Count Inappropriate, Accused Judge Says : The Bench: U.S. District Judge Robert Aguilar asks for dismissal of a racketeering charge because it fails to allege bribery or any other financial motive.

Lawyers for U.S. District Judge Robert Aguilar asked Tuesday for dismissal of the racketeering charge against him, saying it fails to allege bribery or any other financial motive.

In papers submitted to a federal court, Aguilar’s lawyers made a multi-front attack on the racketeering charge, the first against a federal judge. They also sought dismissal of three of the other seven charges against Aguilar.

“The indictment is unique and remarkable in that it accuses a sitting federal judge of racketeering without charging a single act of bribe-taking, kickbacks or personal financial gain by the alleged perpetrator, unlike every previous reported (racketeering) case brought against any judge, magistrate, sheriff, police officer or other government employee,” said the papers signed by attorney Patrick Hallinan.

He also said the allegations, even if proven, were not enough to make Aguilar guilty of running his office as a “racketeering enterprise” because they concerned isolated incidents and did not involve any cases before Aguilar.

Aguilar, 58, a 1980 appointee of President Jimmy Carter, was indicted by a federal grand jury in June on charges of using his office to seek favorable treatment for convicted felons and helping a fugitive remain free.

He was also charged with tipping off a family friend, self-styled ex-mobster Abe Chapman, about court-ordered wiretaps; conspiring with Chapman and former Teamster leader Rudy Tham to obstruct an FBI investigation and use undue influence on the courts; lying to FBI agents, and telling Tham’s lawyer to lie to the grand jury.

The racketeering charge accuses Aguilar of using his judicial office as an enterprise to obstruct justice.

On Monday, lawyers for Tham released an 82-page affidavit by an FBI agent containing details of the investigation of Aguilar, including the judge’s statements on wiretapped telephone calls and in an FBI interview.

In some wiretapped calls, Aguilar appears to be giving advice on the upcoming appeals of Tham and another convicted felon, Ronald Cloud. The affidavit also quotes him as telling the FBI that he never discussed local criminal cases outside court and had not approached any fellow judges about cases.

Another federal judge, Stanley Weigel, was quoted as telling agents that Aguilar had approached him about Tham’s case, but Weigel said he did not think Aguilar had broken the law.

Charles Garry, one of Aguilar’s lawyers, said Tuesday he saw nothing incriminating in the disclosures.

“Just because you become a judge, you don’t cease operating as a human being,” Garry said. “I don’t see anything wrong with talking to friends about cases” in another judge’s court.

He said Aguilar’s only inquiries to Weigel were, “Was it (Tham’s case) on the calendar and had it been disposed of?” Those questions were not illegal, Garry said.

In the court papers, Hallinan recited a long list of racketeering cases against state judges and other officials and said every one had involved an accusation of bribery, kickbacks, extortion or other personal financial motive. Aguilar is not accused of seeking financial gain although Tham and Chapman were alleged to be finding a job for the judge’s brother.

The racketeering law “is inapplicable because there is not (a) charge of economically motivated activity,” Hallinan wrote.

He also said the individual acts alleged--approaching other judges on behalf of Tham and Cloud; helping fugitive Vera Hoff, his former secretary, remain free, and obstructing a grand jury investigation involving Tham and Chapman--were unconnected to one another and could not be a “pattern of racketeering activity,” as the law requires.

In addition, none of those acts involved Aguilar’s court, the alleged “racketeering enterprise,” Hallinan said.

BACKGROUND

Aguilar is the fourth federal judge to be indicted in the last decade and the first to be charged with racketeering. He could be sentenced to up to 55 years in prison if convicted. Free without bail, he is expected to go on on trial next year. In the meantime, Aguilar remains in office in San Jose but has relinquished nearly all judicial duties.