Aguilar

Opinion by Judge HUG; Dissent by Judge FERNANDEZ.

The appellant, United States District Judge Robert Aguilar, was charged with five criminal violations. Trial was held on August 1, 1990. The jury acquitted him of three of the charges and convicted him of two. The convictions were for one count of illegally disclosing a wiretap application in violation of 18 U.S.C. § 2232 (e) and for one count of endeavoring to obstruct the due administration of 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.

After rehearing en banc, we reversed both convictions on the ground that the conduct involved was not covered by the statutory language. United States v. Aguilar, 21 F.3d 1475 (9th Cir.1994) (en banc). The Supreme Court granted certiorari and upheld the reversal of the conviction under section 1503, but it reversed our holding on the section 2232(c) charge and remanded for us to consider issues we did not reach in our previous en banc opinion. United States v. Aguilar, - U.S. -, 115 S.Ct. 2357 , 132 L.Ed.2d 520 (1995). Because the Supreme Court upheld the reversal of the section 1503…

dissenting:

I see nothing bizarre or unconstitutional about breaking a single concept like “knowledge” into two components, such as “actual” (knowledge) and “aware of a high probability” (knowledge). Neither is any less than knowledge itself. If the Legislature declared it was a crime to injure a mammal, I would see no violation of a defendant’s rights if the court were to tell the jury that injuring a dog (mammal) or a cat (mammal) violated the statute. So, too, with a taxonomy of knowledge.

Actual knowledge is a rather unusual thing. Perhaps we actually know there cannot be' an antinomy — “X” is and simultaneously is not. Perhaps we also actually knoiv that we are feeling an emotion. But there is little else that we actually know. Most usually what we have is pieces of information that make it highly probable that a particular fact or circumstance exists.

This- case is a fine illustration of that. Judge Aguilar was told by Chief Judge Peck-ham that Chapman’s name had come up in connection with a wiretap application. From that Judge Ag-uilar, not surprisingly, deduced that a wiretap had been applied for and that Chapman was subject to a wiretap — at least he might well be…