US v. Buffi

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; Bruce M. Selya, Appellate Judge and David J. Barron, Appellate Judge. Published. [16-1681]

Case: 16-1681

Document: 00117188988

Page: 1

Date Filed: 08/14/2017

Entry ID: 6112783

United States Court of Appeals
For the First Circuit
No. 16-1681
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH BUFFIS,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]

Before
Thompson, Selya, and Barron,
Circuit Judges.

Seth Kretzer and Law Offices of Seth Kretzer on brief for
Appellant.
Francesco Valentini, Attorney, William D. Weinreb, Acting
United States Attorney, Kenneth A. Blanco, Acting Assistant
Attorney General, and Trevor N. McFadden, Acting Principal Deputy
Assistant Attorney General, on brief for Appellee.

August 14, 2017

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THOMPSON, Circuit Judge.

Date Filed: 08/14/2017

Entry ID: 6112783

Joseph Buffis, our appellant

and the town of Lee's (now-former) Chief of Police, took $4,000
from a duo accused of running a house of ill repute--and in return,
he promised to halt their prostitution prosecution.

Buffis now

claims

completely

he

didn't

coerce

the

duo--they

were

"comfortable" forking over their funds--so he cannot be guilty of
extortion.

According to him, that means the jury verdict finding

otherwise must be overturned.

According to us, Buffis is wrong.

Here's why we affirm his conviction.
Background1
Our sordid story begins with a bust.

Tom Fusco and Tara

Viola owned and operated an inn in Lee, Massachusetts, frequented
by folks from all over the country.

Viola also offered massages--

with sexual services on the side.

An informant spotted Viola's

online ad and tipped off Lee police.

A raid ensued.

Distraught,

Viola immediately 'fessed up to the prostitution, then offered to
donate her proceeds to charity and to help bring down other sex
workers and Johns by cooperating in reverse-sting operations.

Lee

Police Officer Ryan Lucy and Massachusetts State Police Sergeant
Christopher Meiklejohn turned down the first proposition--"any
forefeiture of monies," Meiklejohn told her, "would be done through

1

We frame these facts in the light most favorable to the
jury's verdict. United States v. Turner, 684 F.3d 244, 246 (1st
Cir. 2012).
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the courts and in front of a judge."

Entry ID: 6112783

The officers wanted to take

her up on the second--a good informant is hard to find.

But if

word got out about the bust, Viola would lose her value as a
cooperator.

(After all, if potential Johns knew not to go to the

inn, there would be no further busts to make.)

So Lucy and

Meiklejohn tried to keep the raid on the down-low.
Cue our appellant Buffis, who was then serving as Chief
of Police for the town of Lee.

Meiklejohn clued him in on the

plan to use Viola as an informant--and explained that for the plan
to work, secrecy was of the essence, so he and Lucy didn't arrest
Viola and Fusco.

And yet, Buffis rang up the local paper and

(falsely) reported that the duo had been arrested for prostitution.
The local paper ran with the story--as did news outlets all over
the east coast.

With that, law enforcement lost a promising path

to future busts, the inn lost a load of business, and Viola became
terrified she would lose her kids.

Viola and Fusco wanted the

mess done with "as quietly and as efficiently as possible."
Buffis

butted

in

once

again,

this

time

offering

a

seemingly simple solution to Fusco and Viola's troubles (troubles,
remember, that he helped create):

if Viola and Fusco agreed to

donate the prostitution proceeds to a local charity, Buffis would
"make things go away quietly" by having the case dismissed.
(Indeed, it was Buffis' call whether the charges would go forward
at all--if he decided not to sign the criminal complaint against
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Viola and Fusco, criminal proceedings would halt.)

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Buffis told

Fusco that they would meet in private before Viola and Fusco's
first

scheduled

court

appearance,

Buffis

would

bring

"an

agreement," and if the three came to terms, the case would be
dismissed.

Buffis didn't specify the charity and said he couldn't

set the price--another officer would deal with the "donation"-but it could be anywhere from zero to ten grand.

And, he advised,

unless you want to waste your money, don't bring a lawyer.

Fusco

"felt pretty comfortable" with the idea of forfeiting the money if
it meant the charges wouldn't go forward, so he agreed.
When Viola and Fusco got to the courtroom, lawyerless
but armed with a blank check, Buffis asked the two court employees
(including Clerk-Magistrate Thomas Bartini, who was to preside
over the hearing) to clear out.

He then presented Viola and Fusco

with an agreement--on Lee Police Department letterhead--labeled
"Accord & Satisfaction."

Here's what it said:

(1) Clerk-Magistrate Bartini had found "probable
cause to issue criminal complaints" against Viola
for Sexual Conduct for a Fee, and against both her
and Fusco for Keeping a House of Ill Fame and
Conspiracy;
(2) the proceedings that day were confidential and
subject to a non-disclosure agreement;
(3) Viola and Fusco waived their rights to sue the
Town; and
(4) "[p]roceeds in the amount of $_________ shall
be donated to the Laliberte Toy Fund as a voluntary
donation in lieu of criminal fines or civil
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forfeiture action, by the close of business this
date."
Fusco and Viola didn't like the terms.

For one thing,

Fusco wanted to be able to tell everyone that the case had been
dismissed (and limit the impact on the inn's legitimate business).
And for another thing, Fusco and Viola wanted to donate to an
animal rescue charity, not to a toy fund they had never heard of.
And the kicker:
insisted on four.

they planned to donate one grand, but Buffis
Buffis wrote $4,000 into the contract at the

hearing, and Fusco wrote the check.

Fusco didn't have the cash to

cover it, so he told Buffis to sit on the check for a few days
until Fusco could transfer funds from the inn's account.

Viola

and Fusco didn't like it, but they "didn't feel like [they had] a
choice"--so they did "what [they] in a court of law were told to
do."
Buffis brought Clerk-Magistrate Bartini back into the
courtroom.

Buffis explained that Viola and Fusco's case was going

to be continued to the end of the day--at which point, Fusco
thought, the whole thing would be dismissed (he was right).

Fusco

pushed Buffis to let him talk about the dismissal, but Buffis said
no--and Bartini pointed out that if the parties did not abide by
their agreement "Buffis can actually bring another . . . complaint

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for the same thing and go forward with it."2
reported the scoop:

Entry ID: 6112783

The local paper

"Secrecy in sex case involving owners of the

Inn . . . Authorities are tight-lipped about the results of [the]
show cause hearing . . . [and] say they can't divulge the outcome"
because of a "nondisclosure agreement among the parties."
Now
Buffis.

here's

where

things

started

going

downhill

for

Bartini told Buffis before the hearing that it seemed

"crazy" not to go forward with the charges because it was such a
high-profile case--the district attorney's office agreed and asked
Massachusetts state police to investigate.

Captain Richard Smith

paid a call on Buffis, who explained the donation situation,
claiming that half went to the Laliberte Toy Fund (a Lee police
charity that bought toys for kids in need, according to Buffis),
half went to DARE (the police-run drug abuse prevention program),
and

that

$1,000

of

the

DARE

money

had

already

been

spent.

Evidently believing this fib wouldn't hold Smith off for long,
Buffis frantically phoned Bartini to figure out how to resurrect
the charges against Viola and Fusco.
Buffis changed his tune:

Smith's suspicions grew when

he hadn't spent any of the money, Buffis

said, and he had a (fishily post-dated) donation "refund" check in
hand to prove it.

2

Sixteen months later, the same charges were in fact brought
again--but this time not by Lee police.
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Buffis was full of bull:
toys.

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no money went to DARE, or to

Buffis was using the Laliberte Toy Fund as his personal

piggy bank, and he blew all but ten bucks of the Viola-Fusco
"donation" in about a month.
A grand jury indicted Buffis for extortion by wrongful
use of fear and under color of official right in violation of the
Hobbs Act, 18 U.S.C. § 1951(a), plus a slew of money launderingrelated charges stemming from his management of the Laliberte Toy
Fund.

At trial, Buffis was acquitted of all charges but one:

extortion under color of official right.

Buffis moved for a

judgment of acquittal; the district court denied the motion.
Buffis now appeals, and that brings us up to today.
Buffis' Claim
Buffis challenges the sufficiency of the evidence to
support his extortion conviction.

Specifically, Buffis says he

did not coerce Viola and Fusco into paying up; without proof of
coercion, he continues, he cannot be guilty of extortion.

We

review preserved challenges to the sufficiency of the evidence de
novo, considering the evidence in the light most favorable to the
verdict.

3

Turner, 684 F.3d at 257.3

"The test is whether the

We assume here that Buffis preserved the arguments he now
raises on appeal--though it seems that the arguments he raised
below are not the same as those he presses now. Both focus on
Viola's offer to pay, but in his post-trial motion Buffis contended
that her offer proved that he did not know he was accepting money
in exchange for an exercise of his official power. Here, on the
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evidence, including all reasonable inferences therefrom, would
permit a rational juror to conclude beyond a reasonable doubt that
the defendant was guilty of the crime charged."

United States v.

Cruz-Arroyo, 461 F.3d 69, 73 (1st Cir. 2006).

Appraised under

this standard, we agree with the government that the trial evidence
was sufficient for a jury to find Buffis guilty beyond a reasonable
doubt, and that Buffis' legal arguments to the contrary have no
merit.
First, the elements of Hobbs Act extortion.

"Whoever in

any way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by robbery or
extortion or attempts or conspires so to do" has violated the Hobbs
Act.

18 U.S.C. § 1951(a).

To show Buffis committed Hobbs Act

extortion, the government had to prove that Buffis "obtain[ed]
property from another, with his consent, induced by wrongful use
of actual or threatened force, violence, or fear, or under color
of official right."

Id. § 1951(b)(2) (emphasis added).

In cases

other hand, he argues that Viola's proposition proves that she and
Fusco were not coerced into donating the funds. He does not renew
his knowledge-based argument on appeal; indeed, in his final point
in his brief--"at most, the government proved bribery, not
extortion"--he seems to concede that he knew the money was given
in exchange for an exercise of his official power.
But the
government does not press the point (in fact, it addresses his
knowledge argument in its brief) so we give him the benefit of the
doubt and review the argument before us de novo. Though as we
explain, neither argument gets him anywhere.
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of

Document: 00117188988

extortion

government

"under

says

color

(and

the

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of

Date Filed: 08/14/2017

official

jury

Entry ID: 6112783

right"--like

found)

Buffis

what

did

the

here--the

government can prove up the charge by showing that the defendant
"obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts."

Turner, 684 F.3d

at 253 (quoting Evans v. United States, 504 U.S. 255, 268 (1992)).
The government presented sufficient evidence of each of
these elements for the jury to find Buffis committed extortion
under color of official right beyond a reasonable doubt.

Buffis'

bribe money came out of Fusco's business bank account for the inn,
and the inn hosted visitors from all over the country; egro, the
extortion affected commerce.

See Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241, 261 (1964) (motel serving interstate
travelers

operates

in

interstate

commerce);

United

States

v.

Cianci, 378 F.3d 71, 99 (1st Cir. 2004) (requisite "de minimis
effect"

on

commerce

established

under

Hobbs

Act

if

conduct

"minimally depletes the assets of an entity doing business in
interstate commerce" (citation omitted)).
payment he was not entitled to collect:

Buffis also received a

the four-thousand-dollar

check, which he deposited into his own personal slush-fund.
Cruz-Arroyo, 461 F.3d at 73.

See

Contrary to Buffis' argument below,

ample evidence suggests that Buffis knew the payment was made in
return for an official act--agreeing not to sign the criminal
complaint against Viola and Fusco and getting the criminal charges
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dropped.4

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Indeed, Buffis explicitly told Fusco that if they

reached an agreement, he would have the case dismissed.

And

although the government didn't have to prove that the defendant
followed through on his end of the bargain, see Turner, 684 F.3d
at 255-58, in this case it presented evidence of that, too:

after

Fusco tendered the check, Buffis told the Clerk-Magistrate he
wanted the case continued to the end of the day; then at the end
of the day, the charges were dismissed.
to

cover

his

tracks

with

the

bogus

Buffis' botched attempt
refund

check

shows

his

consciousness of guilt--and is further evidence supporting the
conviction.

Id. at 258-59.

Nevertheless, Buffis says, the evidence was insufficient
to convict because Viola and Fusco did not feel coerced into paying
up at the time they made the "donation"--in fact, Fusco said he
felt completely comfortable with it.

4

The "Accord & Satisfaction"

Buffis seems to argue that because Clerk-Magistrate Bartini
had a role to play at the show cause hearing--determining whether
there was probable cause to issue a complaint--Buffis' own power
to affect Viola and Fusco's situation was limited, and that this
fact should have some (to us, indiscernible) relevance to our
analysis. We note here that "it is irrelevant" that Buffis was
not the only state actor who played a role in whether the complaint
against Viola and Fusco would go forward; it is enough that Buffis
"in [his] official capacity, had the power to facilitate [Viola
and Fusco's] government business, and it was that power that [Viola
and Fusco] paid [Buffis] to exercise." United States v. Rivera
Rangel, 396 F.3d 476, 485 (1st Cir. 2005).
In the event that
Buffis meant to argue something else, his undeveloped argument is
waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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agreement, he says, is his ace-in-the-hole because both Fusco and
Viola

signed

the

paper

saying

the

donation

was

"voluntary."

Without a showing of coercion, the argument goes, he cannot be
convicted of the crime of extortion.

And besides, he can't be

guilty (according to him) because Viola had the idea to begin with.
The government disagrees, and for good reason:

we have repeatedly

rejected both arguments.
First, "an element of duress such as a demand" is not an
element of the offense of Hobbs Act extortion under color of
official right.
official

right'

Evans, 504 U.S. at 267-68.
and

'fear'

prongs

"The 'color of

provide

alternative,

independently sufficient grounds for finding extortion; thus,
adequate proof of one obviates any need for proof of the other."
Cruz-Arroyo, 461 F.3d at 73.

In other words, where the government

presents evidence that the government official received a payment
under color of official right, it need not prove that the official
induced the payment through fear.

There goes Buffis' coercion

argument.5

5

This point also disposes of Buffis' argument that without
proof of coercion, the government has only proved bribery (not
extortion). To the extent that he means to argue that proof of
bribery cannot be proof of extortion (and vice-versa), he is wrong
about that, too: although "it seems unnatural to prosecute bribery
on the basis of a statute prohibiting extortion, . . . Hobbs Act
extortion under color of official right includes the rough
equivalent of what we would now describe as taking a bribe."
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As to the second point, as the government points out,
neither

"[t]he

fact

that

[the

payer]

approached

[the

public

official] first" nor the payer's "readiness and even eagerness to
play the game," "mean that extortion did not occur." United States
v. Rivera-Medina, 845 F.2d 12, 14 (1st Cir. 1988) (quoting United
States v. Hathaway, 534 F.2d 386, 395 (1st Cir. 1976)); accord
Evans, 504 U.S. at 265 ("the word 'induced' is part of the
definition of the offense by the private individual, but not the
offense by the public official"); Cruz-Arroyo, 461 F.3d at 73–74
(the government need not prove "any affirmative act of inducement
on the part of the corrupt official"). It is immaterial that Fusco
and Viola approached the police first--as the district court put
it, "[t]he government was not required to show that Defendant
originated the idea for the donation, rather than simply developing
and capitalizing on a concept suggested, out of desperation, by
Ms. Viola."
The End
We affirm Buffis' conviction.

Ocasio v. United States, 136 S. Ct. 1423, 1434 (2016) (internal
quotation marks omitted) (quoting Evans, 504 U.S. at 260).
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