United States v. William Brockbrader , 586 F. App'x 275 ( 2014 )

NOT FOR PUBLICATION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
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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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