United States of America, Plaintiff-Appellee-Cross-Appellant v. Robert P. Aguilar, Defendant-Appellant-Cross-Appellee

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 1 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…

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. § 2232 (c), and endeavoring to obstruct justice in violation of 18 U.S.C. § 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 ease 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…

in which WALLACE, Chief Judge, joins, concurring and dissenting:

I concur in the majority’s opinion regarding Count Eight. However, I must respectfully dissent as to Count Six. In my opinion, 18 U.S.C. § 2232 (c) does cover Judge Aguilar’s actions. As I see it, the government was required to prove that Judge Aguilar knew that a wiretap had been applied for; that Judge Aguilar intended to obstruct or impede the interception for which the application was designed to obtain authorization; and that Judge Aguilar gave or attempted to give notice of the possible interception.

For purposes of this opinion, I (along with the majority) will take it as a given that Judge Aguilar knew of the wiretap application. 1 I also take it that he even knew that a wiretap might well result from that application. 2 I further take it that he did not know about the later applications and wiretaps, including the one which was in place when he made his disclosures to Chapman, although the latter assumption is somewhat problematic. He certainly talked and behaved as if he thought a wiretap was in place.

It cannot be doubted that Judge Aguilar conveyed information to Chapman with the intent to impede…