U.S. v. Ottens, 95-1899

• Decision Date: 10 January 1996
• Docket Number: No. 95-1899,95-1899
• Citation: 74 F.3d 357
• Parties: UNITED STATES of America, Appellee, v. Alan C. OTTENS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 357

74 F.3d 357

UNITED STATES of America, Appellee, v. Alan C. OTTENS, Defendant, Appellant.

No. 95-1899.

United States Court of Appeals First Circuit.

Heard Jan. 10, 1996.

Decided Jan. 30, 1996.

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

Anita S. Lichtblau, Trial Attorney, United States Dep't of Justice, Boston, MA, with whom Donald K. Stern, United States Attorney, Ellen R. Meltzer, Special Counsel, McLean, VA, and Paul M. Glickman, Trial Attorney Newton, MA, were on brief, for the United States.

Before SELYA, BOUDIN and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Alan C. Ottens pleaded guilty to a golconda of charges involving bank fraud, 18 U.S.C. Sec. 1344, bank bribery, 18 U.S.C. Sec. 215, and conspiracy to commit such felonies, 18 U.S.C. Sec. 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. 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). 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. The Proceedings Below

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.

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 rejected Ottens' entreaty for a downward departure, and imposed inter alia a mid-range prison sentence (forty-two months). This appeal ensued.

III. 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.

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 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, 107 S.Ct. 287, 93 L.Ed.2d 262 (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...