Doe, Sex Offender Registry Board No. 34186 v. Sex Offender Registry Board (Lawyers Weekly No. 10-015-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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 depictions had been shipped or transported in interstate commerce, in violation of [18 U.S.C. § 2252(a)(2)]“; and (3) “Did . . . […]