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United States v. McHugh

United States District Court, S.D. Florida

August 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN MCHUGH, Defendant.

          REPORT AND RECOMMENDATION

          SHANJEK M. MAYNARD UNITED STATES MAGISTRATE JUDGE.

         This cause comes before the undersigned for a final hearing on the Petition for Warrant for Offender Under Supervision (“Petition”). DE 24. This Court has considered all the evidence submitted, including the sworn testimony and exhibits, and arguments of counsel. Having done so, it is the recommendation of this Court that Petitioner be found to have violated his supervised release by failing to participate in sex offender treatment for the reasons set forth below.

         I. Procedural Background

         Defendant was originally convicted in the Eastern District of New York for possession of child pornography in violation of Title 18, United States Code, Sections 2252(a)(4)(B) and 2252(b)(2). DE 5 at 6. On March 28, 2014, he was sentenced to imprisonment for a term of thirty (30) months, followed by supervised release for ten (10) years. DE 5 at 8-9.

         In October 2016, Defendant was released from prison and his case was transferred to the Southern District of Florida. DE 5 at 6. On January 3, 2017, the Honorable Jose E. Martinez modified Defendant's terms of supervised release to include performance of community service when he was not substantially employed. DE 2. Four months later, on May 18, 2017, Judge Martinez revoked Defendant's supervised release because he accessed adult pornography and was untruthful with the probation officer, among other things.[1] DE 9; DE 20. Defendant was sentenced to six months' imprisonment followed by lifetime supervised release. Id.

         Defendant was released from prison again in or around September 2017. DE 38 at 22-24. On May 7, 2018, Judge Martinez modified the terms of supervision to include participation in the Location Monitoring Program for six months. DE 22. Two months later, on July 2, 2018, Judge Martinez modified the supervision terms to prohibit Defendant from entering or frequenting places primarily used by children. DE 23. On April 18, 2019, the pending Petition was filed alleging that Defendant failed to participate in sex offender treatment. DE 24. Defendant has denied the allegation. DE 39. This Court conducted a final hearing on May 9, 2019, May 10, 2019 and June 6, 2019. DE 37; DE 38; DE 43.

         II. Factual Background

         Two witnesses testified at the final hearing: Larry Auerbach (“Auerbach”) and United States Probation Officer Robert Tango. DE 37; DE 38; DE 43. Officer Tango is Defendant's supervising probation officer. Larry Auerbach currently provides individual and group sex offender treatment to all but one of the approximately twenty-eight (28) sex offenders on federal probation in the Fort Pierce Division of the Southern District of Florida. DE 37 at 6-8; DE 43 at 48. Auerbach obtained his master's degree in clinical social work in 1992. DE 37 at 6. Before private practice, he supervised the sex offender caseload for the Department of Corrections. Id. The following recitation of facts is taken from the testimony of these two witnesses.

         Defendant was in Auerbach's sex offender treatment program for approximately three years.[2] DE 37 at 5. During that time, and specifically since his return after incarceration in 2017, Defendant's participation in treatment has been problematic, characterized by excessive delays in completing written assignments, refusal to follow his therapeutic plan to avoid triggering behaviors, inconsistency, procrastination, and lack of motivation and insight. DE 37 at 7-23; DE 41-1 at 1-19. Auerbach reported these problems to Officer Tango in monthly treatment reports and regular phone calls. DE 37 at 40; DE 41-1 at 1-19; DE 43 at 40-41. According to the treatment report from October 2017, Defendant seemed “motivated to change” when he first returned from prison and was attending two group sessions per week even though he was only required to attend one. DE 41-1 at 19. By December 2017, however, Defendant's motivation had waned and he “seldom followed through on what he said he would do.” DE 41-1 at 17. The January 2018 treatment report specifically identified how McHugh had fallen behind in his assignments. DE 41-1 at 16. It observed that “John needs to get his revised Treatment Goals turned in as soon as possible, and is behind on three major written exercises (the Timeline, [3] Explosion Trail, [4] and Offense Clock[5]), as well as [behind] in the workbook.” Id.

         During the next year, McHugh failed to complete any of the three major written exercises, despite continued promises to do so. DE 37 at 16, 36-38; DE 41-1 at 1-19. He completed only five chapters in the therapy workbook in three years even though the requirement was a minimum of one chapter per quarter. DE 37 at 16. Officer Tango and Auerbach also learned through pre-and post- polygraph interviews that Defendant was seeking out images of young children wearing swimsuits in magazines to visualize these children while he masturbated. DE 43 at 54-56. Defendant also was watching televisions shows such as Dance Moms and Toddlers and Tiaras that featured scantily clad children for the same purpose. Id. Defendant also was intentionally lingering in areas where he saw minor children in order to observe them from a far. Id. at 55-56.[6]Officer Tango reported these issues to Judge Martinez, who modified Defendant's supervised release to include six months' location monitoring and a prohibition on entering areas frequented by children. DE 22; DE 23.

         By January 2019, Defendant still had not completed any of the written exercises and was not caught up in his workbook assignments. DE 43 at 39-40; DE 41-1 at 1-17; DE 37 at 37-38. On January 9, 2019, Auerbach and Officer Tango met with Defendant to discuss his lack of progress. They gave him ninety days to improve or he would be discharged. DE 43 at 39.

         The record contains several sources of information about Defendant's participation in treatment during that ninety-day period. According to the monthly treatment reports, McHugh showed little to no progress in completing his assignments during the ninety-day period.[7] The March 2019 Report, for example, advised that “John was given a 90 day extension on a possible violation if he completed certain work [to] show a level of progress on or complete the Offense Clock, Explosion Trail and Time Line exercises, bring the workbook up to date; continue journaling and do so on a more focused and insightful manner, but John has failed to do so. He has consistently presented good ideas and makes plans he seldom and inconsistently executes, due to his lifelong habit of procrastination and avoidance.” DE 41-1 at 2.

         Auerbach and Officer Tango discussed Defendant's lack of progress in monthly phone calls, which were summarized in Officer Tango's chronological case file. DE 43 at 40-46. During a phone call on February 21, 2019, Auerbach advised Officer Tango that Defendant was “not following through in his commitments, he was not calling daily, not journaling, not completing his assignments.” Id. at 40. In a call on March 22, 2019, Auerbach said McHugh had not completed any assignments and had not turned in any work. Id. at 46. On April 9, 2019-the ninety-day deadline-Auerbach told Officer Tango that Defendant was not living up to his agreement and “barring anything unexpected” would be unsuccessfully discharged. Id. at 41.

         On cross examination, however, Auerbach was uncertain about which assignments Defendant completed during that ninety-day period. DE 43 at 25-28. Auerbach acknowledged that Defendant made some progress on the assignments by the ninety-day deadline, but not as much as Auerbach would have liked. Id. at 17. Defendant completed only one workbook chapter during the ninety-day period and needed to do much more than that in order to catch up. Id. at 25. Defendant “might have” completed two ...


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