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SJC-11607

   JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 34186      vs.   SEX
                    OFFENDER REGISTRY BOARD.



      Worcester.     November 3, 2014. - February 2, 2015.

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


Sex Offender. Sex Offender Registration and Community
     Notification Act. Jurisdiction, Sex offender. Evidence,
     Sex offender.



     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 for the plaintiff.
    John R. Puricelli for the defendant.


    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
                                                                   2


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

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 general 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
                                                                     3


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 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 was sentenced to confinement for thirty months without

pay or benefits and thereafter dismissed from military service.

     After the plaintiff's release from confinement in 2000 or

2001,2 he moved to Massachusetts.   In 2002, the board notified


     1
       The plaintiff also pleaded guilty to a charge under art.
133 of the Uniform Code of Military Justice (code), concerning
"conduct unbecoming an officer and a gentleman." 10 U.S.C.
§ 933 (1994). The Sex Offender Registry Board (board) only
argues that the art. 134 conviction triggers sex offender
registration, and therefore the art. 133 charge is not discussed
in this decision.
     2
       Although the board asserted that the plaintiff was
released from custody in 2001, as a matter of convenience the
                                                                     4


the plaintiff of his duty to register as a level two sex

offender.   Following the plaintiff's appeal and an evidentiary

hearing before a hearing examiner, the board upheld the

classification.    The examiner determined that the specifications

underlying the plaintiff's art. 134 conviction were each a "like

violation" to sex offenses under G. L. c. 6, § 178C --

specifically, dissemination of child pornography, G. L. c. 272,

§ 29B; and possession of child pornography, G. L. c. 272, § 29C.3

The examiner further concluded that the plaintiff poses a

moderate risk to reoffend and a moderate degree of

dangerousness.    The plaintiff did not appeal the hearing

examiner's decision.

     In July, 2009, the board sought reclassification of the

plaintiff's status from level two to level three based on his

arrest in April, 2009, for failure to register, enticing a child

under the age of sixteen, and disseminating matter harmful to a

child.   A new hearing examiner, in 2010, also concluded that the

specifications underlying the plaintiff's art. 134 conviction

were each a "like violation" to Massachusetts sex offenses and


hearing examiners accepted the plaintiff's version of events
that he was on parole from 2000 to 2001.
     3
       The hearing examiner also determined that the
specifications underlying the plaintiff's art. 134 conviction
were a "like violation" to dissemination or possession of
obscene matter, G. L. c. 272, § 29. Because this is not an
enumerated sex offense under G. L. c. 6, § 178C, we do not
consider it. See note 14, infra.
                                                                   5


further concluded that the plaintiff poses a high risk to

reoffend and a high level of dangerousness and classified him as

a level three sex offender.

     The plaintiff appealed the 2010 decision, and a Superior

Court judge reversed, ordering the plaintiff's release from the

obligation to register as a sex offender.   The judge determined

that the board lacked jurisdiction over the plaintiff, reasoning

that the plaintiff's conviction under art. 134, a "non-specific"

provision of the code, is not a "like violation" to a

Massachusetts sex offense.4   In his analysis, the judge also

noted that "[m]ilitary defendants in courts-martial are not

provided the same constitutional protections as defendants in

civilian criminal courts" and requiring the plaintiff to

register as a sex offender would be "fundamentally unfair" where

he was convicted only under a "non-specific" provision of the

code.

     The board filed a motion to reconsider, which the judge

denied without a hearing, and then appealed both the judgment

and the denial of the motion for reconsideration.   On appeal,


     4
       The issue whether the plaintiff's conviction is a "like
violation" to Massachusetts sex offenses was resolved in 2002 by
the hearing examiner, and was not appealed by the plaintiff.
Although judicial review of an agency's action is subject to a
thirty-day filing limitation, we consider the merits of the
question because the hearing examiner in 2010, on a request for
reclassification filed by the board, reanalyzed the issue and
incorporated the 2002 decision. See G. L. c. 30A, § 14 (1).
                                                                     6


the board argues that the hearing examiners properly concluded

that the plaintiff's military conviction is a "like violation"

sex offense under G. L. c. 6, § 178C, and seeks reinstatement of

the board's 2002 classification of the plaintiff as a level two

sex offender.5

     2.   Discussion.   a.   Standard of review.   Judicial review

of a board decision is governed by G. L. c. 30A, § 14, and 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).   See G. L. c. 6, § 178M.    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 on an error of law; (d) made on

unlawful procedure; (e) unsupported by substantial evidence; (f)

unwarranted by facts found by the judge, where the judge 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).


     5
       The plaintiff's arrest in May, 2009, did not result in a
conviction, and after the hearing examiner's reclassification in
2010, the Appeals Court determined that reclassification without
a conviction exceeds the board's statutory authority. See Doe,
Sex Offender Registry Bd. No. 16748 vs. Sex Offender Registry
Bd., 82 Mass. App. Ct. 152, 162 (2012). The board therefore
seeks the reinstatement of the level two classification instead
of the level three classification.
                                                                     7


See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender

Registry Bd., ante 102, 108-109 (2014).      In conducting our

review, we "give due weight to the experience, technical

competence, and specialized knowledge" of the board.      G. L.

c. 30A, § 14.

     b.     "Like violation" analysis.   The board argues that the

judge erred in concluding that the plaintiff is not a sex

offender as defined in G. L. c. 6, § 178C, and is not subject to

the board's jurisdiction.    The judge found that the plaintiff's

conviction under art. 134, a "non-specific" provision of the

code, could not be a like violation under the elements-based

test required by Doe, Sex Offender Registry Bd. No. 151564 v.

Sex Offender Registry Bd., 456 Mass. 612, 615 (2010) (Doe No.

151564).6    For the reasons explained below, we conclude that the

judge's ruling was erroneous.


     6
       The Superior Court judge also considered constitutional
differences between military and civilian proceedings in
analyzing whether an art. 134 conviction could be a "like
violation" to a Massachusetts sex offense. We do not consider
any such differences to be material to the "like violation"
analysis. The United States Supreme Court has upheld the
constitutionality of art. 134. Parker v. Levy, 417 U.S. 733,
757-758 (1974). The Court also has noted that Congress had the
power under Federal laws to make sex offender registration a
consequence of a military conviction. United States v.
Kebodeaux, 133 S. Ct. 2496, 2503 (2013). The Legislature
explicitly included convictions under military authority in the
pool of offenses subject to sex offender registration. See
G. L. c. 6, § 178C. Accordingly, we discern no constitutional
infirmities in the analysis of an art. 134 conviction as a "like
violation."
                                                                     8


     We begin our analysis with the statutory definition of a

sex offender.   "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 [a military authority].'"

Doe No. 151564, supra at 615, quoting G. L. c. 6, § 178C.     This

definition reflects a decision by the Legislature in 1999 to

expand the "sex offender" definition to include not only the

enumerated sex offenses under Massachusetts law and "a like

violation of the law of another state," but also "a like

violation of . . . the United States or a military, territorial

or Indian tribal authority."   Compare G. L. c. 6, § 178C, as

amended by St. 1999, c. 74, § 2, with G. L. c. 6, § 178C,

inserted by St. 1996, c. 239, § 1.7   We first had the opportunity


     7
       The Massachusetts sex offender registry scheme was first
enacted in 1996 in response to the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act,
which was enacted by Congress in 1994 to establish guidelines
for State sex offender registration. See G. L. c. 6, §§ 178C-
178O, inserted by St. 1996, c. 239, § 1. See also 42 U.S.C.
§ 14071, Pub. L. No. 103-322, Title XVII, § 170101, 108 Stat.
2038 (1994) (repealed and replaced by 42 U.S.C. §§ 16901 et
seq.) (Wetterling Act). In 1997, Congress amended the
Wetterling Act to extend State registration requirements to sex
offenders convicted of a Federal offense or sentenced by a court
martial. Pub. L. No. 105-119, § 115(a)(2)(F), 111 Stat. 2463
(1997). The Legislature enacted a replacement sex offender
registry scheme in 1999 that expanded the definition of "sex
offender" and corrected several infirmities noted by this court
in the prior version. St. 1999 c. 74, §§ 1-20. See Doe, Sex
Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447
Mass. 750, 755 (2006).
                                                                    9


to interpret the undefined term "like violation" in Doe No.

151564, where we adopted an elements-based approach.   We

determined that the applicable test is whether the "elements [of

the foreign conviction] are the same or nearly the same as an

offense requiring registration in Massachusetts" and explicitly

rejected the board's argument that it could consider the conduct

underlying a conviction in the "like violation" analysis.     Doe

No. 151564, supra at 615, 618.   Our concern was that offenders

have sufficient "notice and clarity about whether registration

is required." Id. at 618.

     The plaintiff's argument that he is not a sex offender

flows from our holding in Doe No. 151564, supra, requiring

congruity between the elements of a sex offense in violation of

the laws of another jurisdiction and a Massachusetts sex

offense.   To support this argument, the plaintiff seizes on the

fortuitous absence of a provision in the code criminalizing the

nonviolent sex offenses8 underlying the art. 134 charge.    This

argument is facially plausible because art. 134 itself is a

general article and has no corollary to a Massachusetts sex



     8
       Congress enacted a statute in 2012 to criminalize
nonviolent sex offenses under a specific provision, art. 120c,
of the code. 10 U.S.C. § 920c (2012). Article 134 may only be
used to criminalize conduct not covered by another article of
the code. United States v. Kowalski, 69 M.J. 705, 706 (C.G. Ct.
Crim. App. 2010). Accordingly, nonviolent sex offenses are now
prosecuted under art. 120c.
                                                                   10


offense.9   As a consequence, the plaintiff argues, the

specifications setting forth the particular provisions10 of

Federal criminal law underlying the art. 134 charge may not be

considered under the elements-based test in Doe No. 151564,

supra at 615.   The board argues 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.

Resolution of the issue requires us to examine relevant

provisions of the code for guidance in discerning the proper

status of specifications.   As explained below, we are persuaded

that the board's argument is more consistent with the treatment

of convictions for nonviolent sex offenses under military law.

See United States v. Medina, 66 M.J. 21, 22 (C.A.A.F. 2008).

     First, the specifications are part and parcel of the art.

134 charge against the plaintiff.   Contrary to the plaintiff's

contention, a court martial for a violation of art. 134 does not

rest solely on the general terms of the article.   "In military


     9
       Article 134, the general provision, is characterized as
"non-specific" because it serves a catchall purpose, allowing
for prosecution of crimes and offenses that are not specifically
provided for in a different article of the code. 10 U.S.C.
§ 934 (2012). At the time of the plaintiff's offenses, the code
did not expressly criminalize the nonviolent sex offenses
underlying the art. 134 charge.
     10
       See 18 U.S.C. §§ 1465, 2252(a)(1), 2252(a)(2) (1994 &
Supp. V 1999).
                                                                 11


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."

United States v. Fosler, 70 M.J. 225, 227 n.2 (C.A.A.F. 2011).

Particularly for art. 134, which allows for prosecution of a

broad range of conduct,11 the general language of the charge "is

made specific through the language of a given specification."

Fosler, supra at 229, quoting United States v. Jones, 68 M.J.

465, 472 (C.A.A.F. 2010).   Because a prosecution may be

initiated under art. 134 where the code does not contain a

provision criminalizing the conduct at issue, the specifications

also are essential in providing notice of the charge.12

Accordingly, given the status of specifications in the scheme of

military prosecutions under art. 134, the hearing examiners




     11
       In addition to prosecution of noncapital crimes or
offenses, art. 134 allows for prosecution of "disorders and
neglects to the prejudice of good order and discipline" and
conduct "of a nature to bring discredit upon the armed forces."
10 U.S.C. § 934 (2012).
     12
       This notice function of the specifications squares with
our concern in Doe, Sex Offender Registry Bd. No. 151564 v. Sex
Offender Registry Bd., 456 Mass. 612 (2010), that the potential
registrant have sufficient "notice and clarity about whether
registration is required." Id. at 618.
                                                                  12


properly considered those specifications in determining whether

the plaintiff is a sex offender under G. L. c. 6, § 178C.13

     Second, elements of any Federal offenses underlying an art.

134 charge become part of the charge when they are described in

specifications detailing a violation for "crimes and offenses

not capital" under clause three of art. 134.   Medina, supra at

25 ("A clause 3 offense, of course, incorporates the elements of

the federal offense in question").   This rule applies here where

the specifications demonstrate that the plaintiff was charged

under art. 134's clause three, crimes and offenses noncapital.

See United States v. Vines, 57 M.J. 519, 527 (C.A.A.F. 2002)

("Typically, a specification drawn under clause 3 will allege

facts essential to prove the charged offense, and a citation to

the federal statute in question").   Accordingly, the plaintiff's

conviction under art. 134 incorporates the elements of the



     13
       Our interpretation is consistent with other jurisdictions
that have decided similar issues. See Rodimel v. Cook County
Sheriff's Office, 354 Ill. App. 3d 744, 744, 746-747 (2004)
(holding that art. 134 conviction based on indecent assault
"substantially equivalent" to Illinois sex offense under
elements-based test). See also People v. Gillotti, 23 N.Y.3d
841 (2014) (art. 134 conviction predicated on possession of
child pornography requires registration under New York's sex
offender registration statute). But see People v. Kennedy, 7
N.Y.3d 87 (2006) (vacating sex offender status because art. 134
conviction predicated on "indecent assault" specification that
did not cite applicable Federal offense or list elements of
crime did not provide sufficient detail to determine whether it
was felony requiring registration in jurisdiction where
conviction occurred).
                                                                    13


underlying Federal offenses described in its specifications.14

See Medina, supra.    For this reason, we conclude that the judge

erred in his determination that the board lacked jurisdiction

over the plaintiff.     The plaintiff's art. 134 conviction is a

"like violation" because it incorporates elements of Federal

offenses that were "the same or nearly the same as an offense

requiring registration in Massachusetts."     Doe No. 151564, supra

at 615.

     Last, we deal briefly with the plaintiff's argument that

United States v. Brown, 529 F.3d 1260 (10th Cir. 2008),

precludes consideration of the underlying specifications.      It

does not.   In Brown, the United States Court of Appeals for the

Tenth Circuit declined to consider the Federal offense described

in a specification underlying an art. 134 conviction as a

"conviction" triggering sentencing enhancement under 18 U.S.C.

§ 2252A(b)(2) (2006).    Id. at 1261, 1263.   The underlying

     14
       See, e.g., G. L. c. 272, § 29B (dissemination of child
pornography), and § 29C (purchase or possession of child
pornography), which we assume to be congruent with the Federal
statutes under which the plaintiff was charged, 18 U.S.C.
§ 2252(a)(1), 2252(a)(2). The plaintiff does not argue that the
elements of the stated Federal offenses are not themselves "the
same or nearly the same" as the elements of Massachusetts sex
offenses, and accordingly we assume without deciding that the
above is correct. See Mass. R. A. P. 16 (b), as appearing in
411 Mass. 1602 (1992). In the 2010 decision, the hearing
examiner also determined that 18 U.S.C. § 1465 was "respectively
equivalent to the Massachusetts sex offense[] of . . . G. L.
c. 272, § 29"; however, we do not assume that 18 U.S.C. § 1465
is a "like violation" because G. L. c. 272, § 29, is not an
enumerated Massachusetts sex offense under G. L. c. 6, § 178C.
                                                                    14


specification described distributing child pornography in

violation of 18 U.S.C. § 2252 (2006).   Id. at 1262.    The plain

language of the sentencing enhancement provision identified

certain applicable convictions that could serve as sentencing

enhancers, and art. 134 was not included; therefore, the court

concluded that an art. 134 conviction could not be a sentencing

enhancer.15   Id. at 1263.

     The question posed to the court in the Brown case is

substantially different from the one posed here.     The sentencing

enhancement provision required that the petitioner be

"convicted" of certain applicable offenses.    Id.   The question

on review in this case, however, asks only whether the elements

of the crime or crimes underlying the conviction are

sufficiently similar to the elements of a Massachusetts sex

offense.   See Doe No. 151564, supra at 615.   The court in Brown

noted that "the military court assimilated the elements of the

crime from [18 U.S.C.] § 2252 -- a federal child pornography

statute" -- into art. 134, but such assimilation did not create


     15
       The sentencing enhancement provision included military
offenses under art. 120 but excluded art. 134. The court
determined that this was not irrational because "Congress could
have quite rationally desired that soldiers convicted in a court
martial for [violent sexual acts under art. 120] be punished
more severely for later offenses" and because Congress has been
expanding the list of permissible enhancers by increasing the
sexual offenses punishable under art. 120, which were previously
only punishable under art. 134. United States v. Brown, 529
F.3d 1260, 1266 (10th Cir. 2008).
                                                                  15


a conviction of the underlying offense.   Brown, supra at 1263.

Accordingly, Brown does not detract from our determination that

the elements of a Federal offense underlying an art. 134

conviction may be considered in the "like violation" analysis.

    4.   Conclusion.   Because the specifications are integral to

an art. 134 charge and the elements of the underlying offenses

are assimilated into the art. 134 charge, we conclude that the

judge erred in ruling that the plaintiff is not a sex offender

subject to G. L. c. 6, § 178C.   Consequently, we vacate the

judgment and remand the case to the Superior Court for

reinstatement of the plaintiff's level two classification.

                                    So ordered.
