           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           January 6, 2010
                                     No. 08-61030
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAMES CUMBERLAND, also known as Snake,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:06-CR-129-5


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       James Cumberland appeals his jury conviction for conspiracy to possess
with intent to distribute more than 50 grams of methamphetamine, for which he
was sentenced to 135 months of imprisonment. Cumberland argues that the
district court erred in denying his motion to suppress an out-of-court statement
made to law enforcement agents in which he admitted his involvement in the
conspiracy. He also argues that the district court erred in denying his motion
for acquittal and that the evidence is insufficient to support his conviction.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-61030

      When reviewing a ruling on a motion to suppress, we review questions of
law de novo and findings of fact for clear error; evidence is viewed in the light
most favorable to the party who prevailed in the district court. United States v.
Stevens, 487 F.3d 232, 238 (5th Cir. 2007).      Statements obtained during a
custodial interrogation without providing adequate warnings under Miranda v.
Arizona, 384 U.S. 436 (1966), are inadmissible. Missouri v. Seibert, 542 U.S.
600, 608 (2004). However, a defendant who voluntarily gives a statement to law
enforcement in a non-custodial situation need not be advised of his Miranda
rights. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
      Cumberland has failed to demonstrate that the statement was improperly
admitted. Cumberland met with agents at a public park; he drove himself to
and from the meeting; he was not told by the agents that he was not free to
leave; he was not coerced by the agents, and his movements were not restricted;
the agents were not in uniform and did not display their weapons; and at the end
of the interview, the agents left Cumberland at the park. The district court was
entitled to weigh the credibility of Cumberland’s testimony at the suppression
hearing against that of the agent who testified, and it did so. The district court
did not err in concluding that Cumberland’s statement was voluntary and given
in a non-custodial situation. See Mathiason, 492 U.S. at 495; United States v.
Courtney, 463 F.3d 333, 337 (5th Cir. 2006).
      Cumberland also contends that the admission of his statement should
have been excluded under Rule 403 of the Federal Rules of Evidence because his
statement to the agents was untrue and therefore unfairly prejudicial. While all
relevant evidence tends to prejudice the party against whom it is offered, Rule
403 limits the admissibility of relevant evidence, explaining that “[a]lthough
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . .” F ED. R. E VID. 403.
      Cumberland’s conclusional argument is insufficient to demonstrate that
the probative value of the statement was substantially outweighed by the danger

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                                  No. 08-61030

of unfair prejudice and appears to be simply a restatement of his motion to
suppress argument.       Likewise, although Cumberland contends that the
statement was untrue, he has failed to demonstrate that the district court
clearly erred in rejecting this argument, in light of the record as a whole.
      Cumberland also claims that the evidence was insufficient to support his
conviction. Because Cumberland moved for a directed verdict at the close of the
Government’s evidence and renewed the motion at the close of all the evidence,
the issue has been preserved for review. Accordingly, the standard for finding
the evidence sufficient to convict is “if a reasonable trier of fact could conclude
from the evidence that the elements of the offense were established beyond a
reasonable doubt, viewing the evidence in the light most favorable to the verdict
and drawing all reasonable inferences from the evidence to support the verdict.”
United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003) (internal quotation and
citation omitted). This court’s “review of the sufficiency of the evidence does not
include a review of the weight of the evidence or of the credibility of the
witnesses.” Id.
      To prove a conspiracy to distribute a controlled substance, the Government
must establish: (1) the existence of an agreement between two or more persons;
(2) the defendant’s knowledge of an agreement; (3) the defendant’s voluntary
participation in the conspiracy; and (4) that the overall scope of the conspiracy
involved the drug quantity charged. United States v. Jimenez, 509 F.3d 682, 689
(5th Cir. 2007), cert. denied, 128 S. Ct. 2924 (2008).
      In this case, there was sufficient evidence that there was an agreement
between two or more people to distribute more than 50 grams of
methamphetamine.      Cumberland’s voluntary statement to law enforcement
agents admitting his involvement in the drug distribution ring alone supports
a conclusion that Cumberland knew about the agreement and voluntarily
participated in the conspiracy. The statement also proves a drug quantity in
excess of 50 grams.

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                                  No. 08-61030

       Further, the jury could have inferred based on the evidence presented from
several members of the conspiracy that there was, in fact, such a conspiracy.
While not all conspirators identified Cumberland as a member, some did, and it
is not necessary that all conspirators know of each other to prove a conspiracy
among them. Sears v. United States, 343 F.2d 139, 141 (5th Cir. 1965)(“It is
firmly established that it is not necessary for a conspirator to know the identity
of his con-conspirators or the exact role which they play in the conspiracy.”); see
also United States v. Moree, 897 F.2d 1329, 1332 (5th Cir. 1990)(“A conspiracy
conviction does not depend on the identification of the co-conspirators.”). To the
extent that there was conflicting evidence, and to the extent that Cumberland
challenges the credibility of certain witnesses, the resolution of such issues in
favor of a finding of guilt was well within the jury’s province. Floyd, 343 F.3d at
370.
       Accordingly, the judgment of the district court is AFFIRMED.




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