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

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.

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:

For example, "[o]rders or instructions are often not hearsay because they are not offered to prove the truth of their content, and similarly, questions are usually not hearsay." Neil P. Cohen, et al., Tennessee Law of Evidence, § 801.9 at 500 (Michie ed., 3d ed. 1995) (footnote omitted); see also United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984). In fact, this court has recognized that "[c]ommands or instructions are not hearsay because they are not offered to prove the truth of the matter asserted."

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:

"United States courts have a long history of using reliable hearsay for sentencing. `[T]he trial court may properly consider uncorroborated hearsay evidence that the defendant has had an opportunity to rebut or explain.'" United States v. Terry, 916 F.2d 157, 160-61 (4th Cir. 1990) (alteration in original) (quoting United States v. Shepherd, 739 F.2d 510, 515 (10th Cir. 1984)); see also United States v. Falesbork, 5 F.3d 715, 722 (4th Cir. 1993) (same). Defendant argues that by his calculations, testimony at trial only supported a finding that defendant was responsible for a total marijuana equivalency weight of 742.603 kilograms.

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.

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.

Prior to the enactment of the Sentencing Guidelines, the circuit courts had uniformly held that reliable hearsay evidence could be considered in the sentencing determination. See e.g. U.S. v. Shepherd, 739 F.2d 510, 515 (10th Cir. 1984) (the sentencing judge may properly consider uncorroborated hearsay evidence that the defendant has had an opportunity to rebut or explain.) .

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