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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. Obsceni ty , Child pornography.

C ivil 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 d efendant
. Jay G. Hook for the plaintiff.

BLAKE, J. While he was in the United States A rmy, John Doe No. 376575 (Doe or p laintiff) was convicted by ge neral court martial of possession of child pornography in violation of art. 134, 10 U.S.C. § 934 (2012 ), the "general" provision of the2

Uniform Code of Military Justice (code)
. Following his release from military confinement, the sex o f fender registry b oa rd ( 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, sup plemented by undisputed facts from the record
. After a soldier stationed with the plaintiff observed what he believed to be child pornography on the plainti ff's computer, he notified his c ommander, who initiated an investigation. A "U.S. Army C riminal I n vestigation 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 pornogr aphy were discovered." The investigation report further note s that
F ederal statutes " 18 U
. S . C . [ § ] 225 1: Sexual Exploitation of Children [ , and ] 18 U
. S . C . [ § ] 225 2 : 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 comme ncement 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. I n March, 2012 , the plaintiff pleaded guilty to a violation of art. 134 for possession of child pornography
. Hi s sanctions included four months of confinement, a reduction in military grade , and a lifetime forfeiture of his pay
. Upon his release from

co nfinement, 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
. In4

response, the plaintiff requested a hearing before the board , which was held in November, 2012. At the hearing, c ounsel for the plaintiff submitted a motion to dismiss for lack of jurisdiction . The plaintiff did not otherwise participat e , elect ing not to testify or submit any document ary evidence
. By decision dated December 7, 2012, t he hearing examiner determined that the plaintiff's art . 134 conviction was a " like violation" of the Massachusetts crime of possession of child pornograp hy,
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 lack ed 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 ad equate notice
. . . of his obligation to register
. " He accordingly ordered that judgment enter terminat ing the plaintiff's obligation to register , and dismiss ing the board 's5

classification proceedings for lack of jurisdiction
. T he board

mo ved for reconsi deration , 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 w as 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 jud gm ent, 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 re view 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 tak en 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 provisi ons; (b) in excess of [the board 's ] authority; (c ) based upon an error of law; (d) made upon unlawful procedure; (e) unsupported by substantial6

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 cap ricious, 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, § 1 4 ( 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 registr ation 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 Regis try Bd ., 4 56 Mass . 612, 615 (2010) ( Doe No. 151564 ) , quoting from
G. L. c. 6, § 178C
. A "like violation " may include a conviction in another S tate, as well as " a like violation of the laws
. . . the United States or a military, territorial or Indian tribal7

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 regist ration stat ut e . I n Doe No. 151564 , supra at 615

- 616, the Supreme Judicial Court ad opted an elements

- based definition of t he 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 e lements 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" determ ination
. Id
. at 618. Among other reasons given, the court noted that b ecause 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 ab out whether registration is required
. " Id . at 618, citing Commonwealth v. Maxim , 429 Mass. 287, 292 ( 1999) ( due process requires that criminal statute s 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 F ederal offense
. 3 See United States v . Saunders , 59
M . J . 1 , 6 ( C.A.A.F. 2003) ; Manual fo r 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 , 6 7 M . J . 141 , 142 (C .A.A.F. 200 9 ). See also Doe No. 34186 , supra at 559 ( not ing "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 disorde rs 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 forc es, and [3] crimes and offenses not capital, of which persons subject to this chapter may be guilty
. " Manual fo r 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

com ponents of a military charge, t he 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. B y exten ding the same principles relied on in that case , we reach the same conclusion that, under the circumstances here , the art. 134 conviction constitutes a "like10

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 incorporate d 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 F ederal statutes the plaintiff is alleged to have violat ed
. 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 Administ rative 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 pl ea, and well before, both the violation of art. 134 and the elements of the underlying F ederal offense of possession of child pornography, 18 U
. S . C . § 2252, were apparent on the record and known to the plaintiff
. T he F ederal statute, 18 U
. S . C . § 2252, a nd 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 u ncommon 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, t he plaintiff's military conviction is a " like violation" pursuant
to G . L . c . 6, § 178C , which requir es registration
. See Doe No. 34186 , supra at 561. Moreover, where the ultimate con cern in this analysis lies in s ufficient " notice and clarity about whether registration is required" due to the potential of criminal penalties , Doe No. 151 5 64 , 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 reg ister 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 r equire 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 judg ment is vacated
. So ordered
.

6 We have con sidered the arguments raised by the plaintiff but note that he has not cross

- a ppealed. 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
.