UNITED STATES of America, Plaintiff-Appellee,
v.
Joe CHADWICK, Unindicted Co-Conspirator and Appellant.
No. 77-1358.
United States Court of Appeals,
Ninth Circuit.
June 27, 1977.
Patrick R. Doyle, Las Vegas, Nev., for unindicted co-conspirator and appellant.
Lawrence J. Semenza, U. S. Atty., Las Vegas, Nev., for plaintiff-appellee.
Before BROWNING and ANDERSON, Circuit Judges, and CRARY,* District Judge.
PER CURIAM:
An indictment charging five named defendants and others with conducting an illegal gambling business in violation of 18 U.S.C. § 1955 named appellant an unindicted participant in the crime. Appellant moved that his name be expunged from the indictment. The district court denied the motion. We reverse.
Under the circumstances of this case charging appellant with the offense without making him a defendant was beyond the authority of the grand jury and a denial of due process. See United States v. Briggs, 514 F.2d 794 (5th Cir. 1975). The government argues it was necessary to name appellant because a gambling business is illegal under the applicable statute only if it involves five or more persons. Other methods less injurious to appellant were available to satisfy the statutory requirement. Id. at 804-05.
Reversed.
Honorable E. Avery Crary, Senior United States District Judge, Central District of California, sitting by designation