USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1899
UNITED STATES OF AMERICA,
Appellee,
v.
ALAN C. OTTENS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
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Before
Selya, Boudin and Lynch,
Circuit Judges.
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Peter B. Krupp, Federal Defender Office, for appellant.
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Anita S. Lichtblau, Trial Attorney, United States Dep't of
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Justice, with whom Donald K. Stern, United States Attorney, Ellen
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R. Meltzer, Special Counsel, and Paul M. Glickman, Trial
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Attorney, were on brief, for the United States.
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January 30, 1996
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SELYA, Circuit Judge. Defendant-appellant Alan C.
SELYA, Circuit Judge.
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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.
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The Background
The Background
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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).
2
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.
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The Proceedings Below
The Proceedings Below
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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
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3Applying the November 1987 version of the guidelines, the
court started with a base offense level of six, see U.S.S.G.
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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
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to Ottens' role in the offense, see U.S.S.G. 3B1.1(a), added two
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levels because the offense conduct required more than minimal
planning, see U.S.S.G. 2F1.1(b)(2), and subtracted two levels
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for acceptance of responsibility, see U.S.S.G. 3E1.1(a). The
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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
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(Sentencing Table).
5
rejected Ottens' entreaty for a downward departure, and imposed
inter alia a mid-range prison sentence (forty-two months). This
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appeal ensued.
III.
III.
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The Further Continuance
The Further Continuance
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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),
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and, within that province, to decide what constitutes a
reasonable period of time for preparation. See United States v.
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Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995). We will meddle in
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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.
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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
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reasons that the movant contemporaneously adduces in support of
the request are important. See United States v. Lussier, 929
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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
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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.
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After the trial court has ruled, appellate review is
deferential. Each case is sui generis, and the compendium of
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relevant factors varies from situation to situation. Hence, the
7
court of appeals, like the trial court, employs a case-specific
approach. See United States v. Torres, 793 F.2d 436, 440 (1st
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Cir.), cert. denied, 479 U.S. 889 (1986). The appellate court,
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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
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(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
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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
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Cir. 1992) (similar); see generally U.S.S.G. 2F1.1, comment.
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(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);
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United States v. Soldevila-Lopez, 17 F.3d 480, 487-90 (1st Cir.
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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'
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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.
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The Refusal to Depart
The Refusal to Depart
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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,
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e.g., Rostoff, 53 F.3d at 406-07. We lack jurisdiction to
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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
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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
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(1st Cir. 1994), cert. denied, 115 S. Ct. 919 (1995); Tardiff,
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969 F.2d at 1290; United States v. Amparo, 961 F.2d 288, 292 (1st
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Cir.), cert. denied, 113 S. Ct. 224 (1992).5 This appeal falls
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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);
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United States v. Romero, 32 F.3d 641, 653 (1st Cir. 1994); United
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States v. LeBlanc, 24 F.3d 340, 348 (1st Cir.), cert. denied, 115
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S. Ct. 250 (1994); Tardiff, 969 F.2d at 1290.
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5A different situation obtains "when the sentencing court's
declination to depart results from a mistake of law." Pierro, 32
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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
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States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994). But that
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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
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law transpired in this instance.
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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
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lies from that factbound determination.
Affirmed.
Affirmed.
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