NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 23 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10115

Plaintiff-Appellee, D.C. Nos. 2:18-cr-01170-GMS-1 v. 2:18-cr-01170-GMS

JOSEPH MINH MCREYNOLDS,

MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 20-10125

Plaintiff-Appellee, D.C. Nos. 3:11-cr-08133-GMS-2 v. 3:11-cr-08133-GMS

JOSEPH MINH MCREYNOLDS,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, Chief District Judge, Presiding

Submitted November 19, 2021** Phoenix, Arizona

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: CLIFTON, CALLAHAN, and BRESS, Circuit Judges.

Joseph McReynolds (“Defendant”) appeals the district court’s entry of final

judgment following his conviction for possessing a firearm as a felon under 18

U.S.C. § 922(g)(1) on three separate grounds: (1) that the district court did not

have subject matter jurisdiction, (2) that the district court erred in denying his

motion to suppress the firearm, and (3) that the district court abused its discretion

in admitting evidence of his supervised release conditions.1 We have jurisdiction

under 28 U.S.C. § 1291 and we affirm.

1. We review the district court’s exercise of jurisdiction de novo. United

States v. Gallaher, 275 F.3d 784, 788 (9th Cir. 2001). We hold that the district

court had subject matter jurisdiction here. Section 922(g)(1) is a law of general

applicability that makes certain actions criminal regardless of where the act is

committed and regardless of who committed the act. See United States v. Young,

936 F.2d 1050, 1055 (9th Cir. 1991), overruled in part on other grounds by United

States v. Vela, 624 F.3d 1148 (9th Cir. 2010). Federal jurisdiction under the statute

is predicated on the interstate transportation or shipment of a firearm.2

1 Defendant originally appealed his conviction and sentence on the Section 922 charge, as well as his sentence for the supervised release violation. The appeals were consolidated on Defendant’s motion (Dkt. 10, Case No. 20-10125). 2 Section 922(g) requires only that the firearm was “at some time” in interstate commerce and does not require that the time of transportation be reasonably close to the charged time of possession. United States v. Casterline, 103 F.3d 76, 77 (9th Cir. 1996).

2 Accordingly, the cases that Defendant cites are inapplicable as they deal with

crimes for which federal jurisdiction depends on the situs of the crime or the status

of the offender. See, e.g., United States v. McBratney, 104 U.S. 621, 621–24

(1881) (analyzing jurisdiction for the crime of murder under the Indian Intercourse

Act of 1834, a predecessor statute to the Indian General Crimes Act at 18 U.S.C. §

1152, both of which made all criminal laws of the United States in force in “Indian

Country”); see also New York ex rel. Ray v. Martin, 326 U.S. 496, 500 & n.6

(1946). Defendant’s argument that the state of Arizona had exclusive jurisdiction

lacks merit.3

2. We review the denial of Defendant’s motion to suppress de novo.

United States v. Orman, 486 F.3d 1170, 1173 (9th Cir. 2007). Defendant does not

argue that the traffic stop of the vehicle in which he was riding was unlawful–

correctly so, given Officer Varela’s reasonable suspicion after he observed the

vehicle speeding. United States v. Willis, 431 F.3d 709, 715 (9th Cir. 2005).

However, Defendant contends that Officer Varela’s subsequent questioning related

to whether he possessed a firearm was not lawful, citing Arizona state case State v.

Serna, 331 P.3d 405 (Ariz. 2014). Additionally, Defendant argues that the binding

3 In fact, Defendant’s trial counsel refused to raise this jurisdictional challenge below because he did not believe he could do so ethically, as he did not have a “good legal basis” to do so.

3 Ninth Circuit precedent which “undercut[s] his position” was wrongly decided or

overbroadly applied.

Defendant’s arguments are unpersuasive. Following a lawful traffic stop, an

officer can ask questions of both the driver and passenger, so long as doing so does

not prolong the stop. See United States v. Mendez, 476 F.3d 1077, 1079–80 (9th

Cir. 2007); see, e.g., Maryland v. Wilson, 519 U.S. 408, 413–15 (1997) (holding

that officers making a traffic stop may order passengers to exit the vehicle in part

because “the same weighty interest in officer safety is present regardless of

whether the occupant of the stopped car is a driver or passenger”). No independent

reasonable suspicion needs to be shown. Mendez, 476 F.3d at 1080–81. Here,

Officer Varela asked Defendant whether he was armed almost immediately after

stopping the vehicle. Defendant’s answer in the affirmative gave rise to reasonable

suspicion that he was armed and dangerous in the traffic stop context, which then

allowed the officer to remove the weapon for the duration of the stop. Orman, 486

F.3d at 1173. The district court did not err in denying the motion to suppress the

firearm.

3. We review the district court’s admission of evidence for abuse of

discretion. United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007). Evidentiary

rulings applying Federal Rule of Evidence 403 are afforded “special deference”

4 due to the “inherently fact-specific nature of the Rule 403 balancing inquiry.”

United States v. Rizk, 660 F.3d 1125, 1132 (9th Cir. 2011) (quotations omitted).

Defendant contends that his supervised release conditions were not relevant,

and that their admission at trial necessarily allowed the jury to conclude that

Defendant knew he was not permitted to possess a firearm, not because he was a

“prohibited possessor,” but because his supervised release conditions forbade it.

Rehaif v. United States, 139 S. Ct. 2191 (2019), decided while Defendant’s

case was pending, requires that the Government prove that Defendant knew at the

time he possessed the firearm that “he belonged to the relevant category of persons

barred from possessing a firearm.” Id. at 2200. The district court found that in

light of Rehaif, the supervised release conditions Defendant signed in 2018 were

probative of what he knew about his status just months before the traffic stop when

he possessed a firearm. After conducting a Rule 403 balancing, the district court

admitted the evidence and gave the jury a limiting instruction to mitigate any

potential prejudice. Defendant has failed to show any abuse of discretion,

particularly given the special deference accorded such decisions under a Rule 403

balancing inquiry. See Rizk, 660 F.3d at 1132.

AFFIRMED.

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