DAVE GOMEZ, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7595

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Memorandum For The United States In Opposition

   Petitioner contends that the court of appeals erred in reversing an
order dismissing an indictment with prejudice.

   1. Petitioner was indicted by a federal grand jury in the District
of New Mexico.  He was charged with unlawful possession of 65 pounds
of marijuana with intent to distribute it, in violation of 21 U.S.C.
841(a)(1).  On March 24, 1989, the court advised the parties that the
trial would start on Monday, March 27, 1989, two days earlier than
scheduled.  That afternoon, the prosecutor telephoned the judge's
chambers to say that he was having difficulty locating one of the
principal government witnesses.  On Monday, the prosecutor moved for a
continuance because of his inability to locate the witness.
Petitioner and his co-defendant announced their readiness for trial,
whereupon the district court dismissed the indictment with prejudice,
in effect denying the motion for a continuance.  Pet. App. 2.

   The court of appeals reversed.  The court held that the denial of
the motion for a continuance was an abuse of discretion.  The court
directed the district court to reinstate the indictment and proceed to
trial.  Pet. App. 1-4.

   2. Petitioner contends (Pet. 4-13) that the trial court was correct
in denying the government's motion for a continuance.  Whatever the
merits of petitioner's contention, it is not presently ripe for review
by this Court.  The court of appeals' decision places petitioner in
precisely the same position he would have occupied if the district
court had granted the government's motion for a continuance.  If
petitioner is acquitted following a trial on the merits, his
contention will be moot.  If, on the other hand, petitioner is
convicted and his conviction is affirmed on appeal, he will then be
able to present his contention to this Court, together with any other
claims he may have, in a petition for a writ of certiorari seeking
review of a final judgment against him.  Accordingly, review by this
Court of the court of appeals' decision would be premature at this
time.  /1/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   KENNETH W. STARR

      Solicitor General

   JUNE 1990

   /1/ Because this case is interlocutory, we are not responding on
the merits to the questions presented by the petition.  We will file a
response on the merits if the Court requests.