UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Appellants Darryl Leron Gill (Gill) and James
Gerald Barber (Barber) of conspiracy to possess with the intent to dis-
tribute 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 dis-
cretion 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) moni-
tored 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 resi-
dence, 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 Bar-
ber. Finally, on July 26, 1996, the two were apprehended and subse-
quently arrested at a nearby motel in a room registered under the
name of Sandra Watson (Watson).

II.

The Government introduced evidence that following the Appel-
lants' 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 proba-
tive of consciousness of guilt, and that in order for the Government
to obtain the relevant jury instruction, it must demonstrate the defen-
dants' 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 confron-
tation were violated when the district court limited the cross-
examination 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. Tes-
tifying 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
_________________________________________________________________
*The identification of a defendant by a lay witness who is familiar
with one's voice and speech patterns is admissible, even when the wit-
ness is a police officer who has become familiar with the defendant dur-
ing 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 evi-
dence that the accused was aware that law enforcement authorities
were searching for him and that he fled from authorities out of con-
sciousness 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 evidenti-
ary 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 speak-
ers 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 evi-
dence. 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

                    5
United States v Singh, 54 F.3d 1182, 1190 (4th Cir. 1995). Because
this additional statement could only be used for impeachment pur-
poses, 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 ade-
quately presented in the materials before the court and argument
would not aid in the decisional process.

AFFIRMED

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