The Paul Phua sports betting case may be in jeopardy, as a federal judge has recommended that much of the evidence collected against the Malaysian businessman and poker player should be tossed out of court.
The ruling by US Magistrate Judge Peggy Leen suggests that evidence collected against Phua and his son Darren in a July 9 raid on their Caesars Palace villa cannot be used against them because of “false and misleading statements” by FBI agents in the sworn affidavit they submitted in order to get the warrant for that raid.
Judge Leen wrote that after eliminating the many errors and false statements in the affidavit, there wasn’t enough evidence to provide probable cause and justify the search.
One of the largest errors, she said, was the failure to disclose the tactics used by the FBI: in particular, the decision to turn off Internet access in the villa so that the Phuas and their associates would ask for technical support, allowing agents to pose as technicians and enter the room to gather evidence.
Agents Should Have Disclosed Tactics in Affidavit
According to Leen, the judge who issued the warrant should have been told about that visit in order to best determine whether probable cause for a more thorough search had been demonstrated.
“The investigators’ suspicions that Phua was engaged in illegal sports betting at Caesars Palace may be borne out by the evidence recovered in the execution of the warrant,” wrote Leen. “However, a search warrant is never validated by what its execution recovers.”
Leen also made a decision related to that first clandestine search, finding that FBI agents acted within their authority by secretly investigating the room while pretending to be technical support personnel.
Leen said that while the Phuas were “tricked” into allowing the agents in during the July 5 incident, they still did consent to allowing people into the villa, and thus had taken on the risk that their activities would been discovered.
But while that particular tactic may have passed muster, the omission of it from the search warrant affidavit did not.
Leen also pointed out that investigators made some rather shaky connections in their request for a warrant, failing to properly connect Phua to the 14K Triad and suggesting connections between Phua and the sports betting ring that they couldn’t really prove.
“The affidavit’s repeated use of the phrase ‘Phua and his associates’ or ‘Phua’s associates’ or ‘at the behest of Phua or one of his associates’ suggests that Phua was making requests and engaging in conduct which he was not,” Leen wrote.
Lawyers Celebrate “Triumph for Citizens”
Regardless of the reason for the recommendation, lawyers for the Phuas were pleased with the decision.
“This is a triumph for citizens everywhere, showing that courts will enforce the constitution,” attorney David Chesnoff said. “I’m pleased that her honor recognized that law enforcement must not be reckless nor omit vital information when seeking a warrant.”
Prosecutors can still appeal these recommendations to US District Judge Andrew Gordon, who is presiding over the case.
They have 14 days to respond to Leen’s rulings.
So far, five of the eight defendants in the sports betting case have decided to plead guilty to lesser charges and were sentenced to probation.
A sixth defendant had the charges against him dismissed, leaving only the Phuas to resolve their cases in court.