UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4374

DARRYL LERON GILL,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4383

JAMES GERALD BARBER, a/k/a Jed

Barber,

Defendant-Appellant.

Appeals from the United States District Court

for the District of South Carolina, at Rock Hill.

Dennis W. Shedd, District Judge.

(CR-96-584)

Submitted: July 14, 1998

Decided: August 6, 1998

Before WILKINS, NIEMEYER, and MICHAEL,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Cameron Bruce Littlejohn, Jr., Columbia, South Carolina; Douglas

Neal Truslow, Columbia, South Carolina, for Appellants. J. Rene

Josey, United States Attorney, Marvin J. Caughman, Assistant United

States Attorney, Columbia, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

A jury convicted Appellants Darryl Leron Gill (Gill) and James

Gerald Barber (Barber) of conspiracy to possess with the intent to distribute and to distribute cocaine base in violation of 21 U.S.C. § 846

(1994), and possession with intent to distribute and distribution of

cocaine base in violation of 21 U.S.C. § 841 (1994), and 18 U.S.C.

§ 2 (1994).

On appeal, Appellants contend that the district court abused its discretion when it admitted into evidence documents found at the motel

where the two were arrested and testimony regarding these documents

because both the testimony and the documents were irrelevant and

highly prejudicial. Appellants also assert that the district court abused

its discretion when it refused to allow the defense to cross-examine

a Government witness regarding investigative techniques. Further,

Appellants claim that the district court committed plain error when it

instructed the jury that it could infer a consciousness of guilt because

they fled after the commission of a crime. Finally, Appellants contend

that the district court abused its discretion when it denied their motion

for a new trial based upon a newly discovered statement that could

be used to impeach the Government's principal witness. Finding no

reversible error, we affirm.

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I.

On July 18, 1996, officers of the Rock Hill, South Carolina Police

Department and the Drug Enforcement Administration (DEA) monitored and tape recorded telephone calls between cooperating witness

LaTerrance Brice (Brice) and Appellants regarding a"crack" cocaine

purchase. On tape, Appellants agreed to sell two ounces of "crack"

cocaine to Brice. Thereafter, officials followed Brice to Gill's residence, where the drug transaction was going to take place. After the

drug transaction took place, officials met with Brice and confirmed

that Gill and Barber did in fact distribute the"crack" cocaine to him.

Following the exchange, officials were unable to locate Gill or Barber. Finally, on July 26, 1996, the two were apprehended and subsequently arrested at a nearby motel in a room registered under the

name of Sandra Watson (Watson).

II.

The Government introduced evidence that following the Appellants' arrest and after Watson granted police officials permission to

search the motel room, officials found scraps of paper on which the

names and telephone numbers of two defense attorneys were written.

Gill and Barber now argue that the district court committed reversible

error by allowing the Government to introduce these scraps of paper

and that the error was compounded when the court allowed testimony

that the two attorneys were prominent attorneys who handle "high

profile, large scale drug cases."

We review a trial court's evidentiary ruling for abuse of discretion.

See United States v. Ellis, 121 F.3d 908, 926 (4th Cir.), cert. denied,

___ U.S. ___, 66 U.S.L.W. 3457 (U.S. Jan. 12, 1998) (No. 97-7095).

At trial the defense argued that this evidence was irrelevant and that

its probative value was outweighed by its prejudicial effect. See Fed.

R. Evid. 403. However, we have held that evidence of flight is probative of consciousness of guilt, and that in order for the Government

to obtain the relevant jury instruction, it must demonstrate the defendants' knowledge of the ensuing criminal investigation. See United

States v. Porter, 821 F.2d 968, 976 (4th Cir. 1987). Consequently, the

district court did not abuse its discretion in admitting this evidence

reasoning that it was a fair inference that the Appellants knew they

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were the subject of a criminal investigation because they had written

down the names of two defense attorneys.

III.

Appellants also contend their Sixth Amendment rights of confrontation were violated when the district court limited the crossexamination of Officer Neil regarding "voice analysis." We review

the district court's decision to limit cross-examination for an abuse of

discretion. See United States v. Ambers, 85 F.3d 173, 175 (4th Cir.

1996).

The Government utilized electronic surveillance to monitor and

tape record the drug transaction between Gill, Barber, and Brice. Testifying Officer Neil identified the voices of Gill and Barber on the

surveillance tapes.* On cross-examination, Officer Neil was asked

whether "voice analysis" is an investigative technique that is used, to

which he responded: "I don't know much about it, I would think so."

The defense was attempting to show that voice analysis was not

attempted. The Government objected and the district court sustained

the objection stating that it is not relevant that officials did not use

investigative techniques available to them. Regardless of whether this

evidence was relevant, Officer Neil lacked knowledge in the field of

"voice analysis," and therefore, any information elicited would have

been at best speculative. See Fed. R. Evid. 602. Accordingly, we find

no prejudicial error from the district court's decision to limit this line

of questioning.

IV.

Next, Appellants suggest that the district court erred when it

instructed the jury that it could infer that they fled from authorities out

of a consciousness of guilt because the Government failed to establish

a sufficient factual basis for such a charge. Because Appellants failed

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*The identification of a defendant by a lay witness who is familiar

with one's voice and speech patterns is admissible, even when the witness is a police officer who has become familiar with the defendant during the investigation. See United States v. Oriakhi, 57 F.3d 1290,

1298-99 (4th Cir. 1995).

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to object to the instruction, we review for plain error. See United

States v. Olano, 507 U.S. 725, 731 (1993).

A jury may draw a weak inference of guilt from circumstantial evidence that the accused was aware that law enforcement authorities

were searching for him and that he fled from authorities out of consciousness of his guilt. See United States v. Beahm, 664 F.2d 414,

419-20 (4th Cir. 1981). If the Government relies on a defendant's

flight as evidence of his guilt, it must establish an adequate evidentiary foundation to support that inference. See United States v. Hawkes,

753 F.2d 355, 358-59 (4th Cir. 1985).

We find that the evidence adduced at trial supports the inferences

necessary to warrant the instruction given. Both Gill and Barber were

affirmatively identified by Officer Neil and informant Brice as speakers in the conversation concerning the July 18, 1996, drug transaction.

When the police entered Gill's home and found nobody inside, they

went to his Gill's mother's home and Barber's wife's home and

advised them that the two were the subject of a criminal investigation.

On the night of the drug transaction Barber's cousin was asked to

inform Gill and Barber that police officials were looking for them.

Finally, Gill and Barber were found ten miles away from their homes

in a motel room, registered in Watson's name, with the names and

phone numbers of two defense attorneys on scraps of paper. In view

of this evidence, we cannot say that the district court committed plain

error in giving the flight instruction.

V.

Finally, Appellants argue that the district court erred when it

denied their motion for a new trial based on newly discovered evidence. Appellants contend that on one occasion Brice is reported to

have admitted to Officer Neil that he bought "crack" cocaine from

both Gill and Barber at least ten times. However, Gill and Barber later

discovered that Brice changed this earlier version and told Officer

Neil that he purchased "crack" cocaine only from Barber and only

three or four times.

This Court reviews a district court's denial of a motion for new

trial based on newly discovered evidence for abuse of discretion. See

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United States v Singh, 54 F.3d 1182, 1190 (4th Cir. 1995). Because

this additional statement could only be used for impeachment purposes, we find that the district court did not abuse its discretion. See

id.

Accordingly, we affirm the district court's judgment. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid in the decisional process.

AFFIRMED

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