The Paul Phua sports betting case may now hinge on whether or not federal prosecutors can successfully convince a judge that their evidence against the Malaysian businessman should be allowed in court.
Prosecutors filed a court challenge earlier this week against US Magistrate Judge Peggy Leen’s recommendation that most of the evidence against Phua and his son Darren should be tossed because of problems with an affidavit FBI agents used to obtain a critical search warrant.
In a decision reached earlier this month, Judge Leen said that FBI agents used “false and misleading statements” in their affidavit, and that the affidavit was “fatally flawed.” The result was that the judge had no probable cause to allow a search of the Caesars Palace villa that the Phuas were allegedly running their World Cup sports betting ring from.
Prosecutors Say Warrant Was Reasonable
But prosecutors say that this recommendation was made in error, and that the evidence collected in that raid should be allowed.
Assistant US Attorneys Kimberly Frayn and Phillip Smith Jr. argued against Leen’s ruling, saying that FBI agents presented more than enough evidence to reach the standard of probable cause when applying for a search warrant.
They also argued that while there may have been errors in the affidavit, they were not reckless or intentional, and that they made no material difference to the evidence provided.
The decision made by US District Judge Andrew Gordon could determine how the entire case against the Phuas proceeds. Gordon is presiding over the case, which is currently set to go to trial on April 13.
Prosecutors have said that it would be difficult for them to prove their case if they can’t use the evidence collected in the July 9 raid that was allowed by the search warrant, so it is hard to see how the case could proceed unless Leen’s recommendation is overruled.
Defense Lawyers Say Initial Search Was Unconstitutional
Defense lawyers for the Phuas have also filed court papers in an attempt to challenge another part of Leen’s ruling.
While Leen did say that most of the evidence against the Phuas should be thrown out, her reasoning surprised some, as she said that the most controversial tactics used by the FBI were legal. FBI agents worked with casino officials to turn off the Internet connection in the villa hosting the alleged sports betting ring, which led the tenants to call for technical support.
Agents then gathered evidence under the guise of being technicians, evidence that was then used to justify the later raid.
Attorneys David Chesnoff and Thomas Goldstein argued that this was an unconstitutional search, because the FBI actively created the conditions that led to technical support being called, but Leen said that the Phuas still gave their consent when they asked technical support to enter the villa.
Chesnoff and Goldstein made it clear they disagreed in their challenge to that recommendation.
“The government’s position in this case…would shock the conscience of ordinary Americans,” they wrote. “It is an assault on our deepest constitutional values that cannot be taken seriously.”
The Phuas are the last remaining defendants in the sports betting case. Of the eight men originally charged, five have already pleaded guilty to lesser charges, while the case against one of the defendants was dismissed.