Under this rule, the government may introduce evidence of a defendant's prior bad acts only "if it is relevant to something material other than criminal propensity." United States v. Shepherd, 739 F.2d 510, 512 (10th Cir. 1984). Rule 404(b) governs the admissibility of such evidence, providing that:

Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988); see also United States v. Doran, 882 F.2d 1511, 1523 (10th Cir. 1989). Because "[e]vidence of prior criminal acts is almost always prejudicial to the defendant," United States v. Shepherd, 739 F.2d 510, 513 (10th Cir. 1984), the use of such evidence must be carefully circumscribed to protect the defendant from unfair prejudice. In Huddleston the Court stated:

A request of this nature cannot be offered for its truth because it is neither true or false. See United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) ("An order or instruction is, by its nature, neither true nor false and thus cannot be offered for its truth."); United States v. Keane, 522 F.2d 534, 558 (7th Cir. 1975) (same).

Additionally, the State argues that the tape recordings are not offered to prove the truth of the conversations recorded on the tape, but instead are offered to show that the events occurred. The State relies upon U.S. v. Shepherd, 739 F.2d 510 (10th Cir. 1984), for this proposition. In Shepherd, the court held that a government witness' testimony that an individual gave him instructions to frighten another person was not hearsay. The court noted that an order or instruction is, by its nature, neither true nor false and thus cannot be offered for its truth.

In other words, the government may introduce evidence of a defendant's prior wrongs only "if it is relevant to something material other than criminal propensity." United States v. Shepherd, 739 F.2d 510, 512 (10th Cir. 1984). "Rule 404(b) admissibility is a permissive standard and 'if the other act evidence is relevant and tends to prove a material fact other than the defendant's criminal disposition, it is offered for a proper purpose under Rule 404(b) and may be excluded only under Rule 403.'"

Such an "instruction is, by its nature, neither true nor false and thus cannot be offered for its truth." United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984). Just as a check is not a "statement" that can falsely influence federally insured lending institutions, see Williams v. United States, 458 U.S. 279, 284-85, 102 S.Ct. 3088, 73 L.Ed.2d 767 (1982), neither is a money order a "statement" as defined by Rule 801(a).

Statement (4) was an order. See United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) (orders are not hearsay because they are not offered for their truth). Statement (5) was irrelevant, and at most could have been offered to prove Embrey's state of mind.

We agree. In United States v. Shepherd, 739 F.2d 510 (10th Cir. 1984), we indicated in dicta that at sentencing a district court could consider uncorroborated hearsay evidence which the defendant has had an opportunity to explain or rebut. See id. at 515.

My research has disclosed no departure from that principle, which has been confirmed and reconfirmed on a number of occasions. This Court spoke to the issue at somewhat greater length in United States v. Shepherd, 739 F.2d 510, 512-13 (10th Cir. 1984): This Court has affirmed convictions based upon uncorroborated accomplice testimony.

Rather the document is introduced for the inferences that may be drawn circumstantially from its existence or from where it is found, regardless of whether the assertions contained therein are true or not.United States v. Peveto, 881 F.2d 844, 853-54 (10th Cir.) (traffic ticket found in defendant's apartment, introduced to tie him to van containing contraband, was not introduced for the truth of the matter asserted on ticket that he had committed a traffic violation), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989); United States v. Markopoulos, 848 F.2d 1036, 1039 (10th Cir. 1988) (spiral notebook entries offered as circumstantial evidence of conspiracy and not for truth of the matter asserted); United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) (order to scare individual offered to show that it occurred, and not for its truth or falsity); United States v. Hensel, 699 F.2d 18, 35 (1st Cir. 1983) (list of names nonhearsay to show participation in conspiracy through inference that member of conspiracy possessed list but not from accuracy of the list itself); United States v. Mejias, 552 F.2d 435, 446 (2d Cir.) (hotel and luggage receipts and business card not offered for truth of matter asserted but as circumstantial evidence to link defendant with hotel, luggage found therein, and individual whose name appeared on card), cert. denied 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977); United States v. Ellis, 461 F.2d 962, 970 (2d Cir.) (address book entries and driver's license nonhearsay because offered as circumstantial proof of association with others and ownership), cert. denied, 409 U.S. 866, 93 S.Ct. 162, 34 L.Ed.2d 115 (1972); United States v. Mishkin, 317 F.2d 634, 637 (2d Cir.) (documents identifying names, phone numbe