United States v. David B. Charnay, Chester C. Davis and Robert A. Maheu

This case comes before us a second time on an appeal by the Government. The appeal is again from an order dismissing the indictment, but on grounds quite distinct from those previously considered. We affirm the ruling of the district court.

The charges in the indictment and the nature of the prosecution are set forth in our previous opinion. United States v. Charnay, 537 F.2d 341 (9th Cir.), cert. denied, 429 U.S. 1000 , 97 S.Ct. 528 , 50 L.Ed.2d 610 (1976). There we reversed an order of the district court dismissing the case, holding that the indictment was sufficient to support charges for substantive violations of the federal securities law and the wire fraud statute, and for conspiracy.

Upon remand from this court, the trial was set for March 14, 1977. Four days before the trial was to begin, the Government moved for a continuance, representing that it had been unable to serve a subpoena upon a critical witness named Crockett, or even to discover where Crockett was. At the hearing on the motion to continue, the court ascertained that the Government had been seeking Crockett since January and that it did not believe that it could go to trial without him.

It was anticipated…