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:

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

"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).

Finally, Gomez argues that the admission in evidence of Bradshaw's out-of-court statements violated his Sixth Amendment right of confrontation. We note initially, however, that Gomez did not raise this objection at trial and that ordinarily a party may not present a Confrontation Clause objection for the first time on appeal. E.g., United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984). In any event, the ruling does not amount to plain error.

The trial court was also justified in holding that the evidence was more probative than prejudicial. See United States v. Shepherd, 739 F.2d 510, 512 (10th Cir. 1984) (evidence admitted under Fed.R.Evid. 404(b) must also satisfy balancing test contained in Fed.R.Evid. 403). The threats against Ms. Huffman had substantial probative value, for they had some relevance to the defendant's alleged solicitation of Elrod. See United States v. Naranjo, 710 F.2d 1465, 1468 (10th Cir. 1983) (evidence that defendant previously beat ex-wife properly admitted in murder prosecution); United States v. Bufalino, 683 F.2d 639, 647 (2d Cir. 1982) (extortion threat properly admitted), cert. denied, 459 U.S. 1104, 103 S.Ct. 727, 74 L.Ed.2d 952 (1983).

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.

But "[a]n 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). Because Aggregate offer's Melvin's account of Dr. Shreck's instructions to "show that they occurred rather than to prove the truth of something asserted," it is not hearsay.

“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); see also United States v. Murphy, 193 F.3d 1, 5 (1st Cir.1999); United States v. Bellomo, 176 F.3d 580, 586–87 (2d Cir.1999); United States v. Reilly, 33 F.3d 1396, 1410 (3d Cir.1994); United States v. Tuchow, 768 F.2d 855, 868 n. 18 (7th Cir.1985); United States v. Gibson, 675 F.2d 825, 833–34 (6th Cir.1982); Butler v. United States, 481 A.2d 431, 438 n. 10 (D.C.1984). The statement by KKR instructing the industry to step down, therefore, is not hearsay and, while the email conveying the fact that the instruction was made between Carlyle executives is hearsay, it falls within the coconspirator exception.

Fed. R. Evid. 801(c) (hearsay is evidence a "party offers . . . to prove the truth of the matter asserted"). "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); see also United States v. Murphy, 193 F.3d 1, 5 (1st Cir. 1999); United States v. Bellomo, 176 F.3d 580, 586-87 (2d Cir. 1999); United States v. Reilly, 33 F.3d 1396, 1410 (3d Cir. 1994); United States v. Tuchow, 768 F.2d 855, 868 n.18 (7th Cir.1985); United States v. Gibson, 675 F.2d 825, 833-34 (6th Cir. 1982); Butler v. United States, 481 A.2d 431, 438 n.10 (D.C. 1984). The statement by KKR instructing the industry to step down, therefore, is not hearsay and, while the email conveying the fact that the instruction was made between Carlyle executives is hearsay, it falls within the coconspirator exception.

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.