                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 19 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30057

                Plaintiff - Appellee,            D.C. No. 3:10-cr-05611-RJB-2

  v.
                                                 MEMORANDUM *
ERIC MILLER PONDELICK,

                Defendant - Appellant.



                    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




            *
             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.
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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