* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### JAN 29 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 02-2320 KIRBY GENE SPILLMAN, (D.C. No. CR-01-1108-BB) (D. New Mexico) Defendant-Appellant.

ORDER AND JUDGMENT *

Before KELLY , McKAY , and O’BRIEN , Circuit Judges.

Appellant was charged and convicted of several related drug crimes. On appeal, Appellant asks us to reverse his convictionon grounds that the district court improperly allowed testimony about two incide nts. First, Appellant argues that testimony regarding twenty-five empty blister packs, found in the garbage in the back of Appellant’s pickup truck, should have b een excluded because the pickup was stolen the day before the officer found the blister packs. Second,-2-

Appellant argues that testimony about a “hype-kit” (2 syringes and an alcohol pad) and a straw with white residue was improper be cause these items were found in a house from which Appellant had been evicted fo r over one month. We hold that the testimony about both incidents was properl y admitted and affirm the conviction. The district court has broad discretion in determin ing what evidence is admissible. United States v. Talamante , 981 F.2d 1153, 1155 (10th Cir. 1992) (citing United States v. Alexander , 849 F.2d 1293, 1301 (10th Cir. 1998). Therefore, we will reverse the district court only if its decision was “arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Combs , 267 F.3d 1167, 1176 (10th Cir. 2001) (citing Coletti v. Cudd Pressure Control , 165 F.3d 767, 777 (10th Cir. 1999) (internal quotations omitted). Because the trial court has the opportunity to view the evidence firs t-hand, “a trial court’s decision will not be disturbed unless the appellate court ha s a definite and firm conviction that the lower court made a clear error of judgmentor exceeded the bounds of permissible choice in the circumstances.” Moothartv. Bell , 21 F.3d 1499, 1504 (10th Cir. 1994). Appellant first argues that the district court abus ed its discretion by allowing an agent to testify that he found more tha n twenty-five empty blister packs, which are used to manufacture methamphetamin e, in the trash in the back of Appellant’s truck. There is no dispute that the day before the agent found the-3-

blister packs the truck had been stolen. See Aple. Supp. App., Vol. I, at 206. Appellant objected to the testimony at trial, argui ng that since the truck was stolen, “there is not an adequate, legitimate found ation to establish any link between [Appellant] and the testimony of [the agent .]” Id. at 207. The district court overruled the objection and found that althou gh the link was not direct, the testimony, after being subjected to cross-examinati on, was such that a jury could properly infer a link between the blister packs and Appellant. Id. On appeal, Appellant asks us to reverse the distric t court and hold that the testimony was irrelevant because it was not suffici ently linked to him and because it was unfairly prejudicial. Regarding relevance, the testimony was properly admitted if it “tends to make the existence of any fact of consequence” more or less probable than it would be without the testimony. Fed. R. Evid. 401; United States v. Mendoza-Salgado , 964 F.2d 993, 1006-07 (10th Cir. 1992). Under th is relevancy standard, we cannot say the district court abused its discretion. The government offered testimony about the blister pack s as part of its proof that Appellant was distributing and conspiring to distri bute methamphetamine. See Aplt. Br. at 13-14. In doing so, the government w as not required to prove that Appellant had exclusive control over the truck whenthe blister packs were found.
See Mendoza-Salgado , 964 F.2d at 1006. Moreover, although the truck w as stolen, it had only been stolen one day before the agent found the blister packs in it. Before that, the truck was in Appellant’s poss ession. In addition, Appellant’s-4-

counsel cross-examined the agent about the truck’s theft. Aple. Supp. App., Vol. I., at 224. Under these facts, we find no abuse of discretion in admitting the testimony as relevant. We also conclude that the district court did not ab use its discretion in finding that the testimony did not have an unfair p rejudicial effect. Under Fed. R. Evid. 403, a district court may exclude otherwise r elevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice” to a party. Evidence is excluded as unfairly prejudicia l if it “provokes an emotional response in the jury or otherwise tends to affect a dversely the jury’s attitude toward the defendant wholly apart from its judgmentas to his guilt or innocence of the crime charged.” United States v. Rodriguez , 192 F.3d 946, 951 (10th Cir. 1999) (internal quotations omitted). We have held that in drug distribution offenses, evidence of “tools of the trade” is “prob ative of an accused’s participation in the drug distribution business and , more specifically, his or her participation in the charged distribution offenses. ” United States v. Martinez , 938 F.2d 1078, 1083 (10th Cir. 1991). Such evidence is sufficiently probative to warrant admission under Fed. R. Evid. 403. See id. at 1083-84. Here, the testimony about the empty blister packs fits within this broad category of “tools of the drug trade” because the blister packs are an ingredient used to manufacture methamphetamine. Thus, the district court was acti ng within its discretion in allowing the testimony under Rule 403 as being suff iciently probative of-5-

Appellant’s participation in the drug distribution business. Appellant next argues that the district court erred in allowing an agent to testify that one of his co-searchers found a “hype- kit” (2 syringes and an alcohol pad) and a straw with white residue on it while searching a house that Appellant had been evicted from for over a month. Appellant argues that this testimony should have been excluded for the same reasons as the testimony about the blister packs: that it is not sufficiently linked to him a nd that it had an unfair prejudicial effect. Aplt. Br. at 23-24. The facts on this iss ue are undisputed. The house was searched on April 26, 2001. Aple. Supp. App., Vol. II, at 380. At that time, a notice evicting Appellant from the house, dated Mar ch 29, 2001, was posted on the front door. Id. Both parties agree that Appellant lacked legal ac cess to the house for about a month before the search. Despite these facts, we cannot say that the distric t court abused its discretion in admitting the testimony. The governm ent established a sufficient link to Appellant by submitting evidence that the e viction notice was directed to Appellant and tended to prove that he recently occupied the house. See id. at 384-85. This tie to Appellant is particularly stro ng since after he was evicted, the locks were changed and no one else occupied the hou se. The government also elicited testimony that there were two boxes of doc uments found in the house that contained cancelled checks and business cards with Appellant’s name on them.-6-

See id. at 385-86. Appellant’s counsel cross-examined the agents about these documents and about the significance of the evictio n notice. Id. at 393-95. In light of these facts, we conclude that the districtcourt did not abuse its discretion in admitting the testimony as both relevant and notunfairly prejudicial. Appellant also argues, in the alternative, that eve n if the testimony about the blister packs and the drug paraphernalia was su fficiently linked to him, it is not sufficiently linked to the charges against him. We conclude that this testimony was properly admitted both because it was linked to the charges and because it was rebuttal testimony. Appellant was c harged with conspiracy to distribute methamphetamine, distributing methamphet amine, and carrying a firearm during a drug trafficking offense. As disc ussed above, the government’s testimony about the drug paraphernalia and the blis ter packs was relevant to the government’s theory that Appellant was guilty of co nspiring to distribute methamphetamine. These items are “tools of the dru g trade” which are probative of Appellant’s general involvement in the drug busi ness, including the distribution and conspiracy charges. See Martinez , 938 F.2d at 1083-84. The testimony is also properly admitted as rebuttal testimony. At trial, Appellant testified on direct examination that he n ever sold or used methamphetamine. Aple. Supp. App., Vol. II, at 303 . It is widely acknowledged that a party who raises a subject opens the door to admission of evidence on that-7-

subject by the opposing party. United States v. Ch avez , 229 F.3d 946, 952 (10th Cir. 2000); United States v. McHorse , 179 F.3d 889, 902 (10th Cir. 1999). Thus, Appellant’s broad statements about never using or s elling methamphetamine opened the door to rebuttal testimony about the bli ster packs (a methamphetamine ingredient) and the drug paraphernalia. Finally, Appellant argues that the government’s fai lure to take possession of the blister packs and drug paraphernalia denied him due process. Since Appellant did not raise this objection in the distr ict court, we review this issue for plain error. “[U]nless a criminal defendant can sh ow bad faith on the part of the police, failure to preserve potentially useful evid ence does not constitute a denial of due process of law.” Arizona v. Youngblood , 488 U.S. 51, 58 (1988). There is nothing in the record which shows that the governme nt acted in bad faith by not taking possession of the items or that the items wo uld have exonerated Appellant. Accordingly, we find no plain error on this issue.

AFFIRMED

. Entered for the Court

Monroe G. McKay Circuit Judge