United States v. Falcon

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 1, 2000
• Docket: 99-50301
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50301 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OLGA CHAPA FALCON,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. A-98-CV-139-JN USDC No. A-93-CR-110-2-JN - - - - - - - - - - August 31, 2000

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Olga Chapa Falcon argues that the district court implicitly

found that she was denied her constitutional right to testify in

her own behalf; that the denial of her constitutional right to

testify is a structural error; or, alternatively, that if the court

applies a harmless-error analysis, the court should apply the more

onerous beyond-a-reasonable-doubt standard established in Chapman

v. California, 386 U.S. 18 (1967). Falcon argues that, regardless

of the standard used, the denial of her right to testify in her own

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-50301 -2-

behalf was not harmless error under either the Chapman standard or

the standard established in Brecht v. Abrahamson, 507 U.S. 619

(1993). Finally, Falcon argues that the procedural-default bar

should not be applied to her claim because the Government had

failed to raise unequivocally and timely to raise the procedural

default. Alternatively, Falcon argues that she has demonstrated

the cause and the prejudice required to surmount the bar.

Even if the Chapman standard is applied, Wright v. Estelle,

549 F.2d 971, 974 (5th Cir. 1977), panel opinion adhered to on

rehearing en banc, 572 F.2d 1071 (1978), Falcon’s testimony would

not have altered the verdict as the evidence of her participation

in the drug conspiracy was overwhelming. The denial of her

constitutional right to testify, if true, was harmless beyond a

reasonable doubt. Accordingly, the judgment of the district court

is AFFIRMED.