Citing rule 404(a) of the Federal Rules of Evidence and related case law, the United States avers that “the introduction of evidence of a person's character to prove that the person acted in conformity therein on a particular occasion” is generally prohibited. Omnibus Motion at 3 (citing Fed.R.Evid. 404(a); Old Chief v. United States, 519 U.S. 172, 181 (1997); United States v. Shepherd, 739 F.2d 510, 513 (10th Cir. 1984); United States v. Smalls, 752 F.3d 1227, 1237 (10th Cir. 2014)). The United States does not state -- with any great specificity -- what “prior bad acts” it wishes to keep out of this case, stating that “[a]ny discussion of Jane Doe's alcohol or potential drug use is prohibited,” because such evidence “would prejudice the jury against Doe.” Omnibus Motion

Cf. United States v. Rutland, 705 F.3d 1238, 1253 (10th Cir. 2013) (explaining that statements were instructions not offered for their truth, and thus admissible); Thornburg v. Mullin, 422 F.3d 1113, 1128 (10th 2005) ("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)."). The Court will thus deny Plaintiff's motion in limine III.

"An order or 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). As such, Roxie's statements are part of the res gestae of the act of signing and are not treated as hearsay.

That objection is overruled. 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. The orders or instructions were offered to show that they occurred rather than to prove the truth of something asserted.").

This directive does not constitute hearsay because it does not involve an assertion. 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. The orders or instructions were offered to show that they occurred rather than to prove the truth of something asserted.

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).See also United States v. Pang, 362 F.3d 1187, 1192 (9th Cir.Cal.2004) ("Checks fall squarely in this category of legally-operative verbal acts that are not barred by the hearsay rule.").

We accept Defendants' proffer and shall consider the evidence before us. See, e.g.,United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) ("An out-of-court statement is hearsay only if it is offered for its truth. An order or instruction is, by its nature, neither true nor false and thus cannot be offered for its truth.

They are orders or instructions, which by their nature are neither "true" nor "false," and thus cannot be offered to prove the truth of something asserted. See United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984); United States v. Keane, 522 F.2d 534, 558 (7th Cir. 1975), overruled on other grounds by McNally v. United States, 483 U.S. 350 (1987). Moreover, to the extent that the statements may have been offered as circumstantial evidence of Deputy Meza's belief that there was probable cause to arrest Mendez, they are admissible under the "state of mind" exception.

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.

Finally, the trial judge did not abuse his broad discretion by permitting Dr. Larry Hammack to testify as a rebuttal witness, see Fitzhugh v. United States, 415 A.2d 548, 551 (D.C. 1980), or by admitting, over a hearsay objection, the testimony of prosecution witness Tun Cung Yam that his daughter asked Yam to deliver a check to Ko's sister. See Burgess v. United States, 608 A.2d 733, 740 (D.C. 1992); 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.") REID, Associate Judge, with whom MACK, Senior Judge, joins, concurring: