Joseph Buffis case: Attorney challenges use of uncharged conduct at sentencing

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SPRINGFIELD — "Why have jury trials at all?"

That question was posed by the attorney representing former Lee police Chief Joseph Buffis in response to federal prosecutors' request to have acquitted and uncharged conduct considered at his sentencing.

Allowing such conduct to be considered at Buffis's sentencing would violate his constitutional rights and invalidate the work of the jury, according to attorney Lori Levinson.

Levinson filed a 19-page response to the government's request to have U.S. District Court Judge Mark G. Mastroianni consider alleged conduct by Buffis, including charges of which he was acquitted, when imposing a sentence.

"Wouldn't it be so much more efficient to simply move to sentencing after the issuance of an indictment?" she asked sarcastically.

Buffis was convicted last June of a lone count of extortion for strong-arming a Lee couple into making a bogus $4,000 donation to a charity toy fund he supervised in exchange for dropping pending solicitation-related charges against them.

After the three-week trial and three days of deliberations, jurors acquitted Buffis of 10 other counts, mostly related to his financial handling of the Edward J. Laliberte Toy Fund, from which he was accused of looting approximately $120,000.

In a motion filed last month, the government cited case law in its effort to bring up acquitted and uncharged conduct at the sentencing.

But Levinson said that motion was an example of "overzealous prosecution" of her client by the government in hopes of redeeming itself after losing the majority of the case against Buffis.

"It appears that the government continues to overreach by seeking punishment in excess of that promulgated for Buffis' single count of conviction in an effort to vindicate its loss at trial," her motion reads.

She argues that considering acquitted conduct invalidates the jury and "tramples" her client's constitutional rights to due process and a fair trial.

"The government is effectively asking this court to tell the jury that they weren't necessary after all," she said. "The government says to the jury, 'We accept your guilty verdict, but your acquittals are meaningless. Your hard work did not matter.' "

Levinson also asked the court to deny the government's request to hold an evidentiary hearing related to allegations Buffis stole approximately $31,000 from the bingo account of a Lee church between 1999 and 2007.

"Buffis was never charged with any crime connected to this alleged theft and this court precluded the government from introducing such allegations at trial," Levinson wrote.

Levinson noted the sentencing guidelines for an extortion conviction for someone like Buffis who has no criminal record and estimated them at between 27 to 33 months.

She said that, should all the outside conduct be factored in, that time could "skyrocket," to 87 to 108 months, according to the guidelines.

"Sentencing Buffis for anything other than the sole count of conviction would be a clear case of the tail wagging the dog," she wrote.

Immediately following Buffis' June conviction, prosecutors suggested a Sept. 24 sentencing date, but that was allowed to be set in mid-to-late October, without objection, to allow Buffis to attend his daughter's wedding.

The sentencing date has been rescheduled several times since then. The most recent date was March 3, but that, too was cancelled after the government filed its motion and while Levinson was preparing her response.

No new date has yet been set.

Buffis still potentially faces a charge of mail fraud for allegedly adding members of his family to Lee's cellphone account while he was serving with the Lee Police Department.

That charge was dropped at the federal level, but could be picked up by the lower court.

It's not yet clear if the Berkshire District Attorney's office plans on seeking an indictment against Buffis on that charge.

Contact Bob Dunn at 413-496-6249.


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