United States v. Vazquez-Rijos ( 2024 )

United States Court of Appeals
For the First Circuit
Nos. 19-1305
19-1312
19-1315
20-1603
20-1604
20-1920
20-1951
21-1098
21-1100
UNITED STATES OF AMERICA,
Appellee,
v.
AUREA VÁZQUEZ RIJOS, a/k/a Beatriz Vázquez, a/k/a Aurea
Dominicci; MARCIA VÁZQUEZ RIJOS; and JOSÉ FERRER SOSA,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Thompson, Circuit Judges.
Lydia Lizarribar Masini for appellant Aurea Vázquez Rijos.
Carlos M. Sánchez La Costa for appellant Marcia Aurea Vázquez
Rijos.
José R. Olmo Rodríguez for appellant José Ferrer Sosa.
Sofia M. Vickery, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, with whom W. Stephen
Muldrow, United States Attorney, Mariana E. Bauzá Almonte,
Assistant United States Attorney, Chief, Appellate Division, José
A. Ruiz Santiago, Assistant United States Attorney, Jenifer Yois
Hernández, Assistant United States Attorney, Kenneth A. Polite,
Jr., Assistant Attorney General, and Lisa H. Miller, Deputy
Assistant Attorney General, were on brief, for appellee.
July 31, 2024
THOMPSON, Circuit Judge. Old San Juan, September 22,
2005, around midnight. Husband and wife Adam Anhang Uster (a
Canadian entrepreneur) and Aurea Vázquez Rijos (a former "Miss
Puerto Rico Petite") were walking down the cobbled streets of
Puerto Rico's capital city after leaving a trendy bistro. A man
emerged from the shadows. "This is a robbery," he said in English.
Adam punched him in the face and shoved Aurea away, screaming "Run,
Baby, run." She did not, however. And the mugger stabbed and
beat Adam to death. Turning to Aurea, the man then hit her in the
head. But sensing others' eyes now on him, he took off.1
In the years after that, a Puerto Rico jury would convict
an innocent person of the murder. He would later win release,
thankfully. Meanwhile private investigators hired by Adam's
family would traipse all over (including Europe) looking for
helpful evidence. And after plenty of twists and turns, police
would arrest Aurea, Aurea's sister Marcia Vázquez Rijos, and
Marcia's boyfriend José Ferrer Sosa on federal murder-for-hire
charges — one of the twists and turns involved a complex
extradition process to retrieve Aurea from Spain, a country she
had fled to.2
1 Our opinion will be an easier read if we sometimes use first
names. We mean no disrespect.
2By agreement with Spain the government promised to try Aurea
under the original indictment. Count one of that indictment
- 3 -
The government's trial case included lots of
incriminating particulars. Like how six months before the murder
Adam and Aurea signed a prenup that would pay her about $8 million
if he died but only $3,500 a month for 36 months (unless she
remarried) if they divorced within a year. Like how Aurea also
came to believe that she was "better off" under the prenup with
Adam "dead than alive" and asked someone if he knew a hitman who
could kill Adam. Like how 12 hours before the murder Adam told
Aurea that he wanted a divorce, to which she replied, "I am not
going to let you go that easy." And like how Aurea's description
of the attacker differed from others' and how she acted
uncooperatively with police.
The government's biggest witness was probably Alex Pabón
Colon. Nicknamed "El Loco" (Spanish for "The Crazy One"), Pabón
(as we will call him, per Spanish naming customs we follow for the
rest of the opinion) testified that Aurea, Marcia, and José had
hired him to kill Adam and hurt Aurea — while making it all look
like a robbery gone wrong. The defense pushed back with questions
charged her with conspiring to commit murder for hire resulting in
Adam's death. Count two charged her with use of an interstate
facility to commit murder for hire. The government tried Marcia
and José under a second superseding indictment. Count one of that
indictment accused them of conspiring to commit murder resulting
in Adam's death.
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designed to highlight Pabón's history of mental instability (among
other efforts).
A federal jury eventually convicted Aurea of murder for
hire, and her, Marcia, and José of conspiring to commit murder for
hire. Each got life behind bars.
The trio now appeal, raising a dizzying array of issues
spanning the trial, sentencing, and post-trial phases. We address
the claims one by one below, filling in details needed to put
things into workable perspective. At the end of it all, however,
we affirm across the board.
I
Sufficiency of the Evidence
Marcia and José say that the government did not present
enough evidence to support their conspiracy-to-commit-murder-for-
hire convictions.3
We assess their preserved challenges de novo, taking all
the evidence — including credibility choices and reasonable
inferences — in the light most favorable to the prosecution and
asking whether a sensible jury could find the crime's essential
elements proven beyond a reasonable doubt. See, e.g., United
3We start like this because a winning sufficiency argument
would compel us to vacate the challenged conviction and block any
retrial for the same offense under the Fifth Amendment's Double
Jeopardy Clause. See United States v. Raymundí-Hernández, 984
F.3d 127, 138 (1st Cir. 2020).
- 5 -
States v. Maldonado-Peña, 4 F.4th 1, 50 (1st Cir. 2021). And to
simplify slightly (but without affecting our analysis), the
statute of conviction punishes anyone "[w]ho[] travels in or causes
another . . . to use . . . any facility of interstate . . . commerce
. . . with the intent that a murder be committed" for hire, "or
who conspires to do so." See 18 U.S.C. § 1958(a).4 "As used in
this section . . . 'facility of interstate . . . commerce' includes
means of transportation and communication." See id. § 1958(b)(2).
A
Marcia's Arguments
Marcia first argues that the conspiracy had to have ended
with Adam's death and so the evidence against her did not suffice
4 The statute reads in full:
Whoever travels in or causes another
(including the intended victim) to travel in
interstate or foreign commerce, or uses or
causes another (including the intended victim)
to use the mail or any facility of interstate
or foreign commerce, with intent that a murder
be committed in violation of the laws of any
State or the United States as consideration
for the receipt of, or as consideration for a
promise or agreement to pay, anything of
pecuniary value, or who conspires to do so,
shall be fined under this title or imprisoned
for not more than ten years, or both; and if
personal injury results, shall be fined under
this title or imprisoned for not more than
twenty years, or both; and if death results,
shall be punished by death or life
imprisonment, or shall be fined not more than
$250,000, or both.
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because the government focused on "acts and statements" after his
passing. Consistent with the adage that "'the simplest'" way to
decide an issue "is often 'best,'" see Calvary Chapel of Bangor v.
Mills, 52 F.4th 40, 48 n.5 (1st Cir. 2022) (quoting United States
v. Cruz-Ramos, 987 F.3d 27, 39 (1st Cir. 2021)), we bypass the
dispute about the conspiracy's precise end date because ample
evidence showed her active participation from the beginning.
Asked directly by a prosecutor about "[w]ho hired you to
commit the murder?" Pabón answered categorically, "Marcia . . . ,
Aurea . . . , and José." And he identified all three in open court
too.
Pabón's testimony painted a grim picture. A dope dealer,
Pabón met with "clients" at The Pink Skirt — a nightclub Adam had
bought Aurea. José worked there as a cook. And he was one of
Pabón's drug clients as well. So were Aurea and Marcia. The day
before Adam died, Pabón spent time with Aurea, Marcia, and José at
The Pink Skirt and then at an eatery called El Hamburger (they
drove there in Aurea's Porsche SUV). They agreed that Pabón would
find a gun, kill Adam after Adam had dinner with Aurea, make the
murder look like a robbery by taking Adam's wallet and hurting
Aurea, and later get $3 million from Aurea (part of the money she
expected to get from Adam's estate).
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All of this undercuts Marcia's claim that the evidence
showed only her "mere presence" at a conspiratorial event. She is
right that mere presence cannot establish knowing participation in
a conspiracy. See, e.g., United States v. Munyenyezi, 781 F.3d
532, 538 (1st Cir. 2015). But Pabón's fingering her as one of the
three persons who hired him to kill Adam shows she was culpably
present, not merely present. See United States v. Echeverri, 982
F.2d 675, 678 (1st Cir. 1993) (explaining that "a defendant's 'mere
presence' argument will fail in situations where the 'mere' is
lacking"). If more were needed — and we do not think that it is
— the jury could "rely on [the] common[-]sense . . . infer[ence]
that criminal conspirators do not involve innocent persons at
critical stages of a" crime's planning. See United States v.
Llinas, 373 F.3d 26, 32 (1st Cir. 2004) (citation omitted).
Marcia responds by attacking Pabón's credibility,
arguing that his grand-jury testimony indicated that the
conversation at The Pink Skirt centered on just "beating" Adam and
that she did not go to El Hamburger. But her attorney explored
the inconsistency theme with Pabón during cross-examination —
unsuccessfully it turns out, because the jury convicted her anyway.
And we cannot reweigh witness credibility on a sufficiency
challenge. See, e.g., United States v. Acosta-Colón, 741 F.3d
179, 191 (1st Cir. 2013).
- 8 -
Perhaps anticipating this critique, Marcia calls Pabón's
testimony uncorroborated as to her role. But our caselaw says
that "the uncorroborated testimony of a single cooperating witness
may be sufficient to support a conviction, so long as the testimony
is not facially incredible." See United States v. Velazquez-
Fontanez, 6 F.4th 205, 215 (1st Cir. 2021). And Marcia makes no
convincing argument that Pabón's testimony falls into that
facially-incredible category for sufficiency purposes, thus
waiving whatever argument she may have had. See Rodríguez v. Mun.
of San Juan, 659 F.3d 168, 175 (1st Cir. 2011).5
B
José's Arguments
Pabón named José as one of his hirers in this murder-
for-hire crime. He gave José props for getting his payment bumped
from $2 million to $3 million. And he explained how José called
him on the night of the murder, met up with him in Old San Juan,
pointed out the restaurant where Adam and Aurea were, and told him
to wait for them to come out. Questioning Pabón's memory and
calling his answers "unreliable" and "unresponsive" (along with
other pejoratives), José suggests that the jury should not have
5 Marcia's very brief suggestion that no evidence showed she
"knew . . . any cars or phones would be used with the required
intent to murder" is too underdeveloped for us to consider. See,
e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 9 -
believed that incriminating account. What he is doing though is
picking a credibility fight — for example, José writes that Pabón
"testified" at trial that he (Pabón) did not have an affair with
Aurea (a person he was starstruck over), yet he admitted telling
his friends and also the grand jury that he had had sex with her.
José's lawyer, however, delved into these areas during cross-
examination — to no avail, because the jury still found José
guilty. And such a routine credibility call is for the jurors,
with us required to assume on sufficiency review that they called
it in the government's favor. See, e.g., Acosta-Colón, 741 F.3d
at 191.
Unlike Marcia, José labels Pabón's testimony "facially
incredible." But he offers no persuasive explanation for why this
is so. And "developing a sustained argument out of . . . legal
precedents is a litigant's job, not ours." Díaz-Alarcón v.
Flández-Marcel, 944 F.3d 303, 313 (1st Cir. 2019) (quotation marks
omitted).
Relying mostly on his own trial testimony, José next
claims that "[s]ubstantial evidence" created reasonable doubt
about his guilt. But because he took the stand, the jury could
disbelieve his testimony that he did not hire Pabón to murder Adam.
See United States v. Iossifov, 45 F.4th 899, 916 (6th Cir. 2022);
United States v. Williams, 390 F.3d 1319, 1325-26 (11th Cir. 2004).
- 10 -
Also and critically, we need not rule "that no verdict other than
. . . guilty . . . could sensibly be reached, but must only be
satisfied that the verdict finds support in a plausible rendition
of the record." See United States v. Liriano, 761 F.3d 131, 135
(1st Cir. 2014) (quotation marks omitted) — a standard met here.
José also offers two sufficiency arguments that target
the interstate-commerce element for his conviction. First he
claims that the government had to — but did not — show that a
defendant used an interstate-commerce facility (e.g., an auto or
a phone) across borders. While he preserved that argument by
raising it in the district court, it fails here as it did there.
The murder-for-hire statute once barred the use of a "facility in
interstate . . . commerce." See United States v. Fisher, 494 F.3d
5, 9 (1st Cir. 2007) (quoting statute). But a 2004 amendment
changed "facility in interstate commerce" to "facility of
interstate . . . commerce." See id. at 10 (quoting statute and
amendment). And devastating to José's position, that change
codified the prevailing view that "a showing of intrastate usage
of a requisite facility, such as a telephone, suffices." See id.(emphasis added). Second — citing no authority — José also argues
that vehicles on the island of Puerto Rico are per se not
facilities of interstate or foreign commerce because Puerto Rico
is an island unto itself. As the government rightly points out,
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however, he did not press this claim below — thus making it
reviewable (if at all) only for plain error. See United States v.
Rivera-Rivera, 555 F.3d 277, 285 (1st Cir. 2009). But because he
neither supports this claim nor tries to show plain error, he
waived it. See United States v. Rivera-Carrasquillo, 933 F.3d 33,
49 n.15 (1st Cir. 2019).
II
Severance
Raising a preserved claim, Marcia and José next contend
that the judge should have severed their trials from Aurea's.
Defendants may be tried together "if they are alleged to
have participated in the same act or transaction." Fed. R. Crim.
P. 8(b). Such trials serve important interests, like easing the
burdens on victims, witnesses, and jurors, shrinking the risk of
inconsistent verdicts, and conserving scarce judge time. See
Zafiro v. United States, 506 U.S. 534, 537 (1993); United States
v. Josleyn, 99 F.3d 1182, 1188 (1st Cir. 1996). So "[t]here is a
preference in the federal system for joint trials of defendants
who are indicted together," Zafiro, 506 U.S. at 537 — a preference
that is especially strong in conspiracy cases, United States v.
Floyd, 740 F.3d 22, 36 (1st Cir. 2014).
A preference of course is not an unwavering command.
See Fed. R. Crim. P. 14(a) (declaring that "[i]f the joinder of
. . . defendants in an indictment . . . appears to prejudice a
- 12 -
defendant . . . , the court may . . . sever the defendants'
trial[], or provide other relief that justice requires"). But the
exceptions to it are few and far between. See United States v.
Houlihan, 92 F.3d 1271, 1295-96 (1st Cir. 1996). Severance-seeking
"defendant[s] must demonstrate extreme prejudice, such as by
showing a 'serious risk that a joint trial would compromise a
specific trial right,' or would 'prevent the jury from making a
reliable judgment about guilt or innocence.'" Id. at 1295(emphasis added and quoting Zafiro, 506 U.S. at 539). And even if
the risk of prejudice is high, they must show that severance is
the proper cure — usually meaning that jury instructions or some
other remedy short of severance will not work. See Zafiro, 506
U.S. at 539. Making matters more difficult for Marcia and José,
we review their challenge to the judge's severance refusal only
for a "manifest abuse of discretion" — knowing that even in "gray
area[s]" where "reasonable people might disagree about the
advisability of severance," a severance fight normally will be
"won or lost in the district court." See Houlihan, 92 F.3d at
1296 (quotation marks omitted).
Measured against these benchmarks, Marcia and José
cannot prevail. Separate trials in a case like this — where the
focus is on the interconnected relationships among defendants —
would be repetitive, forcing witnesses to provide the same
- 13 -
testimony again and again, and placing incredible demands on every
participant in the judicial system (as described above). Hoping
to counter this point, Marcia and José argue that the joint trial
caused spillover or guilt-by-association prejudice based on
certain testimony — including about Aurea's hitman search, civil
suit against Adam's parents, and fleeing to avoid capture. We
doubt that this is the kind of extreme prejudice required to win
reversal. See, e.g., United States v. DeCologero, 530 F.3d 36, 54
(1st Cir. 2008) (holding in a severance-denial case that evidence
of one defendant's murder of a witness was relevant because it
"tended to prove the existence and nature of the . . .
conspiracy"). Certainly anything that ups the chance of conviction
"prejudices" defendants in the word's usual sense. But severance
law does not use "prejudice" like that. Which is why — despite
what Marcia and José imply — it does not matter that the
government's case against Aurea may have been stronger than against
them, or that they may have gotten off at trials separate from
Aurea's. See Zafiro, 506 U.S. at 540; see also United States v.
O'Bryant, 998 F.2d 21, 26 (1st Cir. 1993). Regardless, whatever
prejudice existed got scotched by the judge's explicit
instructions that the jury consider the case against each defendant
- 14 -
separately and individually.6 See, e.g., Houlihan, 92 F.3d at
1296. We presume that juries follow such directives. See, e.g.,
United States v. Chisholm, 940 F.3d 119, 129 (1st Cir. 2019). And
neither Marcia nor José has persuasively rebutted that
presumption. So we cannot say the judge manifestly abused his
discretion.
III
Evidentiary Matters
Aurea, Marcia, and José make a series of evidentiary
arguments.
6 The instruction read:
Counts are charged against each of the
defendants in each count of their
corresponding indictment. Each count, and the
evidence pertaining to it, should be
considered separately as to each defendant.
The fact that you may find guilty or not guilty
on one count should not control your verdict
on another count as to each defendant. You
must provide separate consideration to the
evidence as to each count and as to each
defendant. Aurea Vazquez-Rijos is charged as
to two counts in the original Indictment. Co-
defendants Marcia Vazquez-Rijos and Jose
Ferrer-Sosa are charged as to one count in the
Second Superseding Indictment. You must
provide separate consideration as to each
defendant in the indictment filed against
him/her.
The judge also gave separate limiting instructions for certain
categories of evidence. Consider, as a for-instance, his telling
the jurors that neither Marcia nor José was "involved" with the
hitman "testimony."
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A
Flight Evidence
Aurea claims that the judge erred by admitting "flight
evidence" to show her "consciousness of guilt."
That evidence — by way of background — included some of
the following. In June 2006 — not long after Adam's murder and a
few months after police arrested a man named Jonathan Roman Rivera
for the crime — Aurea moved to Italy. She had very little money.
She started going by the name "Aurea Dominicci." And she tried to
make a living as a tour guide. Over the next year she sued Adam's
parents for a piece of his estate, travelled to Puerto Rico for a
deposition in that case, and returned to Italy. Roman got
convicted around then too. And Aurea declined to come back for
another deposition in her suit. In spring 2008 a federal probe
into Adam's murder led to Roman's release, Pabón's arrest, and
Pabón's and Aurea's indictment on murder-for-hire-related charges
(Marcia and José would be indicted years later). Pabón pled
guilty. Aurea promised to voluntarily return to the United States.
She never would. Instead she began faking documents to prove she
was Jewish in the hopes of finding refuge in Israel (she had asked
a legal expert whether "the law in Israel" would "protect" her
"[i]f there was ever an order of extradition with a death
- 16 -
sentence"). But authorities arrested her in Spain in June 2013.
And two years later she got extradited back to Puerto Rico.7
Aurea offers innocent explanations for her moves, saying
for example that she went overseas to start a new life and to
protect herself from Adam's father (whom she alleges had sicced
private investigators on her as part of his plan to avenge his
son's death). From there she argues that the government did not
(and here we quote a case she quotes) "present sufficient extrinsic
evidence of guilt to support an inference that [her] flight was
not merely an episode of normal travel but, rather, the product of
a guilty conscience related to the crime alleged." See United
States v. Benedetti, 433 F.3d 111, 116 (1st Cir. 2005) (stressing
that "[b]ecause flight may be consistent with innocence as easily
as with guilt, this precursor helps ensure that a jury does not
infer guilt based solely on a defendant's meanderings"). And she
7 The judge (capitalization altered) told the jurors that
intentional flight by Aurea . . . may be
considered by you in light of all the other
evidence in the case. The burden is upon the
government to prove intentional flight.
Intentional flight after Aurea . . . was
accused of a crime is not alone sufficient to
conclude that she is guilty.
The judge added that "[f]light does not create a presumption of
guilt," that "feelings of guilt, which are present in many innocent
people, do not necessarily reflect actual guilt," and that "you
should consider there may be reasons for Aurea['s] . . . actions
that are fully consistent with innocence."
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implies that the judge should have kept the flight evidence out
under Fed. R. Evid. 403 — a rule that says that a court may exclude
"relevant" evidence "if its probative value is substantially
outweighed by a danger of unfair prejudice."
We need not decide whether Aurea has shown error because
even if she has (which we in no way intimate) any error was
harmless. Just consider some of the other evidence against her
besides the flight evidence. Pabón credibly testified that Aurea
had hired him to kill Adam. Another person testified that she had
said she was "better off" under the prenup "with [Adam] dead than
alive" and had asked if he knew a hitman who could "do the job"
for her. And an officer testified that her description of the
attacker clashed with those given by other witnesses (suggesting
she made things up to cover her crime) and that she did not fully
cooperate with police (indicating a desire to keep the
constabularies at bay). So by our lights, the judge's decision to
admit the flight evidence did not substantially affect the jury's
verdict — which makes his decision (at worst) harmless error. See,
e.g., United States v. Galíndez, 999 F.3d 60, 64 (1st Cir. 2021)
(discussing the standard).
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B
Email Evidence
Marcia and José — sometimes separately, sometimes
together — challenge the judge's admission of several emails.8
1
June 2007 Email
An email from Marcia to Aurea — sent in June 2007 — said
she (Marcia) needed more money for José and did not "want to have
him as an enemy because he knows a lot about me." "Mommy doesn't
want me to even see him," Marcia added (emphasis ours), "because
supposedly he is a violent crazy person."
José calls the italicized phrase excludable hearsay
because (his argument goes) "it was not Marcia['s] . . . statement
but her mother's[,] . . . and her mother . . . did not testify at
trial." But his lawyer conceded during a trial sidebar that Marcia
made the violent-and-crazy point, not her mother. So José waived
the argument that someone other than Marcia made the statement.
See United States v. Walker, 538 F.3d 21, 23 (1st Cir. 2008). He
next says that if Marcia made the statement, it came (in his view
at least) "after the conspiracy" and thus constituted
"inadmissible hearsay" (as a reminder, the defendants theorize
8 To the extent the emails have grammatical and syntactical
errors, we still quote them as-is because using "[sic]" would be
too distracting and might change their meaning.
- 19 -
that the conspiracy ended with Adam's death). But his trial
attorney objected to the statement as forbidden "character"
evidence. And he gives us no persuasive reason not to follow our
usual rule that "legal theories not raised squarely in the lower
court cannot be broached for the first time on appeal." See
Teamsters, Chauffeurs, Warehousemen & Helpers Union, Loc. No. 59
v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992).
2
July 2007 Email
Another email from Marcia to Aurea — sent in July 2007
— said she (Marcia) was "getting frustrated" but hoped "[t]hat old
man will pay sooner or later"; worried José, who "was present
during the good and the bad," would "think that I abandoned him
and think that we used him"; and warned her (Aurea) to "[b]e
careful with your back" because "[t]here are a lot of enemies close
who you owe for a long time, and they are aware of your every
move." Aurea responded by email saying she empathized with how
she (Marcia) and José felt, promised to call José, and noted "we
are all in the same boat."
Raising a preserved challenge — thus activating abuse-
of-discretion review, see United States v. Polanco, 634 F.3d 39,
44 (1st Cir. 2011) — Marcia and José argue that the judge wrongly
admitted the emails under Evidence Rule 403, which (again) excludes
evidence if its "unfair" prejudicial effects "substantially
- 20 -
outweigh[]" its probative value. Still claiming that the
conspiracy ended with Adam's murder in 2005, they call these post-
murder emails irrelevant. They then say that "[t]he unfair
prejudicial damage of these communications after the conspiracy
ended is that it allows the government through post-murder conduct
that has nothing to do with [the-murder-for-hire-related] elements
. . . to convict [them] on speculation."
Even assuming without granting that Marcia and José are
right about the conspiracy's end point (the government counters
that the conspiracy actually ended years later when Aurea's suit
against Adam's parents ended in defeat in 2011), this does not
help them.
A defendant's conduct after the crime's commission can
be relevant. Otherwise, for example, a defendant's bid to cover
up a crime's occurrence could never be admitted to show
consciousness of guilt — which we know is not true. See, e.g.,
United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012). The
relevance threshold is a small one, "requiring only that the
evidence have 'any tendency to make a fact more or less probable.'"
Cruz-Ramos, 987 F.3d at 42 (quoting Fed. R. Evid. 401). And the
disputed evidence cleared it. Marcia's email touched on efforts
to get money from Adam's estate (discussing her "frustrat[ion]
that old man will pay sooner or later"), José's conspiracy
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involvement (mentioning she "wouldn't want him to think I abandoned
him and think that we used him"), and the need to pay Pabón (telling
Aurea to "be careful with your back," adding "[t]here are a lot of
enemies close who you owe for a long time"). Aurea replied that
she would call José and that "we are all in the same boat." From
that evidence a jury could infer Marcia's and José's conspiracy
involvement. See Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72,
76 (1st Cir. 2010) (noting that "[a] relevancy-based argument is
usually a tough sell," and adding that "the evidence need not
definitively resolve a key issue in the case" but "need only move
the inquire forward to some degree").
Marcia and José also give us no convincing reason for
believing that any of this evidence, even if prejudicial, was
unfairly prejudicial let alone so unfairly prejudicial as to
substantially outbalance its probative worth. See In re PHC, Inc.
S'holder Litig., 894 F.3d 419, 440 (1st Cir. 2018) (emphasizing
that "battles over how to strike the balance between probative
value and unfairly prejudicial effect are usually won or lost in
the district court").
It is a pretty "[r]are[]" day when we will "override a
judge's balancing of relevance and prejudice." Polanco, 634 F.3d
- 22 -
at 44. And we see no credible basis for "second-guess[ing] the
judge's discretionary judgment here."9 See id.3
March 2012 Email
Yet another email from Marcia to Aurea — sent in March
2012 — noted that their brother said that she (Marcia) and José
had "PLANNED EVERYTHING" and that she had told him:
YOU MENTALLY RETARDED ANIMAL DEVIL LUCIFER
DON'T YOU KNOW THAT THEY ARE RECORDING
EVERYTHING AND EVERYTHING YOU SAY THEY WILL
BELIEVE IT AND WE ARE GONNA GET SCREWED BY
YOUR FAULT LUCIFER.
Pushing another preserved error claim — again generating
abuse-of-discretion review, see id. — Marcia says that comment by
her brother was inadmissible hearsay and so had "dubious probative
value and an exponential high risk of prejudice." José tries to
challenge the email's admission too. But the judge admitted the
email against Marcia only. And José develops no spillover-
prejudice argument keyed to this situation, resulting in waiver.
See Zannino, 895 F.2d at 17.
The judge admitted the brother's statement that Marcia
and José had "PLANNED EVERYTHING" to provide "context" for Marcia's
9 José wishes to "adopt" Marcia's arguments about emails
"between him and [her]," presumably referring to some 2010 emails
where he asks Marcia and Aurea for money. But Marcia does not
challenge the 2010 emails. So we need not consider this
undeveloped claim. See Zannino, 895 F.2d at 17.
- 23 -
reaction ("DON'T YOU KNOW THAT THEY ARE RECORDING EVERYTHING AND
EVERYTHING YOU SAY THEY WILL BELIEVE IT AND WE ARE GONNA GET
SCREWED BY YOUR FAULT LUCIFER") — a reaction that indicates a need
for a cover up. Statements offered not for their truth but to
provide the context of a reply are not hearsay. See United States
v. Cruz-Díaz, 550 F.3d 169, 176-77 (1st Cir. 2008). And the judge
told the jury to consider the statements of nonparties in the email
not "for the truth of the matter, but only to provide context to
statements made by a defendant." See id. (concluding that
testimony was not hearsay based in part on fairly similar jury
instructions).
As a last-gasp argument, Marcia accuses the judge of not
conducting a "meaningful [Evidence Rule 403] analysis" for this
email (or any of them, for that matter). But as reflected in the
many pages of trial transcript, the judge actively engaged with
counsel at side bar and carefully considered their objections.
The judge did enough, seeing how our "great deference" applies
"even when a judge does not expressly explain the Evidence Rule
403 balancing process on the record." See United States v. Breton,
740 F.3d 1, 14 (1st Cir. 2014).
IV
Judicial Bias
Marcia and José think that the judge displayed bias
against them — a claim that (a) requires them to show that the
- 24 -
judge "gave the appearance of bias" and that the "apparent bias
seriously prejudiced" them, and (b) requires us to review preserved
challenges for abuse of discretion only. See Raymundí-Hernández,
984 F.3d at 145 (quotation marks omitted).10 They make a number
of arguments for reversing, all insinuating that the judge showed
impermissible bias against them by acting like an advocate for the
prosecution in front of the jury. We find some arguments waived
through inadequate briefing, however. And while always "sensitive
to a judge's unflagging duty to be impartial," see United States
v. Caramadre, 807 F.3d 359, 373 (1st Cir. 2015), we find the other
arguments are not difference-makers.
A
Marcia's and José's Waived Arguments
We lead with the waived arguments.
An investigating officer testified that at one point the
same attorney represented Roman (the originally accused killer)
and Aurea (before her indictment). The judge asked him, "So how
could he be an attorney when Aurea was a victim? At that time,
Aurea was a victim, right?" "Correct," the officer answered.
Marcia contends that "[t]his intervention showed judicial bias in
10 José calls these supposed errors "structural" for which
prejudice is presumed. But his claim "runs head first into our
precedent which has consistently required proof of 'serious
prejudice.'" See United States v. Lanza-Vázquez, 799 F.3d 134,
145 (1st Cir. 2015).
- 25 -
favor of the prosecution." Not only does she fail to explain how
the judge's questions "favor[ed]" the prosecution, but she also
fails to make a serious-prejudice showing — i.e., she has not shown
how, "but for" the allegedly improper intervention, "the verdict
would have been different." See United States v. Rivera-Rodríguez,
761 F.3d 105, 112 (1st Cir. 2014). And that will not do. See
Zannino, 895 F.2d at 17.
Marcia suggests in passing that the judge should not
have "presided over the criminal case" because he also "presided
over Aurea's civil case." But by making the suggestion without
any developed rationale, she waived it. See id.José argues that the judge "unfairly undermined" his
credibility by asking certain questions. With José on the stand,
the judge's first contested question clarified whether the "Alex
El Loco" his lawyer had mentioned in a question was Pabón. José
replied that he "later knew him as" Pabón. He now says that the
judge's inquiry implied that he (José) "knew [Pabón] very well and
not only as a drug dealer." We do not see how. But José's team
did not object to this question, as the government notes — without
any protest from José. That requires him to show plain error.
- 26 -
But this he never even tries to do, thus waiving the argument.
See Rivera-Carrasquillo, 933 F.3d at 49 n.15.
José also claims that the judge "unfairly" confronted
him with a police report to refresh his memory. But the record
shows that the prosecutor did that, not the judge (when José gave
a nonresponsive answer to the prosecutor's question about his work
hours, the judge read him the question again) — something José's
brief never convincingly takes on. See Cioffi v. Gilbert Enters.,
Inc., 769 F.3d 90, 94 (1st Cir. 2014).
José contends as well that the judge showed bias by
letting prosecutors present certain testimony about the murder
scene, plus photos and a video of Adam's dead body. In his telling,
prosecutors had no need for any of that because "there was already
sufficient evidence that [Adam] was dead." But the government is
generally allowed "to prove its case by evidence of its own
choice." See Old Chief v. United States, 519 U.S. 172, 186 (1997).
And a judge "is not required to scrub the trial clean of all
evidence that may have an emotional impact, where the evidence is
part of the [g]overnment's narrative." United States v. Morales-
Aldahondo, 524 F.3d 115, 120 (1st Cir. 2008) (quotation marks
omitted). Yet José cites no on-point cases and develops no
argument that tests the limits of these maxims. And (again)
"developing a sustained argument out of . . . legal precedents" is
- 27 -
the party's job. See Town of Norwood v. FERC, 202 F.3d 392, 405
(1st Cir. 2000).
B
Marcia's and José's Nonwaived Arguments
We move next to the nonwaived arguments.
Marcia and José pan the judge for asking Adam's business
partner Roberto Cacho Perez certain questions during Aurea's
lawyer's cross-examination.11 Cacho had testified for the
government that Aurea "became literally a partner in the business
through Adam." The judge asked — without objection — if "[s]he
became that if he died[.]" And Cacho replied, "Exactly, if he
died." Then — during part of Aurea's lawyer's cross that focused
on how the partners funded the projects — the judge asked Cacho if
Aurea had money invested in the business. He responded that "she
had no money invested in any project." "So," the judge said, "she
has money if [Adam] dies?," to which Cacho said, "Only." Marcia's
and José's attorneys objected. But the judge rebuffed them, though
he later instructed the jurors that "the [c]ourt occasionally asks
questions of a witness in order to bring out facts not then fully
covered in the testimony"; that they should "not assume that [the
court] hold[s] any opinion on the matters to which [the] questions
11 A real estate developer and investor, Cacho formed a coequal
partnership with Adam that developed properties in Puerto Rico.
- 28 -
are related"; and that "it is you, and you alone, who will
determine this case, not the [c]ourt." The judge denied the
attorneys' motion for a mistrial, concluding that his questions
clarified Cacho's testimony and that his limiting instruction
minimized any prejudice. The judge also later repeated that just-
quoted instruction in his final charge.
Marcia and José describe the judge's questions here as
bombshells, establishing Aurea's motive to murder Adam. The
judge's questions certainly showed — given Cacho's understanding
of the partnership and the prenup (which he had personal knowledge
of) — that Aurea had no stake in the business unless Adam died, in
which case she would inherit a stake. But the jury already knew
this — thanks to the unobjected-to testimony from Cacho, who said
that Adam listed the partnership properties in the prenup, which
would give Aurea Adam's interest in them on his (Adam's) death.
See United States v. Espinal-Almeida, 699 F.3d 588, 608 (1st Cir.
2012) (noting that the judge's interjections "were relatively
benign given that the jury had already heard testimony"
establishing the same). See generally United States v. Cruz-
Feliciano, 786 F.3d 78, 84 (1st Cir. 2015) (explaining that "a
question is not improper simply because it clarifies evidence to
the disadvantage of the defendant"). Also prompt curative
instructions like the judge's here eliminated the potential for
- 29 -
prejudice. See, e.g., United States v. Ayala-Vazquez, 751 F.3d 1,
25-26 (1st Cir. 2014). And Marcia and José give us no good reason
for why this is not so.
Marcia and José also pan the judge's comment at the end
of Roman's brother's testimony. Roman's brother had testified
about getting a letter in which Pabón supposedly copped to killing
Adam — a letter the brother made sure the FBI got too. The judge
then said, "I guess you were elated when you read the letter."
"Very elated," Roman's sibling revealed. The defendants objected.
Outside the jury's presence, the judge explained his question by
saying that "[h]ere we have a gentleman reading a letter that is
going to liberate his brother about a crime that he did not do"
and that defense counsel would be "wrong" to "think that they are
going to make this [c]ourt a piece of furniture." The judge again
told the jurors that "the [c]ourt occasionally asks questions of
a witness . . . to bring out facts not then fully covered in the
testimony" and that they should "not assume that [it] hold[s] any
opinion on the matters to which [its] questions are related." But
in his final charge, the judge instructed the jurors "not to take
[the very-elated] statement at all in your determination as to
your conferences in the deliberating room because the [c]ourt has
eliminated [the] question and [the] answer."
- 30 -
Marcia and José claim that the judge's eliciting the
very-elated comment bolstered the letter's credibility as well as
Pabón's (Pabón would later testify about the letter's content).
The insuperable difficulty for their attacks on the very-elated
remark is that the judge struck that exchange from the record —
which "sufficed to alleviate any risk of prejudice." See Rivera-
Carrasquillo, 933 F.3d at 45. They do say that it was "impossible
for a juror to erase from his memory the picture of the judge
celebrating [Pabón's] letter as the reason for freeing Roman and
for bringing [them and Aurea] to trial." But the jurors-follow-
instructions presumption is overcome only if "there is an
overwhelming probability that [they] will be unable to follow
[them] . . . and a strong likelihood that the effect of the evidence
would be devastating to the defendant[s]." Greer v. Miller, 483
U.S. 756, 766 n.8 (1987). And neither Marcia nor José attempt to
meet this difficult standard. See Zannino, 895 F.2d at 17.
Marcia and José criticize the judge for using the phrase
"repeat performance" as a shorthand to limit repeat questions. As
the judge explained to counsel, "Anytime you have an answer, you
don't need to go to the answer again. I think the jury heard it,
and they know it. . . . That's repeat performances for me." As
Marcia and José see it, the judge's repeat-performance comments
showed a level of "vituperation" that made the jury believe that
- 31 -
he "thought the defense presented . . . was ludicrous" — that the
defense lawyers were mere "actors in a movie and not really
defending someone presumed to be innocent." But "because
protracted trials drain" precious "judicial resources (judge and
jury time, to name just two)," judges enjoy wide discretion to
"keep the proceedings moving — by, for instance, making sure
evidence presentation does not become rambling and repetitive (to
state the obvious, district courts have heavy caseloads and jurors
have family and work obligations)." See Rivera-Carrasquillo, 933
F.3d at 45; accord United States v. Perez-Montañez, 202 F.3d 434,
440 (1st Cir. 2000). And what the judge did here fulfilled his
affirmative duty to stop this highly contentious multi-defendant,
multi-day trial from consuming "needless" amounts of "time." See
Fed. R. Evid. 611(a); see also Lanza-Vázquez, 799 F.3d at 143(commenting that the trial "lasted 18 days and was a massive,
multi-defendant conspiracy" prosecution, which the judge "had the
authority to move through expeditiously"). Marcia and José protest
that the judge used the repeat-performance "admonish[ment]" more
with them than with prosecutors. But rather than showing bias,
this more reasonably reflects that the judge's "interactions" here
"were largely driven by defense counsels' own conduct," see Lanza-
Vázquez, 799 F.3d at 143 — the defendants' lawyers spent more time
cross-examining the government's witnesses than vice versa and so
- 32 -
tended to ask more repetitive questions, see id. (stressing that
a judge "is not a mere moderator, but is the governor of the trial
for the purpose of assuring its proper conduct" (quoting Querica
v. United States, 289 U.S. 466, 469 (1933))). And to the extent
the defendants further suggest that the judge's demeanor or tone
reflects bias — José, for example, says that when his lawyer
corrected the judge's recall of testimony, the judge asked counsel
if he would "like to take the stand" — we do not believe that the
judge crossed legal lines (even if he may have come close to them).
See Caramadre, 807 F.3d at 375 (stressing that judge's "'remarks
during the course of trial that are critical or disapproving of,
or even hostile to, counsel, the parties, or their cases' are
usually insufficient to prove bias" — as are "'expressions of
impatience, dissatisfaction, annoyance, and even anger'" (quoting
Liteky v. United States, 510 U.S. 540, 555-56 (1994))).
José also takes the judge to task for asking if he (José)
had worked at The Pink Skirt on September 22, the night Adam died.
José had testified that he was on vacation and not at The Pink
Skirt on that date but later testified that he had been there that
afternoon to set the bar up for the night. José's lawyer asked,
"Now, you saw Alex El Loco on September 22, 2005?" "No," José
responded — just before the judge asked (after a sidebar),
"[N]otwithstanding that you did work, you didn't see him?" The
- 33 -
problem for José now is that the judge withdrew the question, in
response to the defense's objection — which (again) worked to blunt
"any risk of prejudice." See Rivera-Carrasquillo, 933 F.3d at 45.
V
Judicial Notice
The defendants argue that the judge erred in taking
judicial notice of the fact that he had found Pabón competent to
plead guilty in 2008.12
As readers by now know, Pabón's testimony at the 2018
trial devastated the defendants' innocence theory because he
provided details that no other witness could about how they hired
him to kill Adam. After the government's direct examination —
12 The defendants spend only a small fraction of their 300-
plus pages of briefing on the judicial-notice issue. And their
arguments (below and here) are not a picture of clarity. But we
do the best we can with the way we understand them, often quoting
at length to avoid any paraphrastic imprecision. We again remind
the bar, however, that litigants — on pain of forfeiture — must
"spell out [their] arguments squarely and distinctly" before us.
See Alston v. Town of Brookline, 997 F.3d 23, 41 (1st Cir. 2021)
(quotation marks omitted); see also Rodríguez, 659 F.3d at 175(noting that "we consider waived arguments 'confusingly
constructed and lacking coherence'" (quoting United States v.
Eirby, 525 F.3d 31, 36 n.4 (1st Cir. 2008))). It is not our job
to develop appellate arguments that they may have had in mind.
That is for them to do. See, e.g., Rodríguez-Machado v. Shinseki,
700 F.3d 48, 49, 50 (1st Cir. 2012) (per curiam) (observing that
"busy appellate judges depend on [the parties] to help bring issues
into sharp focus," and adding that "doing [the parties'] work for
[them] is not an option" because "that would divert precious judge-
time from other[s] . . . who could have their cases resolved
thoughtfully and expeditiously").
- 34 -
which brought out how Pabón was testifying under a 2008 plea deal
— the judge instructed the jurors that they "should consider his
testimony with particular caution." Pabón, the judge added,
may have had reasons to make up stories or
exaggerate what others did because he wants to
help himself. You must determine whether the
testimony of such a witness has been affected
by any interest in the outcome of this case,
any prejudice for or against the defendants or
by any of the benefits he has or may receive
from the [g]overnment or the [c]ourt as to his
sentence.
Continuing, the judge said that the jurors
may consider [Pabón's] guilty plea in
assessing his credibility, but you are not to
consider his guilty plea as evidence that
other individual defendants may have
participated with him. . . . In other words,
the fact that he accepts that he is guilty,
that does not mean that the other defendants
are guilty. That's for you to decide when all
the evidence is in.
(The judge's final charge to the jury included a similar
instruction.)
The defense's hours-long cross-examination of Pabón
covered lots of subjects — all designed to ruin Pabón's credibility
by painting him as a mentally unstable person with an agenda. The
defendants' lawyers, for instance, cross-examined him on his drug
doings; community reputation; taste for lying and bragging; past
violent acts; and mental-health history, including his psychiatric
symptoms and prescribed medications (granting the defendants'
- 35 -
request, the judge took judicial notice that one of Pabón's meds
— Risperdal — is "an 'atypical antipsychotic drug' used to treat
mental illnesses including schizophrenia, bipolar disease, and
irritability associated with autistic disorder"). And at Aurea's
lawyer's request, the judge also admitted Pabón's 2008 plea
agreement into evidence (the same judge who accepted the 2008 plea
agreement ran the 2018 trial).
Not surprisingly, Aurea's attorney focused on the
favorable treatment Pabón hoped to get from the government for
testifying. Turning to Pabón's plea hearing, her lawyer asked,
"At the time, before this judge, were you asked as to your health;
mental health?" "Yes," Pabón said, the judge "did, I think."
"And," her lawyer continued, "you stated to the [c]ourt here that
you, at that time, had been with a psychiatrist because you had
depression, correct?" "I think something like that," Pabón
answered.13
13Now is as good a place as any to address José's claim that
the judge wrongly kept him from "cross-examining" Pabón about
"delusional letters" he wrote to other famous women that he "became
infatuated with" (like a former "Miss Universe"). What damages
this claim is that he does not provide the necessary record
citations or sustained case analysis to back up his "rhetoric" (he
cites to one instance where the government objected to a question
on recross-examination about one woman, but his appendix lacks a
vital excerpt showing the judge's ruling). See Reyes-García v.
Rodríguez & Del Valle, Inc., 82 F.3d 11, 14 (1st Cir. 1996). He
does not even offer "any indicium that [his argument] was
seasonably advanced and properly preserved in the lower court."
- 36 -
After Pabón left the stand the government (outside the
jury's presence) asked the judge to judicially notice that he (the
judge) had found Pabón competent to plead guilty in 2008. The
government thought that since the defendants "have been allowed to
ask and to bring evidence of [Pabón's] mental state and
everything," fairness required that the judge note that he had
ruled Pabón competent to make a plea. The attorneys for each
defendant objected.14
"Who put the plea agreement in evidence?" the judge
asked. Aurea's lawyer said that he had. And when the judge asked
him if he had "protest[ed] the evidence" that he had "put[] on,"
he answered that he had not. The plea agreement "happened in
2008," the judge noted, and "we are now in 2018." "It's a matter
of factfinding by the jury," Aurea's lawyer responded, because
"[i]f the jury is told that the [c]ourt made a particular
determination," it is "going to put more weight to that, and that
is our objection."
See id. So his claim "is a nonstarter." See Págan-Lisbon v. Soc.
Sec. Admin., 996 F.3d 1, 7 (1st Cir. 2021).
14The ensuing discussion between the lawyers and the judge
was extensive and not always as clear as we might wish. See
generally United States v. Rivera-Morales, 961 F.3d 1, 12 (1st
Cir. 2020) (underscoring that appellants must present their
arguments "face up and squarely in the court below" to preserve
them for appeal). We offer a flavor of it here.
- 37 -
Marcia's lawyer spoke up too and said that granting the
government's request would make the jurors think that the judge
"believes that [Pabón] is competent, when the truth of the matter
is that what the [c]ourt held was that [Pabón] was competent at
the time of the change of plea hearing." "What's wrong if I say
it that way?" the judge asked — "that he was competent at that
time, that date that he pled guilty with me, with this judge."
José's attorney responded that the complained-about
information "isn't relevant" because the judge "found [Pabón]
competent within the context of the change of plea hearing" in
"2008" while "the facts of this case" occurred "in 2005." "And if
the [c]ourt states that in 2008 he was found competent . . . it
will bring an imprimatur that he was competent upon the jury, when
it is the jury that has to decide the issue." Marcia's attorney
agreed, stating that "the issue in this case is not whether [Pabón]
was competent at his change of plea hearing, but during the events
that allegedly took place." But the judge felt that he had "to
balance the equities here." "What you wanted," the judge said,
was that the plea agreement goes in as a plea agreement, but the
fact that he was then competent, you don't want it there."
Marcia's counsel then repeated that "[i]nformation pertaining to
the process of a change of plea hearing, and that he was found
competent[,] is not relevant" to whether "at the time of the events
- 38 -
he was competent."15 And he added that he "believe[d] the
instruction" would "confuse the jury because the competence that
is discussed in the context of" a plea change "is a legal term" —
"[i]t is not necessarily a matter related to facts."
"They introduced the [p]lea and [c]ooperation
[a]greement," the prosecutor argued right back. And they asked
Pabón "for half an hour all his obligations" and "benefits." But,
the prosecutor added, they now do not want the jury "to hear the
[other] half of the story that is inconvenient for them" — that
"he was competent" to plead "guilty before the [c]ourt." Witnesses
are presumed "competent to testify," the prosecutor stressed, and
"[t]he [d]efense has put this [in] issue." Responding, Marcia's
lawyer argued that when the judge — "the highest authority in this
room" — talks, the jurors "might think" that "the [c]ourt has
already found him competent." What the government wants, Marcia's
attorney claimed, "is to . . . influence the jury that [Pabón] is
of a state of mind different to that that was presented to them"
during the direct and cross-examinations.
15 We
have no idea why Marcia's and José's lawyers kept talking
about Pabón's competency at the time of Adam's murder. And we
suspect the judge had no idea either. That is because criminals
can commit crimes while incompetent — they just cannot (generally
speaking) face certain criminal processes since incompetents
cannot make a defense. See Indiana v. Edwards, 554 U.S. 164, 170
(2008).
- 39 -
Aurea's counsel jumped back in and noted why she had
questioned Pabón about the plea hearing. Pabón had answered "yes"
when asked at the plea proceeding whether he had had "psychiatric
treatment," her lawyer said. So "we cross-examined him extensively
on that issue, because there is a record after that . . . plea
[hearing] of years of [him] saying that he is not well, and taking
X, Y, and Z for years." Making this point again, Aurea's attorney
said that "[f]or years [Pabón] took medicines, treatment, and he
himself asked for it, saying that he heard voices, saying that he
saw things" — which "is why we went into that issue."
At the end of the government's case the judge took
judicial notice and advised the jury that
on June 13, 2008, [Pabón] entered a plea of
guilty in Criminal Case Number 08-216, which
is this case. During the plea and at the end
of the hearing, the [c]ourt found [Pabón]
competent and capable of entering an informed
plea on this date.
The judge repeated that instruction in his final charge. And after
telling the jurors that witness credibility was entirely a matter
of their judgment — and thus they did "not have to accept the
testimony of any witness if" they found the witness "not credible"
— the judge instructed the jurors that "the final decision whether
- 40 -
or not to accept" a judicially noticed fact was theirs "to make"
and that they did not have "to agree with the [c]ourt."16
Forgoing any relevance-based grounds on appeal, the
defendants use different legal frameworks here to contest the
judge's taking judicial notice of Pabón's competency to plead
guilty. Aurea characterizes her challenge as one of instructional
error (focusing on the judge's final charge), Marcia's as part of
a broader pattern of judicial bias, and José's as one of
evidentiary error. The standard of review applicable to each of
those challenges is abuse of discretion. See United States v.
Cantwell, 64 F.4th 396, 409-10 (1st Cir. 2023) (instructional
challenge); Raymundí-Hernández, 984 F.3d at 145 (judicial-bias
challenge); United States v. Vázquez-Soto, 939 F.3d 365, 373 (1st
Cir. 2019) (evidentiary challenge). Noting that the root cause of
the claimed error is the judge's judicial-notice taking, the
government treats the defendants' attacks as a freestanding
judicial-notice challenge — which also gets abuse-of-discretion
review. See United States v. Bello, 194 F.3d 18, 23 (1st Cir.
1999). No party disagrees with the government's approach. So we
follow that approach too.
For what it is worth, the defendants had argued that "[t]he
16
first thing the [g]overnment will do in closing" will be to "say,
hey, members of the jury, the judge said that [Pabón] was
competent." But the government did nothing of the sort.
- 41 -
A judge may judicially notice an "adjudicative fact" —
i.e., a fact that is "particularly related" to the parties'
proceeding — if the fact is "not subject to reasonable dispute" in
that it is either "generally known within the trial court's
territorial jurisdiction" or "can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned." See Fed. R. Evid. 201(b).17 In a criminal case, a
judge who judicially notices an adjudicative fact must "instruct
the jury that it may or may not accept the noticed fact as
conclusive." See id. 201(f). This rider protects the jury's
traditional right to discount even an uncontested fact in reaching
a verdict and so prevents the judge from violating a defendant's
constitutional jury right by directing a verdict on that fact.
See, e.g., United States v. Dávila-Nieves, 670 F.3d 1, 8 (1st Cir.
2012); Bello, 194 F.3d at 25.
17The "particularly related" quote comes from a leading legal
dictionary. See Black's Law Dictionary (11th ed. 2019) (look up
"adjudicative fact," which says "SEE FACT"; go to "fact," which
provides a definition of "adjudicative fact"). Our caselaw says
that "[a]djudicative fact is . . . a fuzzy concept (indeed, there
is more than one usage, and [Evidence] Rule 201's advisory
committee notes do little more than borrow — and may well
misconceive — . . . several formulations: e.g., facts concerning
the immediate parties." United States v. Hilton, 257 F.3d 50, 55
(1st Cir. 2001). But no one doubts that the judge here judicially
noticed an adjudicative fact. See generally United States v.
Bauzó-Santiago, 867 F.3d 13, 23 (1st Cir. 2017) (holding that a
fact on the docket "is a proper subject of judicial notice").
- 42 -
The defendants do not contest the fact that in 2008 the
judge found Pabón competent to plead guilty (a transcript of
Pabón's plea hearing appears in the joint appendix filed in this
appeal). Nor do they dispute that this fact clearly appears in
the court's records. Instead they contend that the judge's
judicial-notice taking "placed the prestige of the [c]ourt behind
the mental competence of Pabón" and so endorsed his "credibility
and bolstered his testimony" in 2018. And pointing to the judge's
"I have to balance the equities" comment, they suggest that the
notice offset their bid to destroy Pabón's "credibility" on cross
by "impermissibly" presenting his "competen[cy]" "as a proven
fact" that the jury "could not" contest. But their thesis rests
on an incorrect premise — namely, that by judicially noticing
Pabón's competency to plead guilty in 2008, the judge vouched for
the credibility of Pabón's trial testimony a decade later in 2018.
Explaining why we think this will require a bit of unpacking
(please bear with us).
Competency and credibility are different concepts in
important respects. Compare Competency, Black's Law Dictionary
(11th ed. 2019) (defined as "[t]he mental ability to understand
problems and make decisions," which in the criminal-law context
includes a defendant's "fitness to plead" or "to stand trial"),
and Competence, id. (defined as "[a] basic or minimal ability to
- 43 -
do something; qualification, esp[ecially] to testify"),18 with
Credibility, Black's Law Dictionary (11th ed. 2019) (defined as
"[t]he quality that makes something" — like "a witness" — "worthy
of belief"), and Witness, sub-definition for "credible witness"
(defined as "[a] witness whose testimony is believable"). One can
be competent to testify yet still testify with no credibility, for
example. Competency (if contested) is for the judge, not the jury.
See United States v. Devin, 918 F.2d 280, 291-92 (1st Cir. 1990).
But credibility is for the jury, not the judge.19 See United States
v. Alicea, 205 F.3d 480, 483 (1st Cir. 2000).
Now give the at-issue judicial notice another read:
[O]n June 13, 2008, [Pabón] entered a plea of
guilty in Criminal Case Number 08-216, which
is this case. During the plea and at the end
of the hearing, the [c]ourt found [Pabón]
competent and capable of entering an informed
plea on this date.
What jumps out is that in giving the jury context for the plea's
acceptance despite (as the defense showed) Pabón's getting
psychiatric treatment then, the judge carefully limited the notice
18See generally District of Columbia v. Arms, 107 U.S. 519,
521-22 (1883) (stating that even "a person affected with insanity
is admissible as a witness if he has sufficient understanding to
apprehend the obligation of an oath, and to be capable of giving
a correct account of the matters which he has seen or heard in
reference to the questions at issue") (cleaned up).
19 If anyone is wondering, no defendant questioned Pabón's
competency to appear as a witness or moved to strike his testimony.
- 44 -
to Pabón's plea competency in 2008 — i.e., to his "entering an
informed plea on th[at] date" (emphasis added). The judge said
nothing about Pabón's trial credibility in 2018 — the phrase "trial
credibility in 2018" (or one like it) is nowhere to be found there.
So Pabón's trial credibility still remained a disputed fact.
Yet the defendants still think that the judge's notice
"convey[ed] to the jurors that [Pabón] was not crazy," when he
instead "should have allowed the jury to come to its own
conclusion." But their claim butts up against the judge's explicit
instructions that the jurors (and they alone) remained the
evaluators of witness credibility and so did not "have to accept
the testimony of any witness" they found "not credible."20 And
20 Under the heading "Number of witnesses," the judge
instructed the jury in part:
You do not have to accept the testimony of any
witness if you find the witness is not credible. You
must decide which witnesses to believe and which facts
are true. To do this, you must look at all the evidence,
drawing upon your common sense and personal experience.
You may want to take into consideration such
factors as the witnesses' conduct and demeanor while
testifying; their apparent fairness or any bias they may
have displayed; any interest you may discern that they
may have in the outcome of the case; any prejudice they
may have shown; their opportunities for seeing and
knowing the things about which they testified; the
reasonableness or unreasonableness of the events that
they have related to you in their testimony; and any
other facts or circumstances disclosed by the evidence
that tend to corroborate or contradict their versions of
the events.
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these instructions — which the law presumes they followed, see
United States v. Stewart-Carrasquillo, 997 F.3d 408, 423 (1st Cir.
2021) — did not carve out an exception for Pabón.
As if to make this more emphatic, both the government
and the defense (seemingly following the judge's lead) acted like
Pabón's credibility — his believability — remained a question for
the jury even after the judge gave the disputed notice. A
prosecutor, for example, told the jurors during closing argument
And under the heading "Credibility of witnesses," the judge
instructed the jury as follows:
In deciding what the facts are, you may have to
decide what testimony you believe and what testimony you
do not believe. You may believe everything a witness
says or only part of it or none of it. In deciding what
to believe, you may consider a number of factors,
including the following: The witness' ability to see or
hear or know the things the witness testifies to; number
two, the quality of the witness' memory; number three,
the witness' manner while testifying; four, whether the
witness has an interest in the outcome of the case or
any motive, bias or prejudice; five, whether the witness
is contradicted by anything the witness said or wrote
before the trial or by other evidence; and six, how
reasonable the witness' testimony is when considered in
light of other evidence which you believe.
You are to judge the credibility of all witnesses
fairly and reasonably, and you are to consider any
interest that each of them may have in the outcome of
the case in determining the weight to be given to their
testimony.
Therefore, after evaluating all the evidence, and
a particular witness' testimony pursuant to this
instruction, you have three choices: You believe him or
her totally; you reject his or her testimony totally or;
you believe him or her partially.
- 46 -
that "[i]t is your duty to adjudge credibility and determine what
to believe" (emphasis added) — without excepting Pabón. Not to be
outdone, a defense lawyer told them that "Alex El Loco" had "no
credibility" but "that is up to you to decide" (emphases added).
The defense's closings also pushed the crazy-Pabón-has-no-
credibility theme with gusto, telling the jurors that "Alex El
Loco" "is a fantasiz[ing]" "psychopath" who is "detached from
reality," "was prescribed psychotic drugs" for a very long time,
and "does not deserve an iota of credibility" — so "[t]ake care
when you weigh his testimony" (emphases added). Which caused a
prosecutor during rebuttal closing argument to highlight evidence
"corroborat[ing]" Pabón's "testimony" (the prosecutor's words, not
ours), a significant development that — because "[c]orroboration
goes to credibility," see Robinson v. Pezzat, 818 F.3d 1, 9 (D.C.
Cir. 2016) — further shows how everyone (the judge, the government,
and the defense) believed Pabón's credibility remained a live issue
for the jury even after the judge gave the contested notice.
The defendants' briefs might be read to say that the
jury did not know the difference between competency and
credibility. José, for example, claims that the judge botched
things by not instructing the jury "what it meant to be found
competent to plead guilty." Damaging to their position, however,
is that they give us no sign that they ever asked the judge to
- 47 -
instruct the jury on the difference between competency and
credibility. Anyway, any confusion about the scope of the judicial
notice got straightened out by the judge's multiple charges to the
jurors (which the law assumes they obeyed, as we keep saying, see
Stewart-Carrasquillo, 997 F.3d at 423), like how they "should
consider [Pabón's] testimony with particular caution" and how they
remained the sole deciders of witness credibility, meaning they —
as the exclusive finders of fact — did "not have to accept the
testimony of any witness" (no Pabón carve-out exception) if they
found the witness "not credible" (emphases added). And even after
those instructions, the defendants (as we just intimated) still
did not ask the judge to clarify the difference between competency
and credibility.
So on this record we cannot say that the judge's judicial
notice represents an abuse of discretion — which would require us
to hold that "no reasonable person" could have done what this judge
did.21 See Rivera-Carrasquillo, 933 F.3d at 44.
21Since we reject the defendants' arguments on these grounds,
we need not reach (and take no position on) the government's
additional claim that we can uphold the judge's action because he
repeatedly told the jurors that they could — per Evidence Rule 201
— disregard any judicially noticed fact. See generally PDK Labs.
Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
concurring in part and concurring in the judgment) (declaring that
"if it is not necessary to decide more, it is necessary not to
decide more").
- 48 -
Siding with the defense, the dissent raises some
concerns.22 But they do not change the outcome.
The dissent dismisses our mentioning how the judge
directed the jurors to a specific moment in time — 2008, not 2018
— involving a specific subject — competency, not credibility — and
later instructed that they should view Pabón's testimony with
special care and could reject "any witness['s]" account as the
absolute arbiters of witness credibility (emphasis added). In the
dissent's telling, the judge's "intervention . . . created the
unacceptable risk that the jurors understood the . . . notice of
the [2008] competency finding to reflect the . . . judge's view
that Pabón's mental illness did not make" his 2018 trial testimony
"untrustworthy — regardless of the jur[or]s' perception of his
[2018] performance on the witness stand." In other words, "[b]y
instructing the jury on its finding of Pabón's competence in 2008,
the judge was inescapably telling the jury that [that] finding was
relevant to the jury's evaluation of Pabón's credibility at trial"
in 2018 — or so the dissent believes.
Two responses. One is that — as we showed five
paragraphs above (beginning "As if to make this more emphatic
. . .") — everyone operated below on the view that the credibility
22 The "dissent" refers to the opinion that follows ours,
concurring in part and dissenting in part.
- 49 -
of all witnesses remained a jury question even after the judge
gave the challenged notice. Another — deeply embedded in our
jurisprudence (and this should sound familiar by now) — is that
jurors can and do make distinctions among the different issues at
trial and follow judges' instructions, see Stewart-Carrasquillo,
997 F.3d at 423 — including those saying that they decide who is
credible, based on factors like their perception of a witness's
"ability to see or hear or know the things the witness testifies
to" and "the witness'[s] manner while testifying" (quotes pulled
from the instructions displayed a few footnotes ago). Our bottom-
line view is that the judge's instructions could not be any clearer
that the jurors got to make all credibility decisions and that the
judicial notice's mention of Pabón's competency concerned only a
finding of his competency when he pled guilty in 2008. And (allow
us to say again, because it bears repeating) if the defendants
felt that the credibility instructions might mystify the jurors
when paired with the notice's competency reference, then it was on
them to ask for clarification on the difference between credibility
and competency. Yet they never did.
The dissent next claims that the-jurors-decide-
credibility charge could not "cure the harm from the" judge's
"error." And as support, the dissent leans on Raymundí-Hernández.
- 50 -
But there are important night-and-day differences between that
case and the defendants'.
Among other "intercessions," see 984 F.3d at 154, the
district judge there said "before the jury" that the testimony of
a then-testifying defense witness "[wa]s not relevant," id. at
147. Raymundí-Hernández did hold that "where the reliability of
witness testimony is so strongly implicated . . . 'such
interference with jury fact-finding cannot be cured by standard
jury instructions,'" id. at 153-54 (quoting United States v.
Tilghman, 134 F.3d 414, 421 (D.C. Cir. 1998)) — including
instructions saying that witness credibility is for the jury, see
id. at 149-50. But Raymundí-Hernández did not involve judicial
notice. Plus nothing like the fact-finding interference that
happened there happened here, where (as we have been at pains to
stress) the judge's words focused the jurors on Pabón's plea
competence in 2008 — not his testimonial credibility a decade later
in 2018.23
The dissent tries to downplay the significance of the
lawyers' "treat[ing] Pabón's credibility as a live issue" during
closing arguments, writing that "[i]t is certainly no surprise"
Perhaps we should say that no one argues here that the
23
judge violated Evidence Rule 403 (recall the probative
worth/unfair prejudice analysis discussed above) by judicially
noticing Pabón's plea competency in 2008.
- 51 -
that they "argued that point." As the dissent sees it, "[t]he
problem with the judicial notice in this case is not that the
district court entirely preempted the jury's factfinding on
Pabón's credibility, but that it weighed in on the government's
behalf." But that theory depends on the same plea-competency-in-
2008-implicates-testimonial-credibility-in-2018 idea that we
cannot accept, for the reasons already given.
And that is that for the judicial-notice matter (though
we should add that because we see no abuse of discretion, we —
unlike the dissent — need not run through harmless error here).
VI
Constructive Amendment and Prejudicial Variance
Aurea claims that the government's closing arguments and
the judge's jury instructions constructively amended the
indictment. Marcia claims that the government's proof
constructively amended or prejudicially varied from the
indictment.
A constructive amendment (roughly speaking) occurs when
either the government (typically through evidence presentation or
argument) or the judge (typically through jury instructions)
changes the indictment's terms to the point that the defendants
are "effectively charged with" a crime different from "the one
returned by the grand jury." See United States v. Katana, 93 F.4th
521, 530 (1st Cir. 2024); see also United States v. Condron, 98
- 52 -
F.4th 1, 24 (1st Cir. 2024). A prejudicial variance (also roughly
speaking) occurs when there is a difference between the facts
charged and the facts proved that affected the defendants'
"substantial rights," say by surprising them at trial or by
exposing them to the risk of double jeopardy. See Condron, 98
F.4th at 24-25; see also Katana, 93 F.4th at 530.
A
Aurea's Arguments
Aurea presents two constructive-amendment arguments.
The first argument is that the government's comment in
closing arguments that cellphones and cars are facilities of
interstate commerce shows a "changed . . . theory as to the
interstate commerce facility." Exactly how Aurea does not clearly
say. But as the government notes without contradiction, this is
an unpreserved contention that prompts (at most) plain-error
review. See United States v. McBride, 962 F.3d 25, 31 (1st Cir.
2020). And because Aurea "do[es] not tie this unpreserved . . .
argument to the demanding plain-error standard," she has "waived
it." See Rivera-Carrasquillo, 933 F.3d at 49 n.15.
The second argument — which the parties treat as
preserved (and so will we) — is that the judge instructed the
jurors that Aurea stood trial only for the counts in the original
indictment but that they could consider overt acts alleged in the
second superseding indictment. Put aside that she identifies no
- 53 -
overt acts in the second superseding indictment that would
fundamentally alter the charging terms of her indictment. Her
claim at bottom rests on the idea that the jury could have
convicted her under the second superseding indictment rather than
the first. But the judge's repeated instructions — which we
presume the jury followed, see Chisholm, 940 F.3d at 129 — that
Aurea faced trial on the original indictment throw cold water on
that proposition.
B
Marcia's Arguments
Marcia contends that Pabón's testimony that she was at
El Hamburger — which the second superseding indictment does not
specifically mention — constructively amended or prejudicially
varied from the operative indictment.24
Starting with Marcia's constructive-amendment claim, the
government again says without pushback that she did not preserve
that theory. Which means review is (at best) for plain error.
See United States v. DeCicco, 439 F.3d 36, 44 (1st Cir. 2006).
But by making no effort to show plain error, she waived it. See
Rivera-Carrasquillo, 933 F.3d at 49 n.15.
24Among the many overt acts alleged, the indictment said that
Aurea and José "met with Pabón . . . at a restaurant in Puerta de
Tierra" — El Hamburger — on September 21, 2005, "and proposed that
[he] murder [Adam], in exchange for" $3 million.
- 54 -
And Marcia's prejudicial-variance theory — which the
parties treat as preserved (and so will we) — goes nowhere too.
An indictment (as we intimated at the beginning of this discussion)
must say enough so a defendant knows the charges and can plead
double jeopardy in any later prosecution for the same crime. See,
e.g., Katana, 93 F.4th at 530. But prosecutors need not list all
of their evidence in the indictment. See, e.g., United States v.
Marrero-Ortiz, 160 F.3d 768, 773 (1st Cir. 1998). Nor must they
limit themselves at trial to the overt acts in that document. See
id. Getting back to this case, the second superseding indictment
gave Marcia notice that prosecutors would present evidence of her
meeting with Pabón before Adam's murder. As a "manner and means"
of the conspiracy, the indictment stated (emphasis ours) that
Aurea, Marcia, and José "approach[ed] . . . Pabón . . . , and
propose[d] that he murder" Adam and "met with Pabón . . . on
several occasions, . . . to discuss the particulars of the murder
for hire." The indictment also alleged as an overt act that on
September 21, 2005 — the date of the El Hamburger meet-up — Aurea,
Marcia, and José "agreed that Pabón . . . would be notified of the
specific location, date, and time of the murder of [Adam]." And
the statement of facts in Pabón's plea agreement — submitted as an
exhibit below — said (again emphasis ours) that Aurea, Marcia, and
José "all boarded Aurea's SUV . . . and drove to a nearby
- 55 -
restaurant in Puerta de Tierra known as El Hamburger." So because
Marcia "cannot credibly claim surprise," her variance argument
fails for lack of prejudice. See id.; see also United States v.
Rivera-Donate, 682 F.3d 120, 130 (1st Cir. 2012) (making a similar
point in rejecting a variance argument because "[a]lthough the
indictment did not spell out every single location at which
activities related to the conspiracy took place, it gave a
sufficient description of the manner and means of the same to put
[the defendant] on notice of the charges against him").
VII
Death Resulted
The defendants also ask us to vacate their sentences
because the judge did not have the jury specifically find that a
death resulted from the murder-for-hire scheme.
The murder-for-hire statute punishes offenders on a
sliding scale. If no injury occurs, they can get up to 10 years
in prison. If an injury does occur, they can get up to 20 years
in prison. And if death occurs, they can get death or life in
prison. See 18 U.S.C. § 1958(a). The defendants are right that
other than the fact of a prior conviction, any fact that controls
minimum and maximum sentences must be alleged in the indictment
and found by the jury beyond a reasonable doubt. See United States
v. Rabb, 5 F.4th 95, 104 (1st Cir. 2021); see also Burrage v.
- 56 -
United States, 571 U.S. 204, 210 (2014). But they are wrong to
think that their argument is a winner.
Using the more defendant-friendly harmless-error
standard (rather than the less defendant-friendly plain-error
model), see United States v. Pizarro, 772 F.3d 284, 296-97 (1st
Cir. 2014), we "conclude[] beyond reasonable doubt that the
omitted" death-results "element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been
the same absent the error," see id. at 297-98 (quotation marks
omitted). The operative indictments charged the defendants with
conspiring to commit murder for hire "result[ing]" in "the death
of Adam Joel Anhang Uster." The judge read the indictments to the
jury during his preliminary and final instructions, including the
allegations that the death of Adam resulted. And as reflected on
the verdict forms, the jury found each defendant guilty "as
charged." But put that away. The defendants conceded at trial
that Adam died at Pabón's hands. Lawyers for Aurea and Marcia,
for example, told the jury in their opening statements that "[t]he
evidence will show that Adam died" (Aurea's lawyer) and that Pabón
"brutally murdered Adam" (Marcia's lawyer). And to give another
example, counsel for each defendant relied on this concession to
convince the judge to limit the government's use of a murder-scene
video that showed Adam's dead body lying on the street. A
- 57 -
representative quote is Aurea's lawyer's saying that because
"[t]here is no issue" that Adam "is dead," the video need not come
in. More, Pabón testified about how he took Adam's life; a
forensic pathologist testified about how Adam died; a lawyer
testified about how Aurea sued Adam's parents to recover her
claimed share of her "deceased" husband's estate; and José
testified about how he felt after learning of Adam's death (among
other evidence). And more still (as the judge noted at
sentencing), no witness testified that Adam did not die. See
United States v. Razo, 782 F.3d 31, 40 (1st Cir. 2015) (concluding
that "a 'reasonable jury necessarily would have found an
aggravating [drug-quantity] element beyond a reasonable doubt'
even though it was not asked to do so," noting that the defendant
"point[ed] to no evidence contradicting the drug quantities
testified to at trial" and never "assert[ed] that he was
responsible for a lower quantity" (quoting Pizarro, 772 F.3d at
296)).
Trying to distinguish his case from Pizarro, José says
(emphasis ours) that there was "no overwhelming evidence about his
participation in the murder." Marcia seems to make a similar
argument for herself. But the harmless-error analysis here focuses
on the omitted aggravating element that a death resulted from the
charged crime, not on other elements of the offense.
- 58 -
VIII
Mental Health
Aurea, Marcia, and José contest a bunch of post-trial
rulings rejecting claims for relief based on Pabón's mental health.
A
Background
To get to the issues we must first sort through a fairly
complicated procedural history (some of which we have already
touched on).
Pabón pled guilty in June 2008 to conspiring to commit
murder for hire resulting in Adam's death. Because his sentence
depended on his "substantial assistance to the United States and
[his] truthful testimony" in the defendants' case, particularly
after "the cross-examination and all of the evidence," the judge
did not set a sentencing date (again, Pabón's sentencing judge was
the defendants' trial judge).
The defendants' trial began and ended in 2018. They got
sentenced in 2019. And they timely appealed their convictions and
sentences. Pabón remained unsentenced because his lawyer had
concerns about his competency (a defendant must be competent at
all stages of the prosecution, including sentencing, see Drope v.
Missouri, 420 U.S. 162, 181 (1975)). What happened was Pabón sent
letters to José's and Aurea's lawyers in June 2019 (about three
months after the defendants' sentencings) promising "helpful"
- 59 -
information for each client's appeal. At Pabón's lawyer's ex parte
request the judge in July 2019 issued an ex parte order for a
competency evaluation.
Aurea, Marcia, and José later learned about the ex parte
order and the letters that had triggered it. They also learned
that before trial Pabón had told prosecutors "in a very excited
fashion that he did not want to cooperate[;] that he had had a
plan all along that he was going to break the plea agreement in
court[;] and that he was not wanting to cooperate any longer" —
information prosecutors shared with the judge (in an ex parte
sidebar at trial), but not with the defendants.
The defendants then asked us in September 2019 to remand
their pending appeals so that the judge could assess Pabón's
letters — which they described as "impeachment evidence." They
also argued that the government's "fail[ure] to disclose [this]
evidence at trial, which appear[ed] to be related to [Pabón's]
lack of competence," had not been "presented below" and "should be
first addressed by the [d]istrict [c]ourt."
Before we ruled on that remand motion, the Bureau of
Prisons ("BOP") in September 2019 released its court-ordered
competency evaluation of Pabón. The psychologist diagnosed him
with "Schizophrenia, Continuous." According to the psychologist,
Pabón was "experiencing symptoms of a psychotic disorder that do
- 60 -
substantially impair his present ability to understand the nature
and consequences of the court proceedings brought against him, and
substantially impair his ability to properly assist counsel in a
defense." The psychologist also noted that in November 2008, Pabón
had been diagnosed with "Schizophrenia, Delusional Type" while in
BOP custody. And the psychologist ultimately "recommended that
[Pabón] be transferred to a federal medical center for competency
restoration treatment." Acting on Pabón's counsel's motion, the
judge ordered Pabón to undergo that treatment.
Days after the evaluation's release, we denied the
defendants' remand motion in October 2019, but "without prejudice
to [their] following the procedures set forth in Fed. R. Crim. P.
37 and Fed. R. App. P. 12.1."25
25 Fed. R. Crim. P. 37 provides:
(a) Relief Pending Appeal. If a timely
motion is made for relief that the court
lacks authority to grant because of an
appeal that has been docketed and is
pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the
motion if the court of appeals remands for
that purpose or that the motion raises a
substantial issue.
(b) Notice to the Court of Appeals. The
movant must promptly notify the circuit
clerk under Federal Rule of Appellate
Procedure 12.1 if the district court states
- 61 -
In November 2019 — more than a year after their trial —
the defendants filed motions for indicative rulings under Criminal
Rule 37. Marcia sought an indicative ruling on a new-trial motion
alleging the government had violated its duties under Brady v.
Maryland, 373 U.S. 83 (1963), by withholding Pabón's prison medical
records (including his 2008 schizophrenia diagnosis) and had
ignored its obligations under Giglio v. United States, 405 U.S.
150 (1972), by suppressing the "impeachment evidence." Because
that it would grant the motion or that the
motion raises a substantial issue.
(c) Remand. The district court may decide
the motion if the court of appeals remands
for that purpose.
And Fed. R. App. P. 12.1 says:
(a) Notice to the Court of Appeals. If a
timely motion is made in the district court
for relief that it lacks authority to grant
because of an appeal that has been docketed
and is pending, the movant must promptly
notify the circuit clerk if the district
court states either that it would grant the
motion or that the motion raises a
substantial issue.
(b) Remand After an Indicative Ruling. If
the district court states that it would
grant the motion or that the motion raises
a substantial issue, the court of appeals
may remand for further proceedings but
retains jurisdiction unless it expressly
dismisses the appeal. If the court of
appeals remands but retains jurisdiction,
the parties must promptly notify the
circuit clerk when the district court has
decided the motion on remand.
- 62 -
Aurea — and only Aurea — had gotten Pabón's prison medical records
before trial (unlike the other defendants, she had served the BOP
with a subpoena after the judge had ordered the records turned
over), she sought an indicative ruling on a new-trial motion
claiming "newly discovered evidence" about Pabón's mental health
after the trial and accusing the government of defying Brady/Giglio
by not producing the "impeachment evidence." Marcia and Aurea
also argued that they had a right to an independent psychiatric
examination of Pabón, post-trial discovery, and an evidentiary
hearing. José joined their motions.
The following month — December 2019 — we granted the
defendants' motion to stay their pending appeals in their criminal
case. Of note, our order directed them to "file status reports
every thirty days advising [us] of the status of the pending
district court motions for indicative rulings."
The judge denied all the indicative-rulings motions in
February 2020. But he then granted the defendants' motions to
extend the "deadline" to file a reconsideration motion from March
6 to March 20, 2020. Responding to the Covid-19 pandemic, the
District Court of Puerto Rico issued an order saying that "all
deadlines originally set from March 16, 2020, to and including
April 9, 2020 are extended until April 10, 2020."
- 63 -
The defendants filed status reports with us a little
later, informing us about the judge's ruling.
Then on April 30, 2020, Marcia moved the judge for
reconsideration and an evidentiary hearing. But the judge denied
that "extremely overdue" motion on May 1, 2020, noting that Marcia
had filed it "twenty days after the expiration of the District
Court's mandated extension of deadlines." José moved three days
later to join Marcia's untimely reconsideration motion. And the
judge denied that motion too.
But those were not the only things that happened in May
2020. Aurea moved the judge for post-trial discovery on the "same
matter" raised in her previously denied indicative-rulings bid —
a motion Marcia and José joined as well. Before the judge ruled
on that request, José appealed the February 2020 denial of the
indicative-rulings motions. The judge then denied the post-trial-
discovery motion. And Aurea and Marcia filed amended notices of
appeal that same day. Aurea's amended notice challenged "all
motions[] filed after the filing of [her] original notice of
appeal" and "motions where a joinder was requested" but was
"denied." Marcia's amended notice challenged "the district
court's denial of "her . . . motions for [i]ndicative [r]ulings
and her motion for reconsideration and its denial of a motion for
post-conviction discovery, which [she] joined, among others."
- 64 -
The BOP completed Pabón's court-ordered competency-
restoration treatment in June 2020. The psychologist diagnosed
him with "antisocial personality disorder" but found he was
"competent to proceed to" sentencing. That same month we lifted
the "stay of appellate proceedings" given "the conclusion of the
district court proceedings related to defendants' motions for
indicative rulings."
After getting the June 2020 evaluation, Marcia moved the
judge in August 2020 for an indicative ruling on a request for the
appointment of an independent psychiatrist to evaluate Pabón,
post-trial discovery of all documents "in the possession of the
. . . BOP [p]sychologists," and an evidentiary hearing. The judge
denied the motion the same day. And Marcia appealed that denial.
Taking a page from Marcia, Aurea moved the judge in
September 2020 for an indicative ruling on a request that
essentially mirrored Marcia's. The judge denied that motion too.
And Aurea appealed that denial.
This brings us to October 2020. Concerned that José's
May 2020 appeal might be untimely under Fed. R. App. P. 4(a)(1)(B),
we ordered him "to move for voluntary dismissal of the appeal
. . . , or to show cause, in writing, why this appeal should not
- 65 -
be dismissed."26 José then dismissed his May 2020 appeal and filed
a document in his appeal from the criminal trial asking us to "take
notice" of the judge's February 2020 denial of the indicative-
rulings motions.
December 2020 saw a flurry of activity. José asked us
if he could file a separate addendum under seal in the appeal from
his criminal trial. We granted his request but said that "[t]he
merits panel w[ould] decide whether to consider the post-
conviction orders contained in the supplemental addendum, which
post-date defendant's direct appeal." Back in the district court
Pabón's lawyer told the judge that Pabón had acted in ways that
suggested he "may again be incompetent" to help his "defense." As
support, counsel pointed to a letter Pabón had written him and the
judge, which (in relevant part and reproduced as it appears in the
record) began:
I: Alex Pabón Colón — star witness in the
case of the Canadian multi-millionaire
investor, ask for a new trial against the
defendants. I know that I will be sentenced
on December 16, 2020, and that I will be
present that day since I am asking the
26Fed. R. App. P. 4(a)(1)(B) requires that a defendant in a
civil case file a notice of appeal within sixty days of the
judgment or order appealed from. Our order should have referred
to Fed. R. App. P. 4(b)(1)(A), which requires that a defendant in
a criminal case file a notice of appeal within fourteen days of
the judgment or order appealed from. But José's notice of appeal
was late under either rule.
- 66 -
Honorable federal judge, Daniel Domínguez that
he see a new trial.
Pabón added:
I admit there are two powerful families that
have been putting a lot of pressure on me since
the beginning of the case, even more so when
I was asked to testify in the case in federal
court, and those people that have been
strongly pressuring me I strongly suspect that
they have contracts with persons from my past.
Pabón continued:
I will need the federal authorities, the
F.B.I., to conduct a full investigation by
intercepting the calls they make from the
first moment I sit to testify as well their
emails up to this day. To me, my life has
been full of worries since the moment these
families have been harassing me. I will not
show up on . . . the day of my sentencing.
Because I want a new trial to be held to
demonstrate to the court and the whole world
everything that has happened to me.
And Pabón ended:
Therefore, please Counsel . . . don't insist
on calling me for video conferences, because
I will not attend, at my own expense. I am
sick and tired of being harassed and I feel
deceived in this case, which has been a
nightmare to me. Enough abuse and I want a
new trial.
The judge postponed Pabón's previously scheduled sentencing
hearing "until such time as [Pabón could] be mentally evaluated."
Pointing to that letter Marcia asked the judge at
December's end for "permission to file a motion" under Criminal
Rule 37 "to request an evidentiary hearing . . . because of newly
- 67 -
discovered evidence." Aurea and José joined her motion. Before
deciding that motion, the judge granted Pabón's lawyer's request
and ordered the BOP to evaluate Pabón's competency for a third
time.
As the calendar turned to January 2021 Aurea again asked
the judge to appoint an independent psychiatrist to examine Pabón.
And she "incorporate[d] the argument made in [her] previous
filings." The judge denied that motion. And Aurea appealed that
denial (she also purported to appeal the denial of her end-of-
December motion, even though the judge would not deny it until
April 2021).
Because the BOP did not conduct the third competency
evaluation swiftly enough, the judge issued an order in April 2021
telling the agency to get to it. And the defendants jointly asked
us to have the judge appoint an independent psychiatrist to
evaluate Pabón and hold an evidentiary hearing to see if his "lack
of competence and deficits in his ability to make rational
decisions was of such importance that it should have been
considered by the jury."
That takes us to July 2021. The BOP issued its third
competency evaluation. The psychologist again diagnosed Pabón
with "antisocial personality disorder" but found he "[did] not
currently have a mental disease or defect that would render him
- 68 -
unable to understand the nature and consequences of the proceedings
against him or to assist properly in his defense." A little later
we denied the defendants' April 2021 motion pending before us (the
one asking us to direct the judge to appoint an independent
psychiatrist and conduct an evidentiary hearing) and told them to
"place all of their appellate arguments and requests for relief in
their opening briefs."
Another detail worth noting is that in April 2022 the
judge sentenced Pabón to 228 months in prison plus 4 years of
supervised release.
B
Arguments and Analysis
Against this intricate backdrop, the defendants (some or
all of them) present three groups of concerns for us to address.
The first involves Pabón's 2019 competency evaluation, his 2019
letters to counsel, and the government's supposed Brady/Giglio
infractions — issues that come here via the defendants' appeals
from both the judge's denial of certain post-trial motions and
their direct appeals from their criminal trial. The second
involves Pabón's 2020 competency evaluation and his 2020 letter to
his lawyer and the judge — issues that come here via Aurea's and
Marcia's appeals from the judge's denial of their post-trial
motions. And the third involves Pabón's 2021 competency evaluation
— issues that come here via the defendants' direct appeals from
- 69 -
their criminal trial. For easy reference we label these groups
(commonsensically but perhaps somewhat unimaginatively) as "First
Group," "Second Group," and "Third Group." 27
1
First Group
We begin with the defendants' challenges involving
Pabón's 2019 competency evaluation, his 2019 letters to counsel,
and the government's alleged Brady/Giglio violations.
The defendants' initial attack centers on the judge's
February 2020 denial of their post-trial requests under Criminal
Rule 37 for indicative rulings on motions seeking (a) a new trial
based on Brady/Giglio; (b) a new trial based on Pabón's 2019
competency evaluation and his 2019 letters to counsel; (c) the
appointment of an independent psychiatrist to evaluate Pabón;
(d) the grant of post-trial discovery of all documents related to
the 2019 competency evaluation; and (e) an evidentiary hearing to
assess the evidence.
The defendants appealed from the judge's February 2020
denial in May 2020. José withdrew his May 2020 appeal, however.
27 A quick housekeeping matter. The government also argues
that "[b]ecause no defendant filed a timely appeal of the
Indicative Ruling" below, the law-of-the-case doctrine bars each
of them from now appealing their subsequent challenges to that
ruling. But given the other bases we identify for ruling in the
government's favor (which we announce shortly), we consider the
argument moot and so express no opinion on the subject.
- 70 -
So his challenges to that denial are not before us (but even if
they were, they would wash out for the same reasons his
codefendants' challenges do — as we are about to show).28
Aurea and Marcia claim that their appeals are timely
because (they write) nothing in Criminal Rule 37 or Appellate Rule
12.1 "requires that an additional notice of appeal be filed within
[] 14 days of the denial of a request for an indicative ruling"
(their belief is that they did not have to file any other notices
of appeal beyond their original (and timely) 2019 notices of appeal
from the criminal trial). But caselaw says that an additional
appeal is required when a judge denies a motion pursuant to
Criminal Rule 37. See Rivera-Carrasquillo, 933 F.3d at 50-52, 52
n.19 (affirming the denial of appellants' Criminal Rule 33 motion
— filed through the indicative-ruling process — where the
government "agree[d] with [appellants]" that they had filed timely
notices of appeal from that denial); see also United States v.
Graciani, 61 F.3d 70, 77 (1st Cir. 1995) (noting that "[i]f the
district court denies the [Criminal Rule 33] motion" filed during
the pendency of the direct appeal, "the defendant may take a
Our December 2021 order did say that the "[t]he merits
28
panel w[ould] decide whether to consider the post-conviction
orders contained in [José's] supplemental addendum, which post-
date defendant's direct appeal." But José does not suggest that
that order entitles him to appellate review of the judge's February
2020 decision. See Zannino, 895 F.2d at 17.
- 71 -
further appeal"); United States v. Fuentes-Lozano, 580 F.2d 724,
725-26 (5th Cir. 1978) (per curiam) (explaining that "[i]f upon
hearing the [Criminal Rule 33] motion, the trial court is inclined
to deny it, the court may do so; a separate appeal may then be
taken from the denial of the motion and consolidated with the
pending appeal"). See generally Jackson v. AT&T Ret. Sav. Plan,
No. 21-30052, 2021 WL 2177674, at *1 (5th Cir. Mar. 31, 2021) (per
curiam) (dismissing a civil appeal from the denial of an
"indicative ruling" on a Fed. R. Civ. P. 60(b) motion where the
plaintiff's notice of appeal was untimely); Jordan v. Bowen, 808
F.2d 733, 736-37 (10th Cir. 1987) (holding that the denial of an
"indicative ruling" on a Fed. R. Civ. P. Rule 60(b) motion filed
while an appeal was pending was not before the court of appeals
where "no appeal was taken" of that denial).29 A party is only
required to "promptly notify the circuit clerk" under Appellate
Rule 12.1 if the district court says that it would grant the
underlying motion or that the motion raises a substantial issue.
29Fed. R. Civ. P. 62.1 is the civil counterpart to Criminal
Rule 37. These rules have the same text. And Criminal Rule 37
explicitly "adopts . . . the practice that most courts follow when
a party makes a motion under [Civil] Rule 60(b) . . . to vacate a
judgment that is pending on appeal." Fed. R. Crim. P. 37 advisory
committee's notes to 2011 amendment. We had already adopted Civil
Rule 60(b)'s framework in the context of Criminal Rule 33 motions
long before Criminal Rule 37 came on the scene. See Graciani, 61
F.3d at 77-78.
- 72 -
See Fed. R. Crim. P. 37(b); Fed. R. App. P. 12.1; see also United
States v. Maldonado-Rios, 790 F.3d 62, 64-65 (1st Cir. 2015);
United States v. Cardoza, 790 F.3d 247, 248-49 (1st Cir. 2015);
Graciani, 61 F.3d at 77 (citing United States v. Frame, 454 F.2d
1136, 1138 (9th Cir. 1972) (per curiam) (stating that "[o]nly after
the district court has heard the [Criminal Rule 33] motion and
decided to grant it is it necessary to request a remand from the
appellate court")).30 So Aurea and Marcia had to — but did not —
comply with Appellate Rule 4(b)(1). See United States v.
Reyes-Santiago, 804 F.3d 453, 459 (1st Cir. 2015) (noting that
"[i]n a criminal case, a defendant's notice of appeal must be filed
in the district court within 14 days after the later of: (i) the
entry of either the judgment or the order being appealed; or (ii)
the filing of the government's notice of appeal," and adding that
"the time limits in [Appellate] Rule 4(b), 'even if not
Citing Walsh v. Wellfleet Commc'ns, No. 20-16385, 2021 WL
304796537, at *3 (9th Cir. Oct. 14, 2021), Marcia argues that another
notice of appeal is not needed because an "indicative ruling [is]
not an appealable final order." But even assuming one could read
the judge's decision only as a refusal to consider their underlying
motions (or as an indication that he would deny them if he had
jurisdiction), we do not see how that helps the defendants. After
all, the Walsh court held that it "lacked jurisdiction" to review
an "indicative ruling [that] was not an appealable final order."
See id. And Marcia says that our jurisdiction rests on 28 U.S.C.
§ 1291 — a statute that gives us "jurisdiction over appeals from
final decisions and orders of the district courts within this
circuit." See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 142
(1st Cir. 2007) (emphasis added).
- 73 -
jurisdictional, are mandatory when raised by the government'"
(quoting United States v. Gonzalez-Rodriguez, 777 F.3d 37, 40 n.4
(1st Cir. 2015))). Cf. Eberhart v. United States, 546 U.S. 12, 17
(2005) (confirming that certain "untimely notices of appeal [that]
sprang from 'excusable neglect'" had to be "dismiss[ed] on the
basis of untimeliness . . . because district courts must observe
the clear limits of the Rules of Criminal Procedure when they are
properly invoked" (quoting United States v. Robinson, 361 U.S.
220, 222 (1960))).
Aurea and Marcia next argue that their May 2020 appeals
are timely because we never surrendered jurisdiction over their
direct appeals from their criminal trial and because they complied
with our October 2019 order denying their remand request "without
prejudice to [their] following the procedures set forth in
[Criminal Rule] 37 and [Appellate Rule] 12.1." But they cite no
supporting authority for these never-surrendered-jurisdiction
arguments. See Zannino, 895 F.2d at 17.
Aurea also tries to get mileage from our (a) December
2019 order staying the defendants' direct appeals from their
criminal trial and ordering them to "file status reports every
thirty days advising this court of the status of the pending
district court motions for indicative rulings"; (b) March 2020
order continuing "the stay of [those direct] appeals" and requiring
- 74 -
the defendants to file "status reports every thirty days advising
this court of the status of the district court proceedings related
to defendants' motions for indicative rulings"; and (c) June 2020
order lifting the stay of the appellate proceedings because the
events related to the motions for indicative rulings in the
district court had concluded. But none of these orders purport
either to excuse the defendants from appealing from the denial of
their motions for post-trial relief or to (as Marcia seems to
suggest) toll the time they could take a timely appeal from them
(also the June 2020 order Aurea cites came after their May 2020
appeals).31 And — on top of that problem — they cite no authority
supporting their views. See Zannino, 895 F.2d at 17.
Aurea and Marcia reckon that their May 2020 appeals are
timely because we "accepted" their notices and "consolidated" them
with their direct appeals from their criminal trial. But they
again offer no supporting authority for that idea. See id.Marcia contends that her May 2020 appeal is timely
because Appellate Rule 4(a)(1)(B)'s 60-day window to appeal
applied and because she filed that appeal soon after the judge
31 To the extent the defendants think that our July 2021 order
directing them to "place all of their appellate arguments and
requests for relief in their opening briefs" makes a difference,
they would be wrong — because that order came after the May 2020
appeals as well.
- 75 -
"accepted and entertained" her motion for reconsideration. But as
already noted, Appellate Rule 4(a)(1)(B) refers to civil appeals
and so does not apply here. As for her reconsideration-based
argument, the judge deemed her reconsideration motion "extremely
overdue," having been filed "twenty days" late. And "an untimely
motion for reconsideration . . . [is] a nullity and [will] not
toll the time in which to appeal even though the court considered
and denied the motion on its merits." Feinstein v. Moses, 951
F.2d 16, 18 (1st Cir. 1991) (first and second alterations in
original) (emphasis added) (quoting Flint v. Howard, 464 F.2d 1084,
1086 (1st Cir. 1972)).
Marcia argues as well that the government waived the
timeliness challenge by waiting until its opening brief to make
it. But she provides no authority requiring the government to
object to the untimeliness of an appeal — an issue solely within
a court of appeals's purview — before it files its opening brief.
Maybe that is because other courts have held the opposite of what
she argues. See, e.g., United States v. Singletary, 471 F.3d 193,
196 (D.C. Cir. 2006); United States v. Sadler, 480 F.3d 932, 940-
41 (9th Cir. 2007); United States v. Garduño, 506 F.3d 1287, 1292
(10th Cir. 2007); United States v. Sealed Appellant, 304 F. App'x
282, 284 (5th Cir. 2008); United States v. Lopez, 562 F.3d 1309,
1313 (11th Cir. 2009). And while the government may waive such an
- 76 -
objection by not making the objection in its opening brief, see
Reyes-Santiago, 804 F.3d at 459-60, no such problem occurred here.
Aurea and Marcia also assert that we should "exercise
[our] discretion" and review their challenges to the denial of
their motions under Appellate Rule 4(b)(4)'s "excusable neglect
standard." But they make no developed argument that we have that
kind of discretion when the government properly invokes the
mandatory claims-processing rule of Appellate Rule 4(b)(1).
Marcia does cite United States v. Randall, 666 F.3d 1238 (11th
Cir. 2011), where an appellate court exercised discretion to
consider an untimely appeal. But there — unlike here — the
government did not invoke the "inflexible claim-processing rule"
(Randall involved an application for a certificate of
appealability, which per that circuit's rules meant the government
could not file a response brief unless the court of appeals okayed
it). See id. at 1241.
The defendants also touch on some of these or similar
claims as part of their direct appeals from their criminal trial.
For example, the defendants argue that the judge abused
his discretion at the 2018 trial by not appointing an independent
psychiatrist to see if Pabón could testify competently. They also
fault the judge for concluding in his 2020 indicative ruling that
Pabón's behavior in the decade after the 2008 plea hearing did not
- 77 -
spark suspicions about his competency in 2018 — a glaring error
(the argument continues) because BOP medical records show him
diagnosed as schizophrenic five months after that hearing. But no
defendant cites any record evidence showing that the defense
contested Pabón's competency before or during the 2018 trial. And
no defendant argues that these challenges survive plain-error
analysis. See Rivera-Carrasquillo, 933 F.3d at 49 n.15. The
defendants could be seen as suggesting that the judge had an
independent duty to investigate Pabón's competency to testify in
2018. That suggestion is possible given claims (like those in
José's brief) that the judge (a) knew before the trial that Pabón
had undergone psychiatric treatment a decade earlier (information
that emerged from the 2008 plea hearing); (b) heard on the eve of
trial that Pabón had "excited[ly]" told prosecutors that he planned
on breaking the plea agreement and would not cooperate any further;
and (c) saw at trial that Pabón had testified "vague[ly],
bizarre[ly], contradictor[ily] and unresponsive[ly]." But they do
not substantiate any independent-duty suggestion with supporting
authority. See Zannino, 895 F.2d at 17.
Aurea somewhat relatedly argues that the judge erred by
"hastily determin[ing Pabón] was competent to plead [guilty in
2008] without any further inquiry of mental conditions or even
asking what medication he was taking." But she develops no
- 78 -
argument that she can contest a judge's finding that another person
could competently plead guilty in a proceeding that pre-dates her
trial by ten years (i.e., that she has "standing" to make that
claim, if you will). See id.Marcia and José also make Brady/Giglio claims as part of
their direct appeals from their criminal trial. According to them,
[t]he issue of intentional conduct by the
government in refusing to produce the medical
records of [Pabón] and the government's
intentional conduct to hide the Giglio
impeachment material occurred shortly before
and during trial and as such, both issues of
misconduct are part of the original appeal as
they relate directly to the original judgment
in that case.
José also contends that the issue of "the prosecution's intentional
misconduct" is properly before us because the defendants raised it
in their September 2019 remand motion. And Marcia argues that our
considering her Brady/Giglio claims would not "surprise" the
government because she hyped them in the same joint remand motion
José mentioned and because the general "issue of the prosecutors'
misconduct was raised at the [d]istrict [c]ourt before
sentencing," even though the Brady/Giglio arguments "w[ere] not
specifically raised [in] the [d]istrict [c]ourt before
sentencing." But they did not preserve their Brady/Giglio
challenges in their direct appeals from their criminal trial,
- 79 -
because the September 2019 remand motion that they spotlight came
after their direct appeals from their criminal trial.
Aurea develops no argument that her Giglio claim is part
of her direct appeal from her criminal trial. See Zannino, 895
F.2d at 17. She also admits that she received the medical records
at the center of Marcia and José's Brady claim. And she does not
dispute that those same medical records included Pabón's 2008
diagnosis of schizophrenia. Instead she insists that those records
also show that before "trial [Pabón] was evaluated at his own
request and diagnosed as not having a mental defect" and "the entry
in said records is to the effect that [he] has no history of a
mental condition." Pivoting off that claim, she argues that the
"[medical] records with a false diagnoses [sic] unfairly
prejudiced [her] defense . . . and deprived her of a fair trial
and due process rights." But she did not preserve this theory
through her direct appeal from her criminal trial. So we can
review it at most (if at all) for plain error. And because she
does not try to address the plain-error test, she waived it. See
Rivera-Carrasquillo, 933 F.3d at 49 n.15.
2
Second Group
With that (and at long last) we switch to Aurea's and
Marcia's challenges involving Pabón's 2020 competency evaluation
and his 2020 letter to his counsel and the judge — challenges that
- 80 -
attack the judge's denials of their motions for indicative rulings
to permit post-trial discovery based on that evaluation (which
changed Pabón's diagnosis from schizophrenia to antisocial
personality disorder), appoint an independent psychiatrist to
examine Pabón, and hold an evidentiary hearing based on both the
evaluation and the letter. The appeals raising these issues are
docketed separately from the direct appeals from the criminal
trial.32
What sinks Aurea's and Marcia's claims, however, is that
they failed to develop them. For example, they do not cite any
authority explaining either how evidence of Pabón's then-present
competence in 2020 to help his own defense shows he lacked
competence to testify against them in 2018 or how they can force
him to undergo an independent psychiatric evaluation. See Zannino,
895 F.2d at 17.
Aurea does say that her request for post-trial discovery
is "predicated on due process rights integral to exercising the
substantive right that [Fed. R. Crim. P. 33(a)] creates for 'a new
32José joined at least one of Marcia's and Aurea's motions
below. But he did not appeal any of the judge's motion denials.
So his challenges to Pabón's 2020 competency evaluation and his
2020 letter are not before us.
- 81 -
trial i[f] the interest of justice so requires.'"33 And quoting a
district court case that in turn quotes a couple Supreme Court
opinions, she insists that "[e]ven though defendants do not have
a 'free[-]standing right' to post[-]conviction discovery in this
specific case[,] the possible avenues of discovery are
'fundamentally inadequate to vindicate the substantive rights
provided' by [Criminal] Rule 33(a)." But the Supreme Court has
described any such right as a limited one. See Dist. Att'y's Off.
For Third Jud. Dist. v. Osborne, 557 U.S. 52, 67-69 (2009)
(explaining that a convicted defendant's "right to due process is
not parallel to a trial right, but rather must be analyzed in light
of the fact that he has already been found guilty at a fair trial,
and has only a limited interest in postconviction relief"); see
also Tevlin v. Spencer, 621 F.3d 59, 69-70 (1st Cir. 2010) (same).
And she develops no argument that she has a due-process right to
post-trial discovery in her circumstances. See Zannino, 895 F.2d
at 17.
3
Third Group
We end then with the defendants' challenges involving
Pabón's 2021 competency evaluation — challenges that call their
33Criminal Rule 33(a) says that "[u]pon the defendant's
motion, the court may vacate any judgment and grant a new trial if
the interest of justice so requires."
- 82 -
judgments of convictions into question because of the light that
evaluation supposedly casts on Pabón's mental state before and
during their trial.
But hurting the defendants here is that the 2021
competency evaluation is not part of the record in their direct
appeals from their criminal trial. True (as they note) they
briefed this challenge following our July 2021 order that — after
refusing to direct the judge to appoint an independent psychiatrist
and hold an evidentiary hearing — told them to "place all of their
appellate arguments and request for relief in their opening
briefs." But that order simply said that they should brief
whatever "arguments" they wished to in their pending appeals from
their criminal trial — it never said that they could make the 2021
competency evaluation part of the appellate record in those
appeals. See generally Mount Vernon Fire Ins. Co. v. VisionAid,
Inc., 875 F.3d 716, 726 n.10 (1st Cir. 2017) (holding that an order
from us granting a party's request for supplemental briefing did
not imply that "we would ignore longstanding" rules of appellate
practice).
The defendants also imply that if the 2021 competency
evaluation does not (on its own) call their judgments of
convictions into question, it does provide grounds for the
selection of an independent psychiatrist to assess Pabón. To their
- 83 -
way of thinking, the 2021 competency evaluation "contradict[ed]
earlier BOP evaluations; "declare[d]" Pabón "competent, but by
neatly avoiding conducting relevant testing to make such a
determination"; and did not "address the fundamental question of
whether [he] was delusional in 2018 and whether he can be restored
to competency . . . with medical evidence." Aurea adds that she
should get post-trial discovery of the materials behind the 2021
competency evaluation. And José adds that he should also get a
hearing based on the 2021 competency evaluation. But the predicate
for these claims remains the 2021 competency evaluation — which
again is not in the record in their direct appeals from their
criminal trial, which also makes these claims hopeless.
IX
Wrap Up
Having considered and rejected all of the defendants'
many arguments, we affirm.34
34We reject the defendants' request that we find reversible
cumulative error from any combination of the errors they alleged
above. That is because the aggregate effect of the instances where
we invoked harmless error "do not come close to achieving the
critical mass necessary to cast a shadow upon the integrity of the
verdict." See United States v. Sepulveda, 15 F.3d 1161, 1196 (1st
Cir. 1993). And to the extent the defendants think that one could
pull other arguments from their briefs, we would consider those
arguments waived. See Rodríguez, 659 F.3d at 175-76.
One last bit of housekeeping. Aurea moved after oral argument
to join certain issues pressed in Marcia's reply brief. Whatever
else may be said of Aurea's effort, all we need say is that we
- 84 -
-Concurring and Dissenting Opinion Follows-
deny her motion as "moot" because none of Marcia's reply-brief
arguments moves the needle off our affirmance conclusion. See
United States v. Bennett, 75 F.3d 40, 49 (1st Cir. 1996).
- 85 -
LIPEZ, Circuit Judge, concurring in part and dissenting
in part. Although I agree with my colleagues that most of
appellants' claims of error fail, I strongly disagree that the
district court judge permissibly advised the jury, via judicial
notice, that he had found in 2008 that Alex Pabón Colon ("Pabón")
was competent to plead guilty. The majority finds no abuse of
discretion in the court's decision to give that notice because
"the judge carefully limited the notice to Pabón's plea competency
in 2008" and "said nothing about Pabón's trial credibility in
2018." As I explain below, that rationale fails to withstand
scrutiny, and the record indicates that the court's error caused
serious prejudice to two of the appellants: Marcia Vázquez Rijos
("Marcia")35 and José Ferrer Sosa ("Ferrer). Accordingly, Marcia's
and Ferrer's convictions and sentences should be vacated.
I. Background
After Pabón provided the testimony that, in the
majority's words, "devastated the defendants' innocence theory,"
defense counsel cross-examined him for roughly eight hours. The
cross-examination was wide-ranging, with the defendants seeking to
paint Pabón as someone who regularly bragged, exaggerated, and
Like the majority, I refer to Marcia Vázquez Rijos and her
35
sister, Aurea Vázquez Rijos, by their first names to avoid
confusion.
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lied. Their effort to undermine his credibility included
questioning about statements he made in grand jury testimony in
2008 and during FBI interviews, both of which included descriptions
of the events surrounding Adam Anhang's death that differed from
the account he had just given in his direct examination at trial.
The defendants also implied that Pabón could not be trusted because
of the deals he had made with the government.
A central part of the defense strategy in attacking
Pabón's credibility was to suggest that he was mentally unbalanced
and thus an unreliable witness about the details of the murder.
Among other inquiries, defense counsel asked him about a series of
letters that he had written both before and during his
incarceration in which he used various ink colors and added stamps
to the pages as decorations. Many of the letters appeared to
converse with celebrity figures with whom Pabón did not have a
relationship. Pabón explained that he enjoyed writing to different
people and that he saw his letters as "gifts" to the recipient and
"art that comes from the heart." Throughout the cross-examination,
Pabón rambled and, at times, provided answers that were not
directly responsive to the questions asked of him. He often gave
answers containing irrelevant information and had to be reminded
by the trial judge to answer the question asked of him.
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Aurea's attorney was the only defense counsel who
explicitly asked Pabón about his mental health. When introducing
Pabón's plea agreement into evidence, she asked Pabón about the
terms of that agreement and focused on the lower sentence he
expected to receive. The questioning included the following:
Q: At that time, before this judge, were
you asked as to your health; mental health?
A: Yes, they did, I think. I believe
that I remember that they asked me something.
Q: Okay. And you stated to the Court
here that you, at that time, had been with a
psychiatrist because you had depression,
correct?
A: I think something like that. I think
I did, yes.
Aurea's attorney also inquired into Pabón's mental health while he
was in prison, including whether he took specific medications
during his incarceration. Counsel also asked if he had requested
a psychological evaluation in 2018 "to prove that you were not
crazy."36
36 Pabón denied that he requested the evaluation and said
"[i]t was the psychologist who came to me." The brief exchange
concluded as follows:
Q: So you never told her that you needed to
prove that you were not crazy?
A: She knows it since the beginning, and many
people there know so.
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When Pabón's testimony was complete, the government
asked the court to take judicial notice of the fact that Pabón had
been found competent to plead guilty in 2008. All three defendants
objected, raising concerns about the impact of the requested
judicial notice on the jury's factfinding. After extensive
colloquy, the court decided to give the disputed notice,
acquiescing, in effect, to the government's argument that the court
needed "to put the jury in perspective" about Pabón's mental health
when he entered his guilty plea in 2008. In explaining his
decision, the judge stated that he "ha[d] to balance the equities
here." Ferrer's attorney then argued, to no avail, that "[taking
judicial notice of this fact] isn't fair because . . . as an
attorney, I am competing with the Court, because the Court said he
was competent."
II. Competency vs. Credibility
As I have described, the defense launched an all-out
attack on Pabón's credibility that included questions designed to
show that he had been mentally unstable for a long time and that,
consequently, the jury should distrust his testimony about the
details of Anhang's murder. The government plainly was concerned
that the defendants' aggressive cross-examination of Pabón might
have raised doubts among the jurors about the reliability of his
testimony. The government understandably wanted to counter the
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negative depiction of its star witness and restore his credibility.
It could have attempted to do so in the redirect questioning it
conducted by focusing on Pabón's ability to understand and
accurately report on the events in which he was involved, including
his decision to admit that he killed Anhang. The government
instead asked the court to offset the damage from the cross-
examination on Pabón's mental health by "complet[ing] the picture"
with the challenged judicial notice.
My colleagues reject appellants' contention that the
judicial notice improperly intruded into the jury's role as
factfinder on Pabón's credibility. Emphasizing the distinction in
the law between competency -- an issue for the court -- and
credibility -- an issue for the jury, the majority seems to suggest
that appellants have no basis for objecting to the court's accurate
statement that it found Pabón competent to plead guilty in 2008.
And the majority further emphasizes that appellants' challenge to
the judicial notice falls flat because they failed to ask for an
instruction explaining the difference between competency and
credibility.
To the extent the majority is relying on appellants'
failure to request an explanatory instruction in finding no abuse
of the district court's discretion, their reasoning falls short.
Appellants made eminently clear that the judicial notice was
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problematic because, regardless of the actual difference between
the two concepts, the jury was likely to understand the court's
statement on Pabón's competence as commentary on his credibility.
In the district court, Marcia's attorney explicitly raised a
concern about jury confusion, contrasting the legal and factual
issues concerning Pabón's capacity:
[W]e believe the instruction will confuse the
jury because the competence that is discussed
in the context of a change of plea hearing is
a legal term. It is not necessarily a matter
related to facts. It is a legal term very
specific to this. And I don't believe that
the jury will be able to distinguish between
the both, Your Honor. It is too much of a
risk to do so.
On appeal, Ferrer notes the defense objection at trial "that the
district court's instruction would cause confusion on the jury."
He asserts that the prejudice from the judicial notice "is
compounded by the fact that the district court did not explain to
the jury what it meant to be found competent to plead guilty" and
that, consequently, "the district court placed its imprimatur on
[Pabón]'s credibility." In my view, these arguments clearly
express appellants' concern that the judicial notice would (and
did) compromise the jury's factfinding on Pabón's credibility and,
for that reason, was improper.
Moreover, the majority's treatment of the merits --
particularly their focus on the legal distinction between
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competency and credibility -- seriously misses the mark. As the
majority acknowledges, there was no challenge to Pabón's capacity
to be a witness at trial and therefore his "competency" in the
sense of an individual's ability to understand the legal
proceedings in which he was involved was never relevant in this
case. The question for the jury at trial was whether Pabón was a
reliable, believable witness. Defense counsel heavily emphasized
Pabón's bizarre behavior and mental health treatment over many
years as one factor, among others, for discrediting his testimony.
In other words, the defense challenged Pabón's "competency" only
in the sense that nonlawyers would understand that concept,
suggesting that Pabón's testimony about the murder was unreliable
because of his long history of mental illness.
The defense reliance on this understanding of competency
is apparent in the concern expressed by Ferrer's attorney at trial,
and echoed on appeal, that the proposed instruction would place
"the imprimatur of the Court upon the issue, which is an issue of
fact." Although defense counsel used the term "competence"
throughout the colloquy on the government's request for judicial
notice -- a potentially confusing way to make their point -- it
was obvious that they were opposing the court's interference with
the jury's factfinding and, hence, were necessarily referring to
the jury's credibility determination.
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Yet, despite defense counsel's making it clear that the
defendants were not challenging Pabón's competency to testify or
otherwise engage in legal proceedings, the government insisted
that the judicial notice was needed to rebut such a challenge.
And, in seeking the court's intervention on that basis, the
prosecutor incorrectly characterized the defense argument as
unusual: "They are making the issue of his competency. . . .
Normally that part goes without saying, but because it is an issue
in this case brought by the Defense, the jury is entitled to have
the whole package."
The "package" the court could properly give to the jury,
however, did not include Pabón's competency to enter the guilty
plea. In the context of the defense strategy, the district court's
judicial notice that it had found "Alex El Loco" competent at that
time -- despite his apparently longstanding mental illness and
bizarre past behaviors -- spoke directly to the jury on Pabón's
credibility. That intervention by the court created the
unacceptable risk that the jurors understood the judicial notice
of the competency finding to reflect the trial judge's view that
Pabón's mental illness did not make him untrustworthy -- regardless
of the jury's perception of his performance on the witness stand.
It thus does not matter that the instruction specifically referred
to a time well before the 2018 trial. By instructing the jury on
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its finding of Pabón's competence in 2008, the judge was
inescapably telling the jury that its finding was relevant to the
jury's evaluation of Pabón's credibility at trial.
That very concern was voiced by Marcia's counsel: "What
they want from the Court is to create an effect and . . . to
influence the jury that [Pabón] is of a state of mind different to
that that was presented to them through the presentation of
evidence, cross-examination and direct examination." Indeed, with
Pabón's "legal" competency to testify not at issue, the jury had
no basis for understanding the judicial notice as other than a
veiled commentary on his credibility. And that, of course, was
precisely what the government was hoping to accomplish with its
request for judicial notice.
To be clear, I am not saying that evidence of Pabón's
mental capacity, as a rebuttal to the defense's attack on his
credibility, was impermissible. Rather, the problem is that the
court itself informed the jury that it had found Pabón competent
-- highlighting and thereby elevating the importance of that fact
-- when the government should have borne full responsibility for
rehabilitating the credibility of its key witness and persuading
the jury of appellants' guilt beyond a reasonable doubt. The court
thus plainly abused its discretion when it chose to "balance the
equities" by giving the requested judicial notice instead of
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leaving the burden on the government -- where it belonged -- to
"complete the picture" on Pabón's mental health.
The trial court's intervention on the issue of Pabón's
credibility is no small matter. We have oft noted the impact that
a court's words may have on jurors. See, e.g., United States v.
Moffett, 53 F.4th 679, 685 (1st Cir. 2022) (observing that "'the
influence of the trial judge on the jury is necessarily and
properly of great weight' and [the] trial judge's 'lightest word
or intimation is received with deference'" (quoting Starr v. United
States, 153 U.S. 614, 626 (1894))); United States v. Márquez-
Pérez, 835 F.3d 153, 158 (1st Cir. 2016) (noting that judges
"should be most cautious in front of the jury, which may be
vulnerable to judges' 'lightest word or intimation'" (quoting
United States v. Ayala-Vazquez, 751 F.3d 1, 28 (1st Cir. 2014))).
That influence is particularly sensitive in the realm of
credibility. When judges "exercise their power to actively involve
themselves at trial, they must remain constantly vigilant to ensure
they do not infringe upon the province of the jury by commenting
or appearing to comment (positively or negatively) on a witness's
credibility." Ayala-Vazquez, 751 F.3d at 28 (emphasis added); see
also United States v. Starks, 861 F.3d 306, 310 (1st Cir. 2017)
(noting the impropriety of "judicial statements adding information
to the record that bears on a witness's credibility").
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Unsurprisingly, judicial statements touching on
credibility are especially problematic when they bear on the
testimony of a critical witness. In United States v. Raymundí-
Hernández, we explained that "[w]here the Government builds its
case against criminal defendants predominantly on cooperating
witness testimony, . . . 'the [district] court must take particular
care to avoid any appearances that it favors the government's view
of the case.'" 984 F.3d 127, 152 (1st Cir. 2020) (per curiam)
(second alteration in original) (quoting United States v. Rivera-
Rodríguez, 761 F.3d 105, 120 (1st Cir. 2014)). We found that the
trial court "cause[d] serious prejudice" in Raymundí-Hernández
when commenting that a defense witness's testimony, which was
designed to undermine the credibility of a cooperating witness,
was "not relevant in this case." Id. at 152-53.
In the circumstances here, the bland instruction that
"the jurors remain[] the sole deciders of witness credibility"
does not suffice to cure the harm from the court's decision to --
in effect -- "complete the picture" on Pabón's believability as a
witness. As we stated in Raymundí-Hernández, "where the
reliability of witness testimony is so strongly implicated (here,
that of the cooperating witnesses against that of the defense
witnesses), 'such interference with jury fact-finding cannot be
cured by standard jury instructions.'" 984 F.3d at 153-54 (quoting
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United States v. Tilghman, 134 F.3d 414, 421 (D.C. Cir. 1998)).37
Indeed, telling the jurors that they remain the decisionmakers on
credibility allows them to use whatever evidence they heard --
including the court's judicial notice -- in making their judgment.
The majority makes much of the fact that both the
government and the defense treated Pabón's credibility as a live
issue in addressing the jury during closing arguments. It is
certainly no surprise that the lawyers argued that point. The
problem with the judicial notice in this case is not that the
district court entirely preempted the jury's factfinding on
Pabón's credibility, but that it weighed in on the government's
behalf. Given the judicial notice, the burden on the defendants
to create doubt about Pabón's credibility was greater than it
should have been, and the defense's arguing "with gusto" -- in the
majority's words -- was simply counsel doing their job. Nor did
the government's arguments in any way offset the impact of the
court's intervention. The predictable and traditional credibility
arguments in closing plainly provide no support for the majority's
view that the court's ill-advised intrusion into the jury's
factfinding was appropriate.
Although Raymundí-Hernández does not involve a judicial-
37
notice challenge -- as the majority points out -- the underlying
concern expressed there about interference in the jury's
factfinding on witness credibility is equally apt in this context.
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In sum, in acceding to the government's request that the
court inform the jurors through judicial notice that it determined
that Pabón was competent when he entered his guilty plea in 2008,
the court assisted the prosecution on arguably the most important
issue in the case for the defense: Pabón's credibility. The
judge's explanation for doing so -- that he "ha[d] to balance the
equities" in the aftermath of Pabón's cross-examination --
reflects a fundamental misunderstanding of the court's role. It
was for the government, not the judge, to undo any damage to
Pabón's credibility caused by the defense's attack on Pabón's
mental stability. The court's intrusion into the jury's
factfinding -- by adding its "great weight" to the prosecution's
case, Starr, 153 U.S. at 626 -- was a palpable abuse of discretion.
III. The Question of Prejudice
The district court's error inescapably had the effect of
bolstering the testimony of Pabón to the detriment of the
defendants. The remaining question is whether the error was
sufficiently prejudicial that appellants are entitled to a new
trial. We have noted some uncertainty in our caselaw about the
applicable standard of harmless error when the trial judge has, in
effect, "commented on the credibility" of a key witness and "put
additional facts before the jury that bore on the witness['s]
credibility." Starks, 861 F.3d at 310 & n.1. Although Aurea
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argues that the court's error is constitutional in nature,
requiring the government to prove that it was "harmless beyond a
reasonable doubt," see, e.g., Moffett, 53 F.4th at 691, the
circumstances here are equivalent to the sort of improper judicial
intervention that our court repeatedly has assessed under a
"serious prejudice" standard -- i.e., asking whether "there is a
reasonable probability that, but for the error, the verdict would
have been different," Rivera-Rodríguez, 761 F.3d at 112; see also,
e.g., Raymundí-Hernández, 984 F.3d at 152-53. I therefore use the
"serious prejudice" standard in reviewing the evidence against
each appellant.38
Hence, to determine harmlessness, it is necessary to ask
whether it is "reasonably probable" that the jury would have
reached the same verdict for each defendant if the court had not
informed the jurors that Pabón was deemed competent at the time of
38In Moffett, the error at issue involved a verdict form and
related instructions that "invaded the jury's power over
factfinding by over-emphasizing certain of the government's
evidence in a manner that was contrary to [the defendant]'s
interests." 53 F.4th at 686. We considered the error "of a
'constitutional dimension'" and used the beyond-a-reasonable-doubt
formulation of harmless error. Id. at 691 (quoting United States
v. Rivera-Santiago, 107 F.3d 960, 967 (1st Cir. 1997) (per
curiam)). Here, as I have explained, the court's error likely
influenced the jury's assessment of Pabón's credibility, but I
cannot say that it "'usurped the jury's factfinding role'" on that
issue or on appellants' guilt. Id. at 686 (emphasis added)
(quoting Rivera-Santiago, 107 F.3d at 965).
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his plea -- a fact that the jurors reasonably could have understood
as an implicit observation on the credibility of Pabón's testimony
at trial. Put differently, did the guilty verdicts likely depend
on the credibility of Pabón, whose veracity was improperly enhanced
by the judicial notice?
Pabón was the critical witness at trial. As the majority
recounts, he testified that the three appellants planned the crime
and hired him to carry it out. Given Pabón's importance to the
government's case, assessing the likely impact of the court's
improper boosting of his credibility requires determining whether
sufficient evidence other than Pabón's testimony supported the
jury's findings of guilt for each of the threesome.
A. Aurea Vázquez Rijos
The government's case against Aurea included evidence
showing a strong motive, planning steps, and efforts to impede law
enforcement's investigation of the crime. The record before the
jury included Aurea and Anhang's prenuptial agreement, which
provided Aurea with a substantial inheritance if Anhang died and
much less if the couple divorced. Witness testimony revealed that
Aurea and Anhang's marriage was turbulent, that Anhang came to
believe the prenuptial agreement gave too much to Aurea, and that
Anhang was seeking a divorce within weeks of the wedding. The
government's theory that Aurea wanted to kill her husband and avoid
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a divorce was supported by witness accounts of comments she had
made, including that she would be "better off" if her husband died
than if he were alive.
The evidence that Aurea planned the murder included
testimony from two witnesses who said she had asked them if they
knew a "hit man," a question one of them understood to mean she
was looking to hire one. The government also offered testimony
that Aurea had called Anhang's office repeatedly during the
afternoon preceding his evening murder to confirm the couple's
dinner plans, permitting an inference that her "insistent calls"
were made to ensure that they would be in Old San Juan at the time
she had arranged for the attack.
Aurea's behavior after Anhang's death also was
suspicious and seemingly designed to impede and evade law
enforcement's attempts to investigate the murder and prosecute the
case. One agent testified that Aurea gave him an incorrect
description of the perpetrator, including clothing details that
did not match those given by other eyewitnesses. She failed to
appear at the prosecutor's office in response to a summons, and
law enforcement's multiple efforts to arrange an interview with
her were unsuccessful. The evidence revealed that Aurea moved to
Italy soon after the murder, which the government characterized as
"flight." Aurea also sought the assistance of a criminal defense
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attorney in Israel, explaining to him that she wanted to move to
Israel but wanted to know if she would be protected there "[i]f
there was ever an order of extradition [from the United States]
with the death sentence."
In sum, while Pabón's testimony that Aurea hired him to
kill her husband reinforced the prosecution's narrative, there was
ample and compelling evidence from sources other than Pabón to
support a finding that Aurea was motivated to kill Anhang and
developed a plan to get the deed done. I thus cannot conclude
that it is "reasonably probable" that, absent the district court's
error, the jury would have acquitted Aurea.
B. Marcia Vázquez Rijos
By contrast with the evidence from multiple sources
suggesting Aurea's guilt, the government's evidence against Marcia
-- other than Pabón's testimony -- was far from compelling. The
sinister connotation of the evidence against her depended heavily
on Pabón's testimony that she had conspired with the others to
murder Anhang. Indeed, the majority's analysis of Marcia's
sufficiency challenge relies almost entirely on Pabón's testimony.
The thinness of the case against Marcia is apparent from
a review of the other evidence offered by the government. The
government easily proved the uncontroverted fact that Marcia knew
Pabón and had done business with him before the murder. An
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employee at the Pink Skirt, a restaurant that Anhang had purchased
for Aurea, testified that she sometimes saw Marcia with Pabón
there. A friend of Pabón's, Derick Osterman Kim, testified that
Marcia on occasion bought marijuana from Pabón. This evidence of
her prior relationship with Pabón obviously provides no support
for a finding that Marcia was involved in a conspiracy to pay Pabón
to murder Anhang.
Nor is the evidence of Marcia's conduct following
Anhang's death sufficient. Most suggestively, a friend of Pabón's,
Isadoro Perez-Muñoz, testified about letters Pabón asked him to
deliver to the Pink Skirt on three separate occasions. The first
letter was intended for Aurea, but she was not at the Pink Skirt
when Perez-Muñoz arrived to deliver it. Perez-Muñoz brought the
letter back to Pabón, who directed him to deliver the letter to
Marcia the next day. Marcia read the letter and gave Perez-Muñoz
a message for Pabón: her sister was sick and depressed, she had no
money because Anhang's father had cancelled her accounts, the
family was in crisis, and "the business was going bad." Perez-
Muñoz delivered the second letter to Marcia, at Pabón's direction.
After reading the letter, Marcia instructed Perez-Muñoz to tell
Pabón that she had "already told [him] the situation and nothing
can be done." She then went on to say "no to the money," Aurea
"is still with the depression," "the business isn't going well and
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. . . we are in a crisis; the accounts are frozen." The third
time, when Perez-Muñoz went to the Pink Skirt with two letters,
neither Aurea nor Marcia was there, but he encountered the women's
brother, Charbel, and Ferrer. Both men refused to take the
correspondence, which Perez-Muñoz took home and later read. One
letter, which was read to the jury, was addressed to "Marcial,"
but it includes a closing addressed to both "Audrea39 or Marcial."
The four-page letter, dated March 3, 2006, stated in part:
I don't want any excuses and I am truly
counting on you to help me with this big favor.
You denied me the $30,000 I asked you to lend
me. . . . Well, now I need $200,000 in order
to support myself and for expenses, debts, and
other things I cannot tell you about.
Marcial, with all due respect, I want you
to talk to your sister and tell her that I
need that money by March 12th or March 18th,
2006. . . . [Y]our sister has not shown up to
court, and now, and the last time I heard from
her, she was hiding and about to flee the
country. What is happening with you? I need
favors from you and you are hiding from me
. . ..
. . . I made it very clear to you, I have
dealings with your husband Jose and your
sister Audrea. And tell both of them that I
am asking this second favor and the second one
is the last one.
. . . After all this happened, you think that
I am a dumb ass, but the truth is that I am
not. I am not afraid to face this case which
39Throughout the letter, Pabón refers to Marcia as "Marcial" and
Aurea as "Audrea."
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has become very ugly. Things didn't turn out
the way we thought they would, but only I did
you a big favor. I didn't know this person.
For you, he was a bump in the road which got
in your way.
. . .
. . . [Y]our sister told [a friend of mine]
. . . that she is not going to pay absolutely
anything because you were not completely in
agreement with the favor I did for you because
it had caused you a lot of problems. The truth
is that I was not going to be the one to do
the favor to her. You became very anxious and
you did not give me the correct coordinates,
and it happened very quickly, and it was a
little crazy, but I accomplished what she
wanted. Now, I need a favor from you.
. . .
. . . I don't give a damn if the victim's old
man kept everything. . . . I am making this
clear; if you let me down, I will betray you
also. . . .
So, good fences make good neighbors.
Well, remember, all of us are very much
involved in this. So work with me and I will
always be true to you. . . . .
Now, send me the money that I am asking
you and everything should continue as is.
Don't let me down. Hope it's clear. Okay. I
will be waiting for the favor I asked you.
Audrea or Marcial, I will call you soon.
Although Pabón's demands and threats to Marcia in this
letter are consistent with the government's narrative of her
involvement in the murder conspiracy, that evidence is equally
consistent with Marcia's knowing what happened but having played
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no role in the planning. Pabón's communications show only that,
having initially failed to reach Aurea herself, Pabón began using
Marcia as a go-between in his attempts to extract money from Aurea
after the crime. Even his assertion that "all of us are very much
involved in this" indicates only that, months after Anhang's death,
Marcia was "involved" in protecting her sister from prosecution.
It is Pabón's testimony concerning Marcia's involvement in the
planning that turns the correspondence into damning evidence.
Moreover, to the extent Pabón's credibility was bolstered by the
district court, that validation would extend to this
communication.
The government also adduced evidence that Marcia was at
Anhang's apartment the day after the murder. One witness said she
carried black garbage bags containing clothing out of the
apartment, another said that Marcia took Anhang's cats away, and
a third testified that Marcia emerged from Anhang's apartment with
keys, two cell phones, a phone charger, and a CD. But Marcia's
appearance at Anhang's apartment is not probative evidence of her
involvement in planning his murder. Aurea was in the hospital at
that time, and there is nothing facially inculpatory about Marcia's
retrieving cats that needed to be cared for and other items from
an apartment where her sister's husband had been living.
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Adding to the ambiguous evidence is a series of emails
between Marcia and Aurea indicating that Marcia helped her sister
create fraudulent documents about her Jewish roots.40 Also among
the emails between the sisters is a message from Marcia describing
a conversation she had with their brother, Charbel:
Charbel he is screwed with me because I will
treat him like a stranger. He deserves it.
He is the pure devil. He said -- and atrocity
that I and Jose planned everything and that is
-- he have this karma that it's my fault. What
a fucked up crazy. . . . Don't you know that
they are recording everything and everything
you say they will believe it and we are going
to get screwed by your fault . . ..
Again, this message can be construed consistently with the
government's narrative that Marcia conspired with Aurea (along
with Ferrer), but it is also easily understood to express Marcia's
outrage that Charbel is accusing her and Ferrer of a crime they
did not commit. Indeed, if the message is read to refer to Anhang's
murder, it would appear to exclude Aurea from involvement -- an
implausible scenario. It is more plausible that the message
reflects Marcia's frustration about her brother's "crazy"
accusation or refers only to Marcia's and Ferrer's post-crime
assistance to Aurea.
40 The government produced evidence showing that Aurea
attempted to obtain the protection of the Jewish community in
Florence, Italy, by falsely holding herself out as Jewish.
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One other email exchange between Marcia and Aurea
warrants consideration. Marcia warned her sister to be careful of
"a lot of enemies [who are] close who you owe for a long time,"
noted that Ferrer was in bad shape "economically and emotionally"
-- referring to his family difficulties -- and said she did not
want Ferrer to think that she had abandoned him and "that we used
him." In her reply, Aurea says "I am really sorry that you feel
like that . . .. I am more sorry that Jose feels that way too,
but we are all in the same boat." The comment that the three of
them are "in the same boat" obviously is consistent with the
government's theory that all three defendants plotted and carried
out the murder. But -- assuming it refers to Anhang's killing at
all -- it is equally consistent with Marcia and Jose entering "the
boat" after the murder had been committed by helping Aurea avoid
prosecution.41
The evidence apart from Pabón's testimony was thus
suggestive, but plainly inadequate to support Marcia's conviction
beyond a reasonable doubt for conspiring to arrange a murder-for-
hire. The government relied on Pabón's testimony -- improperly
41 Indeed, multiple members of Aurea's family helped to
protect her in the aftermath of the murder, including her mother,
brother, and sister. Aurea's brother, Charbel, was charged with
several related crimes and eventually was sentenced to twenty-four
months' imprisonment on a count charging him with obstruction of
justice.
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bolstered by the court's judicial notice -- to fill in the gaps in
its circumstantial narrative of Marcia's guilt. Without his story
of her collaboration, the evidence shows only that Marcia knew
Pabón before the murder and that she took actions after the murder
that supported her sister but do not on their own reflect
complicity in a conspiracy. With the limited evidence that remains
if Pabón's testimony is discounted, I can only conclude that the
district court's improper judicial notice caused "serious
prejudice" to Marcia's defense. Raymundí-Hernández, 984 F.3d at
152.
C. Jose Ferrer Sosa
As with Marcia, the majority dispatches Ferrer's
sufficiency claim by citing Pabón's testimony and observing that
Pabón's credibility was a jury judgment. But the paucity of the
untainted evidence against Ferrer is notable.
The government established the inconsequential fact that
Ferrer, a cook at the Pink Skirt, knew Pabón and had bought
marijuana from him. After the murder, multiple government
witnesses testified that they saw Ferrer approach Aurea's Porsche
Cayenne in the parking lot of Anhang's apartment on the day after
his death. Ferrer's presence at Anhang's home that day, and his
attempt to retrieve the vehicle that testifying witnesses
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consistently said belonged to Aurea, hardly constitutes evidence
that he was involved in planning the murder.42
Other witnesses provided somewhat more probative
evidence against Ferrer, but none of it is sufficient to establish
his guilt for the charged conspiracy beyond a reasonable doubt.
As described above, Perez-Muñoz testified that he tried to deliver
one of Pabón's letters to Ferrer, but Ferrer would not accept it.
According to Perez-Muñoz, Pabón had instructed him to deliver the
letter "to any one of them, because Alex told me that all of them
knew what happened." Even if the jury took this statement as true,
"knowing" what had happened to Anhang differs from being a
participant in a conspiracy. Similarly, Marcia's email to Aurea
reporting that Charbel had accused Marcia and Jose of "plann[ing]
everything" is no more revealing of Ferrer Sosa's involvement than
it is of Marcia's.
The government also used a facially benign email
exchange between Ferrer and Marcia as evidence of his culpability.
42A Puerto Rico Police Department officer who detained Ferrer
when he was "attempting to get the Porsche Cayenne" testified that
Ferrer said that Marcia had asked him to get the vehicle. Aurea
testified that Anhang gave her the deposit for the Porsche as a
birthday gift and that she was making the monthly lease payments.
Consistent with that testimony, the purchase-and-sale agreement
described at trial listed Aurea as the buyer of the Porsche. Aurea
and Anhang drove to the restaurant the night of the murder in
Anhang's BMW, leaving the Porsche outside Anhang's apartment
building.
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Ferrer asked Marcia for "donations (in cash and in dollars please)
to help the young adult Jose Ferrer, who is in need of everything."
He also told Marcia that she could "tell Aury that if she wants to
donate the most she can, she can give it to you and you can bring
it." The government suggested that these emails represent Ferrer
asking for hush money -- i.e., "money for him to stay in line."
That inference, however, is unsupported by anything on the face of
the messages.
To be sure, in his testimony, Ferrer offered an odd
explanation for the "donations" -- he said he was using that
terminology to ask for repayments on a loan he had made to the
Vázquez Rijos family. But neither his request for funds nor his
testimony explaining it indicates in any way that he participated
in a conspiracy to kill Anhang. Indeed, Ferrer's email requests
for "donations" are interspersed in an exchange of messages with
Marcia that include expressions of love for each other and regards
from Marcia to Ferrer's dogs and family members. In one message,
Marcia asks him about his pants size and suggests that he needed
money for essential items: "Remind me if you are still 32 for
pants. That is what you most need, right?" It is only Pabón's
testimony that even arguably contextualizes Ferrer's solicitation
of "donations" as requests for a payoff related to the murder.
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Hence, as with Marcia, I cannot conclude that it is
"reasonably probable" that the jury would have reached the same
verdict on the conspiracy charge against Ferrer if the court had
not added to the evidence on Pabón's credibility with its judicial
notice. Indeed, the court itself implied that the entirety of the
government's case against Ferrer was Pabón's testimony. During
his defense case, Ferrer sought to introduce a witness who had
been in the courtroom during Pabón's testimony. During a sidebar
conference about whether the witness was compromised and therefore
unable to testify for Ferrer, the district court remarked that "if
[the witness] heard the testimony of . . . Pabón Colón, if he heard
that testimony, he heard the entire evidence relating to your
client. He heard it completely."
IV. Conclusion
The jury verdicts in this case resulted in life sentences
for each of the three defendants. It is therefore unsurprising
that their advocates have raised numerous challenges to the way
the trial and sentencings proceeded. The lack of merit in most of
those claims should not deter us from acknowledging the very real
harm caused to Marcia and Ferrer by the district court's improper
intervention on behalf of the government on the key issue of
Pabón's credibility. The court should not have provided judicial
notice to the jurors that it found Pabón competent to enter his
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guilty plea in 2008. Marcia and Ferrer's convictions inescapably
are flawed because of that error, and they are therefore entitled
to a new trial. Accordingly, I must respectfully dissent from the
majority's decision to affirm their convictions.
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