Introduction

In a sprawling, multi-year prosecution arising from the 2005 murder-for-hire of Canadian entrepreneur Adam Anhang in Old San Juan, the First Circuit affirmed the convictions and life sentences of three defendants: Aurea Vázquez Rijos (the victim’s spouse), her sister Marcia Vázquez Rijos, and Marcia’s partner, José Ferrer Sosa. The government’s case centered on the testimony of cooperating witness Alex “El Loco” Pabón Colón, who admitted to carrying out the killing as part of a paid plot. The appeal featured a tapestry of challenges: evidentiary sufficiency, severance, admission of “flight” and email evidence, claims of judicial bias, an important judicial-notice issue regarding a witness’s prior competency to plead guilty, constructive amendment/variance, the “death resulted” finding under 18 U.S.C. § 1958, and a thicket of post-trial mental-health and procedural disputes under Criminal Rule 37 and Appellate Rule 12.1.

The court’s most consequential holding, and the focus of a partial dissent, approves a trial judge’s limited use of judicial notice to inform jurors that a key cooperating witness (Pabón) had been found competent to plead guilty in 2008—so long as the notice is cabined to that historical adjudicative fact, the jury is properly instructed that it may disregard the noticed fact, and credibility determinations remain squarely with the jury. The court also clarifies important appellate-procedure guardrails for indicative‑ruling practice: a separate, timely criminal notice of appeal is required to challenge the denial of Rule 37 motions, and stays/status-report orders do not toll or replace that requirement.

Summary of the Opinion

• Evidence sufficiency: The panel held the record supported the conspiracies as to Marcia and José; the jury could credit Pabón’s testimony, and intrastate use of phones/cars satisfied § 1958’s “facility of interstate commerce” element.
• Severance: No manifest abuse of discretion in trying defendants jointly in a conspiracy case, especially with firm limiting instructions to minimize spillover.
• Evidentiary rulings: Admission of Aurea’s “flight” evidence was at worst harmless given the strong record; email evidence survived Rules 401/403 and hearsay objections; contextual statements were properly admitted with instructions.
• Judicial bias: Claims largely waived or unpersuasive; the court’s interventions either clarified testimony or were neutralized by curative instructions.
• Judicial notice of competency: No abuse of discretion in taking notice that, in 2008, the court found Pabón competent to plead; the notice did not vouch for his 2018 trial credibility and the jury retained the credibility role under Rule 201(f) instructions. Judge Lipez dissented in part, finding serious prejudice to Marcia and José.
• Constructive amendment/variance: No constructive amendment; any alleged variance was non-prejudicial and within the indictment’s “manner and means.”
• “Death resulted” element: Although the jury did not make a specific death-resulted finding, the omission was harmless beyond a reasonable doubt because it was uncontested and overwhelmingly proved.
• Post-trial mental-health litigation: Appellants’ Rule 37/12.1 indicative-ruling appeals were untimely; attempts to repackage those issues in the direct appeal failed for lack of preservation or development; due process affords at most limited post‑conviction discovery, and the 2021 BOP evaluation was not in the record on direct appeal.
• Bottom line: Affirmed across the board; dissent would vacate Marcia’s and José’s convictions for the judicial-notice error.

Analysis

I. Sufficiency of the Evidence: Conspiracy under 18 U.S.C. § 1958

Applying de novo review and viewing the record in the prosecution’s favor, the court concluded a rational jury could find that Marcia and José knowingly participated in the murder‑for‑hire conspiracy. The linchpin was Pabón’s account—placing both defendants at planning meetings (including at El Hamburger), identifying them as co-hirers, and describing coordination on the night of the murder. Attack on Pabón’s credibility was a jury question, not for appellate reweighing.

On the “facility of interstate commerce” element, the court underscored a key statutory development: Congress’s 2004 amendment from “facility in” to “facility of” interstate commerce. Under First Circuit precedent, intrastate use of a qualifying facility (telephones, cars) suffices. The panel cited United States v. Fisher, confirming that showing border‑crossing is unnecessary post‑amendment. José’s novel Puerto Rico‑island argument (vehicles not facilities “of” interstate commerce) was waived and, in any event, runs counter to the statute’s inclusive definition in § 1958(b)(2) (means of transportation and communication).

Precedents shaping the sufficiency holding

• United States v. Maldonado‑Peña: standard for sufficiency review; reasonable inferences to the government.
• United States v. Velazquez‑Fontanez: uncorroborated cooperator testimony can sustain a conviction unless facially incredible.
• United States v. Echeverri and United States v. Munyenyezi: “mere presence” is not enough—but presence plus actions and statements supporting agreement is.
• United States v. Llinas: common‑sense inference that conspirators do not include innocents at critical planning stages.
• United States v. Liriano: verdict stands if supported by a plausible rendition of the record.
• United States v. Fisher: intrastate usage satisfies § 1958 after the 2004 amendment.

II. Severance: Strong Preference for Joint Trials in Conspiracy Cases

The court rejected severance, emphasizing the federal system’s preference for joint trials of jointly indicted defendants—especially in conspiracy cases—to conserve resources and avoid inconsistent verdicts. The defendants’ spillover claims (evidence about Aurea’s separate conduct) did not show the requisite “extreme prejudice,” and the trial judge repeatedly instructed jurors to consider each count and defendant separately. Those instructions were presumed effective.

Precedents

• Zafiro v. United States: preference for joint trials; severance only upon serious risk to a specific trial right or reliability of verdict.
• United States v. Houlihan: “manifest abuse of discretion” standard; instructions often cure potential prejudice.
• United States v. Floyd: the preference is “especially strong” in conspiracy cases.

III. Evidentiary Rulings

A. Flight evidence (Aurea)

“Consciousness of guilt” evidence—Aurea’s departure to Europe, alias use, avoidance of depositions, and extradition saga—was challenged under Benedetti and Rule 403. The panel did not decide admissibility, because any error was harmless in light of the substantial independent evidence: motive via prenuptial terms, multiple witnesses about her “better off with him dead” statements and hit‑man inquiries, and inconsistent statements to police.

B. Email evidence (Marcia and José)

Post‑murder emails were relevant to the conspiracy narrative (funding expectations from the estate, coordination with José, allusions to debts to the killer), even assuming arguendo the conspiracy’s end date was earlier. Efforts to frame them as unfairly prejudicial under Rule 403 fell to the trial court’s wide discretion; the balancing showed no abuse. A 2012 email thread containing a brother’s statement (“PLANNED EVERYTHING”) was admitted not for its truth but to contextualize Marcia’s reaction (cover‑up tenor), with an instruction limiting hearsay usage.

Precedents

• United States v. Benedetti: need for sufficient extrinsic evidence before jurors infer guilt from flight; acknowledged but harmless here.
• United States v. Sasso: post‑offense cover‑up can be probative of guilt.
• United States v. Polanco, In re PHC, Inc., United States v. Breton: deferential Rule 403 balancing; rare to reverse.
• United States v. Cruz‑Díaz: contextual statements admitted not for truth are not hearsay; limiting instructions suffice.

IV. Judicial Bias Claims

The court found most bias claims waived or insubstantial. The judge’s clarifying questions (e.g., about partnership interests, logistics, and limiting repetitive questioning) fell within his discretion to manage a complex, lengthy, multi‑defendant conspiracy trial and were paired with curative or limiting instructions. The use of graphic but probative evidence (crime‑scene photos/video) was within the government’s right to present its narrative (Old Chief).

Precedents

• United States v. Lanza‑Vázquez, United States v. Caramadre, Liteky v. United States: judge’s impatience or stern case management rarely shows bias; curatives matter.
• United States v. Morales‑Aldahondo, Old Chief v. United States: prosecution’s latitude to present evidence of its choosing.

V. The Pivotal Issue: Judicial Notice of a Prior Competency Finding

Over defense objection, the trial judge took judicial notice that, at a 2008 plea hearing, he found Pabón competent to enter an informed plea. The notice was tightly framed to that date and proceeding, and the jurors were instructed (per Rule 201(f)) they could accept or reject the noticed fact and that all credibility assessments were exclusively theirs. The panel held this did not constitute improper vouching for Pabón’s 2018 trial credibility and was not an abuse of discretion.

The majority stressed the competency–credibility distinction: competency (a legal threshold decided by the court) is different from credibility (a factual assessment solely for the jury). The notice addressed only the existence of the prior competency finding, not whether jurors should believe Pabón’s testimony years later. Both sides argued credibility robustly in summations; the jury received detailed credibility instructions; and no party requested a further instruction explaining the competency–credibility difference.

Precedents and rules

• Fed. R. Evid. 201(b), (f): judicial notice of adjudicative facts; in criminal cases, jurors must be told they may disregard the noticed fact.
• United States v. Bello, United States v. Dávila‑Nieves: judicial notice must not direct a verdict on a contested element or invade the jury function.
• United States v. Devin, United States v. Alicea: competency determinations are for the court; credibility assessments are for the jury.
• United States v. Stewart‑Carrasquillo: jurors are presumed to follow instructions.

The dissent

Judge Lipez would vacate Marcia’s and José’s convictions. In his view, informing jurors of the court’s prior competency finding unacceptably bolstered the government’s linchpin witness in a credibility-driven case. He emphasized the practical risk that jurors would equate “competency” with “reliability” and that the judicial imprimatur weighed too heavily, notwithstanding standard credibility instructions. He found the error caused “serious prejudice” to Marcia and José because the non‑Pabón evidence against them was thin; by contrast, he found independent evidence against Aurea substantial.

Practical guidance from the majority’s holding

• Courts may take judicial notice of a prior, case-relevant competency finding if strictly limited, temporally specific, and paired with Rule 201(f) and credibility instructions that preserve the jury’s role.
• Parties concerned about juror confusion should request an instruction expressly distinguishing competency from credibility.
• Judicial notice cannot be used to vouch for, or “prove,” a witness’s trial credibility; it can supply context for why a court accepted a plea despite contemporaneous mental‑health treatment.

VI. Constructive Amendment and Variance

The court rejected claims that the government’s theory or the court’s instructions broadened the indictments. Aurea’s challenge to remarks about phones/cars as § 1958 facilities was unpreserved and waived for lack of a plain‑error showing. Her argument that the jury considered overt acts from a superseding indictment was blunted by repeated instructions that Aurea was being tried only on the original indictment (consistent with extradition conditions). Marcia’s variance argument (El Hamburger meeting) failed: the indictment’s “manner and means” and overt‑act allegations, along with the plea statement of facts, provided sufficient notice; there was no unfair surprise or double‑jeopardy risk.

Precedents

• United States v. Katana, United States v. Condron: constructive amendment versus variance standards.
• United States v. Marrero‑Ortiz, United States v. Rivera‑Donate: indictments need not list every piece of evidence or location; “manner and means” can be proved by various acts within the charged conspiracy.

VII. The “Death Resulted” Element Under § 1958

Although the jury did not render a special death‑resulted finding, the omission was harmless under United States v. Pizarro because the fact that Adam died as a result of the scheme was uncontested and overwhelmingly proved. Defense counsel conceded death repeatedly; forensic testimony and other proof corroborated it; and no witness suggested otherwise.

Precedents

• United States v. Rabb, Burrage v. United States: aggravating facts that raise statutory maxima must be submitted to the jury, except prior convictions.
• United States v. Pizarro, United States v. Razo: harmlessness where the omitted element was uncontested and proved beyond a reasonable doubt.

VIII. Post‑Trial Mental‑Health Litigation and Appellate Procedure

The panel’s appellate‑procedure teachings are consequential. After trial, BOP evaluations in 2019 (schizophrenia; incompetent for then‑pending sentencing), 2020 (antisocial personality disorder; competent), and 2021 (competent) triggered extensive Rule 37/12.1 motion practice. The defendants’ May 2020 appeals from the district court’s February 2020 denial of indicative‑ruling motions were untimely under Fed. R. App. P. 4(b)(1)—a separate, timely criminal notice of appeal is required to challenge the denial of Rule 37 motions. Circuit stays and status‑report orders do not toll that requirement, and untimely reconsideration motions do not revive it. Attempts to fold those issues into the direct appeal failed for lack of preservation, lack of development, or because the materials (e.g., the 2021 evaluation) were outside the record.

The court also declined to order an independent psychiatric examination of the witness or broad post‑conviction discovery. Citing Osborne, it reiterated that due process affords only limited post‑conviction process; appellants failed to develop authority connecting later competency findings to the witness’s trial capacity or showing entitlement to compel an involuntary examination.

Procedural precedents and rules

• Crim. R. 37 / FRAP 12.1: indicative‑ruling practice; if the district court denies the motion, a separate, timely notice of appeal is needed to obtain appellate review of that denial.
• FRAP 4(b)(1): 14‑day deadline for criminal appeals; a late reconsideration motion does not toll the deadline.
• United States v. Rivera‑Carrasquillo, United States v. Graciani, United States v. Fuentes‑Lozano: timely appeals are mandatory claim‑processing rules when invoked by the government.
• Dist. Att’y’s Office v. Osborne, Tevlin v. Spencer: limited post‑conviction due‑process rights; not parallel to trial rights.
• Mount Vernon Fire Ins. Co. v. VisionAid: supplemental appellate briefing orders do not rewrite record‑on‑appeal limits.

IX. Impact and Practical Takeaways

A. Judicial notice and witness credibility

• This decision offers a roadmap for trial judges confronting credibility attacks grounded in a cooperating witness’s mental‑health history. A prior, case‑relevant competency adjudication may be noticed if confined to that adjudicative fact and date, and if the court robustly instructs the jury that it may reject the noticed fact and that credibility remains its exclusive domain.
• The dissent flags a real hazard: jurors may conflate competency with reliability. Trial judges should consider giving an explicit instruction distinguishing competency (a legal threshold) from credibility (a factual judgment). Counsel should request such an instruction when seeking or opposing notice.

B. § 1958 prosecutions

• Intrastate use of phones and vehicles remains sufficient to satisfy the “facility of interstate commerce” element after the 2004 amendment; this applies in Puerto Rico.
• Post‑offense conduct (flight, cover‑ups, payment demands) remains admissible when relevant and not substantially outweighed by unfair prejudice.
• Where “death resulted” is obvious and uncontested, failure to obtain an express jury finding may be harmless—but best practice is to obtain a special interrogatory to avoid appellate risk.

C. Joint trials

• Severance remains an uphill climb in conspiracy cases; careful limiting instructions are critical and generally sufficient to cure spillover concerns.

D. Appellate practice and Rule 37

• To seek appellate review of a district court’s denial of a Rule 37 motion, file a separate, timely criminal notice of appeal; do not rely on the original criminal appeal, stays, or status orders to preserve review.
• Preserve issues contemporaneously; frame plain‑error arguments on appeal where necessary; develop arguments with authority and record cites.

X. Complex Concepts Simplified

• Conspiracy: An agreement to commit a crime, with knowing participation. Proof often comes from circumstantial evidence—conduct, statements, and coordinated acts.
• Facility “of” interstate commerce (§ 1958): Means of transportation or communication (e.g., phones, cars). After 2004, intrastate use suffices; the facility need not cross borders.
• Judicial notice (Evidence Rule 201): The court may tell jurors a not‑reasonably‑disputed adjudicative fact is established (e.g., a prior court finding). In criminal cases, jurors must be told they may accept or reject the noticed fact.
• Competency vs. credibility: Competency is a legal threshold (fitness to plead/stand trial/testify) decided by the court; credibility is whether a witness’s testimony is believable, decided by the jury.
• Constructive amendment vs. variance: An amendment occurs if the indictment’s terms are effectively changed; a variance involves proof differing from alleged details without altering the offense. Variance triggers reversal only if it prejudices substantial rights (e.g., unfair surprise, double‑jeopardy risk).
• Rule 37 / FRAP 12.1: When an appeal is pending, the district court may state whether it would grant a motion or that it raises a substantial issue; to appeal a denial, a new, timely notice of appeal is required.
• Harmless error: An error that did not affect the verdict. For omitted elements, harmless beyond a reasonable doubt if the fact was uncontested and overwhelmingly proved.
• Post‑conviction discovery: Due process affords only limited rights after conviction; courts are reluctant to compel new discovery absent clear legal entitlement.

Conclusion

United States v. Vázquez‑Rijos is notable for two reasons. First, it provides a carefully bounded approval of judicial notice in a sensitive context—a prior competency finding about a central witness—without encroaching on the jury’s credibility function, provided the notice is cabined and accompanied by strong jury instructions. The dissent’s forceful critique will likely inform future requests for clarifying instructions distinguishing competency and credibility. Second, the decision reinforces crucial procedural guardrails for post‑trial litigation in criminal cases: parties must file separate, timely criminal notices of appeal to obtain review of Rule 37 denials, and they must preserve, develop, and support arguments with record citations and authority.

The court’s treatment of severance, evidentiary relevance/Rule 403, constructive amendment/variance, and § 1958’s interstate‑commerce element largely consolidates existing First Circuit doctrine. On the “death resulted” issue, the panel applies established harmless‑error principles but implicitly counsels better charging and verdict‑form practices. Overall, the opinion is a comprehensive roadmap for trying and reviewing complex, multi‑defendant murder‑for‑hire prosecutions, with enduring lessons for trial judges and litigants on evidentiary limits, jury instructions, and appellate preservation.