                                                                        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       This order and judgment is not binding precedent, except under the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


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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

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      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


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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


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