U.S. v. Aguilar, s. 90-10597

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 994 F.2d 609
• Docket Number: 91-10024,Nos. 90-10597,s. 90-10597
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert P. AGUILAR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Robert P. AGUILAR, Defendant-Appellant-Cross-Appellee.
• Decision Date: 02 September 1993

Page 609

994 F.2d 609

UNITED STATES of America, Plaintiff-Appellee, v. Robert P. AGUILAR, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Robert P. AGUILAR, Defendant-Appellant-Cross-Appellee.

Nos. 90-10597, 91-10024.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 12, 1991.

Decided May 12, 1993.

As Amended Aug. 9, 1993.

Rehearing En Banc Ordered

Sept. 2, 1993.

Sara M. Lord, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee-cross-appellant.

Robert D. Luskin, Jonathan A. Knee, and Catherine M. Cook, Law Office of Powell, Goldstein, Frazer & Murphy, Washington, DC, and Paul B. Meltzer and Peter A. Leeming, Law Office of Meltzer and Leeming, Santa Cruz, CA, for defendant-appellant-cross-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: HUG, HALL and O'SCANNLAIN, Circuit Judges.

ORDER

On June 13, 1989, a federal grand jury returned an eight count indictment against United States District Judge Robert P. Aguilar. The indictment charged Judge Aguilar with conspiring to defraud the United States in violation of 18 U.S.C. § 371, disclosing the existence of a wiretap application in violation of 18 U.S.C. § 2232(c) (counts four and six), endeavoring to obstruct justice in violation of 18 U.S.C. § 1503 (counts seven and eight), and racketeering in violation of 18 U.S.C. § 1962(c). In August 1990, Judge Aguilar went to trial on five of the counts and, on August 22, a petit jury found him guilty on one count of illegally disclosing a wiretap in violation of 18 U.S.C. § 2232(c) (count six) and one count of endeavoring to obstruct a grand jury investigation in violation of 18 U.S.C. § 1503 (count eight). It acquitted Judge Aguilar on the other three counts. On November 1, 1990, the district court sentenced Judge Aguilar to two six month terms of imprisonment, to be served concurrently, and fined him $2,000. Aguilar appeals his conviction on both counts and the government appeals his sentence.

The separate opinions of Judges Hug and O'Scannlain are filed contemporaneously with this order and opinion. The conviction for wiretap disclosure, count six of the indictment, is AFFIRMED for the reasons expressed in this opinion, as to which Judge O'Scannlain concurs in part. The conviction for obstruction of justice, count eight of the indictment, is REVERSED for the reasons expressed in the dissenting opinion of Judge Hug, as to which Judge O'Scannlain concurs in part. The sentence of six months' imprisonment and fine of $1,000 under count six is VACATED for the reasons expressed in the opinion of Judge O'Scannlain, as to which Judge Hug concurs in part, and REMANDED for reconsideration in light of United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991) (en banc).

OPINION

CYNTHIA HOLCOMB HALL, Circuit Judge:

I

BACKGROUND ¹

The chain of events leading to Judge Aguilar's indictment began with the 1980 conviction of Michael Rudy Tham for embezzling $2,000 from Local 856 of the Freight Checkers, Clerical Employees and Helpers Union, an affiliate of the International Brotherhood of Teamsters. Tham was Secretary-Treasurer of Local 856 and a member of several local and national Teamster committees. In July 1987, Tham filed a motion under 28 U.S.C. § 2255 to have his conviction set aside. In an effort to gain favorable treatment from District Judge Stanley Weigel, Tham sought the assistance of attorney Edward Solomon, an acquaintance of Judge Aguilar, and Abraham Chalupowitz, alias "Trigger Abe" Chapman, a putative mobster distantly related to Judge Aguilar by marriage. Chapman arranged a September 12, 1987, meeting between Solomon and Judge Aguilar to discuss Tham's case and how Judge Aguilar could assist Tham's petition. Over the next several months, Judge Aguilar discussed the case regularly with Chapman and Solomon, reporting to them his conversations with Judge Weigel about the matter.

Throughout this time, the San Francisco FBI was investigating local labor racketeering as part of a nationwide probe into health care provider fraud. Tham and Chapman were among the subjects of the investigation. On April 20, 1987, the FBI applied to then-Chief United States District Judge Robert Peckham for authorization to conduct electronic surveillance of Tham's business telephones and named Chapman as an interceptee of the wiretap. On May 20, the wiretap expired and, on July 15, Judge Peckham signed the first of a series of orders maintaining the secrecy of the wiretap while the investigation was ongoing. The last of the orders was signed on January 25, 1989.

As the investigation progressed, the FBI discovered that Chapman had a relationship with Judge Aguilar. On July 9, state agents observed Chapman leaving the Federal Building in San Jose with Judge Aguilar. The state agents informed the FBI and the FBI informed Judge Peckham. Judge Peckham expressed his concern, as well as his belief that Judge Aguilar must have been ignorant of Chapman's criminal activities.

A month later at an ABA reception in the Mark Hopkins Hotel in San Francisco, in an effort to warn Judge Aguilar about the character of the company he was keeping and help him avoid the appearance of impropriety, Judge Peckham mentioned to Judge Aguilar that Chapman's name had come up in connection with a wiretap application. He remarked that years earlier, as an Assistant United States Attorney, he had prosecuted Chapman on a drug charge and expressed his surprise that Chapman was still involved in criminal activity. Judge Aguilar indicated that he knew Chapman, but disclosed nothing else about their relationship.

Several months later, on February 6, 1988, Chapman paid a visit to Judge Aguilar at his home. As Chapman was leaving, Aguilar noticed that they were being observed from across the street by a man whom Judge Aguilar suspected was an FBI agent. Immediately Judge Aguilar telephoned his nephew Steve Aguilar, Chapman's grandson, and asked him to come to Aguilar's house. When Steve arrived, Judge Aguilar told him that an FBI agent was following Chapman and that he had heard "at work" that Chapman was being wiretapped. He instructed Steve to relay the information to Chapman, which he apparently did.

On April 26, 1988, a grand jury in the Northern District of California began to hear evidence regarding a conspiracy by Judge Aguilar, Tham, Chapman and Edward Solomon to influence the outcome of Tham's case. In May, Solomon agreed to cooperate with the FBI. On May 17, Solomon wore a wire to a luncheon meeting with Judge Aguilar. Over the course of their conversation, Judge Aguilar revealed that he had discussed the Tham matter with Judge Weigel and had warned Chapman about the wiretap. He also instructed Solomon to lie to the FBI about Aguilar's involvement in Tham's case. On May 26, Solomon recorded a second conversation in which he informed Aguilar that a grand jury was investigating their dealings in the Tham case. The two men also discussed how Solomon should lie to the grand jury in order to explain the records of Solomon's telephone calls to Judge Aguilar regarding the Tham matter.

Armed with this evidence, two FBI agents met with Judge Aguilar on June 22, 1988, and questioned him about his involvement in the Tham case. Before Judge Aguilar would respond to any questions, he wanted to know if he was a "target" of a grand jury investigation. Agent Carlon hesitated in answering the question, but when Aguilar said, "I assume from this that I very likely am [a target] if I've done anything wrong," Carlon responded affirmatively. Judge Aguilar then proceeded to lie to the agents about his relationship with Solomon, his involvement in the Tham case, and his knowledge of the wiretap. In response to Aguilar's further questions about whether or not he was a target, Carlon conceded that a grand jury was meeting, but would say nothing about the subject of the investigation or Aguilar's status. The interview continued and Aguilar lied further about his dealings with Chapman. At trial, Judge Aguilar testified that, by the end of the interview, he had concluded that his statements would be presented to the grand jury.

Based on this evidence, the jury convicted Judge Aguilar on one count of disclosing the existence of a wiretap in violation of 18 U.S.C. § 2232(c) and one count of endeavoring to obstruct a grand jury investigation in violation of 18 U.S.C. § 1503. Aguilar appeals each conviction on several grounds. He argues that the government's evidence was insufficient to prove that he satisfied the "knowledge" requirement of either section 2232(c) or section 1503; that the jury instructions misstated the "knowledge" elements of the statutes; and that the instructions impermissibly shifted to him the burden of proving that he lacked the knowledge required by these statutes. He also argues that the application of section 2232(c) to his disclosure of the wiretap violates his First Amendment right to free speech.

The government appeals Judge Aguilar's sentence, arguing that the district judge had no authority to depart downward six levels from the sentence level prescribed in the Sentencing Guidelines.

II

DISCLOSURE OF THE WIRETAP

The wiretap disclosure statute, 18 U.S.C. § 2232(c), ² makes it a crime for any person with knowledge that a wiretap authorization has been applied for or granted to divulge that knowledge with the purpose of impeding the interception of communications. Accordingly, the trial court instructed the jury that the government was required to prove that "defendant had knowledge that authorizations to conduct electronic surveillance of Abe Chapman had been applied for." The court continued:

Knowledge of a fact, members of the jury, means that you're satisfied from the evidence that he knew it[.] Or knowledge of the existence of a particular circumstance may be satisfied by proof that the defendant was aware of a high...