                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                             NOV 24 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                       No. 13-30093

              Plaintiff - Appellee,             D.C. No. 1:12-cr-00156-BLW-1

  v.
                                                MEMORANDUM*
WILLIAM NEWEL BROCKBRADER,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                         Submitted November 18, 2014**
                                Portland, Oregon

Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.

       William Brockbrader appeals his conviction for one count of violating the Sex

Offender Registration Notification Act (“SORNA”), 18 U.S.C. § 2250(a)(1)(2)(A)-

(B), (a)(3). He also challenges two conditions of his supervised release. We have


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291, and affirm.

      1.     The incidents that Brockbrader identifies as prosecutorial misconduct did

not, either individually or cumulatively, violate his right to due process. See United

States v. Necoechea, 986 F.2d 1273, 1282-83 (9th Cir. 1993).

      a.     The testimony of a Nevada Senior Deputy Attorney General regarding

an injunction entered in ACLU of Nevada v. Cortez Masto, 719 F. Supp. 2d 1258 (D.

Nev. 2008), rev’d in part, ACLU of Nevada v. Masto, 670 F.3d 1046 (9th Cir. 2012)

(the “ACLU injunction”), properly addressed the injunction’s impact on Nevada sex

offender registration obligations and the State’s efforts to address public confusion.

The district court properly instructed the jury regarding the limited use to which it

could put the ACLU injunction and this testimony. Brockbrader’s other challenges

to this testimony also are unavailing. See Fed. R. Evid. 701 (governing lay witness

opinion testimony); United States v. Graf, 610 F.3d 1148, 1165 (9th Cir. 2010)

(holding that an attorney could testify as a lay witness to establish defendant’s notice);

United States v. Morales, 108 F.3d 1031, 1037 (9th Cir. 1997) (en banc) (defining

prohibited “opinion or inference” testimony under Fed. R. Evid. 704(b)).

      b.     Brockbrader does not explain how the prosecutor vouched for the

testimony of the director of the Utah state sex offender registry. See Necoechea, 986

F.2d at 1276, 1278-80.


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      c.     The prosecutor’s comments that only Brockbrader’s testimony supported

his interpretation of the ACLU injunction was a permissible inference from the

evidence. See United States v. Hill, 953 F.2d 452, 460 (9th Cir. 1991) (“A prosecutor

is entitled to comment on a defendant’s failure to present witnesses so long as it is not

phrased as to call attention to the defendant’s own failure to testify.”). Likewise, the

prosecutor’s closing argument was not an improper comment regarding Brockbrader’s

“knowledge” of his duty to register. See id.

      d.     The prosecutor’s misstatement about where Brockbrader registered in

2001 has the “earmarks of inadvertent mistake, not misconduct,” United States v.

Carrillo, 16 F.3d 1046, 1050 (9th Cir. 1994), and was not plain error.

      2.     Jury instruction No. 17, to which Brockbrader did not object below, is

a correct statement of the SORNA knowledge requirement. United States v. Crowder,

656 F.3d 870, 875 (9th Cir. 2011) (defining SORNA knowledge requirement); Ninth

Cir. Model Panel Crim. Jury Instruct. 5.6 (2010) (defining “knowingly”).

      3.     Brockbrader’s ex post facto challenge to SORNA is foreclosed by United

States v. Elkins, 683 F.3d 1039, 1045 (9th Cir. 2012).

      4.     Brockbrader’s ex post facto challenge to Idaho’s sex offender registration

laws also fails. Idaho’s laws are no more onerous than those repeatedly upheld against

similar challenges. See Smith v. Doe, 538 U.S. 84, 105-06 (2003) (holding that


                                           3
application of SORNA in Alaskan failure-to-register case does not violate Ex Post

Facto Clause); United States v. Elk Shoulder, 738 F.3d 948, 953-54 (9th Cir. 2013)

(applying SORNA to failure to register in Montana); United States v. Hardeman, 704

F.3d 1266, 1269 (9th Cir. 2013) (applying 18 U.S.C. § 2260 to failure to register in

California); Elkins, 683 F.3d at 1045 (applying SORNA to failure to register in

Washington); see also Idaho v. Gragg, 137 P.3d 461, 465-66 (Idaho Ct. App. 2005)

(rejecting a similar challenge).

      5.     As Brockbrader correctly concedes, his argument that SORNA violates

the delegation of authority doctrine is foreclosed by United States v. Richardson, 754

F.3d 1143, 1145-46 (9th Cir. 2014) (per curiam).

      6.     The district court did not abuse its discretion in requiring Brockbrader

to undergo alcohol evaluation, to abstain from alcohol, and to undergo a mental health

evaluation as conditions of release. See United States v. Vega, 545 F.3d 743, 747 (9th

Cir. 2008) (stating that a history of drug and alcohol abuse supports alcohol abstention

and treatment); United States v. Napier, 463 F.3d 1040, 1045 (9th Cir. 2006)

(affirming mental health evaluation although facts of case did not raise the issue);

United States v. Lopez, 258 F.3d 1053, 1056-57 (9th Cir. 2001) (stating that current

mental illness is not required to impose a mental health evaluation).

      AFFIRMED.


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