United States District Court, S.D. Florida
REPORT AND RECOMMENDATION
SHANJEK M. MAYNARD UNITED STATES MAGISTRATE JUDGE.
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.
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.
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. DE 9; DE 20. Defendant was sentenced to
six months' imprisonment followed by lifetime supervised
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.
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
was in Auerbach's sex offender treatment program for
approximately three years. 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,
Explosion Trail,  and Offense Clock), as well as [behind] in the
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.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;
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
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. 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.
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.
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 ...