John Doe v. Sex Offender Registry Bd.

• Decision Date: 18 June 2014
• Docket Number: No. 13–P–548.,13–P–548.
• Citation: 11 N.E.3d 153,85 Mass.App.Ct. 482
• Parties: John DOE, Sex Offender Registry Board No. 346132 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

85 Mass.App.Ct. 482

11 N.E.3d 153

John DOE, Sex Offender Registry Board No. 346132

v.SEX OFFENDER REGISTRY BOARD.

No. 13–P–548.

Appeals Court of Massachusetts,

Suffolk.

Argued March 5, 2014.

Decided June 18, 2014.

Eric Tennen, Boston, for the plaintiff.

David L. Chenail for the defendant.

Present: KAFKER, FECTEAU, & AGNES, JJ.

KAFKER, J.

Based on a 1987 Federal kidnapping conviction, the Sex Offender Registry Board (SORB or board) notified John Doe of his duty to register and his preliminary classification as a level three sex offender. Doe unsuccessfully contested both the registration requirement and the level of classification at an evidentiary hearing and in Superior Court.

On appeal, Doe argues that SORB lacks jurisdiction over him, obviating his need to register and rendering his classification void. As his conviction was not in a Massachusetts court, this argument depends on the proper interpretation and application of G.L. c. 6, § 178C, as amended by St. 1999, c. 74, § 2, which requires registration for individuals convicted in another jurisdiction of a “like violation” similar to a Massachusetts sex crime requiring registration. In Doe's view, his Federal kidnapping conviction does not have an analogous “like violation” in Massachusetts that would compel registration. Conversely, SORB contends that in Doe's particular case, “rape and assault” were proved to satisfy an element of his Federal kidnapping charge, and that this is sufficient to satisfy the elements of the Massachusetts offense of aggravated rape, which requires registration. It is SORB's position that Doe was essentially convicted of a “like violation” and thus subject to SORB's jurisdiction. Based on our understanding of the test set out in John Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615–619, 925 N.E.2d 533 (2010) ( Doe No. 151564 ), which requires that the elements of the two offenses be the same or nearly the same, and precludes registration based on the particular facts underlying a conviction, we must reject SORB's conduct-based argument.¹

Factual and procedural history. On February 2, 1987, a Federal jury found Doe guilty of kidnapping pursuant to 18 U.S.C. § 1201. Although the Federal trial record before us is largely incomplete, the charge was apparently based on his abducting a nine year old girl, taking her from Rhode Island to Massachusetts, and physically and sexually assaulting her.

Doe was sentenced to the mandatory minimum of seventy-five years, twenty-five of which were to be served without parole. His parole eligibility was later expanded on appeal, and in August, 2006, after serving approximately twenty years in jail, he was paroled.

In November, 2011, five years after Doe was released from prison, SORB notified him that he was subject to registration as a level three sex offender. Doe unsuccessfully disputed this in an evidentiary hearing on February 17, 2012, and then appealed the hearing decision to the Superior Court. On December 19, 2012, the judge granted SORB's motion for judgment on the pleadings and affirmed its registration requirement and classification. Doe subsequently filed this timely appeal.

Standard of review. Under G.L. c. 6, § 178M, a registrant may seek judicial review of SORB's final registration requirement and classification decision in accordance with the Administrative Procedure Act. Thus, although we show deference “to the expertise, technical competence, and specialized knowledge” of the board, see Pelonzi v. Retirement Bd. of Beverly, 451 Mass. 475, 478 n. 8, 886 N.E.2d 707 (2008), we reverse if its decision was “( a ) [i]n violation of constitutional provisions; or ( b ) [i]n excess of the statutory authority or jurisdiction of the [board]; or ( c ) [b]ased upon an error of law; or ( d ) [m]ade upon unlawful procedure; or ( e ) [u]nsupported by substantial evidence; or ( f ) [u]nwarranted by facts found by the court ... where the court is constitutionally required to make independent findings of fact; or ( g ) [a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.” G.L. c. 30A, § 14(7), as amended by St. 1973, c. 1114, § 3.

The statute and subsequent interpretation. In 1999, the Legislature enacted an emergency law formally entitled “An Act Improving the Sex Offender Registry and Establishing Civil Commitment and Community Parole Supervision for Life for Sex Offenders” (Act). St. 1999, c. 74, codified at G.L. c. 6, §§ 178C–178P. The Act instituted broad measures designed to inform and protect the public from convicted sex offenders, including reforms to the Commonwealth's central, computerized sex offender registry. The Act requires registration for all who are found guilty of any of a list of enumerated sexual offenses, as well as any person convicted of “a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority.” G.L. c. 6, § 178C, as amended by St. 1999, c. 74, § 2.

The “like violation” provision was parsed by this court in Commonwealth v. Becker, 71 Mass.App.Ct. 81, 85–87, 879 N.E.2d 691, cert. denied, 555 U.S. 933, 129 S.Ct. 320, 172 L.Ed.2d 231 (2008). In Becker, the defendant had been convicted in New York of sexual abuse in the third degree, but argued that it was not a “like violation” of the registrable Massachusetts offense of indecent assault and battery on a person over fourteen. The court upheld his registration requirement, noting that the “essence[s]” of the two crimes were equivalent, and interpreting “like violation” in light of its plain meaning to be a violation that is “the same or nearly the same.” Id. at 87, 879 N.E.2d 691 (citation omitted).

Two years later, the Supreme Judicial Court further explicated the “like violation” test in Doe No. 151564, 456 Mass. at 615–618, 925 N.E.2d 533. “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.” Id. at 615, 925 N.E.2d 533. After examining the elements of the Maine crime of unlawful sexual contact and the purported “like” Massachusetts crime of indecent assault and battery on a child under the age of fourteen, the court concluded they were “essentially the same,” requiring registration. Id. at 617, 925 N.E.2d 533.

In Doe No. 151564, the court also drew a distinction between the elements of the offense and the conduct underlying the conviction. “Because the registration requirement is defined in terms of offenses,” SORB is to consider the elements of the offenses, “not conduct.” Id. at 619, 925 N.E.2d 533. “Permitting an inquiry into the facts supporting a conviction in another jurisdiction could expand the registration requirement to include crimes beyond those that explicitly encompass sexual conduct.” Ibid. The court recognized a potential notice problem, particularly for those pleading guilty, stating, “the defendant in the other State would not have notice that, by pleading guilty to a crime that does not require proof of sexual conduct, he or she would be required to register as a sex offender upon establishing residency in Massachusetts.” Ibid. Subsequent cases have adhered to the Doe No. 151564 elements analysis. See, e.g., Commonwealth v. Bell, 83 Mass.App.Ct. 82, 87, 981 N.E.2d 220 (2013) (“[A]n analysis of the ‘essence’ of the two crimes leads to the conclusion that they are the same or nearly so”).

Relevant criminal statutes. SORB contends that Doe's conviction in Federal court for kidnapping constitutes a “like violation,” comparable to the crime of aggravated rape in Massachusetts. Applying the test of Doe No. 151564, we must compare the elements of the two offenses to determine if they are the same or nearly the same.

Doe was convicted under 18 U.S.C. § 1201, which punishes one who “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise” a victim “willfully transported in interstate or foreign commerce.” The statute has been interpreted to consist of four elements: (1) the transportation in interstate commerce; (2) of an unconsenting victim; (3) for ransom, reward, or otherwise; (4) by a knowing or willing perpetrator. See United States v. Osborne, 68 F.3d 94, 100 (5th Cir.1995); United States v. Lowe, 145 F.3d 45, 52 (1st Cir.1998). The phrase, “for ransom or reward or otherwise,” has been interpreted broadly to include legal and illegal purposes, including the purposes of sexual gratification. See Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (1936); United States v. Parker, 103 F.2d 857, 860–861 (3d Cir.1939) (purpose was to induce confession to kidnapping Charles A. Lindbergh, Jr.); United States v. Atchison, 524 F.2d 367, 368 (7th Cir.1975) (purpose was to remove child from perceived harmful environment); United States v. Crosby, 713 F.2d 1066, 1071 (5th Cir.1983) (purpose was to induce better treatment by Veterans Administration); United States v. Childress, 26 F.3d 498, 503 (4th Cir.1994) (“[I]t is sufficient for the government to show that the defendant acted for any reason which would in any way be of benefit”); United States v. Lowe, 145 F.3d at 52 (“ ‘otherwise’ can include sexual gratification”); United States v. Griffin, 547 Fed.Appx. 917, 920–921 (11th Cir.2013), citing United States v. Healy, 376 U.S. 75, 81–82, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964) (interpreting “or otherwise” to mean securing some benefit for defendant that “does not have to be pecuniary, nor ... illegal”).

Aggravated rape is a crime with three elements: (1) sexual intercourse; (2) with another who is compelled to submit by force or by threat of bodily injury; and (3) such intercourse results in serious bodily injury, is the result of a joint enterprise, or is committed during the commission of another specified crime.²G.L. c. 265, § 22( a ). See ...