657 F.2d 948 (8th Cir. 1981), 80-2133, United States v. Poludniak
|Docket Nº:||80-2133, 80-2134.|
|Citation:||657 F.2d 948|
|Party Name:||UNITED STATES of America, Appellee, v. Stephen POLUDNIAK, Appellant. UNITED STATES of America, Appellee, v. Elizabeth E. WEIGAND, Appellant.|
|Case Date:||May 20, 1981|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
Rehearing and Rehearing En Banc Denied Sept. 14, 1981.
Donald B. Nicholson, Sp. Atty., U. S. Dept. of Justice, Washington, D. C., Terry I. Adelman, argued, Michael W. Reap, Asst. U. S. Attys., St. Louis, Mo., for appellee.
Leonard J. Frankel, argued, Wolff & Frankel, Clayton, Mo., for appellant.
Before LAY, Chief Judge, and ROSS and ARNOLD, Circuit Judges.
ARNOLD, Circuit Judge.
This is an appeal by Stephen Poludniak and Elizabeth E. Weigand, who were jointly charged and tried as defendants in the District Court. 1 The two-count indictment charged, in Count I, a violation of 18 U.S.C. § 875(d), extortion by a telephone call which threatens to injure the reputation of another, and, in Count II, a violation of 18 U.S.C. § 371, conspiracy to commit an offense against the United States. The alleged victims of the extortion and conspiracy were a corporation, Missouri Pipefittings Company, its managing director, J. J. Thyson, and its vice-president and treasurer, Thomas F. Eagleton, a United States Senator from Missouri. Defendant Weigand is Senator Eagleton's niece. For the reasons discussed below we affirm the judgment of the District Court.
Missouri Pipefittings Corporation is a Missouri corporation. After Mark Eagleton, Sr.'s, death, his two sons, Dr. Mark Eagleton, Jr., and Thomas F. Eagleton
owned the company in equal shares. In February of 1970 they entered into a restrictive stock agreement providing that the stock can be sold or transferred only to a person of the Eagleton blood, back to the corporation, or to a third person with the consent of 60% of the shareholders. The agreement further provided that 40% of the income from Missouri Pipefittings is to be retained by the corporation as "shareholder loans," that the taxes on the income will be paid by the corporation, and that there will be a $6,400 payment per year to each shareholder per 61/4% interest in the corporation. The restrictions are to terminate on January 1, 2001.
After the adoption of the restrictive stock agreement, gifts of stock were made to the children of Dr. Mark Eagleton and Thomas Eagleton. Distribution of corporate income to the stockholders is handled by J. J. Thyson, the managing director of the corporation. Each of Dr. Eagleton's children received $6,400 a year from the corporation.
Several times over the next few years the older Eagleton children attempted to learn more about their interest. They generally believed that they were beneficiaries of a trust. Over a period of time, the three older children, Mimi and David Eagleton and Elizabeth (Libby) Weigand, all sought information from Mr. Thyson and also from Senator Eagleton about their holdings, including a copy of the "trust." A meeting was arranged for January 14, 1980, between the children and Mr. Thyson and Senator Eagleton. At that meeting, Senator Eagleton first explained the history of the company, including the 1970 agreement to restrict transfers of stock outside the family. The children were given copies of the restricted stock agreement to review, and Mr. Thyson answered their questions about the agreement.
Soon after this meeting, Libby Weigand hired Alan Steinberg, an attorney, to represent her in her attempt to sell her stock. After obtaining a copy of the agreement and other documents, Steinberg advised Libby that it was a well-drafted document, that unless the company wanted to buy her out the only way to get her money was to demonstrate mismanagement on the part of Thyson, that the litigation would be expensive, and that he did not have enough information to put a value on her stock. He told her she had a "good deal" and should keep it. During March 1980, Libby asked another lawyer, Stephen Poludniak, to review the document. Steinberg withdrew as Libby's counsel, and Poludniak began representing her. During April Poludniak, accompanied by Ms. Weigand, made several visits to the office of William Buckley, the lawyer representing Thyson in the disagreement with Ms. Weigand over the stock. During these visits they were allowed to read many corporate documents and made copies of some of them.
On May 6, 1980, Poludniak wrote to Buckley and offered a liquidation of Libby's interest in Missouri Pipefittings for $220,000. This figure included a sale of her 61/4% interest and an unconditional release of her shareholder loans, estimated at approximately $150,000. 2 In response, Mr. Buckley sent a letter from Mr. Thyson stating that the company would not buy her interest. After that, Poludniak continued to request and receive documents until June 27, 1980. From that date there was no further contact until July 25, 1980.
In early July Mimi Eagleton returned from a wedding in Florida and told Libby that she had heard some gossip about their uncle, Senator Eagleton, involving his conduct during trips to Florida. Libby testified that the gossip struck her as "wild, preposterous, and ridiculous" and that she did not know whether it was true or false. She told Stephen Poludniak about the gossip.
At about the same time, Libby attempted several times to contact her uncle, Senator
Eagleton, by telephone. When they finally talked, the Senator told her he would not interfere with Mr. Thyson's decision on the stock sale. He testified that he had not wanted to talk to her because she already knew his position on the subject, and there was nothing more to be said.
Libby then wrote a note to her uncle dated July 10, 1980, which was conciliatory in tone but contained a veiled reference to the gossip Mimi had heard in Florida. Libby consulted Poludniak before putting in the reference to Florida, and they decided to include it to see if it "got a rise" out of the Senator.
On July 16, 1980, Libby left for a trip to California, and she and Poludniak testified at trial that they agreed that he would continue to represent her in the Missouri Pipefittings matter and do what he could. They both testified that they had no direct contact with each other between July 16, 1980, and August 1, 1980. On July 25, Poludniak called Buckley and told him that Libby had hired investigators in California and had uncovered irregularities concerning the company, Senator Eagleton, and Mr. Thyson. He said that if Buckley did not want to talk to him about it, the media would. Poludniak mentioned that it was an election year, and that the information could be damaging. Poludniak and Buckley met at Buckley's office on July 29, 1980. Buckley recorded the meeting. Poludniak again mentioned corporate irregularities, and said also that Libby had documented evidence about the Senator's activities in Florida. After consulting with Mr. Thyson and Senator Eagleton, Buckley called the F.B.I. Subsequent conversations were recorded by F.B.I. agents.
On July 31, Poludniak called Buckley and reported that he had received the information from Libby in California and that it was very damaging to the Senator. He also reported that he had made appointments to release the information to Roy Pfautch, campaign director for Senator Eagleton's opponent, and John Spano, the City Editor of the St. Louis Globe-Democrat. Defendants' testimony at trial was that a number of statements made by Poludniak to Buckley were not true. There were no investigators hired by Libby in California, and, therefore, no damaging information had been sent to Poludniak by Libby. Poludniak had, however, called Pfautch and Spano and attempted to make appointments with them to release the non-existent damaging information about Senator Eagleton. Buckley met with Poludniak later that day and asked how much money Libby wanted. The response was $220,000 in cash. Buckley emphasized that the corporation still did not want to buy Libby out and was considering doing so only in order to prevent release of any derogatory information in her possession. Buckley told Poludniak that the hints about Florida did not register with the Senator and that they were not willing to turn over the money without knowing what kind of information Libby had.
In the meantime, Poludniak called Scott Weigand, Libby's husband, to report that Mr. Thyson would probably want to talk to Libby, and that she was to stand by in California for a telephone call on August 1. Scott Weigand called his wife on July 31 and reported what Poludniak had told him, including the instruction that she was to pretend that she had hired investigators in California.
Thyson, Buckley, and Poludniak met, as planned, on August 1. Poludniak repeated his earlier statements that Libby intended to release some of the material before the primary election on August 5, 1980, and some more of it before the general election, unless she got the money. Buckley and Thyson repeated their earlier contentions that they were unwilling to give Libby the money unless they knew specifically what information Libby had. Poludniak then refused again to reveal any specifics but said (falsely) that it involved both personal misconduct and official misconduct in office. Thyson told him again that the Florida clue had not registered with the Senator. Poludniak then called Libby in California, and she and Thyson had the following conversation.
THYSON: All right. Uh Libby uh sometime ago you said you wanted to sell all of your interest in MoPipe for 220 thousand dollars.
THYSON: And I told you that uh, uh it was not in accordance with the family plan for you to get 220 thousand dollars at this time.
LIBBY: Uh Huh.
THYSON: And you...
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