Federal Judge Tosses All Evidence Obtained By FBI's 'Cable Guy' Ruse

from the should-have-suspected-something-was-up-when-they-showed-up-on-time dept

Wed, May 27th 2015 11:46am — Tim Cushing

The FBI's evidentiary ship has come in. And it's cargo hold is completely empty.

Earlier this year, the FBI found itself facing a judge thoroughly unimpressed with its dramatic flair. As you may recall, as part of an investigation, the FBI cut the cable to some Las Vegas bungalows, and then pretended to be cable repair guys to get a look inside. Whether or not the FBI agents in question made for believable cable guys, the judge found its actions during the investigation of an alleged illegal gambling ring repeatedly crossed the boundaries set by the Fourth Amendment.

In one of those odd decisions that flowed uphill, the magistrate judge recommended that the evidence obtained by the FBI's unconstitutional ruse be tossed by a federal court. The federal court agreed:

A federal judge has thrown out evidence collected by FBI agents who posed as Internet repairmen to get into Las Vegas Strip hotel rooms last summer during an investigation into illegal bookmaking, and is giving prosecutors until Friday to decide whether to drop criminal charges altogether.

The ruling by U.S. District Judge Andrew Gordon in Las Vegas almost completely guts the case against Malaysian businessman Wei Seng "Paul" Phua, defense attorneys David Chesnoff and Thomas Goldstein said.

"There's no more evidence from anywhere," said Chesnoff, who has alleged investigative and prosecutorial misconduct and cast the case as a fight for people in their homes to be free from prying eyes of the government.

Even with the FBI's unconstitutional head start, the evidence gathered seemed to be of the "hearsay and conjecture" variety. This made it that much easier to decide that not only was the fruit of the tree "poisoned" but also "rotten," "unnaturally colored" and "squishy in all the wrong places."

Despite the evidence being mostly gone, the government may still may have a chance at securing a conviction, albeit one of lesser magnitude than it originally sought.

Instead of dismissing charges, prosecutors could point to crimes committed by Phua's son and six other defendants who pleaded guilty to lesser charges in plea deals that had them forfeit hundreds of thousands of dollars in equipment and fines, and got them banned from returning to the U.S. for five years. The case against one defendant was dismissed. All seven returned home to Asia.

Phua remains in Las Vegas under house arrest after posting $2 million cash bond and surrendering a $50 million aircraft as collateral.

Not a big win by any means if this comes to pass, but the FBI will be happy to take even a win with a small "w" after its disastrous showing in court.

Hopefully, this debacle will steer the FBI away from future dress-up games (or not, see also: almost every terrorism bust) and closer to the restrictions placed on it by the Bill of Rights. Of course, this hope relies on the FBI being pulled aside by disgruntled judges for its misdeeds, rather than granted immunity or otherwise waved through because its heart is in the right place. There's still a lot of deference being shown law enforcement agencies by our nation's courts, despite multiple incidents indicating they're clearly not to be trusted -- at least not to the extent they've historically been.

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Filed Under: 4th amendment, cable guy, doj, fbi, wei seng phua

21 Comments

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Anonymous Coward, 27 May 2015 @ 11:49am

I'm sure they're already building plan B where they charge the person with a million minor offenses in hopes that they'll take the better looking plea deal where they can secure a win!
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Someantimalwareguy, 27 May 2015 @ 12:09pm

Do ti right the first time!
...lazy is a poor substitute for actual, constitutionally based law enforcement work and practice!
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That One Other Not So Random Guy, 27 May 2015 @ 12:16pm

the FBI cut the cable to some Las Vegas bungalows, and then pretended to be cable repair guys to get a look inside.
The letter agencies are out of control.
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Anonymous Coward, 27 May 2015 @ 12:22pm

Re: Do ti right the first time!
And that is a very interesting case of irony you've just displayed -- where on TechDirt you don't get the chance to go back and clean up your mistakes.
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Anonymous Coward, 27 May 2015 @ 12:24pm

While I am sure that we all hope this steers the FBI away from these methods of gathering "evidence" I think we all know it will end up as another entry in their playbook for deciding when parallel construction is the appropriate course of action.
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PRMan, 27 May 2015 @ 12:28pm

What does the FBI care?
They already imprisoned him and took $50 million from him before his trial. Who cares if he's convicted? They destroyed his life already without one.
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Anonymous Coward, 27 May 2015 @ 12:33pm

Destroyed his life? He was actually guilty. He was committing a crime and according to our laws, should have been in prison.

The only thing that keeps him out of prison is bad, lazy police work.
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Anonymous Coward, 27 May 2015 @ 12:37pm

Re: What does the FBI care?
You don't forfeit 'collateral' forever. The $50 million dollar plane was listed as collateral, meaning unless he fled the country he'll get it back.
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Anonymous Coward, 27 May 2015 @ 1:43pm

Re:
under that logic most of the FBI should be jailed for crimes they have willingly and knowingly committed in their race to catch criminals.
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Anonymous Coward, 27 May 2015 @ 2:13pm

Re:
He was committing a crime and according to our laws, should have been in prison.
[Conviction needed.]

The FBI has alleged that he was committing a crime, and they have inflicted certain substantial pre-trial inconveniences on him (house arrest, deprivation of the funds used for the bond). It is not clear that the duration and scope of those inconveniences are consistent with the lawful punishments for the crimes committed, assuming their allegations of criminal activity are even accurate. Given the poor quality of the evidence that they lost use of, I am not inclined to give them the benefit of the doubt on the substance of the allegations.
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That One Guy (profile), 27 May 2015 @ 2:17pm

Re: Re: What does the FBI care?
Technically perhaps, but if they care to I'm sure they could keep it wrapped up in red tape for years, or find another way to steal it(asset forfeiture anyone?).
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Pixelation, 27 May 2015 @ 2:28pm

Poor old FBI.

HAHA!
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tqk (profile), 27 May 2015 @ 3:19pm

Re:
He was running a sports book, in Vegas! That's against the law because ... he was cutting into Vegas' act?

I'm all for the LEOs IFF they're doing their jobs catching bad guys, but this, and their manufactured terrorist plots? No.
Phua remains in Las Vegas under house arrest after posting $2 million cash bond and surrendering a $50 million aircraft as collateral.

That's a travesty.
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Atkray (profile), 27 May 2015 @ 3:31pm

Re: Re: Re: What does the FBI care?
My thoughts exactly, how many hours until the aircraft is charged.
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DB (profile), 27 May 2015 @ 3:41pm

For those unfamiliar with the underlying case, it was basically that these guys were running a sports betting operation. It was exactly the same as the 'legal' ones next door. Just in direct competition with them, although apparently serving only non-US people instead of including domestic bets.

They apparently rented an expensive bungalow in an casino in order to have immediate access to sporting event results.

The casino suspected they were competitors, and called on their government contacts. They tried to help the FBI get access with housekeeping and room service pretenses, but that didn't work. So they collaborated to cut the internet service so that they would have a pretense to enter.
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sigalrm (profile), 27 May 2015 @ 3:45pm

Re: Re: Re: What does the FBI care?
"Here's your aircraft back. By the way, while in was in our custody, it was used a part of an undercover sting operation, and subsequently rendered un-airworthy as a result of a fire fight with members of a mexican drug cartel. Hope that's not an inconvenience.

Oh, and you might want to get the pilots seat cleaned before you sit in it."
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Nigel (profile), 27 May 2015 @ 4:33pm

well deserved lulz
from the should-have-suspected-something-was-up-when-they-showed-up-on-time dept

cant... stop... laughing
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Anonymous Coward, 27 May 2015 @ 6:04pm

Re: Re: Do ti right the first time!
Yes, those totally comparable situations...
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Rekrul, 27 May 2015 @ 8:34pm

If the search itself was illegal and all evidence gained from it is suppressed, wouldn't the plea bargains also be rendered null and void? After all, they never would have been offered those deals, or signed them if they hadn't been arrested based on the FBI's illegal search.
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That One Guy (profile), 27 May 2015 @ 8:46pm

Re:
I imagine every plea bargain offered comes with a 'disclaimer' that no matter what happens after that, the plea bargain is still considered valid. Plea bargain guilty to assisting in an armed robbery case where the main suspect is found not guilty? Too bad, you're still on the hook for 'assisting' a crime that wasn't found to have happened.
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Ehud Gavron (profile), 28 May 2015 @ 9:52am

typo
"it's cargo hold" --> "its cargo hold"

Cheers

E
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