Competency Is Not Credibility: First Circuit Upholds Judicial Notice of Prior Plea Competency Without Vouching, and Reaffirms Strict Timeliness for Appeals from Rule 37 Indicative Rulings

Introduction

This consolidated appeal arises from the notorious 2005 murder of Canadian entrepreneur Adam Anhang in Old San Juan and the ensuing federal prosecution of his wife, Aurea Vázquez Rijos (“Aurea”), her sister, Marcia Vázquez Rijos (“Marcia”), and Marcia’s partner, José Ferrer Sosa (“José”). After a multi-defendant jury trial marked by a complex factual record and a decade of investigative twists, a jury convicted Aurea of murder for hire and conspiracy to commit murder for hire, and convicted Marcia and José of conspiracy to commit murder for hire, all under 18 U.S.C. § 1958.

On appeal, the defendants launched a wide-ranging attack: sufficiency of the evidence (especially as to Marcia and José), joinder and severance, evidentiary rulings (flight and emails), alleged judicial bias, a contested instance of judicial notice regarding the cooperating hitman’s mental competency in 2008, constructive amendment/variance, sentencing error for failure to obtain a specific “death resulted” jury finding, and a suite of post-trial issues centered on the cooperator’s mental health and the mechanics of Rule 37 “indicative rulings.” A partial dissent would have vacated Marcia’s and José’s convictions on the judicial-notice issue. The panel majority affirmed across the board.

Summary of the Opinion

The First Circuit affirmed all convictions and sentences. Key holdings include:

Sufficiency: The detailed testimony of the cooperating hitman, Alex Pabón Colón (“Pabón”), even if uncorroborated, was not “facially incredible” and could sustain the conspiracy verdicts for Marcia and José. The interstate-facility element under § 1958 is satisfied by intrastate use of phones and vehicles, consistent with the 2004 statutory amendment and circuit precedent.
Severance: The high bar for severance under Zafiro and Rule 14 was not met; limiting instructions cured any spillover prejudice.
Evidentiary rulings: Admission of flight evidence against Aurea was, at worst, harmless given the strength of other proof. Post-murder emails involving Marcia and José were admissible under Rules 401 and 403, and certain statements were properly admitted for context rather than their truth.
Judicial bias: The record demonstrated no manifest abuse of discretion or serious prejudice from the court’s case-management remarks, clarifying questions, or evidentiary rulings.
Judicial notice of competency: The court did not abuse its discretion in taking judicial notice that in 2008 it had found the cooperator competent to plead guilty; competency and credibility are distinct, the notice was cabined to 2008 plea competency, and jurors received emphatic instructions that credibility determinations were exclusively theirs. The dissent disagreed, viewing the notice as an improper bolster of credibility.
Constructive amendment/variance: No constructive amendment occurred; no prejudicial variance was shown.
“Death resulted” element: Any omission of a separate, express jury finding was harmless beyond a reasonable doubt because the indictments alleged that death resulted, the jury found defendants guilty “as charged,” defendants conceded death, and overwhelming evidence established the death.
Post-trial mental-health and Rule 37 procedure: Appeals from denials of Rule 37 indicative-ruling motions require separate, timely notices of appeal under Fed. R. App. P. 4(b). Stays and status-report orders did not toll time. Many related claims were waived, untimely, or failed on the merits; the 2021 competency evaluation was not part of the appellate record.

Analysis

Precedents Cited and Their Influence

Sufficiency and cooperating witnesses: The court relied on United States v. Maldonado-Peña (standard of review) and reaffirmed that “the uncorroborated testimony of a single cooperating witness may be sufficient to support a conviction” unless “facially incredible,” citing United States v. Velazquez-Fontanez.
Interstate facility under § 1958: United States v. Fisher recognized the 2004 amendment to § 1958 (“facility of interstate commerce”), adopting the prevailing view that intrastate use of a facility (e.g., telephone) suffices. That foreclosed José’s cross-border-usage argument.
Severance framework: Zafiro v. United States and United States v. Houlihan set the strong preference for joint trials, especially in conspiracy cases, and require “extreme prejudice” for severance, typically irremediable by instructions.
Evidentiary rulings: The court used United States v. Polanco and In re PHC for Rule 403 deference, United States v. Cruz-Díaz on non-hearsay contextual statements, and United States v. Sasso on post-crime conduct as consciousness of guilt.
Judicial bias: United States v. Raymundí-Hernández articulated the “appearance of bias” and “serious prejudice” standard; United States v. Caramadre and Liteky v. United States caution that impatience or stern case management is not bias.
Judicial notice: Fed. R. Evid. 201(b) and (f) (adjudicative facts not subject to reasonable dispute; in criminal cases, the jury may or may not accept the noticed fact), with United States v. Bello and Dávila-Nieves emphasizing the jury’s prerogatives and the limits of judicial notice.
Constructive amendment/variance: Recent First Circuit cases (United States v. Katana; United States v. Condron) framed the tests; United States v. Marrero-Ortiz confirms prosecutors need not list all evidence or limit trial proof to overt acts in the indictment.
“Death resulted” element and harmless error: United States v. Pizarro supplied the harmless-beyond-a-reasonable-doubt standard for omitted aggravators; Burrage v. United States and United States v. Rabb grounded the requirement that aggravating facts increasing punishment be charged and found by the jury.
Rule 37 indicative rulings; timeliness: The opinion drew on First Circuit practice (United States v. Rivera-Carrasquillo; United States v. Graciani; Maldonado-Rios; Cardoza) to require separate, timely notices of appeal under Rule 4(b), and to treat Rule 4(b) as a mandatory claims-processing rule when invoked by the government.

Legal Reasoning

1) Sufficiency of the Evidence (Marcia and José)

The court reviewed de novo, taking the evidence in the light most favorable to the verdict. It emphasized that juries may credit cooperating witnesses and that credibility conflicts are not reassessed on appeal. Pabón testified that Aurea, Marcia, and José hired him to kill Adam, with details including planning meetings at The Pink Skirt and El Hamburger, the agreed staging of a “robbery gone wrong,” and a $3 million fee from estate proceeds. The jury could infer culpable presence and participation; “mere presence” arguments failed where the “mere” was missing.

On the interstate-facility element, the court reaffirmed that intrastate use of phones or vehicles suffices under § 1958 as amended; José’s border-crossing and Puerto Rico-island theories were either wrong on the law or waived.

2) Severance

The joint trial was appropriate under Rule 8(b) given a single, integrated conspiracy and overlapping proof. Defendants did not show the “extreme prejudice” required for severance under Rule 14(a). Any risk of spillover was addressed through repeated limiting and compartmentalization instructions, which jurors are presumed to follow.

3) Evidentiary Rulings

Flight evidence (Aurea): Even if admission was erroneous, it was harmless given the broader record: motive (prenup and “better off dead” remark), planning, inconsistent post-crime statements, and non-cooperation with police.
Emails (Marcia and José):
- June and July 2007 emails were relevant to post-crime conduct, consciousness of guilt, and ties among conspirators, and were not unfairly prejudicial under Rule 403.
- March 2012 email including the brother’s statement was admitted only against Marcia for context; the hearsay was not for its truth, and the court gave a limiting instruction.

4) Alleged Judicial Bias

The panel, hewing to abuse-of-discretion review, found no serious prejudice from the district court’s case-management and clarifying interventions. The court’s “repeat performance” admonitions reflected proper control under Rule 611(a) to avoid repetitive questioning in a lengthy, contentious conspiracy trial. Stricken comments and curatives blunted potential harm. The court distinguished scenarios in which a judge directly undercuts a defense witness’s relevance before the jury.

5) Judicial Notice of the Cooperator’s 2008 Plea Competency

This is the opinion’s most consequential doctrinal clarification. After extensive cross-examination highlighting Pabón’s mental health and psychiatric medications, the court took judicial notice (Rule 201) that in 2008 it had found him competent to plead guilty. Two limiting features drove the affirmance:

Tight temporal and subject-matter bounds: The notice referred only to 2008 plea competency (“capable of entering an informed plea on this date”) and did not speak to 2018 trial credibility.
Instructional safeguards: The jury was repeatedly told that credibility was “entirely [its] judgment,” that it should treat the cooperator’s testimony with “particular caution,” and that judicially noticed facts in a criminal case are not conclusive.

The majority underscored the difference between competency (a threshold legal capacity determination for the court) and credibility (a jury function), and noted that both sides continued to argue credibility vigorously in closings. The court distinguished Raymundí-Hernández, where the district judge directly told the jury a defense witness’s testimony was “not relevant” — a far more intrusive interference with factfinding than a bounded Rule 201 notice about a different proceeding years earlier.

The dissent viewed the notice as impermissible bolstering that effectively put the court’s thumb on the scale in favor of the government’s key witness, concluding the error caused “serious prejudice” to Marcia and José and warranted new trials for them.

6) Constructive Amendment and Prejudicial Variance

The court rejected claims that the government’s arguments or the instructions altered the charging terms. The jury was repeatedly instructed that Aurea was tried only on the original indictment; jurors are presumed to follow such directions. As to Marcia, the second superseding indictment’s “manner and means” language and overt acts gave adequate notice of the planned meetings and coordination with Pabón, including El Hamburger; surprise — and thus prejudice — was not shown.

7) The “Death Resulted” Aggravator Under § 1958

Although the jury did not render a separate, express finding that death resulted, the omission was harmless beyond a reasonable doubt. The indictments alleged death resulted, the verdicts were “as charged,” the defense conceded at trial that Adam died by Pabón’s hand, and the evidence was uncontroverted and overwhelming.

8) Post-Trial Mental-Health Litigation and Rule 37 Indicative Rulings

The appellate court clarified important procedural points:

Separate, timely appeal required: When a district court denies Rule 37 indicative-ruling motions (seeking new trials, discovery, independent psychiatric exam, or hearings), defendants must file separate, timely notices of appeal from those denials under Fed. R. App. P. 4(b). Stays and status-report orders do not toll time, and civil Rule 4(a) does not apply in criminal cases.
Mandatory claims-processing rule: Upon the government’s invocation in its opening brief, Rule 4(b)’s deadlines are mandatory; late appeals are dismissed.
Preservation and record limits: Many competency, Brady/Giglio, and due-process discovery arguments were unpreserved or inadequately developed; some relied on materials (e.g., a 2021 competency evaluation) not in the record on direct appeal and therefore could not be considered.
Substantive standards: The court reiterated that competency and credibility are distinct; post-conviction discovery rights are limited and not parallel to trial rights; and newly discovered evidence claims must meet Rule 33’s demanding “interest of justice” standard.

Impact

The decision carries practical and doctrinal consequences beyond this case:

Judicial notice in criminal trials: Trial courts may take judicial notice of prior, on-the-record competency findings to contextualize a witness’s history when the defense places mental health squarely at issue — but only if the notice is precisely cabined (time and issue), paired with emphatic credibility instructions, and avoids any insinuation about the witness’s trial believability. This is a careful path between impermissible vouching and fair contextualization.
Competency vs. credibility demarcation: The opinion draws a sharp doctrinal line: competency (legal ability to plead/stand trial/testify) is for the court; credibility (truthfulness, accuracy) is for the jury. This distinction helps trial courts handle mental-health-based credibility attacks without usurping the jury’s role.
Rule 37 appellate practice: The First Circuit’s insistence on separate, timely appeals from denials of indicative-ruling motions and its refusal to treat stays/status-report orders as tolling mechanisms will guide post-conviction strategy and calendaring.
§ 1958 prosecutions: The reaffirmation that intrastate use of phones or vehicles qualifies as using a “facility of interstate commerce” retains the broad reach of federal murder-for-hire jurisdiction, including in insular territories.
Severance and “spillover” claims: The case underscores the difficulty of severing multi-defendant conspiracy trials and the potency of tailored limiting instructions to cure prejudice.
Omitted aggravators and harmless error: Where death is uncontroverted and integral to the case narrative, a missing express jury finding on “death resulted” can be harmless beyond a reasonable doubt — but prosecutors and trial courts should still obtain explicit jury findings to avoid unnecessary appellate issues.

Complex Concepts Simplified

Competency vs. credibility: Competency is a threshold legal capacity (e.g., can a defendant plead guilty, stand trial, take an oath and understand proceedings?). Credibility is whether the jury believes a witness’s testimony. Being competent says nothing about whether the jury should believe you.
Judicial notice (Rule 201): The court can tell the jury that a specific fact is indisputable (e.g., a prior order on the docket). In criminal cases, jurors may accept or reject the noticed fact; courts cannot direct a verdict on such facts.
Constructive amendment vs. variance: A constructive amendment changes the indictment’s terms, effectively trying a different offense — reversible error. A variance is a divergence between charged facts and proof; it requires prejudice (e.g., surprise or double-jeopardy risk) to warrant relief.
Facility of interstate commerce (§ 1958): Means of transportation or communication (cars, phones). After 2004, intrastate use suffices — the facility itself is “of” interstate commerce.
Severance (Rules 8(b) and 14): Joint trials are preferred for co-conspirators. A defendant must show “extreme prejudice” that cannot be cured by instructions to obtain severance.
Rule 403: Courts may exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice (e.g., inflaming jurors beyond probative merit). The balance is highly deferential to the trial judge.
Brady/Giglio: The government must disclose material exculpatory (Brady) and impeachment (Giglio) evidence. Claims must be preserved and supported with developed argument and a proper record.
Rule 37 “indicative rulings” and Rule 4(b): When an appeal is pending, the district court can say whether it would grant a post-trial motion if the case were remanded. If the court denies the motion, a separate, timely criminal notice of appeal (14 days) is required to obtain appellate review of that denial.
Standards of review:
- De novo: No deference (e.g., sufficiency standard applied to legal sufficiency framework).
- Abuse of discretion: High deference to trial court’s judgment (e.g., Rule 403, severance, bias management, judicial notice).
- Plain error: Unpreserved errors require showing a clear error affecting substantial rights and the fairness, integrity, or public reputation of judicial proceedings.
- Harmless beyond a reasonable doubt: For some constitutional or aggravator omissions, the government must show the verdict would be the same absent the error.

Conclusion

United States v. Vázquez-Rijos is a comprehensive affirmance that nonetheless breaks meaningful doctrinal ground. Most notably, it delineates how trial courts may use judicial notice to acknowledge a witness’s past plea competency without crossing into impermissible vouching for trial credibility — provided the notice is tightly framed and accompanied by robust instructions preserving the jury’s exclusive credibility function. The decision also offers a practical, hard-edged reminder that criminal defendants must file separate, timely appeals from denials of Rule 37 “indicative ruling” motions; appellate stays and status reporting do not toll the clock.

On the merits, the opinion restates durable principles: cooperating-witness testimony (if not facially incredible) can sustain conspiracy convictions; intrastate use of phones and vehicles satisfies § 1958; severance is exceptional; Rule 403 balances are deferential; and omitted “death resulted” findings can be harmless where death is conceded and proven. The partial dissent’s focus on prejudice from the judicial notice illuminates the close line trial judges must walk when managing credibility disputes intertwined with mental-health evidence. Going forward, the majority’s approach gives trial courts a structured template for addressing such issues and provides counsel with clear preservation and appellate practice guideposts.