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.