Judicial Notice of a Prior Competency Finding Is Permissible Without Vouching; Strict Timeliness for Rule 37 Appeals Confirmed — United States v. Ferrer‑Sosa (1st Cir.)

Introduction

This commentary examines the First Circuit’s decision affirming the convictions and life sentences of Aurea Vázquez Rijos (“Aurea”), her sister Marcia Vázquez Rijos (“Marcia”), and José Ferrer Sosa (“Ferrer”) for a murder-for-hire scheme that resulted in the 2005 killing of Canadian entrepreneur Adam Anhang Uster in Old San Juan, Puerto Rico. The prosecution’s case centered on the cooperating testimony of Alex “El Loco” Pabón Colón (“Pabón”), who admitted to killing Anhang and testified that he was hired by Aurea, Marcia, and Ferrer.

The opinion addresses a wide array of issues: sufficiency of the evidence; the interstate-commerce element under 18 U.S.C. § 1958; severance; evidentiary rulings (including flight and email evidence); judicial-bias claims; a contested judicial notice regarding Pabón’s prior competency to plead guilty; constructive amendment and variance; Apprendi/Alleyne issues about the “death resulted” element; and a complex post-trial litigation arc involving Rule 37 indicative motions, Brady/Giglio assertions, and multiple Bureau of Prisons (BOP) psychological evaluations of the cooperator.

Two holdings stand out as precedentially significant:

• First, the court approved a carefully limited use of judicial notice under Federal Rule of Evidence 201 that the cooperator had been found competent to plead guilty in 2008, holding this did not impermissibly vouch for his credibility at the 2018 trial where he testified. The majority emphasized the distinction between competency (a legal threshold for participation in proceedings) and credibility (a factual issue for the jury), and relied on curative instructions preserving the jury’s role.
• Second, the court clarified procedural rigor in appealing denials of Criminal Rule 37 indicative motions: defendants must file a separate, timely notice of appeal. Neither consolidation with a direct appeal nor appellate stays tolled the time; and Appellate Rule 4(b)(1)’s time limit, though a claims-processing rule, is mandatory when the government invokes it.

Summary of the Opinion

The panel (Chief Judge Barron, Judge Lipez, Judge Thompson writing) affirmed all convictions and sentences. On sufficiency, the court held Pabón’s testimony—naming all three as hirers and detailing planning and execution—was not “facially incredible,” and under deferential standards was adequate to support the conspiracy convictions of Marcia and Ferrer. The court also rejected the argument that § 1958 requires cross-border use of facilities, reaffirming that intrastate use of phones or vehicles suffices after the 2004 statutory amendment, and dismissed a belated claim that Puerto Rico vehicles are not “facilities of interstate commerce.”

The court refused severance, citing the strong federal preference for joint trials—especially in conspiracy cases—plus curative instructions to mitigate spillover. It found any error in admitting flight evidence against Aurea harmless given robust independent proof. It upheld admission of post-offense emails (for relevance and under Rule 403) and allowed certain third-party statements to provide context for a defendant’s non-hearsay reactions. Judicial-bias claims failed under the “serious prejudice” standard, with curative instructions and case-management discretion controlling.

On the central judicial-notice issue, the court held that taking judicial notice that in 2008 the judge had found Pabón competent to plead was an appropriate Rule 201 adjudicative fact drawn from court records, limited to that specific historical determination. With repeated instructions that the jury alone decides credibility and may accept or reject judicially noticed facts, the notice did not invade the jury’s credibility function or constitute vouching. Judge Lipez dissented in part, concluding the notice improperly bolstered the cooperator and caused “serious prejudice” as to Marcia and Ferrer, although not as to Aurea given her independent evidence.

The panel rejected constructive-amendment and variance arguments and found the omission of a special “death resulted” finding harmless beyond a reasonable doubt, because the death was charged and undisputed and the verdicts were “as charged.” On the post-trial mental-health litigation: the court emphasized strict timeliness and preservation rules for Rule 37 indicative motions and treated many claims as unpreserved, waived, or outside the record on direct appeal; it also found due process/post-conviction discovery arguments inadequately developed.

Analysis

Precedents Cited and Their Role

• 18 U.S.C. § 1958 (murder-for-hire and interstate commerce). The court relied on United States v. Fisher, 494 F.3d 5 (1st Cir. 2007), to reaffirm that the 2004 amendment from “facility in interstate commerce” to “facility of interstate commerce” codified the prevailing view: intrastate use of qualifying facilities (e.g., phones, vehicles) satisfies the element. This foreclosed arguments requiring border crossing or excluding Puerto Rican vehicles.
• Cooperating witness sufficiency. The panel drew on United States v. Velazquez-Fontanez, 6 F.4th 205 (1st Cir. 2021), to reiterate that a conviction may rest on the uncorroborated testimony of a single cooperating witness if not “facially incredible,” combined with deference to jury credibility determinations.
• Severance. The court invoked Zafiro v. United States, 506 U.S. 534 (1993); United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996); and United States v. Floyd, 740 F.3d 22 (1st Cir. 2014), emphasizing the strong preference for joint trials in conspiracy cases and the high bar—“extreme prejudice”—for reversal, with curative instructions ordinarily sufficient.
• Flight evidence. The court applied United States v. Benedetti, 433 F.3d 111 (1st Cir. 2005), recognizing the need for extrinsic evidence linking flight to consciousness of guilt, but ultimately resolved the issue on harmless-error grounds due to overwhelming independent proof.
• Context statements and hearsay. The court relied on United States v. Cruz-Díaz, 550 F.3d 169 (1st Cir. 2008), to admit out-of-court statements not for their truth but to contextualize a defendant’s response.
• Judicial bias and case management. The panel cited United States v. Caramadre, 807 F.3d 359 (1st Cir. 2015), Liteky v. United States, 510 U.S. 540 (1994), and United States v. Lanza-Vázquez, 799 F.3d 134 (1st Cir. 2015), to show that impatience, trial-management interventions, and limiting repetitive questioning fall within judicial discretion absent serious prejudice.
• Judicial notice under Rule 201. The court referenced Rule 201(b) and (f), and cases allowing notice of docket facts (e.g., United States v. Bauzó-Santiago, 867 F.3d 13 (1st Cir. 2017)), to conclude that the prior competency finding was an adjudicative fact “not subject to reasonable dispute.” The court distinguished credibility determinations as exclusively for the jury (United States v. Alicea, 205 F.3d 480 (1st Cir. 2000)) and competency as for the court (United States v. Devin, 918 F.2d 280 (1st Cir. 1990)).
• Constructive amendment/variance. The court applied United States v. Katana, 93 F.4th 521 (1st Cir. 2024) and United States v. Condron, 98 F.4th 1 (1st Cir. 2024), rejecting claims where trial proof stayed within indictment’s manner-and-means and overt acts did not surprise or prejudice the defense.
• Apprendi/Alleyne “death resulted.” Using United States v. Pizarro, 772 F.3d 284 (1st Cir. 2014) and United States v. Razo, 782 F.3d 31 (1st Cir. 2015), the court found the omission harmless beyond a reasonable doubt where the death was charged, uncontested, and overwhelmingly supported.
• Rule 37 / FRAP 12.1 appeals. The panel emphasized that denials of Rule 37 indicative motions require a separate timely notice of appeal, relying on United States v. Rivera‑Carrasquillo, 933 F.3d 33 (1st Cir. 2019), United States v. Graciani, 61 F.3d 70 (1st Cir. 1995), and United States v. Fuentes‑Lozano, 580 F.2d 724 (5th Cir. 1978). It enforced Appellate Rule 4(b)(1)’s time limit as a mandatory claims‑processing rule when invoked by the government (United States v. Reyes‑Santiago, 804 F.3d 453 (1st Cir. 2015)).

Legal Reasoning

The court’s reasoning can be grouped into doctrinal clusters:

• Sufficiency and the role of the jury. The panel reiterated that credibility is for the jury; appellate courts do not reweigh credibility. A single cooperating witness’s testimony suffices unless “facially incredible.” Here, Pabón’s detailed account (planning meetings, payment negotiations, on‑scene coordination) supported the verdicts against Marcia and Ferrer.
• Interstate commerce element under § 1958. After the 2004 amendment, intrastate usage of phones or vehicles qualifies. The government need not prove interstate crossings, and Puerto Rico’s insular geography does not defeat “facility of interstate commerce.”
• Severance and spillover. Joint trials, especially in conspiracies, are preferred. Evidence against a co‑defendant that strengthens the narrative is not the kind of “extreme prejudice” that mandates severance; tailored instructions to consider each defendant and count separately sufficed.
• Evidentiary rulings.
  • Flight evidence: Even if admission pushed close to the line, the court found any error harmless given strong independent proof (prenup motive, statements seeking a hitman, inconsistent descriptions, noncooperation).
  • Post‑offense emails: The low threshold of relevance was met (post‑crime efforts to get estate funds, references to enemies “you owe,” and “we are all in the same boat” permitted inferences about participation and consciousness of guilt). Rule 403 balance favored admission; “unfair” prejudice did not substantially outweigh probative value.
  • Context statements: Third‑party assertions were admitted only to contextualize Marcia’s reaction, not for their truth, with limiting instructions—consistent with First Circuit precedent.
• Judicial bias. Applying the “appearance plus serious prejudice” standard, the court found no reversible bias in the judge’s clarifying questions, repetitive‑question limits (“repeat performance” management), or occasional comments. Curative instructions and struck statements mitigated any risk.
• Judicial notice of prior competency finding. The court held it was within Rule 201 to judicially notice that the judge found the cooperator competent to plead in 2008—a narrow, historical, indisputable docket fact—paired with instructions that (i) competency is distinct from credibility; (ii) jurors alone decide credibility; and (iii) they may accept or reject noticed facts. The court emphasized that both sides still argued credibility vigorously, underscoring that the jury’s role remained intact.
• Constructive amendment / variance. No constructive amendment occurred; instructions repeatedly anchored Aurea’s trial to the original indictment as promised to Spain. For Marcia, proof of a meeting at “El Hamburger” fit within the indictment’s “manner and means” and overt‑act allegations and plea‑agreement facts, negating surprise or prejudice.
• “Death resulted” element. Although the verdict form did not include a special finding, the indictments charged death resulted, the judge read those charges, the verdicts were “as charged,” and the defense repeatedly conceded death. The omission was harmless beyond a reasonable doubt.
• Post‑trial mental‑health litigation and Rule 37. The court treated the denials of indicative motions as separately appealable orders requiring timely notices. Consolidation and stays did not obviate or toll deadlines, and arguments raised for the first time on direct appeal faced waiver or plain‑error barriers. The 2021 BOP evaluation was not in the appellate record and could not support relief. Due‑process discovery and independent‑exam requests were undeveloped and failed.

Impact

The opinion is consequential in two primary ways.

• Evidence law: Judicial notice and witness mental health. Trial courts in the First Circuit now have on‑point guidance that they may take judicial notice of a cooperator’s prior competency finding (e.g., at a plea hearing) to contextualize mental‑health impeachment, provided:
  • The noticed fact is a narrow, indisputable adjudicative fact (e.g., a docket finding),
  • The notice is expressly limited to the historical determination (competent then for the plea),
  • Rule 201(f) instructions inform the jury it may accept or reject the noticed fact, and
  • Credibility remains clearly framed as the jury’s domain in the final charge.
  The partial dissent warns that such notices risk “vouching” when credibility is central. As a result, trial judges should tread carefully and make the distinction between competency and credibility explicit, and prosecutors should avoid inviting the court to fill gaps that redirect could address.
• Appellate procedure: Rule 37 and timeliness. The court’s insistence on a separate, timely notice of appeal to challenge denials of Rule 37 indicative motions will shape post‑verdict strategies. Parties cannot rely on consolidation of direct appeals, periodic status reports, or appellate stays to preserve later challenges to indicative‑motion rulings. When the government invokes Appellate Rule 4(b)(1), its time limits will be enforced. Evidence developed after trial (e.g., later BOP evaluations) will not be considered on direct appeal unless properly made part of the record.

The Dissent and the Majority’s Response

Judge Lipez agreed with most of the opinion but would reverse as to Marcia and Ferrer. He viewed the judicial notice of the 2008 competency finding as an improper judicial intervention that effectively bolstered the government’s key witness on the central disputed issue—credibility—creating “serious prejudice” under Raymundí‑Hernández. In his view, “balancing the equities” ceded the government’s rehabilitation role to the court, and curative instructions could not undo the harm.

The majority distinguished Raymundí‑Hernández, emphasizing that the court there directly undercut defense testimony in front of the jury (“not relevant”), while here the court noticed a discrete, historical fact and repeatedly instructed that credibility remained solely for the jury. The majority also stressed that both parties continued to argue credibility vigorously, and the notice was limited to 2008 plea competency, not 2018 trial reliability.

Complex Concepts Simplified

• Competency vs. Credibility.
  • Competency is a legal threshold (for pleading, standing trial, or testifying) determined by the judge.
  • Credibility is the factual question of whether a witness is believable—always for the jury.
  • A person can be legally competent yet entirely non‑credible, and vice‑versa.
• Judicial Notice (Rule 201).
  • Allows a court to accept as true an adjudicative fact that is not reasonably disputable (e.g., a prior court finding shown on the docket).
  • In criminal cases, the jury must be instructed it may accept or reject the noticed fact.
• Facility “of” Interstate Commerce under § 1958.
  • The 2004 amendment codified that intrastate use of phones or vehicles is enough; no crossing of state or federal borders is required.
• Constructive Amendment vs. Variance.
  • Constructive amendment: The charge is effectively changed at trial—reversible per se.
  • Variance: Proof differs in details but not in substance; reversal only if substantial rights (notice, double jeopardy) are harmed.
• Rule 37 Indicative Motions and FRAP 12.1.
  • When a case is on appeal, the district court may indicate it would grant (or that a motion raises a substantial issue).
  • If the court denies the motion (or declines to indicate), a separate, timely notice of appeal from that denial is required to preserve review.
• “Death resulted” (Apprendi/Alleyne).
  • Any fact raising the statutory maximum/minimum must be charged and found by a jury beyond a reasonable doubt.
  • Omission can be harmless if the element is uncontested and overwhelmingly proved, and the verdict is necessarily the same.
• Context Statements vs. Hearsay.
  • Out‑of‑court statements offered only to explain a listener’s responsive conduct, not for their truth, are not hearsay.
• Rule 403.
  • Relevant evidence may be excluded only if its unfair prejudice substantially outweighs probative value—a demanding standard favoring admission.

Practice Pointers

• For prosecutors:
  • When facing mental‑health impeachment of a cooperator, consider redirect testimony and corroboration before inviting judicial notice. If seeking notice, narrowly tailor it to an indisputable, historical adjudicative fact and request Rule 201(f) and credibility instructions.
  • Do not rely on border‑crossing proof for § 1958; intrastate phone or vehicle use suffices.
• For defense:
  • Preserve objections with the correct legal theory (e.g., 403, hearsay, constructive amendment) and propose clarifying jury instructions distinguishing competency and credibility.
  • On Rule 37 issues, file a separate, timely notice of appeal from any denial; do not rely on consolidation or stays to preserve those issues. Ensure post‑trial materials (e.g., later BOP evaluations) are properly in the record if you plan to rely on them.
  • Recognize that uncorroborated cooperator testimony can support conviction; impeachment must aim to make it “facially incredible” or sow reasonable doubt via concrete inconsistencies or lack of corroboration.
• For trial judges:
  • When taking judicial notice near credibility disputes, keep the notice narrow and historical, and pair it with repeated instructions that credibility is exclusively for the jury and that noticed facts may be disregarded.
  • Use curative instructions promptly after any problematic comment or testimony; strike as needed.
  • Manage repetitive questioning under Rule 611(a), but avoid commentary that risks signaling views on credibility.

Conclusion

United States v. Ferrer‑Sosa affirms three murder‑for‑hire convictions and, in doing so, clarifies two important points of federal practice in the First Circuit. Substantively, it reinforces familiar conspiracy and sufficiency principles (including the adequacy of a single cooperator’s testimony), confirms that intrastate use of phones or vehicles satisfies § 1958’s interstate‑commerce element post‑2004, and reaffirms a strong preference for joint trials tempered by careful limiting instructions.

Procedurally and evidentially, the court breaks meaningful ground by approving a carefully cabined use of judicial notice to inform jurors of a prior competency finding without invading their exclusive role on credibility—so long as Rule 201(f) safeguards and robust credibility instructions are given. At the same time, the court sends a clear message on appellate rigor: denials of Rule 37 indicative motions require their own timely notices of appeal; consolidation, stays, and status reporting do not substitute for compliance with Appellate Rule 4(b)(1).

The partial dissent underscores the delicate line between context and vouching when judicial notices intersect with credibility. That debate will influence trial practice: trial courts should continue to exercise caution; prosecutors should strive to rehabilitate through evidence before enlisting the bench; and defense counsel should preserve focused, alternative instructions distinguishing competency from credibility. With these guideposts, Ferrer‑Sosa is poised to shape both evidentiary and procedural strategy in complex, cooperator‑driven prosecutions throughout the circuit.