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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. 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
                                                                      2


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


    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 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
                                                                      4


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
                                                                      5


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 board here filed a

motion for relief from judgment, 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 review 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 taken 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 provisions; (b) in excess of [the

board's] authority; (c) based upon an error of law; (d) made

upon unlawful procedure; (e) unsupported by substantial
                                                                        6


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 capricious, 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, § 14(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 registration 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 Registry

Bd., 456 Mass. 612, 615 (2010) (Doe No. 151564), quoting from

G. L. c. 6, § 178C.       A "like violation" may include a conviction

in another State, as well as "a like violation of the laws . . .

the United States or a military, territorial or Indian tribal
                                                                      7


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 registration statute.      In Doe No. 151564,

supra at 615-616, the Supreme Judicial Court adopted an

elements-based definition of the 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 elements 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" determination.      Id.

at 618.   Among other reasons given, the court noted that because

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 about whether

registration is required."    Id. at 618, citing Commonwealth v.

Maxim, 429 Mass. 287, 292 (1999) (due process requires that

criminal statutes 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 Federal offense.3   See United States v. Saunders, 59

M.J. 1, 6 (C.A.A.F. 2003); Manual for 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, 67 M.J. 141, 142 (C.A.A.F. 2009).   See also Doe No.

34186, supra at 559 (noting "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 disorders 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 forces, and [3] crimes and
offenses not capital, of which persons subject to this chapter
may be guilty." Manual for 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

components of a military charge, the 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.   By extending the same principles relied on in

that case, we reach the same conclusion that, under the

circumstances here, the art. 134 conviction constitutes a "like
                                                                   10


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 incorporated 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 Federal statutes the

plaintiff is alleged to have violated.   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 Administrative 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 plea, and well

before, both the violation of art. 134 and the elements of the

underlying Federal offense of possession of child pornography,

18 U.S.C. § 2252, were apparent on the record and known to the

plaintiff.

     The Federal statute, 18 U.S.C. § 2252, and 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 uncommon 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, the

plaintiff's military conviction is a "like violation" pursuant

to G. L. c. 6, § 178C, which requires registration.    See Doe No.

34186, supra at 561.

     Moreover, where the ultimate concern in this analysis lies

in sufficient "notice and clarity about whether registration is

required" due to the potential of criminal penalties, Doe No.

151564, 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 register 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 require 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 judgment is vacated.

                                    So ordered.




     6
       We have considered the arguments raised by the plaintiff
but note that he has not cross-appealed. 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.
