The opinion of the court was delivered by: Dalzell, J.
This Memorandum will detail the reasons for our findings yesterday at defendant's sentencing that led to our sustaining the Government's objection to the Presentence Investigation Report (the "PSI") insofar as the PSI did not make a two-level upward adjustment for defendant's obstruction of justice pursuant to U.S.S.G. §3C1.1. This will also explain in more detail our findings that this defendant's case was not "extraordinary" within the meaning of U.S.S.G. §3E1.1., Application Note 4, and therefore the defendant's offense level should not be reduced pursuant to §3E1.1(a) by two offense levels and under §3E1.19(b) for one additional level, both changes being premised upon this defendant's lack of acceptance of responsibility. Lastly, we will highlight the factors under 18 U.S.C. § 3553(a) in accordance with our duty under United States v. Booker, 543 U.S. 220 (2005), and its progeny.
It is undisputed that defendant Earle McNeill, who has a Doctorate in Psychology from Boston University and a Masters Degree in Clinical Social Work from the University of Pennsylvania, was the founder of a firm known as MultiEthnic Behavioral Health, Inc. ("MEBH"). MEBH was formed in 2000 to provide the City of Philadelphia Department of Human Services ("DHS") with social services to "at-risk" children in families under DHS's supervision. Specifically, MEBH contracted with DHS to provide what were known as "SCOH" ("Services to Children in their Own Homes") services to assure the safety and well-being of such "at-risk" children. The SCOH program was designed to assure that social services were indeed provided to such children who were deemed to be not so at risk that they should be removed from their family homes and placed in foster care.
MEBH provided these services to DHS from July of 2000 to October 31, 2006. Over the course of that time, MEBH received about $3.7 million for SCOH services supposedly afforded to over five hundred Philadelphia families. Ninety-five percent of the funds for these services came from the United States Department of Health and Human Services ("HHS"), which operates a program to provide Temporary Assistance for Needy Families ("TANF"), which in turn makes block grants to the states. The Commonwealth of Pennsylvania received these TANF funds and then allocated them to municipalities around the Commonwealth. As it turned out, ninety-five percent of the funds paid to MEBH came from HHS under the TANF Program, four percent came from the Commonwealth, and one percent came from the City of Philadelphia.
After one of MEBH's charges -- a fourteen-year-old girl named D.K. -- was found dead and in horrific condition on August 4, 2006, a chain of events unfolded which from the date of the child's death involved a massive attempt by MEBH's officers and staff to cover up MEBH's failure to visit not only this victim's home, but those of many other of the families entrusted to MEBH. Notwithstanding this frantic effort -- which among other things involved the wholesale creation of backdated documents for family visits that never occurred -- and notwithstanding McNeill's energetic attempts to keep the DHS business, DHS ultimately terminated MEBH's contract effective October 31, 2006.
After articles appeared in the Philadelphia Inquirer about the wholesale failures that resulted in D.K.'s grisly death (she died of starvation and utter parental neglect, and though fourteen years old, weighed only forty-four pounds when her body was found), HHS Agent William McDonald persuaded his agency that the matter was an appropriate subject for a formal HHS criminal investigation.*fn1 Although many of the former MEBH officers and workers tried to thwart the HHS investigation, ultimately on April 30, 2009 a Grand Jury returned a twenty-one count Indictment against nine defendants -- McNeill among them --charging wire fraud in violation of 18 U.S.C. §§ 1343 and 2 (Counts One through Twelve), health care fraud in violation of 18 U.S.C. §§ 1347 and 2 (Counts Thirteen through Eighteen), conspiracy to obstruct a matter within the jurisdiction of a federal agency in violation of 18 U.S.C. § 1519 (Count Nineteen), false statements to a federal agent in violation of 18 U.S.C. § 1001 (Count Twenty), and false declaration to a Grand Jury in violation of 18 U.S.C. § 1623 (Count Twenty-One).
Five of the defendants, including Earle McNeill, ultimately pled guilty to some of these charges. The remaining four defendants went to trial on February 1, 2010 and on March 3, 2010 were convicted of most of the charges against them. Four of the defendants who pled guilty cooperated with the Government and, at their sentencings this month, received motions under U.S.S.G. § 5K1.1 based on their substantial assistance, which we granted. Defendant McNeill, however, did not cooperate, but did plead guilty to one count of wire fraud in violation of 18 U.S.C. §§ 1343 and 2.
As noted, we sentenced McNeill yesterday. We imposed a custodial term of ninety months, to be followed by three years of supervised release. We also obliged McNeill to pay $1,216,000 in restitution.*fn2 This sentence was within the advisory Guideline range of 87-108 months as a result of our determining a total offense level of 29 and a criminal history of I.
At the April 22 sentencing, there was a vigorous debate between the Government and the defense regarding whether McNeill obstructed justice within the meaning of U.S.S.G. §3C1.1 by misleading Probation Officer Karen Myslinski into believing that he earned "$20,000 per year" (PSI ¶ 132) while Executive Director of MEBH, when he in fact knew that his income from MEBH was far in excess of that amount for each of the six years in which he received compensation from MEBH.
From the inception of McNeill's contact with federal investigators and throughout the prosecution of this matter, and notwithstanding his role as the founder of MEBH, McNeill has steadfastly taken the position that he was "more a figure-head than anything else" at the firm. Ct. Ex. 1 at 2 (Report of Interview by Agent Wm. McDonald and FBI Special Agent Greg Branch on Mar. 15, 2007 at McNeill's home in Philadelphia ("McDonald Report")).*fn3 As recently as April 20 of this year, McNeill's counsel contended in his sentencing memorandum that McNeill "was somewhat of a fringe figure or peripheral individual in this criminal scenario." Def.'s Mem. at 7.
The record, however, belies McNeill's three-year pose to the Government and this Court about his supposed modest role in MEBH's operations and crimes. Indeed, a measure of how crucial McNeill was to MEBH will be found in Agent McDonald's Report which details McNeill's two post-D.K.-death attempts to convince then-DHS Commissioner Cheryl Ransom-Garner that she should not only continue MEBH's contract, but actually extend it. Agent McDonald's account of McNeill's conduct as late as October of 2006 bears quoting at length:
SECOND MEETING WITH DHS COMMISSIONER RANSOM-GARNER
* McNeill met with Kamuvaka after the first DHS meeting and found that Kamuvaka was friends with a (FNU) Volpe*fn4 who worked for the ...