
USCA1 Opinion

	




                            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).                                          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.                                         ___                                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).                                          5          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                                          7          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.                    ________                                          12
