Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on: (i) the Government’s Motion in Limine Regarding Prior Acts of the Victim, filed October 2, 2014 (Doc. 22)(“First MIL”); (ii) the Government’s Second Motion in Limine and Objections to Defendant’s Proposed Exhibits, filed October 9, 2014 (Doc. 35)(“Second MIL”); and (in) the Government’s Third Motion in Limine, filed October 9, 2014 (Doc. 36)(“Third MIL”). The Court held a hearing on October 9, 2014. The primary issues are: (i) whether Defendant Gary Ballou may introduce evidence of prior altercations between the alleged victim, Harry Jaquez, and employees of the Raymond G. Murray Veterans Affairs Medical Center in Albuquerque, New Mexico (“VA Hospital”); and (ii) whether Ballou may admit into evidence various other documents and video excerpts that Plaintiff United States of America has sought to exclude. The Court will allow Ballou to elicit testimony — but not to admit documents — regarding Jaquez’ three prior altercations with VA Hospital staff, because the evidence is admissible for proper purposes under rule 404(b) of the Federal Rules of Evidence— namely, to show Ballou’s state of mind in support of a defense of self-defense, and to show Jaquez’ intent, motive, plan, absence of mistake, and modus operandi. The Court will, however, exclude on hearsay grounds most of the documents that the United States seeks to bar, except for those that can be validly used for purposes other than the truth of their assertions— namely, a contract form that Jaquez refused to sign and portions of a letter the VA Hospital wrote to Jaquez, placing severe restrictions on his movements in and around the VA Hospital. Last, the Court will exclude Jaquez’ judgment of conviction on a 2009 misdemeanor battery and admit excerpts of a video of the parking lot in which the incident occurred. FACTUAL BACKGROUND The Court takes its facts — for background purposes only, as Ballou is obviously presumed innocent until proven guilty at trial — primarily from the Criminal Complaint, filed July 21, 2014 (Doc. l)(“Complaint”). Around 4:10 p.m. on July 18, 2014, Justin Pillera, a federal police officer with the Department of Veteran Affairs Police, received a call on his radio that a VA Hospital employee was attacking a patient in the VA Hospital’s parking lot C. See Complaint at 1-2. Pillera arrived at parking lot C and, seeing nothing, drove to parking lot D, where a group of bystanders had congregated. See Complaint at 2. A bystander directed Pillera to Ballou, who, in turn, told Pillera that Jaquez had attacked Ballou. See Complaint at 2. Bal-lou is a nurse in the dialysis unit of the VA Hospital. See Government’s Reply to the Defendant’s Response to the Government’s Motion in Limine Regarding Prior Acts of the Victim at 2, filed October 8, 2014 (Doc. 30)(“Reply”). Ballou told Pillera that Jaquez “ ‘came up [to him] and just started punching [him] in the neck and [he] tried to get away.’ ” Complaint at 2 (quoting Ballou). Ballou stated that he had been attempting to walk to his vehicle, but that Jaquez had driven his car behind Ballou’s vehicle and used it to block his vehicle. See Complaint at 3. Ballou told Pillera that Jaquez continued to yell and threaten Ballou as Jaquez exited his vehicle, that Jaquez struck Bal-lou with his fist, that Ballou blocked Ja-quez’ strikes, and that Jaquez began to kick Ballou. See Complaint at 3. Jaquez, on the other hand, told Pillera that, after he was escorted to his car— Jaquez is apparently routinely escorted to his car after his medical appointments because of VA Hospital regulations — he drove out of the parking lot and was confronted by Ballou, who saw him and began to yell, curse, and direct a vulgar finger gesture at Jaquez. See Complaint at 3. Jaquez relayed that he turned into parking lot D to inquire what Ballou wanted and to let vehicles behind him pass, but he later stated he turned into the parking lot to avoid hitting Ballou. See Complaint at 3. Jaquez stated that Ballou began to chase him, and, once he caught up to Jaquez, he began to hit Jaquez’ vehicle. See Complaint at 3. Jaquez stated that he rolled down his window, and that Ballou hit Ja-quez in the face with his backpack and broke Jaquez’ glasses. See Complaint at 3. Jaquez relayed that Ballou continued to hit his car and that Jaquez exited his vehicle, because he was angry and wanted Ballou to stop hitting his car. See Complaint at 3. Jaquez stated that, as he exited the vehicle on the driver’s side, Ballou trapped him between his door and the car by pushing on the door. See Complaint at 3. Jaquez relayed that Ballou repeatedly pushed and pulled the door rapidly, using the door to strike his body and left leg. See Complaint at 3. Jaquez conveyed that bystanders instructed Ballou to stop and that they were calling the police. See Complaint at 3. Heeding their warnings, Ballou stopped. See Complaint at 3. After talking .to Ballou and Jaquez, Pill-era talked to three witnesses to the incident: Diane Meitzler^ William Talley, and Carla Dunkelberger, all of whom are VA Hospital employees. See Complaint at 3. All three accounts were consistent with Ballou approaching Jaquez’ vehicle, yelling “ ‘[c]ome on faggot, you fuckin faggot,’ ” or something very similar, and then instigating physical violence against Jaquez. Complaint at 4 (quoting witness quoting Ballou). All three witnesses described Ballou as the initial physical aggressor— slamming the door into Jaquez’ chest — but noted that Jaquez responded by attempting to kick Ballou. See Complaint at 3^1. Based on the witness’ reports, Pillera arrested Ballou. See Complaint at 4. Ja-quez reported that his left eye and his back were in pain, and that he had sustained injuries to his left arm and his hands. See Complaint at 5. Pillera verified that “Jaquez’s left eye appeared to be red and. the facial area around his eye was swelling and bruised”; he “also found bruising and swelling on the top of both of his hands and also on his left arm[, but] did not find any marks or scratches on his legs or any other parts of his body.” Complaint at 5. Jaquez declined medical treatment. See Complaint at 5. PROCEDURAL BACKGROUND The United States charged Ballou by information, charging him with “[a]ssault by striking, beating, or wounding” another person “within the special maritime and territorial jurisdiction of the United States,” a class A misdemeanor punishable by “a fine ... or imprisonment for not more than 1 year, or both.” 18 U.S.C. § 113(a)(4). See Second Amended Information at 1, filed August 4, 2014 (Doc. 12). The case is set for jury trial on October 15, 2014, and the United States has filed three motions in limine asking the Court to impose restrictions on the evidence that Bal-lou can introduce at trial. The First MIL seeks to bar Ballou from introducing evidence of an August 28, 2013, encounter between Jaquez and another VA Hospital employee, Paul Mirabal. See First MIL at 2. On tKis occasion, Mirabal “called Albuquerque police to complain that ... Jaquez was following him in a car and had attempted to crash into him.” First MIL at 2. Jaquez denied these allegations. See First MIL at 2. The United States’ argument is straightforward: although, under rule 404(a)(2), Bal-lou can introduce character evidence against Jaquez, rule 405 provides that such evidence must come in the form of opinion or reputation testimony, and not by specific instances of conduct. See First MIL at 2-4 (citing Fed.R.Evid. 404(a)(2)(B), 405). The United States argues that the Jaquez-Mirabal incident is a “specific instance! ] of conduct” that rule 405(b) bars, and that the Court should exclude the evidence. See First MIL at 2-4. Ballou responded to the First MIL within the week. See Defendant Gary Ballou’s Response Regarding Prior Acts of the Victim and Motion in Limine Regarding Other Acts, filed October 6, 2014 (Doc. 26)(“Response”). Ballou’s counterargument is equally straightforward: he essentially concedes that the Jaquez-Mirabal incident is not — pursuant to rule 405 — -a proper form of character evidence under rule 404(a)(2). See Response at 2-3. Rather, Ballou contends that the Jaquez-Mirabal incident is not character evidence at all, but evidence of Jaquez’ plan, motive, or absence of mistake in entering the employee parking lot. See Response at 3-5. Ballou says that Jaquez will likely argue at trial that “he was there ‘to get off the road and ... get away from [Ballou, but t]his does not make sense.’” Response at 4. Ballou argues that the Court should admit evidence of the Jaquez-Mirabal incident to show that Jaquez “had a motive and plan to attack Ballou for the third time,” and that that there was “absence of mistake as to [Jaquez] being in the employee parking lot,” which “lead[s] to only one conclusion,” which was that Jaquez was looking to start a fight. Response at 4. Ballou attached numerous éxhibits to his Response. See Response at 7-28. These include: (i) a letter from a VA Hospital administrator to Jaquez, dated May 18, 2012, responding to thirteen customer service complaints that Jaquez had apparently lodged with the VA Hospital, see Response at 7-9; (ii) a letter to Jaquez from the VA Hospital’s chief of staff, dated August 1, 2012, in which the chief of staff notes that he believes Jaquez is “confrontational and threatening toward dialysis staff members,” Response at 10; (iii) a generic contract form outlining patients’ obligations to appear on time, behave non-threateningly, et cetera, dated August 1, 2012, on which a would-be signatory, presumably Jaquez, wrote “Refused to Sign” on the signature line, Response at 11; (iv) a typed complaint, dated December 26, 2010, by Ballou against Jaquez, in which Ballou states that Jaquez struck him in the arm with a cane and told him that he “need[s] to kick [Ballou’s] ass!,” Response at 12; (v) an undated handwritten complaint by Ballou against Jaquez apparently describing a separate incident, in which Jaquez called Ballou an “asshole” and told him that he “need[s] to have [his] ass kicked,” Response at 13; (vi) a police report that Mirabal submitted regarding the Jaquez-Mirabal incident, see Response at 14-26; (vii) a VA Hospital contact form dated August 28, 2014, that appears to document complaints that Jaquez made against the VA Hospital and various staff, see Response at 17; (viii) five letters— written by Ann Burcham, Otis Schubel, Noel Jaderborg, Jan Moughan, and Annette Vega, who all appear to be nurses at the VA Hospital — to unknown recipients, all of which were apparently written after the July 18, 2014, incident between Ballou and Jaquez, attesting to the authors’ difficulty dealing with Jaquez as a patient, see Response at 18-23; (ix) a black-and-white photograph of a sign that reads, “EMPLOYEE PARKING GOLD DECAL ONLY,” Response at 24; (x) a letter that the VA Hospital’s deputy chief of staff wrote to Jaquez, dated September 26, 2013, which reprimands Jaquez for his “disruptive and threatening behaviors,” Response at 25-28. These ten exhibits (i) through (x) are marked A through J, respectively. See Response at 7-28. The United States filed its Reply two days later. See Reply at 1. The United States uses the Reply to expand the scope of the evidence it seeks to bar, although it is not clear how far. See Reply at 2. The Court suspects that the United States may have learned of many of the incidents to which Ballou’s exhibits refer only upon reading the Response. At the very least, the United States now seeks to exclude evidence of a December 20, 2010, incident between Jaquez and Ballou in which Ja-quez allegedly poked Ballou with his cane and said: “ T need to kick your ass.’ ” Reply at 2. The United States may additionally be seeking to exclude some or all of the documents attached as exhibits to Ballou’s Response. See Reply at 2. The United States first argues that the evidence is not relevant, because [t]he fact that Jaquez had a difficult relationship with the staff at the VA Hospital or that he is alleged to have poked Ballou with a cane in 2010 or that he was alleged to have followed another employee in 2013, does not make it more likely that Jaquez entered the wrong parking lot with intent to assault Ballou. Ballou had most likely seen Jaquez hundreds of times since the 2010 incident without being attacked by him. Reply at-3. The United States second argues that the evidence is not proper rule 404(b) evidence. Admissible evidence under Rule 404(b) must meet the following criteria: First, it must tend to establish motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident; second, it must be so related to the claim of self-defense that it serves to establish one of the above factors with respect to the claim of self-defense; third, it must have real probative value, not just possible worth; and, fourth, it must be close in time to the conduct at issue. Reply at 4 (citing United States v. Harrison, 942 F.2d 751, 759 (10th Cir.1991)). The United States contends that “[t]here also must be a clear and logical connection between the evidence and the case being tried.” Reply at 4 (citing United States v. Biswell, 700 F.2d 1310, 1317-18 (10th Cir.1983)). The United States argues that the prior incident between Ballou and Jaquez does not tend to show motive, intent, plan, identity, or absence of mistake, and that, even if it did, it is too remote in time given the multiple years between the prior incident and the incident giving rise to this case. See Reply at 5. Last, the United States argues that, even if some proper rule 404(b) purpose for the evidence exists, it should still be excluded on rule 403 grounds, because its prejudicial impact substantially outweighs its probative value. See Reply at 5-6. The United States filed its Second MIL and Third MIL on October 9, 2014, the same day as the Court held a hearing on all three motions in limine. See Second MIL at 1; Third MIL at 1; Transcript of Hearing (taken October 9, 2014)(“Tr.”). In the Second MIL, the United States objects to: (i) Exhibits A through F, and J, of Ballou’s Response, on the grounds that the reports are hearsay within hearsay, see Second MIL at 2-3 (citing Complaint of Paducah Towing Co., Inc., 692 F.2d 412, 420-21 (6th Cir.1982); Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991); Miller v. Field, 35 F.3d 1088, 1089 (6th Cir.1994)); (ii) excerpts of a VA Hospital surveillance video, not attached in the Response, see Second MIL at 3; and (iii) evidence of a prior misdemeanor battery conviction by Jaquez, because it “is not appropriate impeachment evidence under Federal Rule of Evidence 609 because it is a misdemeanor conviction,” Second MIL at 3. The Third MIL does not seek the exclusion of any particular piece of evidence, but, rather, “requests that this Court issue an Order restricting the testimony of defense witnesses to reputation only.” Third MIL at 3. It asserts that none of the witnesses on the defense witness list — with the exception of Ballou himself — were witnesses to the charged incident and surmises that those witnesses will be called to testify to Ballou’s positive, peaceful character. See Third MIL at 2. At the hearing, Ballou stated that Exhibits C, I, and J are the only ones “that [he] believe[s will] come into evidence probably on their own.” Tr. at 37:23-38:1 (Benjamin). He stated that Exhibits C and J are contract forms that Jaquez refused to sign, and that Jaquez’ refusal is an indication of his generally aggressive nature, which is an issue in the case. See Tr. at 38:1-22 (Benjamin). Ballou more broadly argued that all the past incidents and friction between Jaquez and employees of the VA Hospital would help the jury understand Ballou’s state of mind during the charged incident. See Tr. at 39:3-13 (Benjamin). The Court inquired whether Ballou was aware of all of the prior incidents at the time of the charged incident, and Ballou answered in the affirmative. See Tr. at 39:14-24 (Court, Benjamin). Ballou conceded that Exhibit H — the letters from various VA Hospital employees — were “clear[ly] ... not admissible,” but said that he was calling the letters’ authors to testify, as their testimony “go[es] to the objective reasonableness of Mr. Ballou,” and his self-defense defense. Tr. at 40:7-25 (Benjamin). The United States immediately conceded that Ballou could call any witness to testify as to their opinion of Jaquez and Jaquez’ reputation. See Tr. at 44:11-12 (Cairns). It argued, however, that no specific prior instances of Jaquez’ conduct could be introduced, because rule 405 bars such testimony, and — while rule 404(b) permits the introduction of prior bad acts to prove motive, intent, et cetera — no proper rule 404(b) purpose supports the introduction of any evidence regarding Ja-quez’ prior acts. See Tr. at 44:17-45:1 (Cairns). The United States asserted that the supposed rule 404(b) purposes that Ballou articulated in his Response are pre-textual, and that the “evidence he wants to bring in to basically dirty up Mr. Jaquez ... is also inadmissible under 403.” Tr. at 46:12-14 (Cairns). Ballou argued that the prior incident— he appeared to be referring principally to the Jaquez-Mirabal incident — goes to show motive and absence of mistake. See Tr. at 47:24-48:1 (Benjamin). Ballou asserts that, in one of Jaquez’ prior statements regarding the charged incident, Ja-quez asserted that he only “pulled in[to the employee parking lot] to ask Mr. Ballou what was wrong and what was going on,” and that the Jaquez-Mirabal incident demonstrates that Jaquez did not end up in the parking lot essentially by accident, but rather went with a specific motive; Ballou does not spell out what this motive is, but it presumably involves harassing or attacking Ballou. Tr. at 47:11-48:7 (Benjamin). Ballou next argued that the rule 403 standard is modified—from one in which prejudice must substantially outweigh probative value to one in which probative value must outweigh prejudice—when the rule 404(b) proponent is the prosecution in a criminal case. See Tr. at 48:9-13 (Benjamin). The Court noted that it did not believe that proposition was true in the Tenth Circuit, but that it would look into the matter. See Tr. at 48:18^19:4 (Court). The Court then stated that it was inclined to allow the testimony, but not the supporting documents, under rule 404(b), to show the victim’s intent, absence of mistake, or lack of accident. See Tr. at 51:21-52:15 (Court). The Court announced its proposed ruling on a number of other exhibits: (i) it would exclude Exhibit F, the police report from the Jaquez-Mirabal incident; (ii) it would exclude Exhibits D and E, Ballou’s prior reports lodging complaints against Jaquez; (iii) it would exclude Exhibit B, the August 1, 2012, letter to Jaquez; (iv) it would admit Exhibit C, a one-page contract form that Jaquez refused to sign; and (v) it would require redaction of the cover page and the eighth paragraph— which refer to Jaquez’ prior acts and to a “record flag” being placed on Jaquez’ file—of Exhibit J, the lengthy letter from the VA Hospital’s deputy chief of staff to Jaquez. See Tr. at 55:18-56:7 (Court). The United States agreed with the Court’s proposed ruling. See Tr. at 56:8-16 (Cairns, Court). Ballou also did not object to the Court’s proposed ruling. The Court also stated that it was inclined to exclude evidence of Jaquez’ prior misdemeanor conviction, which Ballou agreed was correct, “[u]nless Harry Jaquez says something that makes that relevant.” Tr. at 56:21-57:14 (Benjamin). Last, the parties agreed that the Third MIL no longer required much discussion, because the Court’s rulings on the First MIL and Second MIL items sufficiently clarified which past acts and incidents could be referenced. See Tr. at 57:15-20 (Court, Cairns). LAW REGARDING RELEVANT EVIDENCE UNDER RULE 401 The threshold issue in determining the admissibility of evidence is relevance. As a baseline, under the Federal Rules of Evidence, all evidence that is relevant is admissible—unless another law or rule excludes the evidence—and any evidence that is not relevant is not admissible. See Fed.R.Evid. 402. The standard for relevance is liberal. See United States v. Leonard, 439 F.3d 648, 651 (10th Cir.2006)(“Rule 401 is a liberal standard.”)(citing United States v. McVeigh, 153 F.3d 1166, 1190 (10th Cir.1998)). The evidence need only have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. See United States v. Leonard, 439 F.3d at 651. “[A] fact is ‘of consequence’ when its existence would provide the fact-finder with a basis for making some inference, or chain of inferences, about an issue that is necessary to a verdict,” but it only needs to have “any tendency” to do so. United States v. Jordan, 485 F.3d 1214, 1218 (10th Cir.2007). See United States v. Leonard, 439 F.3d at 651; United States v. McVeigh, 153 F.3d at 1190. Although the threshold burden is low, the rules do “not sanction the carte blanche admission of whatever evidence a defendant would like. The trial judge is the gatekeeper under the Rules of Evidence.” United States v. Jordan, 485 F.3d at 1218. LAW REGARDING RULE 403 Rule 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Under rule 403, the trial court must weigh the proffered evidence’s probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir.1989). “[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403].” United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir.2006) (quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991)). The United States Court of Appeals for the Tenth Circuit has reminded district courts that they should be “mindful” that “exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly.” United States v. Smalls, 605 F.3d 765, 787 (10th Cir.2010). The decision to admit or exclude evidence pursuant to rule 403 is within the trial court’s discretion, see United States v. Lugo, 170 F.3d 996, 1005 (10th Cir.1999), and the trial court’s discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir.1983); United States v. Masters, 622 F.2d 83, 87-88 (4th Cir.1980). As the Supreme Court of the United States has noted: In deference to a district court’s familiarity with the details of the case and its greater experience in evidentiary matters, courts of appeals afford broad discretion to a district court’s evidentiary rulings.... This is particularly true with respect to Rule 403 since it requires an “on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (omission in case but not quoted treatise)(quoting 1 Steven A. Chil-dress & Martha S. Davis, Federal Standards of Review § 4.02, at 4-16 (3d ed. 1999)). See United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (“Assessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403....”). Evidence may be unfairly prejudicial if it would likely provoke an emotional response from the jury or would otherwise tend to adversely affect the jury’s attitude toward a particular matter. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir.1999). Evidence is not unfairly prejudicial merely because it damages a party’s case. See United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir.2008); United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir.2003); United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir.1991). Rather, “[t]o be unfairly prejudicial, the evidence must have ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ ” United States v. Caraway, 534 F.3d at 1301 (quoting Fed. R.Evid. 403 advisory committee’s notes). LAW REGARDING RULE 404(b) Rule 404(b) of the Federal Rules of Evidence provides: (b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial—or during trial if the court, for good cause, excuses lack of pretrial notice. Fed.R.Evid. 404(b) (emphasis in original). Rule 404(b) states that evidence of other crimes or wrongs may not be introduced against a person to show that, in the case at hand, he or she acted in conformity with that prior behavior. The same evidence, however, may be admissible for other purposes. Permissible purposes include proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. See Fed. R.Evid. 404(b). The Supreme Court has enunciated a four-part process to determine whether evidence is admissible under rule 404(b). See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). The Tenth Circuit has consistently applied that test: To determine whether Rule 404(b) evidence was properly admitted we look to [a] four-part test.... This test requires that: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the trial court must make a Rule 408 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to Fed.R.Evid. 105, the trial court shall, upon request, instruct the jury that evidence of similar acts is to be considered only for the proper purpose for which it was admitted. United States v. Zamora, 222 F.3d 756, 762 (10th Cir.2000) (citing United States v. Roberts, 185 F.3d 1125 (10th Cir.1999)). See United States v. Higgins, 282 F.3d 1261, 1274 (10th Cir.2002); United States v. Hardwell, 80 F.3d 1471, 1488 (10th Cir.1996) (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). 1. Rule 404(b) Evidence Introduced by the Prosecution in a Criminal Case. Although rule 404(b) applies in both civil and criminal cases, it obtains special importance in criminal cases, where it “is typically used by prosecutors seeking to rely on a criminal defendant’s prior bad act as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in the crime charged.” United States v. Montelongo, 420 F.3d at 1174. The Tenth Circuit has stated that district courts must “identify specifically the permissible purpose for which such evidence is offered and the inferences to be drawn therefrom.” United States v. Youts, 229 F.3d 1312, 1317 (10th Cir.2000) (citing United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.1985)). “[A] broad statement merely invoking or restating Rule 404(b) will not suffice.” United States v. Youts, 229 F.3d at 1317. Uncharged, unrelated crimes or bad acts may be probative to show motive, intent and knowledge, whether the acts involved previous conduct or conduct subsequent to the charged offense, if the uncharged acts are similar to the charged crime and sufficiently close in time. See United States v. Olivo, 80 F.3d 1466, 1468-69 (10th Cir.1996) (finding the district court did not abuse its discretion when it admitted evidence about an event over one year after a defendant’s arrest); United States v. Bonnett, 877 F.2d 1450, 1461 (10th Cir.1989) (holding that evidence about events over a year after the charged conduct was not “too remote in time and unrelated to the transactions with which he was charged”). This similarity may be shown through “physical similarity of the acts or through the ‘defendant’s indulging himself in the same state of mind in the perpetration of both the extrinsic offense and charged offenses.’ ” United States v. Queen, 132 F.3d 991, 996 (4th Cir.1997) (quoting United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978)). See United States v. Bonnett, 877 F.2d at 1461. The Tenth Circuit in United States v. Johnson, 42 F.3d 1312 (10th Cir.1994), explained that rule 404(b) does not apply to uncharged acts that are part of the conduct with which a defendant is charged: Rule 404(b) only applies to evidence of acts extrinsic to the charged crime. An uncharged act may not be extrinsic if: (1) it was part of the scheme for which a defendant is being prosecuted ... or (2) it was “inextricably intertwined” with the charged crime such that a witness’ testimony “would have been confusing and incomplete without the prior act.” United States v. Johnson, 42 F.3d at 1316 (citations omitted). 2. “Reverse” 404(b): Evidence That the Defendant Introduces in a Criminal Case. Rule 404(b) is the modern equivalent— now extended to civil cases as well as criminal — of the common-law protection of the criminal defendant from risking conviction on the basis of evidence of the defendant’s character. See United States v. Dudek, 560 F.2d 1288, 1295-96 (6th Cir.1977); 22 Charles A. Wright & Kenneth W. Graham, Federal Practice and Procedure: Evidence § 5239, at 428, 436-37, 439 (1991). In United States v. Phillips, 599 F.2d 134 (6th Cir.1979), the United States Court of Appeals for the Sixth Circuit noted, in addressing rule 404(b)’s precepts, that the rule addresses two main policy concerns: (1) that the jury may convict a “bad man” who deserves to be punished not because he is guilty of the crime charged but because of his prior or subsequent misdeeds; and (2) that the jury will infer that because the accused committed other crimes he probably committed the crime charged. United States v. Phillips, 599 F.2d at 136. Both these rationales appear at first glance to be one-sided, i.e., they should preclude the introduction of the defendant’s prior bad acts, but they should not preclude the defendant’s introduction of prior bad acts committed by third parties, namely the alleged victim. Accordingly, some courts have found that the standards for admission of evidence to show conduct in conformity with prior conduct relaxed when the defendant attempts to offer the rule 404(b) evidence. The United States Court of Appeals for the Second Circuit in United States v. Aboumoussallem, 726 F.2d 906 (2d Cir.1984) (Newman, J.)(joined by Feinberg, C.J., and Friendly, J.), undertook an early analysis of the admissibility of prior crimes evidence that the defendant proffers. The Second Circuit noted: [W]e believe the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when the prosecution uses such evidence as a sword. The prosecution in the Anglo-American tradition, may not ordinarily offer evidence of a defendant’s prior wrongdoing for the purpose of persuading the jury that the defendant has a propensity for crime and is therefore likely to have committed the offense for which he stands trial. As Dean Wigmore points out, the evidence “is objectionable not because it has no- appreciable value but because it has too much.” Presumably, the “too much” argument means that a guilty person, and, of far more serious concern, an innocent person, may be convinced primarily because of the jury’s willingness to assume his present guilty from his prior misdeed. Wigmore also identifies objections based on the risk that the jury will convict because the defendant may not have been punished for his prior offenses and the injustice of requiring the defendant to defend against a series of accusations.... However, the risks of prejudice are normally absent when the defendant offers similar acts evidence of a third party to prove some fact pertinent to the defense. In such cases the only issue arising under Rule 404(b) is whether the evidence is relevant to the existence or non-existence of some fact pertinent to the defense. United States v. Aboumoussallem, 726 F.2d at 911-12 (footnotes omitted) (citations omitted). Similarly, the United States Court of Appeals for the Fifth Circuit in United States v. Krezdorn, 639 F.2d 1327 (5th Cir.1981), noted that [t]he extrinsic acts rule is based on the theory that the jury will use evidence that the defendant has, at other times, committed bad acts to convict him of the charged offense. Consequently, the only purpose served by extrinsic offense evidence is to demonstrate the propensity of the defendant to act in a certain way, the evidence must be excluded. When, however, the extrinsic offense was not committed by the defendant, the evidence will not tend to show that the defendant has a criminal disposition and that he can be expected to act in conformity therewith. When the evidence will not impugn the defendant’s character, the policies underlining 404(b) are inapplicable. 639 F.2d at 1332-33 (citations omitted)(internal quotation marks omitted). In addition to the Second and Fifth Circuits, the United States Courts of Appeals for the First, Third, Seventh, and Eleventh Circuits have determined that rule 404(b) is inapplicable to the admissibility of evidence of acts of third parties. See United States v. Reed, 259 F.3d 631, 634 (7th Cir.2001)(“In deciding whether to admit such evidence, a district court should balance the evidence’s probative value under Rule 401 against considerations such as prejudice, undue waste of time and confusion of the issues under Rule 403.”); United States v. Morano, 697 F.2d 923, 926 (11th Cir.1983) (“But although Rule 404(b) does not control this situation, the exceptions listed in the Rule should be considered in weighing the balance between the relevancy of this evidence and its prejudice under Rule 403.”); United States v. Stevens, 935 F.2d 1380, 1401-1406 (3d Cir.1991) (“[A] defendant may introduce ‘reverse 404(b)’ evidence so long as its probative value under Rule 401 is not substantially outweighed by Rule 403 considerations.”); United States v. Gonzalez-Sanchez, 825 F.2d 572, 582 n. 25 (1st Cir.1987) (“Inasmuch as this evidence does not concern past criminal activity of [the defendant], Rule 404(b) is inapplicable.”). In United States v. Stevens, 935 F.2d 1380 (3d Cir.1991)(Becker, J.)(joined by Nygaard & Pollack, JJ.), the Third Circuit also held that a lowered standard of similarity between the crime before the federal court and the “other crimes evidence” governs “reverse 404(b)” evidence, because prejudice to the defendant is not a factor. 935 F.2d at 1403. The Tenth Circuit has held that rule 404(b)’s prohibition applies to a defendant who wishes to introduce evidence of wrongdoing by another to establish his innocence. See United States v. Puckett, 692 F.2d 663, 671 (10th Cir.1982) (McWilliams, J.)(joined by Seth, C.J., and Brim-mer, J.). In United States v. Puckett, the co-defendant, Mauzy, sought to introduce evidence that his co-Defendant, Puckett, had “conned” him in transactions unrelated and dissimilar to the crimes charged in the indictment. 692 F.2d at 670. The trial court did not allow Mauzy to present the evidence. See 692 F.2d at 670. “The trial court did not permit Mauzy ... to call certain witnesses who would testify that they too had been ‘conned’ by Puckett in transactions unrelated and dissimilar to the crimes charged in the indictment.” 692 F.2d at 670. Mauzy contended on appeal in United States v. Puckett that “the refusal to admit this evidence violates his due process right to present a defense.” 692 F.2d at 670-71. The Tenth Circuit affirmed. See 692 F.2d at 671. The Tenth Circuit noted that the 404(b) evidence offered by Mauzy pertained to activities by Puckett that were “unrelated and dissimilar to the charges alleged in the indictment.” United States v. Puckett, 692 F.2d at 670. Mauzy argued that rule 404(b) did not govern the admissibility of the evidence, because it did not apply “to situations in which a defendant wishes to introduce evidence of wrongdoing by another person in order to establish his own innocence.” 692 F.2d at 671. The Tenth Circuit indicated that it was “not inclined to interpret [rule 404(b) ] so narrowly.” 692 F.2d at 671. The Tenth Circuit explained that its review of the “Advisory Committee Notes on the Proposed Rules indicate that the members of the committee were concerned not only with the prejudicial impact to a defendant in admission of extrinsic acts as evidence, but also with its limited probative value.” 692 F.2d at 671. The Tenth Circuit held that the trial court properly rejected the evidence as irrelevant, “[p]articularly ... [where] the evidence offered by Mauzy pertained to activities by [his co-conspirator that were] unrelated and dissimilar to the charges alleged in the indictment.” 692 F.2d at 671. Since United States v. Puckett, the Tenth Circuit has considered the admissibility of prior acts that the defendant proffers, often referred to as “reverse 404(b)” evidence. In United States v. Montelongo, 420 F.3d 1169 (10th Cir.2005), police found ninety-three kilograms of marijuana in the sleeping compartment of the semi-truck that the defendants were driving. See 420 F.3d at 1171. The owner of the truck testified for the United States, and stated that he “had inspected the truck just before [the defendants] picked it up and had found no marijuana in it.” 420 F.3d at 1172. The defendants then made a “reverse 404(b)” argument. United States v. Montelongo, 420 F.3d at 1174. The relevant issue in United States v. Montelongo was whether the defendants could cross examine the owner of the truck that the defendants were driving about a prior incident which occurred “a few months” earlier. 420 F.3d at 1171. The defendants sought to introduce evidence of a prior incident which occurred a few months before their arrest and which involved marijuana that was found in the sleeping compartment in a different semi-truck that the truck owner possessed. See 420 F.3d at 1176. The Tenth Circuit reversed the trial court’s refusal to allow cross examination by the defendants regarding “the fact that thirty-four pounds of marijuana were found in duffle bags in the sleeping compartment of a truck owned by [the government witness] just a few months prior to the Defendants’ arrests for nearly identical conduct” to defend against a conspiracy to distribute more than fifty grams of marijuana. 420 F.3d at 1176. The Tenth Circuit began its analysis in United States v. Montelongo by noting that rule 404(b) is typically used by prosecutors seeking to rely on a criminal defendant’s prior bad act as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in the crime charged. The Rule is not so limited in its application, however, and evidence of a witness’ other wrongs, acts, or crimes is admissible “for defensive purposes if it tends, alone, or with other evidence, to negate the defendant’s guilt of the crime charged against him.” 420 F.3d at 1174 (quoting Agushi v. Duerr, 196 F.3d 754, 760 (7th Cir.1999)). The Tenth Circuit also noted that “[o]ther circuit courts addressing the issue hold that admissibility of reverse 404(b) evidence depends on a ‘straightforward balancing of the evidence’s probative value against considerations such as undue waste of time and confusion of the issues.’ ” 420 F.3d at 1174 (quoting United States v. Stevens, 935 F.2d at 1404-1405). The Tenth Circuit held that the evidence of the marijuana previously found in another truck owned by the truck owner was relevant to the defendants’ defense that they had no knowledge of the marijuana packed in the truck they were driving. See United States v. Montelongo, 420 F.3d at 1174. The Tenth Circuit noted that, “[i]n this way, the previous case is relevant as it tends to make it less probable that the defendants knowingly possessed the marijuana or that they knowingly and voluntarily involved themselves in a drug conspiracy.” 420 F.3d at 1173. The Tenth Circuit looked at the similarities between the charged matter and the previous incident. See United States v. Montelongo, 420 F.3d at 1174-75. The Tenth Circuit noted that there were several similarities between the two crimes and that the jury could believe that the owner had packed the marijuana in the semi-truck. See 420 F.3d at 1174-74. Specifically, the Tenth Circuit in United States v. Montelongo noted “the similarities between the two crimes and their temporal proximity ... makes th[e] evidence probative.” 420 F.3d at 1174. The Tenth Circuit based its opinion on common facts with the prior incident, such as: (i) both trucks were owned by the same person; (ii) the marijuana was packed in duffle bags; and (iii) the marijuana was hidden in the sleeping compartment of the cabin of both tractors. See 420 F.3d at 1172. The Tenth Circuit noted that “ ‘a lower standard of similarity [between the crime at issue and ‘other crimes’ evidence] should govern ‘reverse 404(b)’ evidence because prejudice to the defendant is not a factor.’ ” United States v. Montelongo, 420 F.3d at 1174-75 (quoting United States v. Stevens, 935 F.2d at 1404). Last, the Tenth Circuit noted that the relevance of the proffered evidence was “not substantially outweighed by the risk of confusing the jury or the potential waste of time.” United States v. Montelongo, 420 F.3d at 1175. It noted that there was no danger of the jurors being distracted from the real issues in the case because of the similarities between the charged crime and the previous incident. See 420 F.3d at 1175. “To the contrary, [the 404(b) evidence] would have highlighted the central issue at trial — namely, which man was responsible for the contraband.” 420 F.3d at 1175. The Tenth Circuit focused on the question of the evidence’s admissibility in the context of the protections that the Sixth Amendment’s Confrontation Clause and cross-examination afford, and found that the “District Court erred in preventing the defendants from cross-examining [the truck owner] based on Rule 404(b).” United States v. Montelongo, 420 F.3d at 1175. In Agushi v. Duerr, the United States Court of Appeals for the Seventh Circuit decided, as a matter of first impression, that rule 404(b) applies to acts of third parties. See 196 F.3d at 760. The Seventh Circuit began its analysis by noting that “[r]ule 404(b) speaks not of the parties to a case but of a ‘person.’ ” Agushi v. Duerr, 196 F.3d at 760 (quoting Fed. R.Evid. 404(b)). The Seventh Circuit noted that “[e]vidence regarding other crimes is admissible for defensive purposes if it ‘tends, alone or with other evidence, to negate [the defendant’s] guilt of the crime charged against him.’” 196 F.3d at 760 (quoting United States v. Stevens, 935 F.2d at 1404). The Seventh Circuit explained that, although Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), “involved a situation in which the defendant was the actor, the Court strongly suggested that Rule 404(b) should be applied to any actor.” Agushi v. Duerr, 196 F.3d at 760 (emphasis in original)(relying on Huddleston v. United States, 485 U.S. at 685-86, 108 S.Ct. 1496 (“Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.”)). The Seventh Circuit concluded that, “[b]ased on the Supreme Court’s guidance, our sister circuit’s reasoning ... as well as the very language contained in Rule 404(b), we hold that Rule 404(b) does apply to third parties.” Agushi v. Duerr, 196 F.3d at 760. In 2005, the Seventh Circuit, however, disagreed with a district court’s evidentia-ry ruling that held the defense to as rigorous a 404(b) standard as the United States. See United States v. Seals, 419 F.3d 600, 607 (7th Cir.2005) (Bauer, J.)(joined by Posner & Ripple, JJ.)(“Contrary to the district court’s statement, the defense is not held to as rigorous of a standard as the government in introducing reverse 404(b) evidence.”)(citing Agushi v. Duerr, 196 F.3d at 760). The Seventh Circuit affirmed, however, the district court’s decision to exclude the proffered evidence, because it was irrelevant and inadmissible. See United States v. Seals, 419 F.3d at 607. It noted that the similarities between the charged conduct and the previous incident were generic, because the underlying facts were dissimilar. See 419 F.3d at 607. The Seventh Circuit explained that, although “the legal standard for admitting reverse 404(b) evidence is relatively lenient, the evidence still must be relevant.” 419 F.3d at 607. In United States v. McCourt, 925 F.2d 1229 (9th Cir.1991) (Rymer, J.)(joined by Hall & Norris, JJ.), the United States Court of Appeals for the Ninth Circuit recognized that rule 404(b) makes no distinction between defendants and third parties in excluding prior-acts evidence to show criminal propensity or as a basis for suggesting the inference that certain conduct was in conformity with it. See 925 F.2d at 1232 (“Because Rule 404(b) plainly proscribes other crimes evidence of ‘a person,’ it cannot reasonably be construed as extending only to ‘an accused.’”)(quoting Fed.R.Evid.- 404(b)). The Ninth Circuit concluded, however, that no exception in rule 404(a) permits the use of evidence to show a .third person’s character for the inference that this person acted in conformity with his character and committed the crime with which defendant is charged. See 925 F.2d at 1231-32 n. 2 (citing 2 Jack B. Weinstein, John H. Mansfield, Norman Abrams & Margaret A. Berger, Evidence ¶ 404[04], at 404-39-40 (1989)). In United States v. Stevens, the defendant sought to introduce testimony by a victim of a crime different from the one with which the defendant was charged where the victim “was the victim of a crime which was so similar to the instant crime that the investigating officers believed that the same individual had committed both” and the victim “would have testified that he, unlike the [other] victims ... did not identify [the defendant] as his assailant.” 935 F.2d at 1383. “The critical question is, of course, one of degree of similarity.” 935 F.2d at 1401. The United States Court of Appeals for the Third Circuit held that the “district court imposed too stringent a standard of similarity on [the defendant].” 935 F.2d at 1404. The Third Circuit held that “a lower standard of similarity should govern ‘reverse 404(b)’ evidence because prejudice to the defendant is not a factor.” United States v. Stevens, 935 F.2d at 1404. The Third Circuit then stated that “a defendant may introduce ‘reverse 404(b)’ evidence so long as its probative value under Rule 401 is not substantially outweighed by Rule 403 considerations.” 935 F.2d at 1405. The Third Circuit rejected the United States’ contention that a defendant may offer rule 404(b) evidence only under “hard and fast preconditions,” and stated: More specifically, the defendant, in order to introduce other crimes evidence, need not show that there has been more than one similar crime, that he has been misidentified as the assailant in a similar crime, or that the other crime was sufficiently similar to be called a “signature” crime. These criteria, although relevant to measuring the probative value of the defendant’s proffer, should not be erected as absolute barriers to its admission. Rather, a defendant must demonstrate that the “reverse 404(b)” evidence has a tendency to negate his guilt, and that it passes the Rule 403 balancing test. United States v. Stevens, 935 F.2d at 1405. The Third Circuit determined that the defendant’s proffer was relevant under rule 401, because it made his guilt less probable. See 935 F.2d at 1405-1406. It then determined that the proffer did not present a risk of mini-trials or obstruction to the orderly progress of trial. See 935 F.2d at 1405-06. The Third Circuit emphasized that its “resolution of this issue is informed by [its] general belief that a criminal defendant should be able to advance any evidence that, first, rationally tends to disprove his guilt, and second, passes the Rule 403 balancing test.” United States v. Stevens, 935 F.2d at 1406. The Court addressed a criminal defendant’s introduction of rule 404(b) evidence in United States v. Moreau, No. CR 07-0388 JB, 2008 WL 2229467 (D.N.M. Mar. 12, 2008) (Browning, J.). In that case, a cooperating witness accused the defendant, Sygenstz Moreau, of engaging in a large-scale drug transaction with him. See 2008 WL 2229467, at *1-2. Law enforcement officers had arrested Moreau driving a tractor-trailer rig through Gallup, New Mexico; the rig had roughly 2,700 pounds of marihuana hidden away in the trailer, and also contained several pallets of cloth fabric that Moreau had purchased from the confidential witness earlier that day. See 2008 WL 2229467, at *2. The cooperating witness said that Moreau had loaded the marihuana into the trailer from the witness’ warehouse, using the pallets of cloth as a pretext for the visit, to help physically obscure the marihuana, and so that the trailer would have something else in it other than the marihuana. See 2008 WL 2229467, at *2. Moreau, however, argued that the witness ran the entire operation alone, that the witness had loaded both the marihuana and the cloth pallets onto the truck, and that Moreau had no idea he was hauling marihuana. See 2008 WL 2229467, at *2. Moreau sought to introduce evidence of three prior incidents in which law enforcement officers discovered the cooperating witness in possession of large quantities of marihuana. See 2008 WL 2229467, at *1. The Court ruled that the prior incidents were admissible under rule 404(b) to show that the witness “had the opportunity, plan, preparation, and knowledge to operate a sophisticated marihuana operation.” United States v. Moreau, 2008 WL 2229467, at *13 (emphasis omitted and capitalization altered for readability). This inference—that the witness could have planned and executed the marihuana scheme without Moreau’s knowledge—bolstered Moreau’s assertion that he was unaware that the marihuana was in the trailer—because, after all, the marihuana got there somehow, and a plausible alternative explanation makes Moreau’s contention more probable than it would be without the plausible alternative explanation. See 2008 WL 2229467, at *14-15. LAW REGARDING THE CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE IN A CRIMINAL CASE Both the Fifth and Sixth Amendments protect a defendant’s right to have a meaningful opportunity to present a defense. See Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). The Tenth Circuit has explained: The Fifth (or Fourteenth if a state is involved) and Sixth Amendments concomitantly provide a criminal defendant the right to present a defense by compelling the attendance, and presenting the testimony, of his own witnesses. The Supreme Court’s broad reading of the Sixth Amendment’s Compulsory Process Clause, establishes], at a minimum, that criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt. United States v. Serrano, 406 F.3d 1208, 1215 (10th Cir.2005) (citations omitted)(internal quotation marks omitted). The Tenth Circuit clarified that “[a] defendant’s right to present a defense, however, is not absolute.” United States v. Serrano, 406 F.3d at 1215. The Tenth Circuit explained that a defendant’s right to present a defense does not displace traditional testimonial privileges. See 406 F.3d at 1215. “A defendant has a right based on the Fifth and Sixth Amendments to testify and to call witnesses in his favor. These rights are not without limitation, however.” United States v. Talamante, 981 F.2d 1153, 1157 (10th Cir.1992). See United States v. Wilson, 307 F.3d 596, 601 (7th Cir.2002) (holding that the trial court’s exclusion of reverse 404(b) evidence did not violate a defendant’s Sixth Amendment right to present a defense, because “the evidence that [the defendant] wished to offer would not have played a major role in disproving his guilt”). LAW REGARDING HEARSAY “Hearsay testimony is generally inadmissible.” Skyline Potato Co., Inc. v. Hi-Land Potato Co., Inc., No. CIV 10-0698 JB/RHS, 2013 WL 311846, at *13 (D.N.M. Jan. 18, 2013) (Browning, J.)(citing Fed.R.Evid. 802). Under rule 801(c) of the Federal Rules of Evidence, “ ‘[hearsay’ means a statement that: (1) the de-clarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). Hearsay bars a party from presenting its own statements, such as “a defendant ... attempting] to introduce an exculpatory statement made at the time of his arrest without subjecting himself to cross-examination.” United States v. Cunningham, 194 F.3d 1186, 1199 (11th Cir.1999). A statement that is otherwise hearsay, however, may be offered for a permissible purpose other than to prove the truth of the matter asserted, including to impeach a witness. See United States v. Caraway, 534 F.3d 1290, 1299 (10th Cir.2008)(“We have already explained why the content of the statement, if used substantively, would be inadmissible hearsay. If admitted for impeachment purposes, however, it is not hearsay.”). “ ‘[T]estimony is not hearsay when it is offered to prove only that a statement was made and not the truth of the statement.’ ” Skyline Potato Co., Inc. v. Hi-Land Potato Co., Inc., 2013 WL 311846, at *19 (original alterations omitted)(quoting Creaghe v. Iowa Home Mut. Cas. Co., 323 F.2d 981, 984 (10th Cir.1963)). Statements offered not to prove the truth of the statements, but rather “offered for the effect on the listener ... are generally not hearsay.” Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1434 (10th Cir.1993). See United States v. Smalls, 605 F.3d 765, 785 n. 18 (10th Cir.2010)(“[S]tatements offered for their effect on the listener are not hearsay.”). Thus, “[[legally operative statements— statements [that] have legal effect by the mere fact of their statement—are generally not for the ‘truth of the matter asserted,’ but rather to show the fact of the statement being made and for the effect of the statement on the hearer.” Skyline Potato Co., Inc. v. Hi-Land Potato Co., Inc., 2013 WL 311846, at *19 (original alterations omitted)(internal quotation marks omitted) (quoting Barner v. City of Harvey, 95 C 3316, 1998 WL 664951, at *2 (N.D.Ill. Sept. 18,1998)). In Skyline Potato Co., Inc. v. Hi-Land Potato Co., Inc., the plaintiffs objected to the defendants’ use of documents relating to third parties’ bankruptcy proceedings, asserting that the statements that the defendants wished to use were inadmissible hearsay statements. See 2013 WL 311846, at *19. The defendants asserted, however, that they intended to offer the bankruptcy proceedings to show that the plaintiffs had notice of the third parties’ bankruptcy filings and did not assert claims against the third parties in the third parties’ bankruptcy proceedings; the defendants were also offering the proceedings, including settlement stipulations, to show that the plaintiffs failed to mitigate their damages. See 2013 WL 311846, at *19. The Court concluded that, to the extent that the defendants were offering the documents to show that the plaintiffs had notice of the third parties’ bankruptcy filings, the defendants were offering the statements for the non-hearsay purpose “to show the effect that the documents had upon the listener—or in this case, the reader.” 2013 WL 311846, at *19. The Court additionally concluded: [T]o the extent that [the defendants] are offering, the documents to show that the parties to this action reached a legally binding agreement to discharge any claims against the [the third parties] that they might have for less than the full amount of money owed to them by the [third parties], the statements are not being offered for the truth of the matter asserted, but rather as evidence of the legal effect of the agreement, the statements are “legally operative statements” and are thus not hearsay. 2013 WL 311846, at *19 (citing Barner v. City of Harvey, 1998 WL 664951, at *2). LAW REGARDING RULE 801(d)(2)(C) AND (d)(2)(D) Federal Rule of Evidence 801(d)(2)(C) provides for a statement to be admissible as nonhearsay if it “was made by a person whom the party authorized to make a statement on the subject.” Fed.R.Evid. 801(d)(2)(C). Courts have historically applied agency law to determine whether the declarant was authorized by the party to make the statement at issue. See Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 666-67 (10th Cir.2006)(finding that a bishop’s role within the United Methodist Church, which included the authority to assign and remove local pastors at will, to supervise pastors’ work, to administer funds to local churches, and to retain control over church property if the United Methodist Church were to go out of business made the bishop a “representative of or a party authorized to speak for” the local United Methodist Church that was a party to the action, and the bishop’s statements were thus admissible as non-hearsay under rule 801(d)(2)(C)). See also Fed.R.Evid. 801(d)(2)(C) advisory committee’s notes (describing the relationship that rule 801(d)(2)(C) contemplates as a “principal” and “agent” relationship). The Tenth Circuit has held that the president of a corporation is “authorized” to make statements regarding hiring and termination, and thus a presidents’ statements on those subjects are admissible as nonhearsay under rule 801(d)(2)(C). Fischer v. Forestwood Co., Inc., 525 F.3d 972, 984 (10th Cir.2008) (“[B]ecause [the declarant] was president of Forestwood at the time of the conversations ... he was ‘authorized’ by Forest-wood ‘to make a statement concerning’ hiring and firing.” (quoting Fed.R.Evid. 801(d)(2)(C) before the 2011 amendments)). Similarly, the Court has held that the United States has authorized the United States’ Attorney’s Office to make a statement regarding a defendant’s guilt or innocence in a closing argument for a case that the United States’ Attorney’s Office prosecuted. See United States v. Ganadonegro, 854 F.Supp.2d 1088, 1120-21 (D.N.M.2012) (Browning, J.). The Court noted that the rule contemplates the admission of statements which a principal-agency relationship authorizes. The Court found that “treating government attorneys, particularly Department of Justice attorneys, as agents of the United States is the correct approach.” 854 F.Supp.2d at 1119. Bec