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).

This Circuit has no talismanic formula for ascertaining when a conspirator's statements are "in furtherance" of the conspiracy. See United States v. Davis, 766 F.2d 1452, 1458 (10th Cir. 1985); United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984). Reyes suggests that other circuits appear to require that the statements actually "assist the conspirators in achieving their objectives."

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

Neither Bruton nor the confrontation clause was violated in this case because the declarant, Roy Wolf and Lorna Wolf all testified and were subject to cross-examination. See Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971); United States v. Shepherd, 739 F.2d 510 (10th Cir. 1984). III.

Id. at 504. See also United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984); United States v. Wright, 783 F.2d 1091, 1098 (D.C. Cir. 1986); United States v. Rubin, 591 F.2d 278, 283 (5th Cir.), cert. denied, 444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979); United States v. Kostoff, 585 F.2d 378, 380 (9th Cir. 1978) (per curiam); United States v. Cline, 570 F.2d 731, 734-35 (8th Cir. 1978); United States v. Pate, 543 F.2d 1148, 1149 (5th Cir. 1976); United States v. DeCarlo, 458 F.2d 358, 363-64 (3d Cir.) (en banc), cert. denied, 409 U.S. 843, 93 S.Ct. 112, 34 L.Ed.2d 83 (1972); United States v. Scandifia, 390 F.2d 244, 251 n. 8 (2d Cir. 1968), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969). The exception to the hearsay rule enunciated in Rule 803(3) only comes into play when the statement is undeniably hearsay because it is a direct and explicit declaration of state of mind, i.e., it is offered to prove the truth of the substance of what the declarant said. For example, "I intended to kill John" is hearsay if it is offered to

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.

"An out-of-court statement is hearsay only if it is offered for its truth." United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) (orders or instructions by one person to another admitted to show that they occurred rather than to prove their truth held not hearsay). Evidence which is offered as circumstantial evidence of a conspiracy and not to prove the truth of the facts asserted is not hearsay evidence.See Fed.R.Evid. 801(c); United States v. Markopoulos, 848 F.2d 1036, 1038-1040 (10th Cir. 1988) (affirming admission of a notebook listing defendant's home and business phone numbers offered as circumstantial evidence of conspiracy).

There were, however, established rules regarding constitutional limitations narrowing the factors that a trial court was permitted to consider in imposing sentence. See, e.g., Tucker, 404 U.S. at 447-49, 92 S.Ct. at 591-93 (consideration in sentencing of prior convictions obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), constitutionally impermissible); Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948) (sentencing based on consideration of "materially untrue" information is "inconsistent with due process of law"); United States v. Shepard, 739 F.2d 510, 515 (10th Cir. 1984) (defendant "has a constitutional right to sentencing based on accurate information"). It is true that the trial judge here disagreed with the jury's resolution of the offense of which the defendant was found guilty.

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:

efendant to van, not to prove truth of any matters asserted in the ticket; "[t]he existence of the ticket, not its assertions, was the point of its admission"), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989); United States v. Ashby, 864 F.2d 690, 693 (10th Cir. 1988) (car title used to tie defendant to car, not to prove she was owner; work order documents admitted to inferentially tie defendant and co-defendant to drug running, not to prove truth of matters asserted therein; "[s]ince these documents were used to tie appellant to the car, they were not hearsay"), cert. denied, 494 U.S. 1070, 110 S.Ct. 1793, 108 L.Ed.2d 794 (1990); United States v. Markopoulos, 848 F.2d 1036, 1039 (10th Cir. 1988), (spiral notebook which was used to log travel expenses not hearsay when admitted only to link defendant circumstantially to conspiracy, whereas rental car contract, credit card voucher and receipts were hearsay when admitted to show identity of renter or fact of payment); United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) (orders or instructions were not hearsay because they "were offered to show that they occurred rather than to prove the truth of something asserted."); see also United States v. Jaramillo-Suarez, 950 F.2d 1378, 1383 (9th Cir. 1991) ("pay/owe sheet . . . was admitted for the specific and limited purpose of showing the character and use of the . . . apartment" and was therefore not hearsay); cf. United States v. Jefferson, 925 F.2d 1242, 1252 (10th Cir. 1991) (bill for a pager was hearsay when introduced to show that defendant had purchased pager service and that he owed money for the purchase), supplemental opinion, 931 F.2d 1396 (10th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 238, 116 L.Ed.2d 194 (1991). Even assuming, arguendo, that the evidence is hearsay and the court incorrectly admitted it, we would find the error harmless, under either the "nonconstitutional harmless error standard of review pursuant to Fed.R.Civ.P. 52" or the constitutional plain error standard of Chapman v.