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,
__________________

Attorney, were on brief, for the United States.

Trial

_________________________

January 30, 1996

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

Defendant-appellant

Alan

C.

Ottens pleaded

fraud, 18

guilty to

U.S.C.

a golconda

1344,

bank bribery,

conspiracy to commit such

months

after accepting

court denied

sentence.

of charges

18 U.S.C.

felonies, 18 U.S.C.

appellant's

his request

for a

Ottens appeals.

involving bank

371.

guilty plea,

ninth

215,

and

Seventeen

the

continuance and

district

imposed

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

wave

of

real

estate

development that surged through New England in the 1980s.

to

way.

match his resources to

his ambitions, he

Unable

caught the nearest

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

Ottens and entities that he controlled.

mark

loans to

This skulduggery did not

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

bankers

and, on the side,

parties through

Diminico

brokered questionable loans for third

(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).

Initially,

purchase

Next,

Ottens euchred

a parcel

he borrowed

original

loan,

of

Bank

to

$400,000

real estate

$1,175,000

acquire

building on the site.

he recruited a

Finally,

purchaser for

furnish financing

from the

in Marlboro,

from the

adjacent

loan

Bank

property,

Bank

Massachusetts.

to refinance

and

to

construct

the

when the loan went into default,

the project and

(even though

arranged for

he knew

the

the purchaser

could not

service the

debt).

The

Bank ultimately

foreclosed,

sustaining a loss of approximately $2,750,000.1

The second transaction

Andover, Massachusetts.

Diminico

involved real

estate in

assisted Ottens in procuring a

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

the tract.

the

face

After

amount

$6,000,000 in

of

building a

acquisition of

closing on the land for considerably less than

of

the

loan,

Ottens wangled

construction financing for the

new

North

headquarters for

the

an

additional

ostensible purpose

Bank.2

When

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

II.
II.
___

The Proceedings Below

The Proceedings Below
_____________________

Ottens

____________________

1In
off

contrast, Ottens profited at every

$100,000

purposes

from the

initial loan

proceeds

unrelated to site acquisition.

$500,000 of the

stage.

He siphoned

and used

it for

He later diverted over

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

characteristic

maneuver,

$2,000,000 of the loan proceeds.

a

wide

variety

installation

of

Ottens

diverted

some

He used the plundered funds for

unauthorized

of a swimming pool

expenditures
at the residence

president).

(including

the

of the Bank's

In early

to

1994, Ottens waived indictment

and, pursuant

a written agreement with the United States, pleaded guilty to

nine-count

disposition

information.

The

hearing for March 29,

court

1994.

originally

set

Ottens cooperated with

the government and remained free on his own recognizance.

request,

the court

postponed sentencing

the

four times

At his

during the

next fourteen months.

In

withdraw.

26, 1995.

the

spring

of

1995,

Ottens'

lawyer

to

The court acquiesced and deferred sentencing until May

On

May 15, the

court notified the

Federal Defender

Office that it had been designated to represent Ottens.

of that

moved

office

entered an

appointed attorney

moved for

appearance.

On

May

a sixth continuance,

A member

25 the

newly

advising the

court

that

he

sentencing

court

needed

prepare

for

and to sort out a possible conflict of interest.

The

granted a

satisfied

sought

reprieve

himself

a further

spade work.

the

extra

time

until June

vis-a-vis

the

13.

to

On

suspected

thirty-day postponement

The district court,

both

June 7,

conflict,

in order

having

counsel

to do

more

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.

counsel

had

Although

already represented

days, the court

yielded to the

hearing for June 30.

noting rather

the defendant

pointedly that

for thirty-five

importuning and rescheduled

the

On June

28, defense

counsel submitted

sentencing memorandum (supported by

that

multiple

causes

beyond

Bank's losses, and that,

overstated.

assemble

The attorney

a fifteen-page

a 400-page appendix) arguing

Ottens' chicanery

triggered

in all events, the alleged

losses were

then asked for another thirty

additional materials

in support of

the

days to

these contentions.

The

next

day,

preparation

notwithstanding

time,

the

attorney

memorandum addressing multiple

court

denied the motion for

observed

his

that sentencing

claim

of

insufficient

submitted

supplementary

On

June 30, the

loss causation.

a ninth continuance.

had

already been

Judge Gorton

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,

seasonably

this

time alleging

disclosed

how

it

that

calculated

attributed to the offense conduct.

denied

this

motion,

the

proceeded

established a guideline sentencing

government had

the

loss

that

not

it

The district court summarily

with

the

disposition hearing,

range (GSR) of 37-46 months,3

____________________

3Applying the
court

started with

2F1.1(a),

added

$5,000,000, see
___

November 1987 version of

a base
eleven

U.S.S.G.

offense level
levels

because

because the

planning, see
___
for acceptance

offense conduct

U.S.S.G.

criminal record

the

see U.S.S.G.
___
loss

21

exceeded

levels due

3B1.1(a), added two

required more

2F1.1(b)(2),

of responsibility,

adjusted offense level

of six,

2F1.1(b)(1)(L), added four

to Ottens' role in the offense, see U.S.S.G.

___
levels

the guidelines, the

than minimal

and subtracted two

see U.S.S.G.
___

levels

3E1.1(a).

The

combined with the lack of any prior

to produce the GSR.

(Sentencing Table).

See U.S.S.G. Ch.

___

5, Pt. A

rejected Ottens'

entreaty for a downward

inter alia a mid-range prison

_____ ____

departure, and imposed

sentence (forty-two months).

This

appeal ensued.

III.
III.
____

The Further Continuance

The Further Continuance
_______________________

Ottens contends

grant

lawyer

a ninth

that the

continuance following

with insufficient

district court's

his guilty

time to prepare

refusal to

plea left

for sentencing.

his

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

see United States v. Devin, 918

___ ______________
_____

and,

within

reasonable

that

F.2d 280, 291

to

decide

the trial court's

754, 770 (1st Cir. 1995).

determination only if

that is, if the

(1st Cir. 1990),

what

period of time for preparation.

Saccoccia, 58 F.3d
_________

looms,

province,

manage its docket,

constitutes

See United States v.

___ _____________

We will meddle in

an abuse of

allegedly aggrieved party

discretion

can show that

the

court "indulged

serious

error

of

law

meaningful lapse of judgment, resulting in

to the movant."

or

suffered

substantial prejudice

Id.
___

When

confronted by

trial court may have a

motion for

variety of concerns.

the nature and stage of the proceeding; a

a continuance,

Some may

the

relate to

mid-trial continuance,

for

example,

evokes

pretrial hearing.

reasons that

different

See Devin, 918

___ _____

than

rearranging

F.2d at 291.

important.

See United States

___ _____________

F.2d 25, 28 (1st Cir. 1991).

in support of

v. Lussier,
_______

Then, too, the court is

account prior continuances

and such other

actually available for

previously

movant

available for

factors as

used

contributed to

case, the

that

preparation, the amount

preparation

time, the

extent

and how

to

which

his perceived predicament, the

availability of

amount

of time

assiduously

the

the movant

has

complexity of the

assistance from other

the probable utility of a continuance. . . ."

929

likely to

"the amount of time needed for effective preparation, the

of time

Obviously, the

the movant contemporaneously adduces

the request are

take into

concerns

sources, [and]

Saccoccia, 58 F.3d

_________

at

770.

This

applicable.

of

is

neither

somewhat more

inconvenience

witnesses, and

to

the opposing

and the likelihood of

After the

relevant

nor

ineffable concerns,

others (such

party) should a

universally

Each

as

including "the

the

court,

the

continuance ensue,

injustice or unfair prejudice attributable

to the denial of a continuance."

deferential.

exclusive

For instance, the court typically will want to weigh

panoply of

extent

list

Id.
___

trial court

case is

has ruled, appellate

sui generis, and

___ _______

the compendium

factors varies from situation to situation.

review is

of

Hence, the

court of

approach.

appeals, like the trial court,

See United States v. Torres, 793

___ ______________
______

Cir.), cert. denied, 479

_____ ______

however,

employs a case-specific

looks

U.S. 889 (1986).

primarily to

the

F.2d 436, 440

The

(1st

appellate court,

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,

event

the

are ancillary

determination of guilt or

characterized

proof.

sentencing hearings

by a

certain informality

innocence

in the

Thus, while such hearings are

preparation

is required,

time

than for a trial.

guilt has been determined,

in

the

and

prompt

on

average,

main

they are

presentation of

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

___ ____ _____________
_______

(1st Cir. 1992).

hearing

to the

1287

important, less

for a

disposition

For another thing, once a defendant's

the public has a

dispensation

of

heightened interest

punishment.

Accordingly,

sentencing should occur with reasonable dispatch.

Third, the

postponement

another

do

reasons given here in support

not hold

continuance

would

water.

have

Ottens'

provided

of a further

theory is

sufficient

that yet

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

thereby have enabled him to demonstrate

downward

departure.

market) and

the appropriateness of a

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

___ ____ _____________
_______

398,

406-07

(1st

Cir.

1995)

(holding

that

the

guidelines

authorize

discretionary

departures

to

reflect

multiple

causation); United States v. Gregorio, 956 F.2d 341,

_____________
________

Cir. 1992)

(n.11)

(similar);

(Nov. 1987).

grant him

the extra

expeditiousness

reversal.

see generally
___ _________

Ottens

argues that the

time reflected

at the

expense

See, e.g., Morris v.

___ ____ ______

United States v.
_____________

U.S.S.G.

an

loss

346-47 (1st

2F1.1,

comment.

court's refusal to

arbitrary concern

of fairness,

and thus

Slappy, 461 U.S. 1,

______

Soldevila-Lopez, 17 F.3d 480,

_______________

with

invites

12 (1983);

487-90 (1st Cir.

1994).

But this

little.

more than

reproof is mostly sound

The district court delayed

and fury, signifying

the disposition hearing for

seventeen months after accepting

Ottens' guilty plea.

The

court granted

eight successive

response to Ottens' requests.

sentencing

On the last two

Gorton warned that the end was near.

postpone

sentencing

indefinitely

hoping against hope, desires more

continuances in

occasions, Judge

A court is not obligated to

simply

because

a defendant,

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

months

preparation.

Ottens'

additional

hearing.

fifteen

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

foundation for a sentencing strategy.

an

first lawyer had

forty-six days

to

His second lawyer then had

prepare

for the

disposition

The comprehensive sentencing memoranda filed on Ottens'

behalf

show

preparation

beyond

and his

peradventure of

command of

doubt

the facts.

counsel's

thorough

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

within the GSR.

departed

e.g.,
____

error to

the imposition of

a sentence

He maintains that the district court should have

downward on the basis of multiple loss causation.

Rostoff, 53
_______

F.3d

at 406-07.

We lack

jurisdiction

See,
___

to

entertain the assigned error.

At sentencing,

refusal

found

to impose

that the

departure."

Judge Gorton

a more

lenient sentence.

"facts of

this case do

Second, he

ruled that

agreement prohibited Ottens

Since

the first

ground

gave two reasons

not warrant

the

from seeking

is dispositive

First,

the judge

a downward

language of

a downward

of

for his

the plea

departure.

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
basis of

that the

government failed to

its loss computation is

successor
presentence

counsel

first

bootless.

appeared,

investigation

report.

satisfactorily explicated the anatomy

comprised

most

prominently

he
In

From
had

disclose the

the time that

access

turn,

that

to

the

report

of the claimed loss (which

$2,750,000

attributable

to

the

Marlboro venture and $4,000,000 attributable to the North Andover

fiasco).

10

(and which do not

that

defendant

discretionary

sentencing

(1st

bear repeating here),

cannot

decision

range.

appeal

not

to

it is the general

from

the

depart

district

below

the

rule

court's

guideline

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

___ _____________
______

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.

_____ ______

squarely

that

within the sweep of

multiple

loss

cognizable basis

decided

that

no

for a

Ct. 224 (1992).5

the rule.

causation

downward

departure

for

could

This

appeal falls

The judge acknowledged

constitute

departure in

multiple

loss

legally

some cases,

but

causation

was

justified on the facts of this

of

discretionary,

determination

See
___

case.

This is precisely the sort

fact-specific,

that appellate

departure-declining

courts lack

the power

to review.

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."

F.3d

at 619.

appears

Thus,

"appellate jurisdiction

that the failure

to depart stemmed

Pierro, 32
______

may attach

if it

from the sentencing

court's mistaken impression that it lacked the legal authority to

deviate from the guideline range
misapprehension

of

the

or, relatedly, from the court's

rules governing

departures."

United
______

States v.
______

Gifford, 17 F.3d 462,

_______

exception

takes

factfinding and

hold only

473 (1st Cir. 1994).

"[i]f

the

evaluative judgments to

judge sets

But that

differential

one side, and

says, in

effect, `this circumstance of which you speak, even if it exists,

does not

constitute a legally sufficient

Pierro, 32 F.3d at 619.

______

basis for departure.'"

Nothing remotely resembling a mistake of

law transpired in this instance.

11

We need go no

understood that

further.

Here, the lower

court clearly

multiple loss causation comprised

a permissible

ground

claim in

for

a downward

light

of

departure,

that knowledge,

carefully

and

evaluated Ottens'

denied

the

request in the circumstances of the particular case.

____________________________________________

lies from that factbound determination.

Affirmed.
Affirmed.
________

departure

No appeal

12