United States v. Ottens ( 1996 )


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    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).

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    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.


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    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. ___


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    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 ___ ____ _____________ _______


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    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'


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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. ___

    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).

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    (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.

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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 ____________________________________________

    lies from that factbound determination.



    Affirmed. Affirmed. ________






































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