Competency vs. Credibility: First Circuit okays judicial notice of a witness’s prior plea-competency finding and clarifies appeals from Rule 37 indicative rulings — United States v. Vázquez‑Rijos

Introduction

United States v. Vázquez‑Rijos arises from the widely publicized 2005 murder of Canadian entrepreneur Adam Anhang in Old San Juan. Federal prosecutors charged his spouse, Aurea Vázquez Rijos, her sister Marcia Vázquez Rijos, and Marcia’s boyfriend José Ferrer Sosa with a murder‑for‑hire conspiracy under 18 U.S.C. § 1958. After a complex, multi‑year investigation — including Aurea’s flight to Europe and extradition from Spain — a 2018 federal jury in Puerto Rico convicted Aurea of murder‑for‑hire and all three of conspiracy; each received a life sentence.

On appeal, the trio launched a sweeping attack on their convictions and sentences. The issues spanned:

• evidentiary sufficiency (particularly the weight given to cooperating witness Alex “El Loco” Pabón, the admitted killer),
• severance and spillover prejudice,
• admission of “flight” evidence and incriminating emails,
• alleged judicial bias and trial management missteps,
• a novel challenge to the trial court’s judicial notice that in 2008 it had found Pabón competent to plead guilty,
• claims of constructive amendment/prejudicial variance,
• sentencing error concerning the “death resulted” aggravator under § 1958, and
• post‑trial litigation over Pabón’s mental health (including Rule 37 “indicative rulings,” discovery, and requests for an independent psychiatric exam).

Judge Thompson, writing for the panel (Chief Judge Barron; Judge Lipez concurring in part and dissenting in part), affirmed across the board. Two aspects of the opinion are particularly consequential:

• The court approved a trial judge’s use of judicial notice to inform jurors that the court had found the cooperating witness competent to plead guilty a decade earlier, emphasizing the legal distinction between “competency” (for the judge) and “credibility” (for the jury) and the limiting instructions given. Judge Lipez dissented on this point and would have vacated Marcia’s and José’s convictions.
• The court clarified appellate practice for criminal Rule 37 “indicative rulings”: a party must file a separate, timely notice of appeal under FRAP 4(b)(1) to obtain review of a district court’s denial of such motions; FRAP 12.1’s notice/remand framework does not eliminate that requirement.

Summary of the Opinion

The First Circuit affirmed the convictions and life sentences of all three defendants. Key holdings include:

• Sufficiency: The jury could credit Pabón’s detailed testimony tying Marcia and José to the plot; uncorroborated cooperating-witness testimony can sustain a conviction if not “facially incredible.” Intrastate use of phones/cars satisfies § 1958’s “facility of interstate commerce” element.
• Severance: No “extreme prejudice.” Strong preference for joint trials — especially in conspiracies — plus curative instructions sufficed.
• Evidentiary rulings: Any error admitting “flight” evidence was harmless given overwhelming proof; emails were relevant and not unfairly prejudicial; certain statements were admitted for context, not for their truth.
• Judicial bias: The trial judge’s active management, occasional sharp remarks, and limited interjections did not compromise defendants’ rights; curative instructions neutralized any risk.
• Judicial notice of witness competency: No abuse of discretion in notifying jurors that the court had found Pabón competent to plead guilty in 2008, paired with explicit instructions that credibility in 2018 was the jury’s province. The court distinguished “competency” from “credibility.”
• Constructive amendment/variance: Rejected. The indictments adequately noticed the conspiracy’s “manner and means” and did not obligate the government to list every overt act or location.
• “Death resulted” element: Although the jury was not separately tasked to find “death resulted,” the omission was harmless beyond a reasonable doubt because the element was charged, uncontested, and supported by overwhelming evidence; the jury returned “guilty as charged.”
• Post‑trial mental health and appellate procedure: Appeals from denials of Rule 37 indicative‑ruling motions require separate, timely notices of appeal; defendants’ various due‑process and discovery demands around Pabón’s later evaluations failed for lack of preservation, record basis, timeliness, or legal entitlement.

Dissent: Judge Lipez would vacate Marcia’s and José’s convictions, concluding the judicial notice effectively put the court’s thumb on the scale for the government by bolstering the credibility of its pivotal witness on the very issue the defense contested: whether his long‑standing mental illness undermined his reliability.

Analysis

Precedents Cited and How They Shaped the Decision

• Sufficiency and cooperating witness testimony: The panel relied on familiar standards (e.g., United States v. Maldonado‑Peña) to view the evidence in the light most favorable to the verdict, and on United States v. Velázquez‑Fontánez, holding that a single cooperating witness can sustain a conviction if his testimony is not “facially incredible.” Challenges to Pabón’s credibility were for the jury (United States v. Acosta‑Colón).
• § 1958’s commerce element: United States v. Fisher (1st Cir. 2007) explained Congress’s 2004 amendment from “in interstate commerce” to “of interstate commerce,” codifying that intrastate use of facilities (phones, cars) suffices. José’s contrary arguments failed (one on the merits; one as unpreserved).
• Severance: Zafiro v. United States set the strong preference for joint trials; United States v. Houlihan and United States v. Floyd emphasize that conspiracies are particularly suited to joint trials; limiting instructions are presumed effective (United States v. Chisholm).
• Evidentiary rulings: On “flight,” the court invoked United States v. Benedetti’s caution but found any error harmless (United States v. Galíndez). On emails, it stressed the low bar for relevance (Fed. R. Evid. 401; United States v. Cruz‑Ramos) and deference in 403 balancing (United States v. Polanco; In re PHC). Statements admitted for “context” rather than truth were permissible non‑hearsay (United States v. Cruz‑Díaz).
• Judicial bias and trial management: The panel cited United States v. Caramadre, United States v. Lanza‑Vázquez, and Liteky v. United States to reiterate that impatience or firm control does not equal bias; curative instructions and striking testimony can cure potential prejudice (United States v. Rivera‑Carrasquillo; Greer v. Miller).
• Judicial notice under Evidence Rule 201: Building on United States v. Bello and United States v. Dávila‑Nieves, the panel held that judicial notice of an adjudicative fact “not subject to reasonable dispute” is permissible, with the required instruction that jurors may accept or reject it. The court emphasized the competency/credibility divide (United States v. Devin; United States v. Alicea) and that docket facts are proper subjects of judicial notice (United States v. Bauzó‑Santiago).
• Constructive amendment/variance: The court drew on United States v. Katana and United States v. Condron to define the doctrines and on United States v. Marrero‑Ortiz to clarify that indictments need not catalogue every piece of evidence or overt act; no surprise or double‑jeopardy risk was shown (United States v. Rivera‑Donate).
• “Death resulted” element and harmless error: The court applied United States v. Pizarro’s “harmless beyond a reasonable doubt” framework when a sentencing‑exposure element is not specifically submitted, noting the element was charged, the jury found “as charged,” and the fact was uncontested and proved (see also United States v. Rabb; Burrage v. United States; United States v. Razo).
• Rule 37 indicative rulings and FRAP 12.1: The panel underscored that a separate notice of appeal is required to obtain review of a district court’s denial of an indicative‑ruling motion (United States v. Rivera‑Carrasquillo; United States v. Graciani), that the criminal timeliness rule (FRAP 4(b)(1)) applies and is mandatory if invoked (United States v. Reyes‑Santiago; Eberhart v. United States), and that FRAP 12.1’s notice/remand mechanics do not obviate the need to appeal denials.
• Post‑conviction discovery and due process limits: Relying on District Attorney’s Office v. Osborne and Tevlin v. Spencer, the court rejected expansive post‑trial discovery or compelled psychiatric exams of a witness absent a developed legal basis — defendants have only limited post‑conviction due process rights.

Legal Reasoning

The panel’s reasoning proceeds in disciplined segments.

• Sufficiency: The court methodically catalogued Pabón’s account — planning meetings at The Pink Skirt and El Hamburger, the agreed‑upon robbery‑gone‑wrong staging, José’s role in increasing the payment, and his cueing Pabón at the scene. It refused to reweigh credibility and noted that cross‑examination explored inconsistencies the jury was free to resolve against defendants.
• § 1958’s commerce nexus: The panel reiterated that phones and vehicles are “facilities of interstate commerce,” and post‑2004, intrastate use in Puerto Rico suffices. The argument that Puerto Rico’s insularity negates the facility’s interstate character was unpreserved and waived.
• Severance: Given overlapping evidence and relationships, joint trial was efficient and appropriate. The claimed “spillover” (Aurea’s flight; her civil suit; her search for a hitman) did not amount to the “serious risk” required by Zafiro; tailored limiting instructions and an individualized‑verdict charge addressed any risk.
• Evidentiary rulings:
  • Flight: Even assuming arguendo error, the non‑flight evidence against Aurea was strong (prenup motive, pre‑murder threats, hitman inquiries, inconsistent statements).
  • Emails: Post‑crime communications were relevant to ongoing concealment, payment disputes, and the conspirators’ relations; their probative value outweighed any unfair prejudice. A brother’s “planned everything” remark came in only to contextualize Marcia’s reaction, not for its truth.
• Judicial bias: The judge’s interjections clarified testimony (e.g., the prenup’s effect) or curbed repetition; stray remarks were cured by clear instructions that credibility and fact‑finding belonged to the jury. Stricken comments and a struck Q&A eliminated potential prejudice.
• Judicial notice of prior plea competency (the centerpiece): The court grounded its approval in Evidence Rule 201(b) and (f). It emphasized:
  • The noticed fact was precise and time‑bound: in 2008, the court found Pabón competent to enter an informed plea.
  • “Competency” (a judicial threshold for participation in proceedings) is distinct from “credibility” (the jury’s domain).
  • The judge repeatedly instructed that jurors could accept or reject the noticed fact and must judge witness credibility themselves; counsel on both sides argued credibility vigorously, underscoring that it remained a live issue.
  • The court distinguished cases where a judge plainly intruded on credibility (e.g., the court telling jurors a defense witness’s testimony was “not relevant” in Raymundí‑Hernández), and noted that here the notice did not direct or suggest how to resolve credibility in 2018.
  Judge Lipez dissented, reasoning that, in context, the notice was tantamount to judicial bolstering of credibility on the very issue the defense framed (long‑standing mental illness and reliability), and that generic credibility instructions could not unring that bell where the government’s case “predominantly” rode on a cooperating witness.
• Constructive amendment/variance: The court rejected claims that evidence about the El Hamburger meeting “changed” the indictment; the superseding indictment alleged approach/meetings with Pabón as “manner and means” and provided adequate notice.
• “Death resulted” element: Although the verdict form did not solicit a discrete “death resulted” finding, the indictments charged that aggravator, the jury found guilt “as charged,” death was conceded, and the evidence was overwhelming. Applying Pizarro, the court found the omission harmless beyond a reasonable doubt.
• Post‑trial mental health and appellate procedure: The court addressed the layered procedural posture. It held:
  • To appeal a Rule 37 indicative‑ruling denial, defendants had to file a separate notice of appeal under FRAP 4(b)(1); staying the direct appeal and filing status reports did not toll or replace that obligation; 12.1’s mechanism applies when the district court says it would grant or that the motion raises a “substantial issue,” which did not occur here.
  • Unpreserved competency‑to‑testify challenges and Brady/Giglio claims raised late in the appellate trajectory were waived or at most subject to plain‑error review, which defendants neither argued nor met.
  • Requests for an independent psychiatric examination of the government’s witness or post‑trial discovery lacked developed legal support; Osborne’s framework constrains post‑conviction discovery.
  • Later BOP evaluations (2020/2021) were outside the appellate record on the direct criminal appeals; the court declined to consider them.

Impact

The opinion has several practical effects across criminal practice and evidence:

• Judicial notice at trial — competency vs. credibility: The First Circuit’s approval of limited judicial notice that a court previously found a cooperating witness competent to plead guilty will likely be invoked by trial judges and prosecutors seeking to counter defense credibility attacks premised on mental‑health history. The majority’s careful insistence on time‑boundedness, the competency/credibility distinction, and explicit jury instructions is key. The dissent flags the risk that jurors may nevertheless perceive such a notice as judicial vouching. Expect defense counsel to:
  • object and request a tailored instruction explaining the difference between competency (legal capacity at a prior proceeding) and credibility (truthfulness/reliability now),
  • seek a balancing under Rule 403 where the witness’s mental health at the time of the charged conduct or trial is genuinely in dispute, and
  • preserve the issue clearly for appeal.
• § 1958 prosecution in intrastate contexts: The reaffirmation that intrastate use of phones or vehicles satisfies “facility of interstate commerce” under § 1958, including in Puerto Rico, streamlines the government’s burden and forecloses “purely intrastate” defenses.
• Severance: The decision underscores the high bar for severance in conspiracy cases; robust limiting instructions remain the principal remedy for potential prejudicial spillover.
• “Death resulted” element handling: Prosecutors should still draft jury instructions and verdict forms to capture statutory aggravators; however, where the aggravator is charged, conceded, and proved, an omission may be deemed harmless beyond a reasonable doubt on appeal.
• Appellate procedure — Rule 37/FRAP 12.1: The court’s procedural guidance is a cautionary tale: when a district court denies an indicative‑ruling motion, a separate, timely notice of appeal is required. Status reports, appellate stays, or generalized references to ongoing proceedings do not preserve review absent a timely notice. The government may raise timeliness in its opening brief, and courts will enforce it if invoked.
• Post‑conviction discovery/independent expert access: The court’s reliance on Osborne and its emphasis on undeveloped argumentation will likely curb broad post‑trial discovery demands targeting a government witness’s mental‑health records absent a concrete legal entitlement or a preserved Brady/Giglio violation.

Complex Concepts Simplified

• Conspiracy vs. mere presence: Simply being present with conspirators or knowing them is not enough; the government must prove knowing, intentional participation. But a factfinder may infer participation from presence at critical planning stages and corroborative conduct.
• “Facility of interstate commerce” under § 1958: The statute reaches the use of means of transportation and communication (e.g., phones, cars). Since 2004, proof of intrastate usage is enough — the facility need not cross a border.
• Judicial notice of “adjudicative facts” (Evidence Rule 201): Courts may tell jurors certain facts are true when they are not reasonably disputable (e.g., what a court found in a prior proceeding). In criminal cases, jurors must be told they may accept or reject the noticed fact; they alone decide witness credibility.
• Competency vs. credibility: Competency is a threshold legal capacity (e.g., to plead guilty or stand trial), decided by the judge. Credibility is whether testimony is believable — exclusively the jury’s job.
• Constructive amendment vs. variance:
  • Constructive amendment: The trial or instructions effectively change the charge to a different crime than the grand jury returned (forbidden).
  • Variance: The proof differs from the indictment’s particulars without altering the offense; it warrants relief only if it prejudices substantial rights (e.g., fair notice).
• Rule 37 “indicative rulings” and FRAP 12.1: When a direct appeal is pending, the district court may indicate whether it would grant a motion (e.g., new trial) if the case were remanded. If the court denies the motion, the movant must file a new, timely criminal notice of appeal to obtain appellate review of that denial.
• “Death resulted” harmless error: When an aggravating element changes the statutory maximum/minimum, the better practice is to get a jury finding. But if the element is charged, uncontested, and the evidence is overwhelming, an appellate court may affirm without a separate verdict entry.

Conclusion

United States v. Vázquez‑Rijos is a comprehensive affirmance in a hard‑fought murder‑for‑hire case, but it carries two doctrinally significant markers.

• First, the court’s competency/credibility demarcation provides a blueprint for limited use of judicial notice to reference a cooperating witness’s prior plea‑competency finding without impermissibly vouching — provided the notice is time‑specific, carefully phrased, and accompanied by emphatic jury instructions preserving the jury’s exclusive role over credibility. The vigorous dissent, however, underscores the risk that jurors may perceive such notice as judicial endorsement, especially where the witness’s reliability is the case’s linchpin.
• Second, the opinion delivers a practical and consequential procedural reminder: criminal defendants seeking appellate review of denials of Rule 37 indicative‑ruling motions must file separate, timely notices of appeal under FRAP 4(b)(1); appellate stays and status‑report regimes do not substitute for compliance, and failure to do so will forfeit review if the government invokes timeliness.

The court also reinforces settled law on § 1958’s commerce nexus, severance standards, the admissibility of post‑crime communications and context statements, the limits of judicial bias claims based on trial management, and the availability of harmless‑error review where an aggravating element is charged and uncontested. For practitioners, the opinion is a rich guide to preserving issues, calibrating trial objections and requests for limiting instructions, and navigating post‑trial mental‑health disputes and appellate procedures in complex conspiracy prosecutions.