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Doe v. Sex offender Registry Bd.

Supreme Judicial Court of Massachusetts, Worcester

February 2, 2015

John Doe, Sex Offender Registry Board No . 34186
v.
Sex Offender Registry Board

Argued November 3, 2014.

Civil action commenced in the Superior Court Department on September 13, 2010.

The case was heard by John S. McCann, J., on a motion for judgment on the pleadings, and a motion for reconsideration was considered by him.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Jennifer K. Zalnasky, Assistant Attorney General, for the defendant.

John R. Puricelli for the plaintiff.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

OPINION

[23 N.E.3d 939] Hines, J.

After the Sex Offender Registry Board (board) classified the plaintiff as a sex offender, a judge in the Superior Court concluded that the board lacked jurisdiction over the plaintiff because his conviction under art. 134, 10 U.S.C. § 934 (1994), the " general" provision of the Uniform Code of Military Justice (code), was not a " like violation" sex offense requiring registration. See G. L. c. 6, § § 178C-178P. The board appealed, and we transferred the case from the Appeals Court to this court. We conclude that art. 134, although general in scope, assimilates the elements of underlying offenses and that under the circumstances here, where the plaintiff was convicted on specifications detailing " like violation" offenses, the art. 134 conviction is a sex offense under G. L. c. 6, § 178C. Accordingly, we vacate the judgment

Page 555

and reinstate the board's classification of the plaintiff as a level two sex offender.

1. Factual background and procedural history.

We summarize the facts found by hearing examiners after evidentiary hearings, supplemented by undisputed facts from the record. The plaintiff was convicted by generl court martial of the following three specifications in violation of art. 134: (1) " Did ... knowingly transport or ship in interstate commerce visual depictions of one or more minors, under the age of [eighteen] years, engaging in sexually explicit conduct, in violation of [18 U.S.C. § 2252(a)(1)]" ; (2) " Did ... knowingly receive visual depictions of one or more minors, under the age of [eighteen] years, engaged in sexually explicit conduct, which depictions had been shipped or transported in interstate commerce, in violation of [18 U.S.C. § 2252(a)(2)]" ; and (3) " Did ... knowingly transport in interstate commerce for purposes of sale or distribution, obscene, lewd, lascivious or filthy pictures [23 N.E.3d 940] or images of his penis, in violation of [18 U.S.C. § 1465]." 10 U.S.C. § 934 (1994).

The charge was brought in 1999 after a " sting" operation in which the plaintiff, then a captain of the United States Air Force serving in Portsmouth, New Hampshire, sent lewd comments and images depicting child nudity and children in sexually suggestive poses to a Keene, New Hampshire, police officer. The police officer was posing as a fourteen year old male in an Internet chat room. The plaintiff pleaded guilty to the art. 134 charge and to each of the underlying specifications.[1] The plaintiff ...


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