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United States v. Shepherd

739 F.2d 510 (10th Cir. 1984)
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United States v. Shepherd

13 Citing cases

  1. U.S. v. Terry

    916 F.2d 157 (4th Cir. 1990)   Cited 144 times
    Holding that, in absence of affirmative showing that information contained in PSR is unreliable, district court is free to adopt PSR's factual findings

    United States v. Papajohn, 701 F.2d [760] at 763 [8th Cir. 1983]." United States v. Shepherd, 739 F.2d 510, 515 (10th Cir. 1984). "[T]here is no abuse of discretion . . . admitting hearsay evidence . . . at hearing on sentence.

  2. U.S. v. Peterman

    841 F.2d 1474 (10th Cir. 1988)   Cited 61 times
    Holding that government may not "use impeachment as a guise for submitting to the jury substantive evidence that is otherwise unavailable"

    Id. at 286. However, in United States v. Shepherd, 739 F.2d 510, 515 (10th Cir. 1984), we explained that " Jones stands for the proposition that a defendant has the right to rebut or explain allegations made in a sentencing proceeding, not that the government must prove the allegations beyond a reasonable doubt." It is clear that "[d]ue process does not mandate an evidentiary hearing.

  3. United States v. Hathaway

    798 F.2d 902 (6th Cir. 1986)   Cited 195 times   1 Legal Analyses
    Holding that where records are incomplete or missing, "[o]nce a foundation is laid, in the absence of specific and credible evidence of untrustworthiness, the proper approach is to admit the evidence and permit the jury to determine the weight to be given the records."

    The significance lies entirely in the fact that the words were spoken. Thus, the statement does not fall within the Rule 801(c) definition of hearsay nor would the purposes of the hearsay rule be served by treating it as hearsay. See United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) (hearsay rule inapplicable to statement which was, by its nature, neither true nor false). B. FNCF Business Records

  4. United States v. Pinalto

    771 F.2d 457 (10th Cir. 1985)   Cited 14 times
    In Pinalto, 771 F.2d 457, this court held that it was error to exclude tape recorded conversations between a defendant and a confidential informant on the ground that the informant was not credible.

    United States v. Alfonso, 10 Cir., 738 F.2d 369, 371 was a trial to the court. United States v. Shepherd, 10 Cir., 739 F.2d 510, 514, and United States v. Petersen, 10 Cir., 611 F.2d 1313, 1330, cert. denied 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854, presented question of the admissibility of statements of co-conspirators. See § 801(d)(2)(E).

  5. Tenorio v. Pitzer

    No. Civ. 12-01295 JCH-KBM (D.N.M. Feb. 19, 2019)

    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.

  6. Wood v. Farmington City

    910 F. Supp. 2d 1315 (D. Utah 2012)   Cited 6 times
    Finding that the suspect had "made hostile motions with the gun—motioning the gun from side to side"

    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.

  7. Changzhou AMEC Eastern Tools & Equip. Cp., Ltd. v. Eastern Tools & Equip., Inc.

    Case No. EDCV 11-00354 VAP (DTBx) (C.D. Cal. Jul. 30, 2012)   Cited 9 times
    Stating that “[t]he test for ratification is ‘whether the releasor with full knowledge of material facts entitling him to rescind has engaged in some unequivocal conduct giving rise to an inference that he intended his conduct to amount to a ratification’ ”; adding that “ ‘[w]hether the releasor has such knowledge ... [is] normally question for the trier of fact’ ”

    Orders, instructions, or directives, "which by their nature are neither 'true' nor 'false,'" do not constitute hearsay if the statements are admitted to show the circumstantial intent of the declarant rather than a factual assertion. Mendez v. County of Alameda, No. C03-4485 PJH, 2005 WL 3157516, at *14 (N.D. Cal. Nov. 22, 2005); see also 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). In these instances, the credibility and the reliability of the declarant is not at issue.

  8. Golden Years Homestead, Inc. v. Buckland (S.D.Ind. 2006)

    466 F. Supp. 2d 1059 (S.D. Ind. 2006)   Cited 4 times
    Finding no substantive Due Process violation in heavily regulated nursing care industry because activities were "consistent with a zealous adversarial posture arising from the regulatory mission"

    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.

  9. Servants of Paraclete v. Great American

    866 F. Supp. 1560 (D.N.M. 1994)   Cited 135 times
    Denying motion to consolidate where "actions involve several separate factual issues, parties, and legal questions"

    In addition, because questions are neither true nor false, Plaintiff and the Does do not offer Ms. Soroos' questions "to prove the truth of the matter asserted." Fed.R.Evid. 801(c); United States v. Vest, 842 F.2d 1319, 1330 (1st Cir.), cert. denied, 488 U.S. 965, 109 S.Ct. 489, 102 L.Ed.2d 526 (1988); accord 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."). To the extent that paragraphs 3-5 of the May Soroos Affidavit contain the out-of-court statements of Ms. Maria Monty, Fr. Joe McNamara, and Fr. Michael Foley, that each has no knowledge of the Servants' insurance coverage from 1969 to 1971, these statements are not hearsay because they are not offered for their truth.

  10. U.S. v. Jackson

    876 F. Supp. 1188 (D. Kan. 1994)   Cited 6 times

    The defendants point to the fact that Garcia earlier gave a statement to postal inspectors denying any agreement for referring patients to Charter by the Sea. The defendants argue that Garcia's contrary testimony was unreliable and uncorroborated; thus, it should not have been admitted. Unlike United States v. Shepherd, 739 F.2d 510, 512-13 (10th Cir. 1984), which the defendants cite as authority, the 404(b) testimony here is corroborated. Garcia's testimony about the arrangement at Charter by the Sea is evidenced by other than his testimony. In particular, Garcia visited St. Simon's Island on two occasions, Garcia referred patients to Charter by the Sea, and Garcia received a check from Charter by the Sea covering expenses for a committee meeting arranged by him.