* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 1 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNTED STATES OF AMERICA, Plaintiff-Appellee,

v. JAMES CHARLES ABBOTT, also known as Jim King, also known as Grandpa, Defendant-Appellant. No. 97-6199, 97-6206 (D.C. No. CR-96-98-T) (WOK)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.-2-

James Charles Abbott was charged in a multi-count i ndictment with conspiracy to distribute methamphetamine, maintaini ng a place for the distribution of controlled substances, possession o f firearms by a convicted felon, distributing methamphetamine, and carrying a weaponduring and in relation to a drug trafficking crime. Following his conviction h e was sentenced to a total term of imprisonment of 900 months and five years of sup ervised release. On appeal, Mr. Abbott argues that the order of proof under whi ch the evidence against him was placed before the jury denied him a fair trial. We affirm. Mr. Abbott contends the trial court improperly allo wed the government to introduce exhibits and evidence of firearms, narcot ics, money, and documents before that evidence was connected to him. He asse rts the government thereby gained a tactical advantage over him because the ju ry’s ability to evaluate the credibility of later witnesses was affected by the prior presentation of this damaging evidence. In so doing, Mr. Abbott ignores probative evidence admitted along with the evidence to which he objects that co nnected him to that evidence at the time of its admission. In any event, his argum ent is contrary to the governing rules of evidence, the case law, and the commentato rs. Mr. Abbott concedes, as he must, that “the order of proof is within the sound discretion of the trial judge.” United States v. Krohn , 573 F.2d 1382, 1387 (10th Cir. 1978); see also Geders v. United States , 425 U.S. 80, 86 (1976). A-3-

variation in the usual order of proof will not be c onsidered an abuse unless it tends to confuse the jury, misleads the opponent, o r finds him unprepared to counter the evidence as a result of the order in wh ich it was presented. See 6 J OHN H. W IGMORE , E VIDENCE § 1867, at 655-56 (Chadbourn rev. ed. 1976). The Rules of Evidence likewise provide that “[t]he court shall exercise reasonable control over the mode and order of interrogating wi tnesses and presenting evidence so as to (1) make the interrogation and pr esentation effective for the ascertainment of the truth, (2) avoid needless cons umption of time, and (3) protect witnesses from harassment or undue embarras sment.” Fed. R. Evid. 611(a). The Rules of Evidence likewise commit the admissibi lity of evidence to the trial court’s discretion. Rule 104 states that pre liminary questions concerning the admissibility of evidence shall be determined by th e court, and further provides that “[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, o r subject to, the introduction of evidence sufficient to support a finding of the ful fillment of the condition.” Fed. R. Evid. 104(b). One noted commentator has directly addressed and re jected the argument Mr. Abbott makes here. It constantly happens that an evidential fact is re levant, not with direct reference to an allegation in the pleadings, but only through its-4-

connection with other subordinate facts . . . . Wit hout them it is irrelevant, or immaterial, and therefore inadmissib le. So far, then, as concerns the time of its introduction in evidence, one might expect a rule requiring such a fact not to be given in evidence until the connecting facts , by reason of which it becomes relevant, have firs t been put in evidence. No such rule, however, would be practicable; for th ose same connecting facts would themselves often be irrelevant apart from the fact in question; in other words, the relevancy app ears only when all are considered together. Now it is obviously impos sible to present all the facts at precisely the same moment or in th e testimony of a single witness. Hence, some of the connected facts must be allowed to be presented before the others, even though the former, standing alone, are irrelevant. Thus the fundamental rule, universally accepted, is that with reference to facts whose relevancy depends upon oth ers, the order of presentation is left to the discretion of the partyhimself , subject of course to the general discretion of the trial court. . . in controlling the order of evidence. In other words, if an evide ntial fact offered has an apparent connection with the case on the assumption that other facts shall also be proved, it may be admitted. No objection, therefore, can be made merely on the ground that th e other facts have not yet been evidenced. 6 W IGMORE , supra , § 1871, at 644. The evidence at issue here was admitted during the testimony of law enforcement officers who had found the items while searching Mr. Abbott’s residence, motel rooms, and vehicles. Although Mr. Abbott contends this evidence was admitted before it was linked to him, the record reveals that the jury was informed at the time of its admission of eviden ce linking him to the motel rooms from which other evidence was taken, and thatevidence was found during a search of Mr. Abbott’s residence. Much of the ev idence was thus connected to-5-

some extent to Mr. Abbott at the time it was admitt ed. The proof of connection “affects the weight of the evidence rather than its ultimate admissibility once the preliminary issue of admissibility is determined.” United States v. Brewer , 630 F.2d 795, 802 (10th Cir. 1980). Although some evidence was admitted subject to bein g connected to the defendant, Mr. Abbott does not assert that a properfoundation was not ultimately laid at trial, contending only that he was prejudic ed because it was not laid first. Moreover, Mr. Abbott does not assert that he was su rprised or unable to counter the evidence as a result of the order in which it w as presented, arguing only that its damaging impact was thereby enhanced. Unfortun ately for Mr. Abbott, the order of proof is generally within the control of t he party presenting it and a matter within the trial court’s discretion. The pr ejudice of which Mr. Abbott complains is in essence based more on the highly in culpatory nature of the evidence rather than the order in which the jury re ceived it, and is thus simply not the sort of adverse effect that rises to an abuse o f discretion or the denial of a fair trial. The conviction is AFFIRMED

. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge