                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-4779



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


NICHOLAS RANDOLPH KELLAM,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00043-WLO)


Submitted:   March 30, 2007                 Decided:   April 16, 2007


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Walter L. Jones, JONES, FREE & KNIGHT, PLLC, Greensboro, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, David P. Folmar, Jr., Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Nicholas Randolph Kellam was convicted of two counts of

distribution of cocaine base, 21 U.S.C. § 841(a)(1) (2000), and

sentenced to concurrent 120-month prison terms. He now appeals his

conviction.   We affirm.

          At trial, Nancy Love Foye testified that her husband,

Edward, was incarcerated on federal drug charges.      Based on a

discussion with her husband and in an effort to obtain a reduction

of his prison term, Nancy contacted Kellam and expressed her

interest in purchasing cocaine base from him.    She then informed

authorities that she was willing to provide them with evidence of

Kellam’s drug dealing. The authorities accepted her offer, and she

completed two controlled buys of cocaine base from Kellam.

          During closing argument, defense counsel commented on the

fact that the United States did not call Edward Foye to testify.

Counsel stated that the evidence suggested that Foye and Kellam

were in the drug business together.   The district court sustained

the United States’ objection to these statements and instructed the

jury that “whether Mr. Foye was involved in a previous drug

connection is not for you to determine.    . . . What is at issue

here is whether Mrs. Foye . . . did the things which . . . cause

you to believe that the defendant committed the crimes with which

he is charged.”




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          On   appeal,   Kellam   claims    that,   in   sustaining   the

objection, the district court deprived him of a fair trial.            We

disagree. Generally, to properly comment on a missing witness, the

party failing to call the witness must have it peculiarly within

its power to call the witness and the witness must be able to

elucidate issues relevant to trial.       United States v. Brooks, 928

F.2d 1403, 1412 (4th Cir. 1991).

          Here, the district court did not abuse its discretion in

sustaining the objection. First, Edward Foye was equally available

to each side and could have been subpoenaed to appear.       Second, his

testimony would not have shed light on the issue of whether Kellam

sold drugs to Nancy Foye on two occasions in 2005.

          We accordingly affirm. 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 the

decisional process.



                                                               AFFIRMED




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