Court Upholds 1 of 2 Criminal Counts Against Federal Judge

An appeals court Wednesday upheld the conviction of federal Judge Robert P. Aguilar for leaking word to an aging mobster that he was being wiretapped, but the court reversed a conviction on charges of lying to the FBI.

The U.S. 9th Circuit Court of Appeals in San Francisco was sharply divided in its 2-1 ruling in the case of the first federal judge in California to be convicted of a crime and only the third in the nation’s history to be sentenced to a federal prison.

The court also ordered the trial judge to provide a more detailed explanation of why he had given Aguilar a six-month prison sentence and a $1,000 fine, substantially below the range in federal sentencing guidelines of up to 27 months and a $50,000 fine. But the court spurned a Justice Department argument that the sentence was illegally low.

Aguilar, a 1980 appointee of President Jimmy Carter, will retain the title and salary of a federal judge unless he is impeached by the Senate. He has not presided over courtroom matters since his trial.

The judge, now 62, has been out on bail since a San Francisco jury convicted him in November, 1990, of leaking word to “Trigger” Abe Chapman, a family friend since the 1930s, that he was the subject of an FBI wiretap. The jury also found that Aguilar obstructed justice when he lied to FBI agents in 1988 during questioning about his efforts to intervene on behalf of former Teamsters leader Rudy Tham, who was trying to persuade another federal judge to reverse a 1980 conviction for embezzling $2,000 from a Teamsters local.

Aguilar was acquitted of several other charges, including conspiracy to obstruct justice by attempting to influence Judge Stanley Weigel to overturn Tham’s conviction. Testimony showed that Aguilar asked Weigel about the status of the case. But Weigel cut off the inquiry, sensing that it was improper, and later withdrew from Tham’s case.

The chain of events, according to Wednesday’s decision, began when Tham enlisted the aid of attorney Edward Solomon, an acquaintance of Aguilar and Chapman. Chapman arranged a meeting between Solomon and Aguilar.

Then, over a period of several months in 1987 and 1988, Aguilar discussed the case regularly with Chapman and Solomon, reporting to them his conversations with Weigel about the matter, Judge Cynthia Holcomb Hall noted in her majority opinion.

FBI agents, working on an unrelated organized-crime conversation, spotted Chapman having lunch with Aguilar. The FBI’s chief agent in San Francisco reported the incident to Robert Peckham, the chief federal trial judge there. Hoping to warn Aguilar to stay clear of Chapman, Peckham told Aguilar at a cocktail party that Chapman’s name had come up in connection with an FBI wiretap application.

Aguilar then told his nephew about the wiretap and the nephew relayed the information to Chapman.

On the witness stand, Aguilar admitted taking actions that “embarrassed” him, his court and his family. But he denied committing any crime.

The key issues on appeal were Aguilar’s contention that there was insufficient evidence to prove he had actual knowledge of a wiretap and that the jury instructions misstated the elements of the knowledge requirement. Hall rejected those arguments, saying that the jury had ample evidence of Aguilar’s knowledge of the wiretap and that the instructions were proper.

Appellate Judge Diarmuid F. O’Scannlain ruled that the jury instructions were improper but held that they constituted “harmless error” because there was considerable evidence that Aguilar knew about the wiretap. O’Scannlain joined Hall’s opinion sustaining the conviction for leaking wiretap information.

Judge Procter Hug Jr. issued a strong dissent, saying: “The statutes that form the basis for these charges have to be stretched far beyond their intended application to be made applicable to the facts of this case.”

O’Scannlain joined forces with Hug in overturning the obstruction of justice conviction. In that instance, both judges said the jury instructions constituted reversible error.

Aguilar’s attorney, Paul B. Meltzer, applauded that reversal and said he planned to ask for a rehearing on the conviction that was sustained. A Justice Department lawyer did not return a call seeking comment.