United States v. Pomeroy
| Decision Date | 08 November 1973 |
| Docket Number | No. 73-1501.,73-1501. |
| Citation | 485 F.2d 272 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Victor G. POMEROY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard M. Botteri (argued), Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., for defendant-appellant.
D. Richard Hammersley, Asst. U. S. Atty. (argued), Sidney I. Lezak, U. S. Atty., Portland, Or., for plaintiff-appellee.
Before DUNIWAY and CHOY, Circuit Judges, and RENFREW,* District Judge.
Victor G. Pomeroy was convicted after a jury trial, at which he defended himself, of two counts of knowingly and intentionally distributing and aiding and abetting the distribution of heroin in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. He was sentenced to two five-year terms of imprisonment to run concurrently. We affirm.
Pomeroy's bail had initially been set at $20,000. Six days prior to trial, Pomeroy's attorney moved for a reduction of bail and indicated that he was having difficulties in locating witnesses who would testify on Pomeroy's behalf. The district judge reduced bail to $10,000 and instructed Pomeroy to give his attorney the names and addresses of potential witnesses for interviewing purposes. The judge indicated that if the witnesses would not talk with Pomeroy's attorney, that matter would be taken up at a later time.
On the morning of the trial Pomeroy's attorney again moved for a reduction of bail and requested a two-week continuance arguing that he was not prepared to go to trial because of his inability to locate witnesses and that Pomeroy's assistance was absolutely necessary for his defense. The trial judge denied both motions and commenced voir dire. Pomeroy attempted to dismiss his attorney during voir dire, but the judge refused to entertain the motion in the presence of the jury. After voir dire, Pomeroy moved to dismiss his attorney and requested new counsel. The judge denied the motion for new counsel, then warned Pomeroy of the dangers of proceeding pro se and urged him to reconsider. Failing in that effort, the judge permitted Pomeroy to proceed pro se after Pomeroy consented to accept his former attorney as advisor. The jury was returned to the court and Pomeroy was given the right to make peremptory challenges. He declined to do so and the trial proceeded.
Pomeroy conducted a substantial portion of the trial on his own with procedural guidance from the judge and his advisor. At the close of the government's case, the trial judge granted a continuance of three days to enable Pomeroy to obtain witnesses. The court asked Pomeroy's advisor to assist Pomeroy in corollary state court criminal proceedings to make his federal release on personal recognizance effective.
At the close of the trial the government submitted instructions, but Pomeroy did not. The judge pointed out the absence of defense instructions and suggested that Pomeroy and his advisor confer on instructions and examine proposed government instructions. Neither Pomeroy nor his advisor voiced any objection to the instructions submitted.
After a thorough examination of the record, we find that the trial judge did not deny Pomeroy's right to a fair trial in denying his motions for continuance and reduction of bail at either the pretrial stage or on the morning of the trial. Pomeroy had retained his attorney for eight weeks yet failed to provide him with the names and addresses of potential witnesses until a week before trial and then only at the request of the judge. The judge was not faced with a situation similar to that in Kinney v. Lenon, 425 F.2d 209 (9th Cir. 1970), where the defendant did not know the names of witnesses and could identify them only on sight. The judge indicated that if Kinney problems arose, he would deal with them. Further, Pomeroy was granted a continuance and released without bail at the close of the government's case for the purpose of contacting some of the twenty-five to thirty witnesses he claimed could demonstrate his innocence. He was therefore not prejudiced by the pretrial denial and was afforded sufficient time to gather witnesses.
There was no abuse of discretion or deprivation of a constitutional right when the trial judge refused to appoint new counsel for Pomeroy on the morning of the trial. United States v. Price, 474 F.2d 1223, 1226 (9th Cir. 1973). The court was fully apprised of Pomeroy's reasons for dismissal of his attorney. There was no irreconcilable...
To continue reading
Request your trial
-
State v. Stenson
...selection, given the lack of any conflict of interest or other showing of the necessity for new counsel. See, e.g., United States v. Pomeroy, 485 F.2d 272 (9th Cir.1973) (a trial judge's refusal to appoint new counsel on the morning of the trial is not an abuse of Pro Se. Criminal defendant......
-
U.S. ex rel. Soto v. U.S.
...to withdraw, par. 8, constituted the 'good cause' sufficient to require a substitution of counsel. We note that both United States v. Pomeroy, 485 F.2d 272 (9th Cir. 1973), and United States v. Young, 482 F.2d 993 (5th Cir. 1973), suggest that such 'good cause' requires the existence of an ......
-
Vigil v. State
...however, was so vague and uncertain that it would be difficult to place much stock in this representations. In United States v. Pomeroy, 9 Cir. 1973, 485 F.2d 272, cert. den. 415 U.S. 981, 94 S.Ct. 1571, 39 L.Ed.2d 877, a case where counsel was having difficulty locating witnesses and needi......
-
Wiggins v. Estelle
...case and may give advice only upon request." United States v. Price, 474 F.2d 1223, 1227 (9th Cir. 1973). See also United States v. Pomeroy, 485 F.2d 272, 275 (9th Cir. 1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1571, 39 L.Ed.2d 877 (1974).A more active role for the attorney appears to be ......