     Case: 11-50303       Document: 00512106820         Page: 1     Date Filed: 01/09/2013




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

                                                                            FILED
                                                                          January 9, 2013
                                     No. 11-50303
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

JOHN HENRY SPIVEY, JR.,

                                                  Defendant-Appellant.




                   Appeals from the United States District Court
                         for the Western District of Texas
                                 No. 5:09-CR-558-4




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       John Spivey, Jr., appeals his jury conviction of attempted possession with
intent to distribute cocaine. He contends that the district court erred in over-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-50303

ruling his relevance objection to the introduction of a note that was passed to his
codefendant, Stanford Jones, who was in pretrial detention. Spivey maintains
that the government failed to establish that he was the author of the note.
      Evidentiary rulings are reviewed for abuse of discretion, subject to harm-
less-error review. United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011).
“A trial court abuses its discretion when its ruling is based on an erroneous view
of the law or a clearly erroneous assessment of the evidence.” Id. (internal quo-
tation marks and citation omitted). An evidentiary “error is harmless unless it
had substantial and injurious effect or influence in determining the jury’s ver-
dict.” United States v. Lowery, 135 F.3d 957, 959 (5th Cir. 1998) (internal quota-
tion marks and citation omitted).
      Evidence is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence where the fact is of consequence
in determining the action. FED. R. EVID. 401. A trial court is afforded “broad
discretion” in determining relevancy. United States v. Young, 655 F.2d 624, 626
(5th Cir. Unit A Sept. 1981).
      The government argues correctly that there was ample evidence from
which the jury could find that Spivey was the author of the note and that the
note was relevant to establish Spivey’s knowledge of and intent to participate in
the drug transaction. An adequate foundation for admission of the note was
laid, because Jones testified that the note referred to matters that were known
only by him and Spivey. Because the note pertained primarily to Spivey’s dis-
pleasure that Jones had decided to testify against him, its admission would not
have had a substantial influence on the verdict in light of the substantial evi-
dence of guilt. See Lowery, 135 F.3d at 959. There was no abuse of discretion.
See Jackson, 636 F.3d at 692.
      Spivey contends that the district court plainly erred in permitting the gov-
ernment to comment about matters outside the record during its closing argu-
ment. Spivey contends that there was no evidence supporting the government’s

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                                    No. 11-50303

statement that Spivey had disassembled a cell phone that was found in his vehi-
cle after his arrest or that the phone belonged to him rather than Jones.
      To show plain error, Spivey must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion
to correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      “A prosecutor is confined in closing argument to discussing properly admit-
ted evidence and any reasonable inferences or conclusions that can be drawn
from that evidence.” United States v. Vargas, 580 F.3d 274, 278 (5th Cir. 2009).
The government’s statement that Spivey disassembled the phone involved a rea-
sonable inference from the evidence. See id.
      There is no error, plain or otherwise. The judgment is AFFIRMED.




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