Unpublished Disposition, 895 F.2d 1419 (9th Cir. 1990)

MEMORANDUM^* 

George Stek appeals his conviction for unlawfully possessing a firearm as a previously convicted felon and attempting to board an aircraft in possession of a concealed deadly weapon. We have jurisdiction under 28 U.S.C. § 1291 (1982), and we affirm.

Stek contends that the district court erred in denying his motion to suppress evidence (a handgun, Stek's airline ticket, and Stek's business card) seized in two warrantless searches of his briefcase. Stek argues that because the x-ray scan clearly showed the image of a gun, the first warrantless search of his briefcase, which disclosed the gun, was constitutionally invalid. We review a district court's ruling on a motion for suppression de novo. United States v. Mines, 883 F.2d 801, 803 (9th Cir. 1989).

In United States v. Pulido-Baquerizo, 800 F.2d 899 (9th Cir. 1986), this court found reasonable a warrantless hand search of an airline passenger's bag based on an inconclusive x-ray scan.¹  We note first that it is unlikely that an x-ray scan will ever be conclusive. Even where the scan shows the clear image of a gun in a container, it may not conclusively establish whether the container poses a real threat to air safety. Furthermore, Pulido-Baquerizo found the warrantless hand search reasonable because its balancing under the fourth amendment clearly favored safe air travel over the intrusion of the search. If the interest of safe air travel justifies a warrantless hand search based on an inconclusive scan of a potentially dangerous object, then it certainly would justify such a search where the danger was manifest.

Stek also argues that the second search, which disclosed his airplane ticket and business card, was forbidden because the first search recovered the object (the gun) which the x-ray scan revealed. First, we see no harm to Stek from the ticket and the business card. Stek has never contended that he was not intending to board the airplane or that the briefcase was not his. Second, we find that the second search was reasonably calculated to ensure that Stek no longer posed a threat to air safety. See United States v. Wehrli, 637 F.2d 408, 409-410 (5th Cir. 1981) (given the myriad of devices which threaten air safety, anything less than a thorough search would be dangerously incomplete). Thus, the district court properly denied Stek's motion to suppress.

Stek contends that the district court erred in granting the government's motion to quash Stek's subpoena of the prosecuting attorney, Mark Rosenbaum. At the time of Stek's arrest, Rosenbaum instructed the arresting officer to seize the briefcase. The officer testified at trial that Rosenbaum did not tell him to seize the briefcase. Thus, Stek sought to impeach the officer's memory on a collateral matter by Rosenbaum's testimony.

The government, represented at trial by Rosenbaum, moved to quash the subpoena. The district court granted the motion because Stek demonstrated no compelling need for Rosenbaum's testimony. We review a district court's quashing of a subpoena for abuse of discretion. In re Kiefaber, 774 F.2d 969, 974 (9th Cir. 1985).

Stek argues that the adoption of Federal Rule of Evidence 402 in 1975 invalidated the common law rule which precludes, absent compelling need, an attorney from being called as a witness in a trial in which he is participating. Recent cases of this court, however, clearly hold that a prosecutor may not testify in a trial in which he is participating unless there is compelling need for his testimony. United States v. Prantil, 764 F.2d 548, 554 (9th Cir. 1985); United States v. Dupuy, 760 F.2d 1492, 1498 (9th Cir. 1985); United States v. Tamura, 694 F.2d 591, 601 (9th Cir. 1982).

Stek has not established compelling need for Rosenbaum's testimony. In Prantil, the defendant established his compelling need for the prosecutor's testimony because the prosecutor was a witness to and a participant in the factual events which lead to the criminal charge. 764 F.2d at 552. Unlike the prosecutor in Prantil, Rosenbaum did not witness any factual event at issue in Stek's trial, but rather is only a witness to a collateral matter.

Furthermore, the evidence that Stek contends is vital to his case was put before the jury by stipulation. Thus, Stek's case is more like Tamura, where the defendant did not establish compelling need because the only portion of the prosecutor's testimony that would impeach the witness was admitted into evidence by a stipulation between the parties. 694 F.2d at 601. Therefore, the district court did not abuse its discretion in finding that Stek did not establish compelling need for Rosenbaum's live testimony at trial.

During deliberations, the jury asked the court whether they should convict Stek if they believed that he forgot the gun was in the briefcase, but knew of it previously. In response the court issued supplemental instructions. Stek argues that the supplemental instructions created an improper presumption that if he knew that the gun was in the briefcase at some point, then the law deems that he could not have forgotten it. Stek's argument lacks merit.

In its supplemental instructions, the court instructed the jury to acquit Stek if they found that he forgot the gun was in his briefcase. The court explained, however, that "knowledge does not disappear from the mind whenever a person happens to be thinking about something else at a particular moment." The court thus consistently told the jury to acquit if they found that Stek forgot about the gun, but that they should not find that he forgot if he was merely thinking about something else at the time he put the briefcase on the x-ray conveyor belt. Therefore, the court did not abuse its discretion because the court's supplemental instructions allowed the jury to draw its own inferences concerning whether Stek had forgotten the presence of the gun.

The decision of the district court is AFFIRMED.