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Doe v. Sex Offender Registry Board

Appeals Court of Massachusetts, Suffolk

December 22, 2016

JOHN DOE, SEX OFFENDER REGISTRY BOARD
v.
SEX OFFENDER REGISTRY BOARD.

          Heard: October 20, 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 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 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 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 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 ...


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