IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50747
Summary Calendar
DAVID SILVA,
Plaintiff-Appellant,
versus
ESMERIJLDO TAMEZ; WILLIAM BIESENBACH;
CITY OF SAN ANTONIO; WILLIAM O. GIBSON,
Defendants,
ESMERIJLDO TAMEZ; WILLIAM BIESENBACH,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-94-CV-564
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November 19, 1997
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
David Silva, Texas prisoner # 387956, appeals from a
judgment in favor of the defendants following a jury trial on his
civil rights claims. Silva contends that 1) the district court
erred in dismissing for failure to state a claim his claims
against City of San Antonio Chief of Police William O. Gibson in
*
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that this opinion should not be published and is not precedent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. 96-50747
-2-
his individual and official capacities; 2) the jury verdict was
contrary to the evidence; 3) the district court misrepresented
his allegations in providing potential jurors with a summary of
his allegations during voir dire; 4) the district court erred in
excluding the testimony of a witness; 5) he is entitled to a new
trial due to ineffective assistance of counsel; 6) defendants
Tamez and Biesenbach should have been sequestered during their
respective depositions; 7) he was criminally charged in
retaliation for his complaints of excessive force; and 8) the
district court erred in allowing the admission of evidence
regarding his drug use, convictions, and purported gang
membership, and defense counsel’s reference to such testimony
during closing argument was prejudicial and rendered the trial
unfair.
We have reviewed the record and, for essentially the reasons
set forth in the magistrate judge’s report recommending the grant
of Gibson’s motion to dismiss and in the district court’s order
adopting the magistrate judge’s report and setting forth reasons
for granting the motion to dismiss, find no error in the district
court’s grant of Gibson’s motion to dismiss the claims against
him in both his individual and official capacities. See Silva v.
City of San Antonio, No. SA-94-CA-0564 (W.D. Tex. Feb. 16, 1995).
Silva has not demonstrated plain error with respect to his
argument that the jury’s verdict on his excessive-force and
state-law assault claims was contrary to the evidence presented
No. 96-50747
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at trial. See Phillips v. Frey, 20 F.3d 623, 627 (5th Cir.
1994).
The district court’s apparent mischaracterization of one of
Silva’s factual allegations during voir dire does not affect
Silva’s substantial rights and, thus, does not amount to plain
error. See United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994) (en banc).
Even if Silva did not waive the issue that the district
court abused its discretion in excluding the testimony of Johnny
Cisneros, who represented Silva in a prior criminal case, Silva
has not demonstrated that the district court abused its
discretion in excluding the evidence. The evidence was at best
marginally relevant and was likely to prejudice Silva. See
United States v. Humphrey, 104 F.3d, 65, 70 (5th Cir.), cert.
denied, 117 S. Ct. 1833 (1997); see Fed. R. Evid. 403.
Because Silva does not have a constitutional right to
effective assistance of counsel in this civil rights suit, his
claim of ineffective-assistance-of-counsel is unavailing in this
forum. See Sanchez v. United States Postal Serv., 785 F.2d 1236,
1237 (5th Cir. 1986).
Silva has not demonstrated error, much less plain error,
with respect to his argument that the defendant-officers should
have been sequestered during their respective depositions because
as parties to the action and “natural persons,” the officers’
sequestration was not authorized. See Fed. R. Evid. 615.
No. 96-50747
-4-
Because Silva provides no support for his conclusional
allegation of retaliation, he has not demonstrated plain error.
See United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995).
Silva has not demonstrated plain error with respect to his
arguments that testimony that he was an habitual drug user, a
member of a drug gang, and an habitual criminal was improperly
admitted into evidence at trial and that defense counsel’s
reference to that testimony during closing argument deprived him
of a fair trial. Because Silva testified at trial as to his drug
use and criminal behavior, he effectively waived the right to
argue on appeal that the admission of evidence regarding his
criminal acts and drug use was error. The admission of Silva’s
testimony during cross-examination, that he was classified as a
member of the “Mexican mafia” by the Texas Department of Criminal
Justice-Institutional Division, was properly admitted as
impeachment evidence in light of Silva’s testimony that he was a
“model prisoner.” See United States v. Riggio, 70 F.3d 336, 339
(5th Cir. 1995), cert. denied, 116 S. Ct. 1366 (1996). Thus, the
admission of the evidence did not constitute plain error. Nor
has Silva demonstrated plain error with respect to his argument
of an improper closing argument by defense counsel.
AFFIRMED.