* 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that this opinion should not be published and is not precedent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.

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.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-94-CV-564

- - - - - - - - - -

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
No. 96-50747 

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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.