Court Clears Judge Involved With Mobster : Appeals: Convictions of Robert P. Aguilar are reversed. He had passed word of a federal wiretap to a reputed former Murder Inc. killer.

A federal appeals court in San Francisco on Tuesday reversed the convictions of U.S. District Judge Robert P. Aguilar for obstructing justice and leaking word to an aging mobster that he was being wiretapped by the Justice Department.

The U.S. 9th Circuit Court of Appeals ruled that Aguilar’s conduct did not violate the federal laws he was charged with breaking.

Unless the Supreme Court overrules the 9th Circuit decision, the charges against the San Jose judge will be dismissed.

“I feel great and the judge feels twice as good,” said Paul B. Meltzer, a Santa Cruz attorney who represented Aguilar in the appeal. “When I called to give him the news, his first words were, ‘Thank God.’ He’s very relieved.”

A 1980 appointee of President Jimmy Carter, Aguilar, 63, was only the third federal judge to be convicted of a felony, and the first in California.

Aguilar’s troubles began in 1987 when law enforcement officers on an organized crime investigation spotted him having lunch with Abe (Trigger) Chapman, a longtime family friend who had served four prison terms. The head of the FBI’s San Francisco office told Robert Peckham, chief U.S. district judge in Northern California, about the sighting.

Trying to warn his colleague that being seen with Chapman--a reputed mob killer and member of the infamous gang Murder Inc.--would create the appearance of an impropriety, Peckham told Aguilar in August, 1987, that Chapman’s name had come up in the course of a wiretap application.

Aguilar joked to Peckham that the Chapman he knew was “a senile old man who waddled when he walked.” Six months later, though, after spotting people he believed to be FBI agents outside his house, Aguilar told his nephew about the tap and the nephew relayed the information to Chapman.

In June, 1989, federal prosecutors accused the judge of eight felonies, including warning Chapman about the wiretap. It was also alleged that Aguilar attempted to sway another federal judge, Stanley A. Weigel, to give lenient treatment to former Teamster leader Rudy Tham, who was trying to persuade Weigel to reverse his conviction for embezzling union funds.

At trial, Aguilar told a San Francisco jury that he had taken actions that had embarrassed him, his court and his family, but he denied committing a crime.

The judge’s first trial ended with a hung jury. Three charges, including a racketeering count, were dropped before a retrial began in 1990.

Then, in November, 1990, a jury convicted Aguilar of disclosing to Chapman that he was the subject of an FBI wiretap. The jury also convicted Aguilar of obstructing justice when he lied to FBI agents in 1988 about his efforts to intervene on behalf of Tham. The judge was acquitted of three other charges.

Aguilar was sentenced to six months in jail, far below the normal term under federal sentencing guidelines.

Last year, a three-judge 9th Circuit panel upheld the wiretapping conviction but reversed the conviction for obstruction of justice. Both sides appealed, resulting in a hearing before an 11-judge panel that led to Tuesday’s decision.

The appeals court ruled 11 to 0 that Aguilar’s statements to the FBI did not obstruct a grand jury investigation because he did not attempt to coerce or persuade FBI agents to testify falsely before the grand jury.

“There is no evidence that Judge Aguilar tried to tell the FBI how to testify, tried to persuade them not to testify, or tried to dissuade them from testifying as to what their investigation otherwise revealed,” according to the majority opinion by Appellate Judge Procter Hug Jr. “The only evidence is that he made false and misleading statements to the FBI regarding his contacts with Chapman”--an old friend of Tham--and with Tham’s lawyer Edward Solomon. Aguilar was not charged with the crime of lying to the FBI.

On the other issue, the appeals court ruled 9 to 2 that Aguilar did not violate the wiretapping law because the authorization for the wiretap in question had expired eight months before he warned Chapman.

“The plain language of the statute makes it clear that the purpose of the statute is to prevent interference” with an existing or pending wiretap, according to the majority opinion. “Giving notice of an expired wiretap authorization or application is not a violation,” Hug wrote.

Hug added that interpreting the law to prohibit disclosures for an indefinite period of time would create the possibility that citizens’ free speech rights would be violated.

Hug was joined in his opinion by eight judges--five of whom, like him, were appointed by Carter and three of whom were appointed by Ronald Reagan.

Circuit Judges Ferdinand Fernandez, a George Bush appointee, and J. Clifford Wallace, a Richard Nixon, appointee, dissented.

“It cannot be doubted that Judge Aguilar conveyed information to Chapman with the intent to impede interception” of the wiretap, the dissenters wrote. The fact that the original wiretap authorization had expired was irrelevant, the dissenters said, particularly since another one had been issued and was in effect at the time Aguilar warned Chapman.

A Justice Department spokesman said the agency would make no comment until department attorneys had reviewed the 9th Circuit ruling. Any decision to appeal to the Supreme Court would have to be approved by Solicitor General Drew Days III, said Justice Department spokesman John Russell.

Robert D. Luskin of Washington, D.C., Aguilar’s other attorney, expressed confidence that Tuesday’s ruling would not be overturned by the Supreme Court if the Justice Department appeals.

“The government has never used the theories they used against Judge Aguilar in any other criminal prosecution,” Luskin said. “And there is no reported case in which a federal court of appeals has upheld the use of these statutes in the way the Justice Department wanted to use them in this case.”

Aguilar has been out on bail since his 1990 convictions, but retained his judge’s title and salary. He has handled settlement conferences for other judges, but has not presided over formal court hearings.

On Tuesday, Aguilar’s attorney, Meltzer, said the judge intends “to resume a full caseload as soon as possible,” including criminal cases. Meltzer said he did not think it would be a problem for Aguilar to preside over cases lodged by his former accuser--the Justice Department. Aguilar’s office referred all calls to Meltzer.

“I think if you were to ask the majority of government lawyers who appeared before Judge Aguilar, they would tell you he’s been quite fair,” Meltzer said. The U.S. attorney’s office in San Jose did not return a call seeking comment.

At a 1990 sentencing hearing, Meltzer told the trial judge that Judge Aguilar “knows he has disappointed thousands of people who looked to him as a role model.”

On Tuesday, Meltzer said that in hindsight, Aguilar should not have maintained his relationship with Chapman. “It was an error of judgment to allow himself to be too open to people he should have shunned,” Melzer said.