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.

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

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.

Prior to the advent of guideline sentencing virtually no limitations were placed on what a court could consider at sentencing, and it was clear that reliance on uncorroborated hearsay was permissible. United States v. Shepherd, 739 F.2d 510 (10th Cir. 1984); United States v. Tracey, 675 F.2d 433 (1st Cir. 1982). There is nothing in the United States Sentencing Guidelines to indicate a change in this rule.

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.

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.

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.