F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUL 1 1998
TENTH CIRCUIT PATRICK FISHER
Clerk
UNTED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6199, 97-6206
(D.C. No. CR-96-98-T)
JAMES CHARLES ABBOTT, also (WOK)
known as Jim King, also known as
Grandpa,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
James Charles Abbott was charged in a multi-count indictment with
conspiracy to distribute methamphetamine, maintaining a place for the
distribution of controlled substances, possession of firearms by a convicted felon,
distributing methamphetamine, and carrying a weapon during and in relation to a
drug trafficking crime. Following his conviction he was sentenced to a total term
of imprisonment of 900 months and five years of supervised release. On appeal,
Mr. Abbott argues that the order of proof under which the evidence against him
was placed before the jury denied him a fair trial. We affirm.
Mr. Abbott contends the trial court improperly allowed the government to
introduce exhibits and evidence of firearms, narcotics, money, and documents
before that evidence was connected to him. He asserts the government thereby
gained a tactical advantage over him because the jury’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 connected him to that evidence at
the time of its admission. In any event, his argument is contrary to the governing
rules of evidence, the case law, and the commentators.
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
-2-
variation in the usual order of proof will not be considered an abuse unless it
tends to confuse the jury, misleads the opponent, or finds him unprepared to
counter the evidence as a result of the order in which 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 witnesses and presenting
evidence so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3)
protect witnesses from harassment or undue embarrassment.” Fed. R. Evid.
611(a).
The Rules of Evidence likewise commit the admissibility of evidence to the
trial court’s discretion. Rule 104 states that preliminary questions concerning the
admissibility of evidence shall be determined by the 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, or subject to, the introduction of
evidence sufficient to support a finding of the fulfillment of the condition.” Fed.
R. Evid. 104(b).
One noted commentator has directly addressed and rejected the argument
Mr. Abbott makes here.
It constantly happens that an evidential fact is relevant, not with
direct reference to an allegation in the pleadings, but only through its
-3-
connection with other subordinate facts . . . . Without them it is
irrelevant, or immaterial, and therefore inadmissible. 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 first
been put in evidence.
No such rule, however, would be practicable; for those same
connecting facts would themselves often be irrelevant apart from the
fact in question; in other words, the relevancy appears only when all
are considered together. Now it is obviously impossible to present
all the facts at precisely the same moment or in the 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 others, the order of
presentation is left to the discretion of the party himself, subject of
course to the general discretion of the trial court . . . in controlling
the order of evidence. In other words, if an evidential 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 the 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 evidence linking him to the motel
rooms from which other evidence was taken, and that evidence was found during
a search of Mr. Abbott’s residence. Much of the evidence was thus connected to
-4-
some extent to Mr. Abbott at the time it was admitted. 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 being connected to the
defendant, Mr. Abbott does not assert that a proper foundation was not ultimately
laid at trial, contending only that he was prejudiced because it was not laid first.
Moreover, Mr. Abbott does not assert that he was surprised or unable to counter
the evidence as a result of the order in which it was presented, arguing only that
its damaging impact was thereby enhanced. Unfortunately for Mr. Abbott, the
order of proof is generally within the control of the party presenting it and a
matter within the trial court’s discretion. The prejudice of which Mr. Abbott
complains is in essence based more on the highly inculpatory nature of the
evidence rather than the order in which the jury received it, and is thus simply not
the sort of adverse effect that rises to an abuse of discretion or the denial of a fair
trial.
The conviction is AFFIRMED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
-5-