Summary of the Opinion

Sufficiency: The court upheld the conspiracy convictions of Marcia and José. The jury could credit the cooperating hitman, Alex “El Loco” Pabón Colón (“Pabón”), who testified the trio hired him to kill Anhang and stage a robbery. The First Circuit reiterated that uncorroborated testimony of a single cooperating witness may suffice if not facially incredible.
Interstate-facility element (§ 1958): The court reaffirmed that, after the 2004 amendment from “facility in” to “facility of” interstate commerce, intrastate use of telephones and vehicles satisfies § 1958. The argument that Puerto Rico vehicles are categorically not facilities of interstate commerce was unpreserved and waived.
Severance: Denial of severance was not an abuse of discretion; joint trials are preferred, especially in conspiracy cases. Tailored limiting instructions mitigated any spillover risk.
Evidentiary rulings: Admission of “flight” evidence against Aurea was, at worst, harmless given other strong proof. Post-crime emails were relevant and not unfairly prejudicial under Rule 403; certain out-of-court statements were properly admitted for context, not for truth.
Judicial conduct: Multiple claims of bias were waived or unpersuasive. The court’s management of cross-examination and clarifying questions fell within its discretion; striking an elicited “very elated” remark cured any prejudice.
Judicial notice of prior competency: No abuse of discretion in taking Rule 201 judicial notice that the district judge found Pabón competent to plead guilty in 2008, so long as the jury was instructed that credibility determinations were theirs alone and they could disregard the noticed fact. The dissent would have found serious prejudice as to Marcia and José.
Constructive amendment/variance: No constructive amendment occurred. The government was not confined to overt acts listed verbatim in the indictment; there was no prejudicial variance.
“Death resulted” element: Although the jury was not separately instructed to find “death resulted,” the omission was harmless beyond a reasonable doubt; the death was conceded and overwhelmingly proven.
Post-trial mental-health litigation and Rule 37/FRAP 12.1: Appeals from denials of indicative rulings were untimely; defendants must file separate, timely notices of appeal for such orders under Fed. R. App. P. 4(b). Many mental health-related arguments were waived, not preserved, or relied on materials outside the appellate record.
Disposition: Convictions and sentences affirmed for all defendants.

Detailed Analysis

I. Precedents Cited and Their Influence

Murder-for-hire interstate-facility element: The court relied on United States v. Fisher, 494 F.3d 5 (1st Cir. 2007), emphasizing the 2004 amendment to § 1958 (“facility of interstate commerce”) and the prevailing rule that intrastate use of phones or vehicles suffices.
“Single cooperating witness” rule: Cases like United States v. Velazquez-Fontanez, 6 F.4th 205 (1st Cir. 2021), reaffirm that uncorroborated testimony is enough unless facially incredible.
Severance/joinder: The court invoked Zafiro v. United States, 506 U.S. 534 (1993), and First Circuit precedents reinforcing the preference for joint trials, especially in conspiracy cases, and the efficacy of limiting instructions.
Rule 403 balancing and context statements: United States v. Polanco, 634 F.3d 39 (1st Cir. 2011), and United States v. Cruz-Díaz, 550 F.3d 169 (1st Cir. 2008), inform deference to trial courts’ evidentiary balancing and admission of statements for “context,” not for truth.
Judicial notice under Rule 201: The court cited Rule 201(b) and (f), as construed in cases like United States v. Bello, 194 F.3d 18 (1st Cir. 1999), and United States v. Dávila-Nieves, 670 F.3d 1 (1st Cir. 2012), to frame permissible judicial notice while preserving jury prerogatives.
Judicial intervention and bias: The court distinguished its prior cautions in United States v. Raymundí-Hernández, 984 F.3d 127 (1st Cir. 2020), where direct commentary undercut a defense witness’s relevance; here, the judge’s limited notice concerned a historical competency finding and was paired with robust credibility instructions.
Constructive amendment/variance: The court leaned on long-settled principles that indictments need not catalogue every overt act and that proof may vary as long as substantial rights (notice, double-jeopardy protection) are preserved.
Apprendi/Burrage line on elements affecting max penalties: The court applied harmless-error analysis per United States v. Pizarro, 772 F.3d 284 (1st Cir. 2014), to the omitted “death resulted” finding because the fact was uncontested and overwhelmingly proved.
Rule 37 and FRAP 12.1 appellate practice: Relying on United States v. Graciani, 61 F.3d 70 (1st Cir. 1995), and United States v. Rivera-Carrasquillo, 933 F.3d 33 (1st Cir. 2019), the court held parties must file a separate, timely notice of appeal from denials of indicative rulings; direct-appeal jurisdiction does not subsume those later decisions.

II. Legal Reasoning

A. Sufficiency and the Interstate Element

The court’s sufficiency review adhered to deferential principles: viewing the evidence in the light most favorable to the verdict, assuming the jury credited government witnesses, and asking only whether a reasonable jury could find the elements beyond a reasonable doubt. Because § 1958’s “facility of interstate commerce” element is satisfied by intrastate use of phones/vehicles post-2004 amendment, the government did not need to prove cross-border transmissions or travel. José’s global-island theory (vehicles in Puerto Rico cannot be “facilities of interstate commerce”) was not preserved and, in any event, runs counter to statutory text and controlling precedent.

On the conspiracy element, Pabón’s testimony—naming Aurea, Marcia, and José as hirers, describing the planning (including the El Hamburger meeting) and José’s active coordination the night of the murder—was not facially incredible. The jury was entitled to rely on it even if inconsistencies could be mined on cross.

B. Joinder and Severance

Given the conspiracy’s integrated nature and the systemic costs of serial trials, the court emphasized Zafiro’s “strong preference” for joint trials, bolstered by meaningful limiting instructions that directed jurors to consider each defendant and count separately. Alleged spillover from Aurea’s flight, extradition, or civil litigation was insufficient to establish the “extreme prejudice” required to mandate severance under Rule 14.

C. Evidence: Flight, Emails, and Hearsay-for-Context

The court treated “flight” as circumstantial evidence of consciousness of guilt, admissible if relevant and not unfairly prejudicial under Rule 403. Even if admitting Aurea’s overseas moves and extradition strategy was debatable, any error was harmless given substantial other proof (motive via prenup, solicitation of a hitman, inconsistent attacker description, non-cooperation).

Post-murder emails—though created after the offense—were relevant to motive, relationships, and consciousness-of-guilt themes (e.g., pressure for money, concerns that “we used” José, warnings about “enemies” to whom money was owed, and “we are all in the same boat”). Statements of non-parties within emails were admitted for contextual purposes, not for truth; the district court repeatedly gave limiting instructions. The First Circuit deferred to the trial court’s Rule 403 balancing, noting it rarely overturns such determinations.

D. Judicial Conduct and “Bias” Claims

Most complaints (tone, express impatience, effort to eliminate “repeat performances” in questioning) fell within the trial court’s broad authority to manage a complex, multi-week conspiracy trial. Where the judge’s interjections clarified testimony already in evidence (e.g., how Aurea’s financial stake materialized only on Adam’s death), there was no improper commentary on guilt. Striking an elicited “very elated” remark about a letter to the FBI and issuing curative instructions cured potential prejudice.

E. Judicial Notice of Prior Competency (The Signature Issue)

The district court took judicial notice under Evidence Rule 201 that, at a 2008 plea hearing, it found the cooperating hitman, Pabón, competent to plead guilty. The First Circuit approved this limited use of judicial notice because:

It concerned an adjudicative fact “not subject to reasonable dispute” appearing in court records.
It was expressly confined to 2008 “plea competency” and did not purport to comment on trial credibility in 2018.
The court repeatedly instructed the jury that credibility determinations were exclusively theirs and that they could accept or reject the noticed fact.
Both sides continued to litigate credibility forcefully in closing arguments, underscoring that credibility remained a live question.

The court stressed the conceptual divide between competency (a judicial threshold focusing on capacity to proceed) and credibility (a jury question about believability). The dissent, however, would vacate Marcia and José’s convictions, reasoning that in the actual trial context the notice likely—if subtly—put the court’s “imprimatur” behind the witness’s reliability, given the defense’s mental-health impeachment theme and the centrality of his testimony to those two defendants.

F. Constructive Amendment and Variance

There was no constructive amendment where the jury was instructed that Aurea was tried only on counts from the original indictment, even while evidence overlapped with allegations in a superseding indictment. Nor was there a prejudicial variance in proof concerning the El Hamburger meeting, given the indictment’s description of meetings and “manner and means,” the explicit date of September 21, 2005, and the statement of facts in Pabón’s plea agreement referencing that meeting—all providing adequate notice and double-jeopardy protection.

G. “Death Resulted” Omission: Harmless Error

Although the jury was not asked to make a separate, express finding that “death resulted,” the omission was harmless beyond a reasonable doubt because the indictments charged it, the verdict forms found guilt “as charged,” the defense repeatedly conceded Adam’s death at the hands of the hitman, and the proof was overwhelming (including forensic testimony and witnesses). The court applied the more defendant-friendly harmless-error standard and still found no basis for reversal.

H. Post-Trial Mental Health, Rule 37, and Appellate Practice

The opinion traverses complicated post-trial motions practice, including multiple Bureau of Prisons competency evaluations of the cooperating witness (diagnoses varied over time: schizophrenia in 2008 and 2019; antisocial personality disorder in 2020 and 2021; competency restored for sentencing). Defendants sought new trials, independent psychiatric examinations of the witness, discovery, and evidentiary hearings via Criminal Rule 37 indicative-ruling motions. The district court denied the motions; appeals from those denials were untimely.

The First Circuit clarified:

Separate, timely appeals are required from denials of indicative rulings; direct-appeal jurisdiction does not automatically encompass those later orders. The time limits in Fed. R. App. P. 4(b) are mandatory when invoked by the government.
Arguments not preserved in the district court (e.g., trial-era claims that the witness was incompetent to testify) are reviewed for plain error; many were waived for lack of development.
Materials not in the record (e.g., the 2021 BOP evaluation) cannot be used to attack a judgment on direct appeal.
Brady/Giglio theories failed for lack of preservation, timeliness, or because at least one defendant (Aurea) had the pertinent medical records pretrial.

III. Impact and Practical Takeaways

A. Judicial Notice and Cooperating Witnesses’ Mental Health

The court’s competency/credibility demarcation and approval of limited judicial notice will be cited in future cases where mental health impeachment features prominently. Trial judges may:

Use Rule 201 to notice a historical competency finding (e.g., a prior plea or competency determination) when fairness so requires,
Condition the notice on tight temporal and subject-matter bounds, and
Couple it with unmistakable instructions that credibility remains wholly for the jury, which may disregard the noticed fact.

Defense counsel should anticipate such requests and, if the court allows notice, consider requesting additional clarifying instructions explaining the difference between competency (capacity to proceed) and credibility (believability). The dissent signals that such notices risk being perceived as judicial vouching in some contexts; expect this to be a litigation flashpoint in cases centered on cooperating witnesses with mental health histories.

B. Rule 37/FRAP 12.1 Procedure—A Bright-Line Practice Point

The decision reinforces that parties must separately and timely appeal denials of Rule 37 indicative rulings; a stay on the direct appeal does not silently toll the deadline for appealing later post-trial orders. Counsel should:

Track and calendar the 14-day Rule 4(b) criminal appeal deadline for each post-trial order,
Seek extensions under Rule 4(b)(4) where appropriate, and
Not rely on consolidation or status-report orders to preserve appellate rights.

C. Substantive Criminal Law

§ 1958 interstate element: Intrastate use of phones/vehicles suffices; the rule applies in Puerto Rico. Prosecutors need not prove interstate transmissions or interstate travel.
“Death resulted” element: Best practice is to secure an express jury finding; but where death is conceded and overwhelmingly proved, omission may be harmless.
Evidence of post-offense conduct: The opinion underscores the admissibility of post-crime actions (emails, cover-up behavior) to show consciousness of guilt or the ongoing fruits of a scheme, subject to ordinary Rule 403 balancing.

Complex Concepts Simplified

18 U.S.C. § 1958 (murder-for-hire): Makes it a federal crime to use or cause another to use any “facility of interstate commerce” (including phones and vehicles) with intent that a murder be committed for hire, and to conspire to do so. Penalties escalate up to life if death results.
“Facility of interstate commerce”: After 2004, intrastate use of common facilities (e.g., phones, cars) suffices; no need to cross state lines.
Judicial notice (Fed. R. Evid. 201): A court can instruct a jury that a specific, not reasonably disputable fact (e.g., a prior finding in the court’s records) is established; in a criminal case, the jury must be told it may accept or reject the noticed fact.
Competency vs. credibility: Competency is about a person’s legal fitness (e.g., to plead or stand trial)—a judge’s threshold decision; credibility is whether the jury believes a witness’s testimony.
Constructive amendment vs. variance: A constructive amendment occurs if trial proceedings effectively change the charged offense; a variance is a difference between allegations and proof. A variance warrants reversal only if it prejudices substantial rights (surprise or double-jeopardy risk).
Harmless error vs. plain error: Harmless error asks whether the error likely affected the verdict; plain error (for unpreserved issues) requires a clear error that affected substantial rights and seriously impaired the fairness, integrity, or public reputation of proceedings.
Criminal Rule 37 and Appellate Rule 12.1: When an appeal is pending, the trial court can state whether it would grant a motion (indicative ruling). If it denies the motion, a separate, timely appeal is required from that denial.
Rule 403 balancing: Courts may exclude relevant evidence if its probative value is substantially outweighed by danger of unfair prejudice; appellate courts give broad deference to these trial-level judgments.

Conclusion

United States v. Vázquez-Rijos is an “everything” appeal that ultimately affirms three life sentences in a notorious murder-for-hire case. Its lasting doctrinal contributions are twofold. First, the court draws a careful but permission-granting line around the use of judicial notice to address mental-health impeachment: a judge may notice a prior plea-competency finding, provided the notice is tight and the jury is emphatically told that credibility remains theirs to decide. The strong partial dissent underscores the risk that such interventions can be perceived as judicial vouching and may trigger reversal where a case hinges on a single cooperating witness.

Second, the court sends a crisp procedural message: post-trial orders issued during a stayed direct appeal are not automatically swept into that appeal. Parties must file separate, timely notices of appeal from denials of Rule 37 indicative rulings or risk forfeiture. Paired with reaffirmations about § 1958’s interstate element, the relevance of post-offense conduct, the permissibility of joint trials in conspiracy cases, and the application of harmless-error review to an omitted “death resulted” element, the opinion provides a comprehensive roadmap for trying, preserving, and appealing complex conspiracy prosecutions anchored by cooperating witnesses and extensive post-verdict litigation.