                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 00-4378
LONNIE R. GIBSON,
              Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 00-4379
E. CAROL GIBSON,
              Defendant-Appellant.
                                       
           Appeals from the United States District Court
     for the Southern District of West Virginia, at Charleston.
              Joseph Robert Goodwin, District Judge.
                            (CR-99-92)

                      Submitted: October 31, 2000

                      Decided: November 17, 2000

     Before WIDENER and WILLIAMS, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.
2                      UNITED STATES v. GIBSON
                             COUNSEL

Brian J. Kornbrath, Assistant Federal Public Defender, Michael R.
Cline, Charleston, West Virginia, for Appellants. Rebecca A. Betts,
United States Attorney, L. Anna Crawford, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Lonnie R. Gibson and E. Carol Gibson appeal their convictions for
mail fraud, perjury, and use of fire to commit a federal felony. On
appeal, the Gibsons contend that: (1) the district court abused its dis-
cretion in admitting the prior consistent statement of a Government
witness; (2) there was a constructive amendment of the indictment;
and (3) the district court erred in ordering restitution for the legal
expenses incurred by State Farm General Insurance Company ("State
Farm") in defending the civil action brought by the Gibsons. We
affirm.

   A trial court’s decisions regarding the admission and exclusion of
evidence are reviewed for an abuse of discretion. See United States
v. Ellis, 121 F.3d 908, 926 (4th Cir. 1997). The prior consistent state-
ments at issue on appeal are admissible for the purposes of rehabilitat-
ing the Government’s witness as well as for rebutting the inference
of recent fabrication generated by defense counsel’s cross-
examination of the witness. See Ellis, 121 F.3d at 919-20.

   We find that there was no constructive amendment or fatal variance
between the facts proven at trial and the crimes charged in the indict-
ment. The Gibsons were convicted of the mail fraud charge contained
in the indictment. See United States v. Randall, 171 F.3d 195, 203
                       UNITED STATES v. GIBSON                       3
(4th Cir. 1999). The alleged error in the indictment was one of form
rather than substance and did not affect the essential elements of mail
fraud or the Government’s burden of proof. See United States v. Redd,
161 F.3d 793, 795 (4th Cir. 1998). The Gibsons were not prejudiced
by any variance between the evidence and the indictment as they were
not surprised by the evidence, and they do not face a second prosecu-
tion based on the same conduct. See Randall, 171 F.3d at 203.

   Finally, the Gibsons’s civil action against State Farm was an inte-
gral part of their scheme to defraud the company such that State
Farm’s legal expenses were a direct or closely related loss. See United
States v. Henoud, 81 F.3d 484, 488 (4th Cir. 1996); cf. United States
v. Mullins, 971 F.2d 1138 (4th Cir. 1992). Thus we find that the legal
expenses incurred by State Farm were properly included in the district
court’s restitution order. See United States v. Mikolajczyk, 137 F.3d
237, 245-46 (5th Cir. 1998).

   Accordingly, we affirm the Gibsons’ convictions and sentences.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                                          AFFIRMED
