United States v. Vazquez-Rijos

• Court: Court of Appeals for the First Circuit
• Decided: October 15, 2024
• Docket: 21-1098
• Status: Published

Opinion

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. - 4 - 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. - 6 - 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).

- 7 - 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,

- 11 - 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." - 15 - 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." - 17 - 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).

- 18 - 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

- 21 - 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. - 45 - 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 30

4796537, 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

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. - 86 - 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.

- 87 - 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. - 88 - 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

- 89 - 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

- 90 - 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

- 91 - 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.

- 92 - 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

- 93 - 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

- 94 - 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").

- 95 - 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

- 96 - 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. - 97 - 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

- 98 - 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). - 99 - 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

- 100 - 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

- 101 - 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

- 102 - 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

- 103 - . . . 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." - 104 - 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

- 105 - 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.

- 106 - 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. - 107 - 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. - 108 - 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

- 109 - 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. - 110 - 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.

- 111 - 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

- 112 - 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.

- 113 -