United States v. Ottens

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1899

UNITED STATES OF AMERICA,

Appellee,

v.

ALAN C. OTTENS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Selya, Boudin and Lynch,

Circuit Judges.

Peter B. Krupp, Federal Defender Office, for appellant.

Anita S. Lichtblau, Trial Attorney, United States Dep't of

Justice, with whom Donald K. Stern, United States Attorney, Ellen

R. Meltzer, Special Counsel, and Paul M. Glickman, Trial

Attorney, were on brief, for the United States.

January 30, 1996

SELYA, Circuit Judge. Defendant-appellant Alan C.
SELYA, Circuit Judge.

Ottens pleaded guilty to a golconda of charges involving bank

fraud, 18 U.S.C. 1344, bank bribery, 18 U.S.C. 215, and

conspiracy to commit such felonies, 18 U.S.C. 371. Seventeen

months after accepting appellant's guilty plea, the district

court denied his request for a ninth continuance and imposed

sentence. Ottens appeals. We affirm.

I.
I.

The Background
The Background

Because the facts underlying the offenses of conviction

are of only peripheral interest in connection with this appeal,

we sketch the background.

Ottens rode the crest of a wave of real estate

development that surged through New England in the 1980s. Unable

to match his resources to his ambitions, he caught the nearest

way. During the period from 1986 to 1988, he delivered in excess

of $250,000 in bribes (including cash, jewelry, and a new house)

to Jeffrey Diminico, a loan officer of the Lawrence Savings Bank

(the Bank). In return, the Bank disbursed extravagant loans to

Ottens and entities that he controlled. This skulduggery did not

mark the full extent of Ottens' repertoire; he also bribed other

bankers and, on the side, brokered questionable loans for third

parties through Diminico (exacting substantial kickbacks from

benefitted borrowers).

We need describe only two of the renegade transactions.

The first venture had three phases (each facilitated by bribery).

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Initially, Ottens euchred a $400,000 loan from the Bank to

purchase a parcel of real estate in Marlboro, Massachusetts.

Next, he borrowed $1,175,000 from the Bank to refinance the

original loan, acquire adjacent property, and construct a

building on the site. Finally, when the loan went into default,

he recruited a purchaser for the project and arranged for the

Bank to furnish financing (even though he knew the purchaser

could not service the debt). The Bank ultimately foreclosed,

sustaining a loss of approximately $2,750,000.1

The second transaction involved real estate in North

Andover, Massachusetts. Diminico assisted Ottens in procuring a

commitment from the Bank to supply $1,400,000 for acquisition of

the tract. After closing on the land for considerably less than

the face amount of the loan, Ottens wangled an additional

$6,000,000 in construction financing for the ostensible purpose

of building a new headquarters for the Bank.2 When Ottens

defaulted, the Bank absorbed a loss of roughly $4,500,000.

II.
II.

The Proceedings Below
The Proceedings Below

1In contrast, Ottens profited at every stage. He siphoned
off $100,000 from the initial loan proceeds and used it for
purposes unrelated to site acquisition. He later diverted over
$500,000 of the construction loan proceeds. When he eventually
arranged the hapless extension of credit for the new borrower, he
managed to extract some $400,000 for himself.

2In a characteristic maneuver, Ottens diverted some
$2,000,000 of the loan proceeds. He used the plundered funds for
a wide variety of unauthorized expenditures (including the
installation of a swimming pool at the residence of the Bank's
president).

3

In early 1994, Ottens waived indictment and, pursuant

to a written agreement with the United States, pleaded guilty to

a nine-count information. The court originally set the

disposition hearing for March 29, 1994. Ottens cooperated with

the government and remained free on his own recognizance. At his

request, the court postponed sentencing four times during the

next fourteen months.

In the spring of 1995, Ottens' lawyer moved to

withdraw. The court acquiesced and deferred sentencing until May

26, 1995. On May 15, the court notified the Federal Defender

Office that it had been designated to represent Ottens. A member

of that office entered an appearance. On May 25 the newly

appointed attorney moved for a sixth continuance, advising the

court that he needed the extra time both to prepare for

sentencing and to sort out a possible conflict of interest. The

court granted a reprieve until June 13. On June 7, having

satisfied himself vis-a-vis the suspected conflict, counsel

sought a further thirty-day postponement in order to do more

spade work. The district court, expressing grave concern over

the repeated delays, continued the disposition hearing until June

20. On that date, counsel protested that he had been unable to

master the case's complexities and beseeched the court to put off

the hearing yet again. Although noting rather pointedly that

counsel had already represented the defendant for thirty-five

days, the court yielded to the importuning and rescheduled the

hearing for June 30.

4

On June 28, defense counsel submitted a fifteen-page

sentencing memorandum (supported by a 400-page appendix) arguing

that multiple causes beyond Ottens' chicanery triggered the

Bank's losses, and that, in all events, the alleged losses were

overstated. The attorney then asked for another thirty days to

assemble additional materials in support of these contentions.

The next day, notwithstanding his claim of insufficient

preparation time, the attorney submitted a supplementary

memorandum addressing multiple loss causation. On June 30, the

court denied the motion for a ninth continuance. Judge Gorton

observed that sentencing had already been delayed for nearly

seventeen months, that successor counsel had been on the case for

almost six full weeks, and that the filed memoranda clearly

illuminated the defense's points.

Little daunted, Ottens' lawyer renewed his motion for a

continuance, this time alleging that the government had not

seasonably disclosed how it calculated the loss that it

attributed to the offense conduct. The district court summarily

denied this motion, proceeded with the disposition hearing,

established a guideline sentencing range (GSR) of 37-46 months,3

3Applying the November 1987 version of the guidelines, the
court started with a base offense level of six, see U.S.S.G.

2F1.1(a), added eleven levels because the loss exceeded
$5,000,000, see U.S.S.G. 2F1.1(b)(1)(L), added four levels due

to Ottens' role in the offense, see U.S.S.G. 3B1.1(a), added two

levels because the offense conduct required more than minimal
planning, see U.S.S.G. 2F1.1(b)(2), and subtracted two levels

for acceptance of responsibility, see U.S.S.G. 3E1.1(a). The

adjusted offense level 21 combined with the lack of any prior
criminal record to produce the GSR. See U.S.S.G. Ch. 5, Pt. A

(Sentencing Table).

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rejected Ottens' entreaty for a downward departure, and imposed

inter alia a mid-range prison sentence (forty-two months). This

appeal ensued.

III.
III.

The Further Continuance
The Further Continuance

Ottens contends that the district court's refusal to

grant a ninth continuance following his guilty plea left his

lawyer with insufficient time to prepare for sentencing. Our

review of the record confirms that the court acted well within

its discretion in rejecting this supplication.

We need not tarry. Time is a lawyer's stock in trade,

and a thorough lawyer almost always can find ways in which to put

additional time to productive use. The test, however, is not

counsel's subjective satisfaction with his level of preparedness.

It is the province of the district court to manage its docket,

see United States v. Devin, 918 F.2d 280, 291 (1st Cir. 1990),

and, within that province, to decide what constitutes a

reasonable period of time for preparation. See United States v.

Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995). We will meddle in

the trial court's determination only if an abuse of discretion

looms, that is, if the allegedly aggrieved party can show that

the court "indulged a serious error of law or suffered a

meaningful lapse of judgment, resulting in substantial prejudice

to the movant." Id.

6

When confronted by a motion for a continuance, the

trial court may have a variety of concerns. Some may relate to

the nature and stage of the proceeding; a mid-trial continuance,

for example, evokes different concerns than rearranging a

pretrial hearing. See Devin, 918 F.2d at 291. Obviously, the

reasons that the movant contemporaneously adduces in support of

the request are important. See United States v. Lussier, 929

F.2d 25, 28 (1st Cir. 1991). Then, too, the court is likely to

take into account prior continuances and such other factors as

"the amount of time needed for effective preparation, the amount

of time actually available for preparation, the amount of time

previously available for preparation and how assiduously the

movant used that time, the extent to which the movant has

contributed to his perceived predicament, the complexity of the

case, the availability of assistance from other sources, [and]

the probable utility of a continuance. . . ." Saccoccia, 58 F.3d

at 770. This list is neither exclusive nor universally

applicable. For instance, the court typically will want to weigh

a panoply of somewhat more ineffable concerns, including "the

extent of inconvenience to others (such as the court, the

witnesses, and the opposing party) should a continuance ensue,

and the likelihood of injustice or unfair prejudice attributable

to the denial of a continuance." Id.

After the trial court has ruled, appellate review is

deferential. Each case is sui generis, and the compendium of

relevant factors varies from situation to situation. Hence, the

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court of appeals, like the trial court, employs a case-specific

approach. See United States v. Torres, 793 F.2d 436, 440 (1st

Cir.), cert. denied, 479 U.S. 889 (1986). The appellate court,

however, looks primarily to the persuasiveness of the trial

court's reasons for refusing the continuance and gives due regard

not only to the factors which inform that court's ruling but also

to its superior point of vantage.

Here, the balance tilts heavily against the movant.

For one thing, sentencing hearings are ancillary to the main

event the determination of guilt or innocence and they are

characterized by a certain informality in the presentation of

proof. See, e.g., United States v. Tardiff, 969 F.2d 1283, 1287

(1st Cir. 1992). Thus, while such hearings are important, less

preparation time is required, on average, for a disposition

hearing than for a trial. For another thing, once a defendant's

guilt has been determined, the public has a heightened interest

in the prompt dispensation of punishment. Accordingly,

sentencing should occur with reasonable dispatch.

Third, the reasons given here in support of a further

postponement do not hold water. Ottens' theory is that yet

another continuance would have provided sufficient time to

document other causes of the Bank's loss (e.g., the Bank's

complicity, lack of interest in mitigation, and unsound operating

procedures; the impact of a plummeting real estate market) and

thereby have enabled him to demonstrate the appropriateness of a

downward departure. See e.g., United States v. Rostoff, 53 F.3d

8

398, 406-07 (1st Cir. 1995) (holding that the guidelines

authorize discretionary departures to reflect multiple loss

causation); United States v. Gregorio, 956 F.2d 341, 346-47 (1st

Cir. 1992) (similar); see generally U.S.S.G. 2F1.1, comment.

(n.11) (Nov. 1987). Ottens argues that the court's refusal to

grant him the extra time reflected an arbitrary concern with

expeditiousness at the expense of fairness, and thus invites

reversal. See, e.g., Morris v. Slappy, 461 U.S. 1, 12 (1983);

United States v. Soldevila-Lopez, 17 F.3d 480, 487-90 (1st Cir.

1994).

But this reproof is mostly sound and fury, signifying

little. The district court delayed the disposition hearing for

more than seventeen months after accepting Ottens' guilty plea.

The court granted eight successive sentencing continuances in

response to Ottens' requests. On the last two occasions, Judge

Gorton warned that the end was near. A court is not obligated to

postpone sentencing indefinitely simply because a defendant,

hoping against hope, desires more time to search for potentially

helpful tidbits.

In this instance, the record confirms that the lower

court was generous, rather than grudging, in the time allotted to

the defense for preparation. Ottens' first lawyer had fifteen

months within which to excavate the government's files and lay a

foundation for a sentencing strategy. His second lawyer then had

an additional forty-six days to prepare for the disposition

hearing. The comprehensive sentencing memoranda filed on Ottens'

9

behalf show beyond peradventure of doubt counsel's thorough

preparation and his command of the facts. Consequently, the

district court did not abuse its discretion in declining to grant

a ninth continuance.4

IV.
IV.

The Refusal to Depart
The Refusal to Depart

Ottens assigns error to the imposition of a sentence

within the GSR. He maintains that the district court should have

departed downward on the basis of multiple loss causation. See,

e.g., Rostoff, 53 F.3d at 406-07. We lack jurisdiction to

entertain the assigned error.

At sentencing, Judge Gorton gave two reasons for his

refusal to impose a more lenient sentence. First, the judge

found that the "facts of this case do not warrant a downward

departure." Second, he ruled that the language of the plea

agreement prohibited Ottens from seeking a downward departure.

Since the first ground is dispositive of this facet of the

appeal, we have no occasion to evaluate the second ground, and we

take no view of its correctness.

For reasons that we have already explained at length

4Ottens' claim that the government failed to disclose the
basis of its loss computation is bootless. From the time that
successor counsel first appeared, he had access to the
presentence investigation report. In turn, that report
satisfactorily explicated the anatomy of the claimed loss (which
comprised most prominently $2,750,000 attributable to the
Marlboro venture and $4,000,000 attributable to the North Andover
fiasco).

10

(and which do not bear repeating here), it is the general rule

that a defendant cannot appeal from the district court's

discretionary decision not to depart below the guideline

sentencing range. See United States v. Pierro, 32 F.3d 611, 619

(1st Cir. 1994), cert. denied, 115 S. Ct. 919 (1995); Tardiff,

969 F.2d at 1290; United States v. Amparo, 961 F.2d 288, 292 (1st

Cir.), cert. denied, 113 S. Ct. 224 (1992).5 This appeal falls

squarely within the sweep of the rule. The judge acknowledged

that multiple loss causation could constitute a legally

cognizable basis for a downward departure in some cases, but

decided that no departure for multiple loss causation was

justified on the facts of this case. This is precisely the sort

of discretionary, fact-specific, departure-declining

determination that appellate courts lack the power to review.

See United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995);

United States v. Romero, 32 F.3d 641, 653 (1st Cir. 1994); United

States v. LeBlanc, 24 F.3d 340, 348 (1st Cir.), cert. denied, 115

S. Ct. 250 (1994); Tardiff, 969 F.2d at 1290.

5A different situation obtains "when the sentencing court's
declination to depart results from a mistake of law." Pierro, 32

F.3d at 619. Thus, "appellate jurisdiction may attach if it
appears that the failure to depart stemmed from the sentencing
court's mistaken impression that it lacked the legal authority to
deviate from the guideline range or, relatedly, from the court's
misapprehension of the rules governing departures." United

States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994). But that

exception takes hold only "[i]f the judge sets differential
factfinding and evaluative judgments to one side, and says, in
effect, `this circumstance of which you speak, even if it exists,
does not constitute a legally sufficient basis for departure.'"
Pierro, 32 F.3d at 619. Nothing remotely resembling a mistake of

law transpired in this instance.

11

We need go no further. Here, the lower court clearly

understood that multiple loss causation comprised a permissible

ground for a downward departure, carefully evaluated Ottens'

claim in light of that knowledge, and denied the departure

request in the circumstances of the particular case. No appeal

lies from that factbound determination.

Affirmed.
Affirmed.

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