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

• Decision Date: 19 April 1994
• Docket Number: 91-10024,Nos. 90-10597,s. 90-10597
• Citation: 21 F.3d 1475
• Parties: UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Robert P. AGUILAR, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1475

21 F.3d 1475

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 Nov. 18, 1993.

Decided April 19, 1994.

Robert D. Luskin, Beth M. Bollinger and Joseph G. Davis, Comey Boyd & Luskin, Washington, DC, Paul B. Meltzer, Peter A. Leeming, Meltzer & Leeming, Santa Cruz, CA, for defendant-appellant-cross-appellee.

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

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

Before: WALLACE, Chief Judge, HUG, TANG, FARRIS, PREGERSON, NORRIS, REINHARDT, BRUNETTI, KOZINSKI, LEAVY, and FERNANDEZ, Circuit Judges.

HUG, Circuit Judge:

I.

OVERVIEW

The appellant, United States District Judge Robert Aguilar, was charged with five criminal violations. Trial was held on August 1, 1990. He was acquitted of three of the charges, and convicted of two. The convictions were for illegally disclosing a wiretap in violation of 18 U.S.C. Sec. 2232(c), and endeavoring to obstruct justice in violation of 18 U.S.C. Sec. 1503. The appellant was sentenced to two six-month terms of imprisonment, to be served concurrently, and fined $2,000. Judge Aguilar appeals his convictions on both counts, and the Government appeals his sentence.

The central question in this case is whether Judge Aguilar's conduct, as charged in the indictment and found by the jury, violated the criminal statutes on which his convictions are based. We find that the statutes do not apply to the conduct at issue in this appeal, and we therefore reverse the convictions. ¹

II.

BACKGROUND

The genesis of the charges against Judge Aguilar was an effort by Rudy Tham, Abraham Chapman, and Edward Solomon to have Tham's 1980 conviction for embezzlement set aside.

Tham was a former union official for San Francisco Teamsters Local 856. He had been an active leader of Local 856 until his conviction on May 21, 1980, for embezzlement and making false entries into union records. District Judge Stanley A. Weigel presided over the trial. Tham desired to have his conviction overturned so that he could resume his union activity. In this regard, Tham sought the assistance of attorney Edward Solomon, and a friend, Abraham Chapman.

Solomon is an attorney whose office was located in the same building as Local 856. Twenty to thirty percent of Solomon's work came from referrals by Tham. Solomon had attended Hastings College of the Law with Judge Aguilar and was an acquaintance of the Judge.

Chapman, an 83 year-old man, was married to Mrs. Josephine Knaack ("Mrs. Knaack"), a longtime friend of the Aguilar family, whose daughter, Marilyn, had married Judge Aguilar's brother. Judge Aguilar had met Chapman at several family functions.

Solomon began working on setting aside Tham's conviction in 1987. He advised Tham that the best way to get his conviction overturned would be by filing a petition for habeas corpus under 28 U.S.C. Sec. 2255. The petition was filed and scheduled to be heard by Judge Weigel. In an effort to enhance the chances for success, Tham, Solomon, and Chapman sought to utilize Chapman's and Solomon's ties to Judge Aguilar to solicit help and advice from Judge Aguilar. They hoped to have Judge Aguilar influence Judge Weigel in his decision on Tham's petition.

Chapman arranged a meeting between Judge Aguilar and Solomon on September 12, 1987. At the meeting, Judge Aguilar reviewed the petition and advised Solomon to seek an evidentiary hearing. After this meeting, Solomon and Chapman, at the urging of Tham, periodically called Judge Aguilar, asking him to check on the scheduling and status of the petition and the hearing. Judge Aguilar complied with the request and twice checked the court calendar to see if the hearing had been set, and once asked Judge Weigel if a hearing had been set. It is within this framework that Judge Aguilar became intertwined with Tham, Chapman, and Solomon.

In the course of investigating Tham and Chapman on unrelated matters, the FBI became aware of Tham's efforts regarding his habeas petition, and the conversations Chapman This investigation led to several charges being presented to the grand jury against Tham, Chapman, and Judge Aguilar, and on June 13, 1989, they were indicted. ² In the initial trial, the three persons were tried together. This ended in a hung jury and a consequent mistrial.

and Solomon had with Judge Aguilar. The FBI began an investigation into the events regarding Tham's habeas petition and the possible illegal attempt to influence Judge Weigel.

Judge Aguilar was then tried separately on five counts. The charge that was the principal focus of the trial was that Judge Aguilar had participated in a conspiracy to impede criminal investigations and to influence Judge Weigel in his decisions concerning Tham's section 2255 petition. Judge Aguilar testified that he was only advising Solomon and Chapman as to how to get the matter before the court procedurally. Judge Weigel testified that Judge Aguilar did not in any way attempt to influence him in his ruling on Tham's section 2255 petition. Judge Aguilar was acquitted of the conspiracy charge and on two other charges. The jury found Judge Aguilar guilty on the two remaining charges.

Judge Aguilar was convicted on a charge of disclosing a wiretap application and a charge of attempting to obstruct justice. The nexus of these charges stems from specific incidents that occurred during the investigation relating to Tham's petition. We now turn to an analysis of the specific charges of which Judge Aguilar was convicted, and the facts involved in those charges.

III.

WIRETAP CHARGE

A. Facts

The events that led to the charge of illegal disclosure of a wiretap application are as follows.

Throughout the time that Tham was attempting to have his conviction set aside he was being investigated by the FBI as a part of a nationwide probe into health care provider fraud. On April 12, 1987, the FBI applied to then-Chief United States District Judge Robert Peckham for authorization to conduct electronic surveillance of Tham's business telephones. The application named Chapman as a potential interceptee of the wiretap.

On April 20, 1987, Judge Peckham signed an order authorizing the wiretap. The wiretap expired on May 20, 1987, and on May 21, Judge Peckham signed an order terminating the wiretap. The April 20 wiretap was never extended. Other wiretaps were authorized for which Chapman was an interceptee from September 11 to October 12, 1987, and from October 22, 1987, which was extended through May 8, 1988, by applications pursuant to 18 U.S.C. Sec. 2518(5).

During this time, the Department of Justice of the State of California was conducting surveillance of Chapman on unrelated matters. On July 9, 1987, a state agent photographed Chapman walking out of the San Jose Federal Building with Judge Aguilar. The state agent notified the FBI. The FBI and the state agent then observed Judge Aguilar and Chapman eating lunch together.

As Chief Judge of the Northern District of California, Judge Peckham had an interest in maintaining the integrity of the court and in being informed of any matter which could damage the court's reputation. He had an arrangement with the FBI Special Agent in Charge that the agent would report to Judge Peckham any perceived improprieties occurring within the Northern District Court. Thus, on August 5, 1987, FBI Special Agent in Charge, Richard Held, informed Judge Peckham that in the course of investigating Abe Chapman, Judge Aguilar had been observed in the company of Abe Chapman. The agent informed Judge Peckham that there was no indication that Judge Aguilar was implicated in any criminal activity, or that Judge Aguilar was a subject of the investigation.

On August 9, Judge Peckham ran into Judge Aguilar at an American Bar Association reception in San Francisco. The two discussed the San Jose court calendar. Judge Peckham then told Judge Aguilar that, "in the course of a wiretap application that Judge Aguilar testified that on February 6, 1988, Abe Chapman stopped by his house to drop off a box of sausage on behalf of Mrs. Knaack. Chapman stayed for about 10 minutes and had two brandies. Judge Aguilar walked Chapman to his car. At the car, Judge Aguilar noticed across the street a man who appeared to be conducting surveillance and taking pictures of him and Chapman. Judge Aguilar suspected the man was with the police or the FBI. Chapman then drove off almost causing an accident with two cars, one that came to a screeching halt and one that drove over the curb to miss Chapman. The car conducting surveillance followed Chapman.

                the name Abie Chapman had come up and that [when he] had been a United States Attorney in 1951 that Abie Chapman had been prosecuted in a notorious drug case."   Judge Peckham did not tell Judge Aguilar whose phone was to be tapped or whether Chapman was a person whose messages were to be intercepted.  Judge Peckham testified that his intent in telling this information to Judge Aguilar was to let Judge Aguilar know that associating with Chapman could create the appearance of impropriety.  Judge Aguilar responded that he knew the old man, and laughed because the Abe Chapman he knew was "a senile little old man who waddled when he walked."   Judge Aguilar and Judge Peckham did not discuss Chapman or any wiretap after August 9
                

The incident caused Judge Aguilar a good deal of concern. He then called his nephew, Steve Aguilar, and asked him to come over. Judge Aguilar knew that Chapman was next going to Steve's mother's house to make a delivery. He told Steve of his concerns about Chapman's driving and stated that he had heard as a fluke at work that phones were being tapped. He asked Steve to go to his mother's house and personally tell...