United States of America v. Eric Miller Pondelick

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable James S. Gwin, District Judge for the U.S. District**
Court for the Northern District of Ohio, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC MILLER PONDELICK,
Defendant - Appellant.
No. 11-30057
D.C. No. 3:10-cr-05611-RJB-2
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted March 7, 2012
Seattle, Washington
Before: FERNANDEZ and PAEZ, Circuit Judges, and GWIN, District Judge.**
Defendant-Appellant Eric Miller Pondelick (“Pondelick”) appeals his jury
conviction for second-degree burglary in Indian country in violation of
FILED
MAR 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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18 U.S.C. §§ 13 and 1153, and Revised Code of Washington §§ 9A.52.030 and
9A.20.021. We affirm.
Reviewing for plain error, we conclude that Pondelick was not denied his
Fifth and Sixth Amendment rights during trial as a result of the pain he
experienced due to an abscessed tooth and an ensuing infection. After the
government rested its case, Pondelick informed the district court of his medical
condition but he neither indicated that he was unable to proceed with trial nor
requested a recess. The following morning, the district court raised the potential
availability of a dentist. Pondelick affirmatively declined to seek treatment and
opted to proceed with the trial. When Pondelick finally requested a delay in the
proceedings, the district court granted his request. Moreover, the district court
engaged in a lengthy colloquy with Pondelick regarding his right to testify. At the
end of the exchange, Pondelick acknowledged that he had discussed with his
counsel the issue of whether to testify, and he subsequently informed the district
court that he had decided to remain silent. Pondelick did not express any
reservations about testifying in his own defense or that he was unable to make an
informed decision regarding his right to testify as a result of his medical condition.
Under these circumstances, there is no evidence that Pondelick’s medical condition

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interfered with his ability to exercise his constitutional rights. Accordingly, there
was no error.
We also conclude that the district court did not err in declining to provide a
jury instruction regarding the credibility of drug abusers. Pondelick conceded that
his counsel thoroughly cross-examined the witnesses about their drug addictions.
United States v. Vgeri, 51 F.3d 876, 881 (9th Cir. 1995). The district court also
gave a general credibility instruction that listed numerous factors in which a
witness’s credibility could be impacted by drug use. Id. Therefore, a separate jury
instruction regarding the credibility of drug abusers was not required, and the
absence of such an instruction did not interfere with Pondelick’s ability to argue
his theory of defense with respect to the witnesses’ drug abuse. Id.
Finally, no plain error occurred when the government commented during
closing argument on Pondelick’s failure to assert his innocence in a recorded
telephone call to a friend. The government’s statements were tied to specific
evidence admitted at trial, not to Pondelick’s decision whether to testify at trial. In
addition, the district court properly instructed the jury on the presumption of
innocence, the burden of proof, and Pondelick’s right to remain silent.
AFFIRMED.

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