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

See, e.g., Golden Years Homestead, Inc. v. Buckland, 466 F.Supp.2d 1059, 1068 n.10 (S.D. Ind. 2006), aff'd, 557 F.3d 457 (7th Cir. 2009) (finding that “training materials” were admissible and did not constitute hearsay where they were “not offered for the truth of the matters asserted within them”) (citing United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) (finding that “instructions” were not inadmissible hearsay, explaining: “An order or instruction is, by its nature, neither true nor false and thus cannot be offered for its truth.”)); Knuth v. Wexford Health Sources, Inc., No. 15-2666, 2018 WL 10799157, at *12 (N.D. Ill. Mar. 12, 2018) (finding written “policies and procedures” admissible over hearsay challenge where court was “not convinced that [their] contents [were] being offered for their truth,” stating: “An assertion that [individuals] carried out policies and procedures in place above them does not rely on the veracity of the policies and procedures themselves.”

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.

"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). As such, Roxie's statements are part of the res gestae of the act of signing and are not treated as hearsay.

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.").

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.

Under rule 404(b), "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. Moncayo, 440 F. App'x 647, 652 (10th Cir. 2011)(unpublished)(quoting United States v. Shepherd, 739 F.2d 510, 512 (10th Cir. 1984)). Because the evidence is relevant to showing only propensity, the Court will exclude it.

“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.

In other words, the government may introduce evidence of a defendant's prior wrongs 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) does permit the introduction of such evidence for other purposes, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.