dissenting.

On the day of trial, the government moved for a continuance because its key witness Delanty, whom the government had failed to subpoena, did not appear voluntarily. 1 The motion was denied. The government then moved for a dismissal without prejudice on the same ground of the unavailability of Delanty. Once again, the government’s motion was denied. 2

The government’s motion for a dismissal without prejudice, following the denial of its motion for a continuance, was in my view the functional equivalent of a second motion for a continuance. It was an attempt by the government to get a second bite of the apple. Had the motion for a dismissal without prejudice been granted, it would have had the same effect as a continuance — the trial would have been delayed to give the government a second chance to produce Delanty. Conversely, the dismissal with prejudice had the same effect as the denial of the motion for a continuance because, as the government concedes, the government could not have obtained a conviction without Delanty's testimony. See Brief of the Plaintiff-Appellant at 14; Transcript of Proceedings (July 17 and 18, 1984) at 9-13. Thus, in my view, the real question presented by this appeal is not whether the district judge abused his discretion in denying the government’s motion for a dismissal without prejudice, but whether he abused his discretion in denying in the first *379 instance the government’s motion for a continuance. The majority fails to address that question.

On the record before us, I cannot find— and the majority does not find — that the district judge abused his discretion in denying the government’s motion for a continuance. To my mind, it necessarily follows that under the circumstances he did not abuse his discretion in entering a dismissal with prejudice.

I respectfully dissent.

. The government failed to subpoena Delanty despite the fact that Delanty had not voluntarily appeared at either of the two scheduled pre-trial meetings.

. In denying the government’s motions and entering a dismissal with prejudice, the district judge noted that the government had failed to insure Delanty’s presence at trial by subpoenaing him; that Hattrup was ready to proceed to trial; and that another trial had been postponed at the specific request of the district judge to avoid a conflict for Hattrup’s attorney. See Transcript of Proceedings (July 17 and 18, 1984) at 9-13; United States v. Hattrup, No. 84-25 (D.Ore. July 19, 1984) (order denying motion to postpone trial and dismissing with prejudice).