Competency Is Not Credibility: First Circuit Upholds Judicial Notice of Prior Plea Competency and Clarifies Appellate Procedure for Rule 37 Motions

Introduction

In United States v. Vázquez-Rijos, the First Circuit affirmed the convictions and life sentences of Aurea Vázquez Rijos (“Aurea”), her sister Marcia Vázquez Rijos (“Marcia”), and José Ferrer Sosa (“Ferrer”) for murder-for-hire and conspiracy arising from the 2005 killing of Canadian entrepreneur Adam Anhang Uster in Old San Juan. The case is sprawling—involving a decade of investigative twists, a wrongful local conviction, an international flight and extradition, and a high-profile government witness (Alex “El Loco” Pabón Colón) with a complicated mental health history.

The opinion addresses a wide array of issues: sufficiency of the evidence, severance, multiple evidentiary rulings (including “flight” evidence and email admissions), allegations of judicial bias, claims of constructive amendment and variance, the “death resulted” element of 18 U.S.C. § 1958, and a multi-year series of post-trial motions centered on the government witness’s mental health and competency evaluations.

Two holdings stand out for their precedential and practical importance:

• The court held that a district judge may take judicial notice, under Fed. R. Evid. 201, of a court’s prior finding that a cooperating witness was competent to plead guilty years earlier, so long as the notice is carefully limited (both temporally and substantively) and the jury is properly instructed that it need not accept the noticed fact and that credibility determinations remain exclusively the jury’s domain.
• The court clarified appellate procedure for indicative rulings under Fed. R. Crim. P. 37: when the district court denies an indicative-ruling motion (e.g., a motion for new trial or for post-trial discovery), a separate, timely notice of appeal is required under Fed. R. App. P. 4(b)(1) to secure appellate review of that denial. Staying a pending appeal and filing status reports do not substitute for, or toll, that obligation.

A partial dissent would have vacated Marcia’s and Ferrer’s convictions based on the prejudice it perceived from the judicial notice concerning the witness’s competency, highlighting a fault line between “competency” and “credibility” when the government’s case turns on a cooperating witness.

Summary of the Opinion

Judge Thompson, writing for the court (Chief Judge Barron and Judge Thompson joining; Judge Lipez concurring in part and dissenting in part), affirmed “across the board.” The main rulings include:

• Sufficiency: The evidence—particularly Pabón’s detailed testimony—supported the conspiracy convictions of Marcia and Ferrer under 18 U.S.C. § 1958(a). Intrastate use of phones/vehicles satisfies the statute’s “facility of interstate commerce” element.
• Severance: No manifest abuse of discretion in trying all three defendants together; limiting instructions cured any potential spillover.
• Evidentiary rulings: Any error in admitting “flight” evidence against Aurea was harmless given strong independent proof. Post-crime emails were properly admitted as relevant (and not unduly prejudicial) to show planning, cover-up, and consciousness of guilt. A 2012 email containing a brother’s accusation was admitted for context only, not truth, with a limiting instruction.
• Judicial bias: Claimed episodes were waived, cured, or within a trial judge’s discretion to manage a lengthy, contentious, multi-defendant trial.
• Judicial notice (the flashpoint): The district court did not abuse its discretion by taking judicial notice that it found Pabón competent to plead guilty in 2008. Proper limiting instructions preserved the jury’s role on credibility; competency and credibility are distinct. The dissent disagreed, finding serious prejudice to Marcia and Ferrer.
• Constructive amendment/variance: Rejected. The jury was appropriately instructed that Aurea was tried on the original indictment, and trial proof did not surprise Marcia or risk double jeopardy.
• “Death resulted” element: Although the jury was not expressly asked to find “death resulted,” the omission was harmless beyond a reasonable doubt because the fact was uncontested and supported by overwhelming evidence.
• Post-trial mental-health litigation: A procedural roadmap: Rule 37 indicative-ruling denials require separate, timely appeals under Rule 4(b)(1). Requests for independent psychiatric evaluation and post-conviction discovery were either untimely, undeveloped, unsupported by authority, or outside the record on direct appeal.

Analysis

Precedents Cited and Their Influence

• Murder-for-hire and interstate facilities: United States v. Fisher, 494 F.3d 5 (1st Cir. 2007), recognized that Congress’s 2004 amendment from “facility in interstate commerce” to “facility of interstate commerce” codified the prevailing view: intrastate use of telephones (and other facilities) suffices for 18 U.S.C. § 1958(a). The court relied on Fisher to reject Ferrer’s cross-border requirement and intrastate-only-in-Puerto-Rico theories (waived or plainly foreclosed).
• Sufficiency and cooperating witnesses: United States v. Maldonado-Peña, 4 F.4th 1 (1st Cir. 2021), and similar cases guided the de novo standard. Crucially, United States v. Velazquez-Fontanez, 6 F.4th 205 (1st Cir. 2021), reaffirmed that uncorroborated cooperating-witness testimony can sustain a conviction unless facially incredible. This undercut the “mere presence” defense (United States v. Munyenyezi, 781 F.3d 532 (1st Cir. 2015)) and emphasized the jury’s role in weighing credibility (United States v. Acosta-Colón, 741 F.3d 179 (1st Cir. 2013)).
• Joint trials and severance: Zafiro v. United States, 506 U.S. 534 (1993), and First Circuit authorities (United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996); United States v. Floyd, 740 F.3d 22 (1st Cir. 2014)) articulate a strong preference for joint trials—especially in conspiracies—and require “extreme prejudice” for severance. The court found none here, and trusted jury instructions to compartmentalize evidence.
• Evidence and Rule 403: The court cited Old Chief v. United States, 519 U.S. 172 (1997), and United States v. Morales-Aldahondo, 524 F.3d 115 (1st Cir. 2008), to underscore the government’s right to tell its story, even with emotionally charged evidence when relevant. For consciousness-of-guilt and cover-up relevance, the court pointed to United States v. Sasso, 695 F.3d 25 (1st Cir. 2012). Several rulings turned on the deference owed to district courts’ Rule 403 balancing (United States v. Polanco, 634 F.3d 39 (1st Cir. 2011); In re PHC, Inc. S’holder Litig., 894 F.3d 419 (1st Cir. 2018)).
• Hearsay context: Statements admitted for context—not truth—are not hearsay. The court invoked United States v. Cruz-Díaz, 550 F.3d 169 (1st Cir. 2008), to uphold admission of a brother’s “planned everything” accusation to illuminate Marcia’s response (with limiting instructions).
• Judicial management and bias: The opinion quoted Liteky v. United States, 510 U.S. 540 (1994), confirming that impatience or sharpness does not equal bias. It leaned on First Circuit cases upholding a trial judge’s authority to manage lengthy trials and curtail repetition (United States v. Lanza-Vázquez, 799 F.3d 134 (1st Cir. 2015); United States v. Rivera-Carrasquillo, 933 F.3d 33 (1st Cir. 2019)). Instances of potential prejudice were cured by striking statements and giving instructions (Greer v. Miller, 483 U.S. 756 (1987)).
• Judicial notice and Rule 201: The court applied Fed. R. Evid. 201(b) and (f), citing 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 permit judicial notice of an adjudicative fact on the docket (a 2008 competency finding) while preserving the jury’s prerogatives via instructions that it “may or may not accept” the noticed fact and is the sole credibility arbiter.
• Constructive amendment and variance: United States v. Katana, 93 F.4th 521 (1st Cir. 2024), and United States v. Condron, 98 F.4th 1 (1st Cir. 2024), frame the doctrines. The court emphasized that indictments need not catalog every piece of evidence or location (United States v. Marrero-Ortiz, 160 F.3d 768 (1st Cir. 1998); United States v. Rivera-Donate, 682 F.3d 120 (1st Cir. 2012)).
• Apprendi/Burrage and “death resulted”: Relying on United States v. Pizarro, 772 F.3d 284 (1st Cir. 2014), and Burrage v. United States, 571 U.S. 204 (2014), the court held the omission of an express jury finding on the aggravator was harmless where “uncontested and overwhelming”—the defendants conceded that Adam died at Pabón’s hands.
• Rule 37 indicative rulings and appellate timelines: The panel cited United States v. Rivera-Carrasquillo, 933 F.3d 33 (1st Cir. 2019), United States v. Graciani, 61 F.3d 70 (1st Cir. 1995), and analogous civil authorities to hold that the denial of an indicative ruling must be appealed by a separate, timely notice under Rule 4(b)(1). Government-invoked timeliness arguments are “mandatory” claims-processing rules.

Legal Reasoning

The court’s reasoning is notable for its disciplined division between jury and judge roles, procedural rigor, and evidentiary pragmatism:

• On sufficiency: The panel emphasized the black-letter rule that credibility calls belong to the jury, and a conviction may rest on a single cooperating witness unless testimony is facially incredible. The defense’s attempts to relitigate credibility on appeal, including pointing to prior inconsistencies, fell to this deferential standard.
• On the § 1958 “facility” element: By reaffirming Fisher, the court foreclosed arguments that vehicles/phones must cross borders or that Puerto Rico’s insularity defeats the interstate commerce nexus. Amendments to the statutory phrasing (“of,” not “in”) and long-standing circuit law were decisive.
• On severance and spillover: The panel contrasted general “prejudice” (all incriminating evidence is prejudicial) with the “extreme prejudice” severance standard. Where evidence is interwoven and the judge instructs jurors to consider each defendant and count separately, severance is rarely warranted—especially in conspiracy trials.
• On evidentiary calls:
  • “Flight” evidence: Admissibility was not outcome-determinative; any error was harmless given the strength of independent inculpatory proof (motive, planning, non-cooperation).
  • Emails: Post-offense communications were relevant to cover-up, consciousness of guilt, conspirator relationships, and financial demands. They were not unfairly prejudicial under Rule 403. Third-party statements were admitted for context with limiting instructions, not for their truth.
• On judicial bias: A series of courtroom-management decisions and clarifying questions did not show bias, particularly where the court struck problematic remarks and repeatedly instructed that credibility and factfinding were the jury’s province. Judges may limit “repeat performances” and streamline proof in long trials.
• On judicial notice of prior plea competency: The court carefully parsed competency (a legal threshold issue for the court) from credibility (a factual matter for the jury). Judicial notice was tightly cabined—to the 2008 plea-competency finding only—and accompanied by multiple instructions that the jury:
  • could reject any witness’s testimony;
  • should treat a cooperator’s testimony with caution; and
  • need not accept the noticed fact as conclusive.
  This framework avoided “vouching” and preserved the jury’s credibility determinations. The dissent saw a risk of undue influence and would have found “serious prejudice” to Marcia and Ferrer; the majority found the record (including how counsel argued credibility in closing) demonstrated that credibility remained a live, fully litigated jury issue.
• On constructive amendment/variance: The panel rejected incipient constructive-amendment theories and emphasized that indictments need not list each overt act, and proof consistent with alleged “manner and means” does not surprise or impair double jeopardy defenses.
• On “death resulted” omission: Applying the more defendant-friendly harmless-error standard, the court concluded beyond a reasonable doubt that the verdict necessarily encompassed the death-resulted fact.
• On Rule 37 and post-trial mental-health litigation: The court enforced strict compliance with appellate timelines and record rules:
  • Denials of indicative-ruling motions require separate, timely appeals under Rule 4(b)(1); status-report orders and stays do not toll or substitute for notices.
  • Arguments not tied to plain-error review were deemed waived.
  • The 2021 BOP competency evaluation was not in the record on direct appeal and could not be considered.
  • Due process provides no general free-standing right to post-conviction discovery absent a showing not made here.

Impact

The decision has concrete implications for criminal litigation in the First Circuit and beyond:

• Judicial notice and cooperating witnesses: Trial courts may, with care, take judicial notice of prior plea-competency findings without usurping the jury’s credibility function—provided they:
  • limit the noticed fact to a specific time and purpose (e.g., competence to plead on a particular date);
  • deliver robust Rule 201(f) instructions; and
  • reiterate that credibility is the jury’s exclusive call.
  The dissent’s cautionary note suggests defense counsel should request explicit instructions delineating “competency” versus “credibility,” and consider tailored limiting language to reduce any perceived judicial endorsement of a witness’s trustworthiness.
• Appellate procedure discipline under Rule 37: Practitioners must file a separate, timely notice of appeal from an order denying an indicative ruling; failing to do so forfeits appellate review—even where the direct appeal is stayed and status updates are filed. This is a critical practice pointer.
• Section 1958 proofs: The decision reiterates that intrastate use of phones and vehicles in Puerto Rico suffices to meet the statute’s “facility of interstate commerce” element, continuing the broad reading of § 1958 after the 2004 amendment.
• Post-offense evidence use: Communications, payments, and cover-up conduct after the offense can be relevant to show consciousness of guilt, the conspiracy’s scope, and relationships among conspirators—often overcoming Rule 403 challenges when offered with limiting instructions.
• Preservation and waiver: The opinion is a roadmap for appellate preservation: raise legal theories below, link unpreserved claims to plain-error review, and develop arguments with authority. Failure will be treated as waiver.
• “Death resulted” aggravators: When a fact enhancing the penalty is uncontested and proven overwhelmingly, omission of an express jury finding can be harmless, but prosecutors should still submit such elements to the jury to avoid avoidable appellate issues.

Complex Concepts Simplified

• “Facility of interstate commerce” under § 1958: A “facility” includes phones and vehicles. After Congress’s 2004 amendment (“of interstate commerce”), the First Circuit treats even intrastate use—such as calls or driving within Puerto Rico—as sufficient.
• Constructive amendment vs. variance:
  • Constructive amendment: The charges effectively change at trial (e.g., instructions or proof permit conviction on a different offense than the grand jury charged). This violates the Fifth Amendment.
  • Variance: The proof differs in detail from the indictment (e.g., locations, overt acts), but not in the core charge. It warrants relief only if it prejudices the defendant’s rights (surprise, inability to plead double jeopardy).
• Judicial notice (Rule 201): Courts can “notice” facts not subject to dispute and found in reliable sources (like court records). In criminal cases, the jury must be told it may accept or reject the noticed fact; the judge cannot direct a verdict on that fact.
• Competency vs. credibility:
  • Competency: A legal threshold (for the court) about a person’s ability to understand proceedings and assist—e.g., competence to plead or stand trial.
  • Credibility: A factual judgment (for the jury) about how believable a witness is, based on demeanor, consistency, corroboration, bias, interest, etc.
• Rule 37 indictive rulings and Rule 12.1: While an appeal is pending, a party may ask the district court for an “indicative ruling” on a motion it lacks jurisdiction to grant. If the court denies the motion, a separate, timely notice of appeal is required to seek appellate review of that denial.
• Harmless error vs. plain error:
  • Harmless error: For preserved errors, the government must show the error did not affect the verdict (or, for some constitutional errors, that the error was harmless beyond a reasonable doubt).
  • Plain error: For unpreserved errors, the appellant must show an obvious error that affected substantial rights and seriously affected the fairness, integrity, or public reputation of proceedings.
• Brady and Giglio: The prosecution must disclose material exculpatory evidence (Brady) and impeachment evidence (Giglio). Even so, procedural compliance (timely motions, appeals) and record development are essential to secure relief.

Conclusion

United States v. Vázquez-Rijos is a comprehensive affirmance with several high-salience takeaways:

• It clarifies that judicial notice of a prior plea-competency finding is permissible if carefully limited and accompanied by strong instructions preserving the jury’s credibility role. The dissent warns, however, that such notice risks undue influence where a cooperator’s credibility is central.
• It underscores strict appellate practice for post-judgment motions: the denial of Rule 37 indicative-ruling motions must be appealed by a separate, timely notice—status-report orders and stays do not suspend Rule 4(b)(1)’s deadlines.
• It reaffirms that intrastate use of phones and vehicles can satisfy the § 1958 “facility of interstate commerce” element, and that post-offense conduct can be probative of conspiracy and consciousness of guilt.
• It demonstrates the enduring potency of cooperating-witness testimony, the formidable deference owed to juries on credibility, and the narrow path to severance in conspiracy trials.
• It provides a procedural and evidentiary blueprint for litigating mental-health-related issues post-trial, reminding practitioners that arguments must be preserved, developed, and supported by authority—and that appellate records cannot be expanded ad hoc on direct appeal.

For trial judges and practitioners alike, the decision is both a caution and a guide: use judicial notice sparingly and precisely; craft and request explicit instructions distinguishing competency from credibility; preserve issues meticulously; and observe the appellate rules to the letter. With those guardrails, the First Circuit’s approach in Vázquez-Rijos marks a meaningful clarification in the intersection of Rule 201 judicial notice, cooperating-witness practice, and post-judgment appellate procedure.