Heard: October 20, 2016.
Hanlon, Sullivan, & Blake, JJ. Sex Offender.
Sex Offender Registration and Community
Act. Jurisdiction, Sex offender.
Evidence, Sex offender. Obscenity, Child
pornography. Civil action commenced in the Superior
Court Department on December 18, 2012.
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.
Hook for the plaintiff.
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 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
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 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.
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
August, 2012, the board notified the plaintiff of its finding
that he must register as a level two sex offender. In
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
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
classification proceedings for lack of jurisdiction. The
board moved for reconsideration, which the judge denied.
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 ...