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.

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

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.

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.

We consider their statements not for their truth, but as verbal acts to show involvement." United States v. Brooklier, 685 F.2d 1208, 1219 (9th Cir. 1982) (per curiam), cert. denied, 459 U.S. 1206, 103 S.Ct. 1194, 75 L.Ed.2d 439 (1983); see also United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) (may consider statements as verbal acts); United States v. Alvarez-Porras, 643 F.2d 54, 58 (2d Cir.) (same), cert. denied, 454 U.S. 839, 102 S.Ct. 146, 70 L.Ed.2d 121 (1981); United States v. Hassell, 547 F.2d 1048, 1052-53 (8th Cir.) (same), cert. denied, 430 U.S. 919, 97 S.Ct. 1338, 51 L.Ed.2d 599 (1977); United States v. Calaway, 524 F.2d 609, 612-13 (9th Cir. 1975) (same), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976). When considered for this purpose, i.e., that the entries or statements were made, the entries show that the author did acts (the recording of the illegal business's expenses) which furthered the objectives of the gambling enterprise.

18 U.S.C. § 3661. 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., United States 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.); United States v. York, 830 F.2d 885, 893 (8th Cir. 1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); United States v. Cusenza, 749 F.2d 473, 478 (7th Cir. 1984); United States v. Lee, 818 F.2d 1052, 1055 (2nd Cir. 1987), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376.

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.

"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).

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:

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."