Doe, SORB No. 376575 v. Sex Offender Registry Board

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
14-P-926 Appeals Court
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 376575 vs. SEX
OFFENDER REGISTRY BOARD.
No. 14-P-926.
Suffolk. October 20, 2016. - December 22, 2016.
Present: Hanlon, Sullivan, & Blake, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Jurisdiction, Sex offender. Evidence,
Sex offender. Obscenity, Child pornography.
Civil action commenced in the Superior Court Department on
December 18, 2012.
The case was heard by Paul D. Wilson, J., on a motion for
judgment on the pleadings; a motion for reconsideration was
considered by him; and a motion for postjudgment relief, filed
on April 30, 2015, was heard by him.
Christopher M. Bova for the defendant.
Jay G. Hook for the plaintiff.
BLAKE, J. While he was in the United States Army, John Doe
No. 376575 (Doe or plaintiff) was convicted by general court
martial of possession of child pornography in violation of art.
134, 10 U.S.C. § 934 (2012), the "general" provision of the
2
Uniform Code of Military Justice (code). Following his release
from military confinement, the sex offender registry board
(board) classified Doe as a level two sex offender. Doe sought
review in the Superior Court, where the judge concluded that the
board lacked jurisdiction over Doe because his conviction under
art. 134 was not a "like violation" sex offense requiring
registration. See G. L. c. 6, §§ 178C-178P (sex offender
registration statute). The board now appeals. We conclude
that, under the circumstances here, where Doe had notice of and
subsequently pleaded guilty to possession of child pornography
under 18 U.S.C. § 2252 (2012), the art. 134 conviction was a
"like violation" such that it constitutes a sex offense under
G. L. c. 6, § 178C. We vacate the judgment.1
1. Background. We summarize the facts found by the
hearing examiner, supplemented by undisputed facts from the
record. After a soldier stationed with the plaintiff observed
what he believed to be child pornography on the plaintiff's
computer, he notified his commander, who initiated an
investigation. A "U.S. Army Criminal Investigation Command"
final investigation report (investigation report), dated January
1
We also remand for the entry of an order requiring the
board to conduct a hearing consistent with the standard
enunciated in Doe, Sex Offender Registry Bd. No. 380316 v. Sex
Offender Registry Bd., 473 Mass. 297, 314-316 (2015). See Doe,
Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry
Bd., 89 Mass. App. Ct. 901, 902 (2016).
3
6, 2012, states that probable cause had been established to
believe that the plaintiff had "committed the offense of
Possession of Child Pornography when his personal computer was
forensically examined, and multiple images of child pornography
were discovered." The investigation report further notes that
Federal statutes "18 U.S.C. [§] 2251: Sexual Exploitation of
Children[, and] 18 U.S.C. [§] 2252: Possession of Child
Pornography," are implicated. Included on the distribution list
of the investigation report is the plaintiff's military trial
counsel.
At some point following the commencement of the
investigation, a charge issued alleging a violation of art. 134.
Presumably accompanying that charge, but not included in the
record here, was a "specification" detailing the underlying
offenses the plaintiff was alleged to have committed. In March,
2012, the plaintiff pleaded guilty to a violation of art. 134
for possession of child pornography. His sanctions included
four months of confinement, a reduction in military grade, and a
lifetime forfeiture of his pay. Upon his release from
confinement, the plaintiff initialed and signed a form entitled
"Notice of Release/Acknowledgment of Convicted Sex Offender
Registration Requirements."
In August, 2012, the board notified the plaintiff of its
finding that he must register as a level two sex offender. In
4
response, the plaintiff requested a hearing before the board,
which was held in November, 2012. At the hearing, counsel for
the plaintiff submitted a motion to dismiss for lack of
jurisdiction. The plaintiff did not otherwise participate,
electing not to testify or submit any documentary evidence. By
decision dated December 7, 2012, the hearing examiner determined
that the plaintiff's art. 134 conviction was a "like violation"
of the Massachusetts crime of possession of child pornography,
G. L. c. 272, § 29C. The hearing examiner further concluded
that Doe posed a moderate risk to reoffend and a moderate degree
of dangerousness, requiring him to register as a level two
second offender.
Unsatisfied with the outcome of the hearing, the plaintiff
filed a complaint for judicial review in the Superior Court,
followed by a motion for judgment on the pleadings. Therein, he
again argued that the board lacked jurisdiction because his
conviction was not a "like violation" of any of the offenses
enumerated in G. L. c. 6, § 178C. The judge agreed, concluding
that because art. 134 "contains no overlapping elements with
G. L. c. 272, § 29C, . . . [the plaintiff's] conviction under
the broad, catchall terms of Article 134 did not provide him
with adequate notice . . . of his obligation to register." He
accordingly ordered that judgment enter terminating the
plaintiff's obligation to register, and dismissing the board's
5
classification proceedings for lack of jurisdiction. The board
moved for reconsideration, which the judge denied.
In 2015, the Supreme Judicial Court issued its decision in
Doe, Sex Offender Registry Bd. No. 34186 v. Sex Offender
Registry Bd., 470 Mass. 554 (2015) (Doe No. 34186), in which it
held that conviction of the plaintiff in that case under art.
134 for dissemination and possession of child pornography was a
"like violation" requiring registration as a sex offender. Id.
at 556, 561. Based on that holding, the board here filed a
motion for relief from judgment, which the judge likewise
denied. This appeal followed.
2. Standard of review. The board's final classification
of a sex offender is subject to judicial review under G. L.
c. 30A, § 14. See G. L. c. 6, § 178M; Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 108 n.3 (2014) (Doe No. 68549). Such review is "confined
to the record, except that in cases of alleged irregularities in
procedure before the agency, not shown in the record, testimony
thereon may be taken in the court." G. L. c. 30A, § 14(5), as
amended by St. 1973, c. 1114, § 3. "A reviewing court will not
disturb [the board's] decision unless that decision was (a) in
violation of constitutional provisions; (b) in excess of [the
board's] authority; (c) based upon an error of law; (d) made
upon unlawful procedure; (e) unsupported by substantial
6
evidence; (f) unwarranted by facts found by the court, where the
court is constitutionally required to make independent findings
of fact; or (g) arbitrary or capricious, an abuse of discretion,
or otherwise not in accordance with law. G. L. c. 30A,
§ 14(7)." Doe No. 68549, supra at 108-109. In conducting our
review, we "give due weight to [the] experience, technical
competence, and specialized knowledge" of the board. Ibid.,
quoting from G. L. c. 30A, § 14(7).
3. Discussion. As in Doe No. 34186, the outcome in this
case turns on whether Doe's military conviction under art. 134
is a "like violation" requiring registration under G. L. c. 6,
§ 178C. We begin by examining the meaning of a "like violation"
in the context of the sex offender registration statute, turning
next to a discussion of Doe No. 34186, and finally applying its
holding to the facts present here.
"A sex offender is defined as a person who has been
convicted of any violation of Massachusetts law enumerated as a
sex offense in the sex offender registry law, as well as any
'like violation of the laws of another [jurisdiction].'" Doe,
Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry
Bd., 456 Mass. 612, 615 (2010) (Doe No. 151564), quoting from
G. L. c. 6, § 178C. A "like violation" may include a conviction
in another State, as well as "a like violation of the laws . . .
the United States or a military, territorial or Indian tribal
7
authority." G. L. c. 6, § 178C, as amended by St. 1999, c. 74,
§ 2. See Doe No. 34186, 470 Mass. at 558.
The term "like violation" itself, however, is not defined
in the sex offender registration statute. In Doe No. 151564,
supra at 615-616, the Supreme Judicial Court adopted an
elements-based definition of the term, holding that "[a] 'like
violation' is a conviction in another jurisdiction of an offense
of which the elements are the same or nearly the same as an
offense requiring registration in Massachusetts. The elements
of the offense in another jurisdiction need not be precisely the
same as the elements of a Massachusetts sex offense in order for
it to constitute a 'like violation.'"
In reaching its decision, the Doe No. 151564 court
explicitly rejected any consideration of the conduct underlying
a conviction in making the "like violation" determination. Id.
at 618. Among other reasons given, the court noted that because
the statute authorizes criminal penalties for those who fail to
register within two days of relocating to the Commonwealth,
offenders must have sufficient "notice and clarity about whether
registration is required." Id. at 618, citing Commonwealth v.
Maxim, 429 Mass. 287, 292 (1999) (due process requires that
criminal statutes give person of ordinary intelligence fair
notice that his contemplated conduct is forbidden).
8
Given this elements-based approach, we now turn to the
Supreme Judicial Court's decision in Doe No. 34186, supra. As
we have stated, in that case, as here, the court was presented
with the question whether an art. 134 conviction was a "like
violation" for the purposes of the sex offender registration
statute.2 Article 134 is the general provision in the code used
in court martial proceedings when there is no analogous military
crime for a Federal offense.3 See United States v. Saunders, 59
M.J. 1, 6 (C.A.A.F. 2003); Manual for Courts-Martial, United
States, part IV, par. 60.c (2012). Possession of child
pornography is one of those Federal crimes for which there is no
analogous military counterpart. See, e.g., United States v.
Kuemmerle, 67 M.J. 141, 142 (C.A.A.F. 2009). See also Doe No.
34186, supra at 559 (noting "the fortuitous absence of a
provision in the code criminalizing the nonviolent sex offenses"
such as possession of child pornography).
2
Doe No. 34186 involved the offenses of dissemination and
possession of child pornography. 470 Mass. at 556. The
plaintiff in this case was convicted only of possession of child
pornography.
3
Article 134 makes punishable the military crimes of "[1]
all disorders and neglects to the prejudice of good order and
discipline in the armed forces, [2] all conduct of a nature to
bring discredit upon the armed forces, and [3] crimes and
offenses not capital, of which persons subject to this chapter
may be guilty." Manual for Courts-Martial, United States, part
IV, par. 60 (2012).
9
Because of its general nature, the plaintiff in Doe No.
34186 argued, as does the plaintiff here, that his conviction
fails the elements-based test of Doe No. 151564 because there
are no corresponding elements between the statutes (art. 134 and
G. L. c. 272, §§ 29B and 29C). Upon examination of the
components of a military charge, the court disagreed. "In
military justice, a charge consists of two parts: the 'charge'
-- typically, a statement of the article alleged to have been
violated -- and the 'specification' -- the more detailed
description of the conduct allegedly violative of the article."
Doe No. 34186, supra, quoting from United States v. Fosler, 70
M.J. 225, 227 n.2 (C.A.A.F. 2011). Viewing the specification as
part and parcel of the military charge, wherein the plaintiff in
Doe No. 34186 was alleged to have committed violations of 18
U.S.C. § 2252, the court concluded that "the plaintiff's guilty
plea to the general provision of art. 134 incorporates the
underlying specifications and elements of the Federal offenses
stated therein, which in turn are like violations of
Massachusetts law." Doe No. 34186, supra at 559.
Although the record here does not include the underlying
specification, as it did in Doe No. 34186, we do not end our
inquiry there. By extending the same principles relied on in
that case, we reach the same conclusion that, under the
circumstances here, the art. 134 conviction constitutes a "like
10
violation." In the absence of a specification,4 we look to the
record, which amply supports the conclusion that the plaintiff
was on notice that his guilty plea incorporated both the art.
134 violation and the elements of the specific offense of
possession of child pornography in violation of 18 U.S.C.
§ 2252. The investigation report, distributed to the
plaintiff's trial counsel, identifies two Federal statutes the
plaintiff is alleged to have violated. Ultimately, the military
prosecuted (or "referred") the plaintiff only as to one,
possession of child pornography. A form entitled "Commander's
Report of Disciplinary or Administrative Action" indicates the
referral for the offense of "Possession of Child Pornography"
with a "Basis" listed as "UCMJ Article 134." The same report
further indicates the plaintiff's guilty plea to the same
charged offense. Thus, at the time of the plea, and well
before, both the violation of art. 134 and the elements of the
underlying Federal offense of possession of child pornography,
18 U.S.C. § 2252, were apparent on the record and known to the
plaintiff.
The Federal statute, 18 U.S.C. § 2252, and the
Commonwealth's statute, G. L. c. 272, § 29C, prohibit
4
At oral argument, counsel for the board indicated that it
had unsuccessfully attempted to secure the specification from
the military. According to counsel, the situation here is not
an uncommon one.
11
essentially the same crime: knowing possession of a computer
depiction of a child under the age of eighteen engaging in
sexually explicit conduct. See Commonwealth v. Bell, 83 Mass.
App. Ct. 82, 87 (2013).5 For the purposes of registration as a
sex offender, the hearing examiner properly concluded that the
elements of each statute are nearly the same. Thus, the
plaintiff's military conviction is a "like violation" pursuant
to G. L. c. 6, § 178C, which requires registration. See Doe No.
34186, supra at 561.
Moreover, where the ultimate concern in this analysis lies
in sufficient "notice and clarity about whether registration is
required" due to the potential of criminal penalties, Doe No.
151564, supra at 618, it is noteworthy that upon the plaintiff's
release from confinement, he signed a form acknowledging his
receipt of notice of his obligation to register as a sex
offender. Further, the form notified the plaintiff that his
need to register was triggered by his conviction for possession
5
We reject the plaintiff's contention that the additional
requirement in Massachusetts that a defendant know that the
subject of pornography is less than eighteen years old causes
the two statutes to fail the elements-based test. Identical
elements are not required, only elements that are "the same or
nearly the same." Doe No. 15164, supra at 615 (quotation
omitted). See Commonwealth v. Bell, 83 Mass. App. Ct. at 87
("Where we are to focus on the essence of the crime at issue
rather than require a 'like violation' to have identical
elements, it would make little sense to then insist that the
Commonwealth establish that in every respect the proof required
for each element of the offense in each jurisdiction must be
identical").
12
of child pornography. Thus, on the specific facts of this case,
the plaintiff did not lack notice either of his obligation, or
of the specific offense triggering that obligation.
4. Conclusion. The judgment is vacated and the case is
remanded to the Superior Court for entry of an order requiring
the board to conduct a new hearing under the clear and
convincing evidence standard.6 See note 1, supra. The order
denying the motion for relief from judgment is vacated.
So ordered.
6
We have considered the arguments raised by the plaintiff
but note that he has not cross-appealed. In view of our
decision to remand the matter to the board for a new hearing, we
need not reach the constitutional questions he raises.