Paul Phua and his son Darren have seen things mostly go their way so far in court, but the Malaysian businessmen and poker player knows that nothing is completely over until the last card is dealt.
And while prosecutors are running out of options if they want to score a conviction, there’s still hope if they can have critical evidence allowed at trial.
Federal prosecutors filed court papers earlier this week, asking US District Judge Andrew Gordon to overrule the recommendations of US Magistrate Judge Peggy Leen and allow evidence from a July 9 raid on a Caesars Palace villa to be used against the Phuas.
Prosecutors say that this evidence makes up the bulk of their case, but Judge Leen found that the search warrant used to justify that raid should not have been issued.
Judge Found Fault With Affidavit from FBI Agents
The trouble goes back to a sworn affidavit submitted by FBI agents when they requested a warrant to search the villa.
According to Leen, that affidavit included numerous “false and misleading statements,” and without those sections, the affidavit would be “fatally flawed.” That means that the warrant should never have been granted, and thus the evidence recovered from the ensuring raid cannot be used in court.
Prosecutors, however, are hoping that Judge Gordon, who is presiding over the Phuas’ case, will see things differently.
According to assistant US attorneys Kimberly Frayn and Phillip Smith Jr., the errors in the FBI affidavit were neither intentional nor reckless, and didn’t materially change the overall case for probable cause the agents were making. They also say that even with the errors, there was still plenty of hard evidence presented that showed it was likely that the Phuas were engaged in a criminal enterprise.
The result of this challenge could have a dramatic impact on the case.
Prosecutors have previously said that the evidence seized from the raid is critical in their case against the Phuas, and that they may not be able to prove their case without it. The case is expected to go to trial on April 13.
Defense Wants Initial Search Deemed Unconstitutional
Interestingly, defense lawyers for the Phuas were just as interested in protesting segments of Leen’s recommendations, albeit for entirely different reasons.
While Leen did say that the evidence from the full-scale raid of the villa should be thrown out because of issues with the affidavit, she also found that FBI agents acted properly in an early July 5 ruse that allowed them to enter the villa.
In that incident, the FBI worked with the Caesars to cut Internet access in the villa, prompting the tenants to ask for technical support. Agents then entered under the guise of repairing the Internet connection, collecting evidence they used to support the July 9 raid.
Defense lawyers David Chesnoff and Thomas Goldstein have argued that such a search violated their clients’ constitutional rights against unlawful search and seizure. However, Leen said that the defendants gave consent for the agents to look around their room when they let the “technicians” in to service their Internet connection.
The Phuas were just two of eight defendants originally charged with operating an illegal World Cup betting ring out of a Caesars Palace villa last summer. Of the six other defendants, five pleaded guilty to lesser charges, and the sixth had the charges against him dropped.