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Judge Recommends Suppression of Evidence FBI Agents Obtained by Impersonating Internet Repairmen

Caesars Palace in Las Vegas

A federal magistrate judge has recommended that evidence FBI agents obtained by impersonating internet repairmen be suppressed. The agents failed to disclose to another federal magistrate judge that they would be employing a “DSL disruption ruse” to gain entry, without a warrant, to a Caesars Palace villa, where agents believed two men were engaged in an illegal gambling operation.

Wei Seng Phua or Paul and Darren Wai Kit Phua, Wei’s son, were charged with “transmission of wagering information” and “operating an illegal gambling business in violation of the laws” of Nevada. They allegedly were engaged in sports betting around the World Cup soccer tournament.

According to the Phuas’ defense attorneys, the FBI convinced a “hotel computer contractor and the state’s gaming control board to shut off the Internet at different times and at one point delivered a laptop computer to try to see what was happening.” Agents targeted the Phuas’ villa with no evidence of illegality, induced the Phuas to allow agents pretending to be repairmen to enter when they did not consent to giving up their privacy and further violated their rights by remaining in the villa after the internet connection had been restored.

“Serious misrepresentations in the warrant application hid the likely unconstitutionality of the government’s warrantless intrusions into the villas and deprived the magistrate judge from determining whether the application was based on legally-acquired evidence,” the defense attorneys claimed.

The court determined [PDF] that the search warrant application was rife with “false and misleading statements,” which, when removed, failed to support the probable cause requirement necessary for authorizing a search. The FBI deliberately used false or misleading statements link Paul to an illegal sports betting operation in a villa they were not occupying. The agency used the phrase “Phua’s and his associates” or “Phua’s associates” or “at the behest of Phua or one of his associates” to make it appear Paul was involved in criminal conduct when he was not.

The sting operation unfolded in June 2014. Special Agent Minh Pham, who has been a part of the organized crime squad in Las Vegas for about four years, learned from another special agent that Caesars employees suspected they had uncovered an illegal gaming operation. Pham lacked evidence initially. The special agent claimed individuals in the villas had been arrested in Macau not long ago and the operation at Caesars was linked.

There were three villas the FBI sought to target—villa 8881, villa 8882 and villa 8888. Pham had probable cause evidence for villa 8888 but lacked evidence for villa 8881 and villa 8882, where the Phuas were staying.

Assistant US Attorney Kimberly Frayn was asked for legal advice from Pham on “approaching Caesars employees to get consent to disrupt the villas’ occupants’ cable, Dish Network or DirecTV service, and if Caesars’ consent would be sufficient to permit agents to enter the villas with Caesars employees to see what was going on inside the villas,” according to Judge Peggy Leen’s decision [PDF]. “Frayn advised Pham that as long as agents got consent from Caesars, that would suffice, but she was going to look into it and let him know if there was a problem.”

Caesars had a problem with violating “guest privacy” by entering the villas but had no problem with the FBI using an “outside contractor.”

Pham went ahead and submitted an affidavit for a search warrant and deliberately omitted the fact that Wood TMS, Caesars’ DSL contractor, would be enlisted in the FBI’s ruse. He later claimed he withheld the information from Judge Nancy Koppe because it was “law enforcement sensitive” and it would “expose Wood as a cooperator.”

Additionally, Leen wrote in her decision:

…Pham’s testimony at the evidentiary hearing suggested that Judge Koppe could have made this deduction from information that was provided in the affidavit, specifically, because of the timing of the World Cup game. The court categorically rejects that suggestion. The affidavit disclosed that on July 4, 2014, MLW, [an information technology technician] who was assisting investigators, agreed to accompany SA Lopez, who was posing as a support technician employed by MLW, to enter villa 8882 to deliver a laptop the occupants requested. It also disclosed that the butler restricted their access to the butler’s pantry area, blocked their path to other parts of the villa, and was adamant that they not be allowed into other parts of the villa.

The affidavit did not disclose that on July 5, 2014, the urgent request by the occupants of 8882 for technical assistance to restore the DSL was a direct result of a disruption caused by MLW working with the agents to assist in the investigation. It did not disclose that MLW suggested the disruption of DSL service to provide an opportunity to enter villa 8882. It did not disclose that the disruption was accomplished remotely from an office outside the villa and could be restored remotely from the same location…

“It borders on the ridiculous to claim that Judge Koppe could have figured out from the information provided in the affidavit that the agents caused the disruption of the DSL service to villa 8882,” Leen declared. “The four corners of the warrant application make it appear that the agents took advantage of a fortuitous DSL outage to further their investigation just as they took advantage of a fortuitous request for delivery of a laptop to villa 8882 the day before. The affidavit accurately reported to Judge Koppe what [FBI agents] Kung and Lopez observed when they entered villa 8882 posing as technicians there to repair a DSL disruption they created.”

The warrant application also appears to have maliciously characterized the Phuas as “known members of organized crime.”

FBI agents suggested Paul was “known by law enforcement to be a high-ranking member of the 14K Triad, which is considered to be one of the largest Triad groups in the world engaged in drug trafficking, illegal gambling and other criminal enterprises. But there was no evidence provided to support this conclusion.

Although Paul was arrested for his involvement in a “large-scale book-making operation” in Macau, that did not “support a finding of probable cause and was not evidence that Phua was engaging in a violation of US law in the villas at Caesars,” Leen stated. “In light of the lack of proof offered by government in its response, ‘one can only conclude that [the statements] were made recklessly or with intent to mislead.'”

The government thought this was conduct by FBI agents was permissible because “agents are free to deceive individuals about their identity to gain entry to private spaces without even reasonable suspicion.” The government also contended agents “may go even further and disrupt any service to induce the individuals to admit them so long as they do not claim there is an emergency such as a gas leak.”

Lawyers for the Phuas countered that if this was allowed to stand it would mean agents may “cause a water leak so long as it does not create a catastrophic flood.” Agents could “disrupt cable television service because nobody really needs it. And without a doubt, the government believes that it [would be] free to disconnect the home telephones and internet service of more than a hundred million Americans who can make calls and access the web via smartphone.”

“No law enforcement agency in the nation has ever attempted” this kind of a “scheme” nor has any government agency ever “taken the position that it would be lawful,” the lawyers for the Phuas argued. “There is no court that has ever approved such a ‘scheme’ either.”

The “deceptive tactics” greatly disturbed the New York Times Editorial Board, which wrote on October 31 of last year if they were not prohibited or “blocked by courts” there was a risk that the door to “constitutional abuses” would be opened on a “much wider scale.”

George Washington University law professor Stephen Saltzburg had said to NPR, if this tactic is acceptable conduct for law enforcement, “It means the government can cut off your service, intentionally, and then pretend to be a repair person, and then while they’re there, they spend extra time searching your house. It is scary beyond belief.”

Leen recognized the search warrant affidavit had deliberately misled a federal magistrate judge. She suggested had they done it properly the judge would have approved a search and a ruse would not have been necessary. So, in a way, Leen actually managed to avoid appropriately addressing the most shocking aspect of all this: the FBI impersonating repairmen.

Creative Commons-Licensed Photo by Werner Kunz

CommunityFDL Main BlogThe Dissenter

Judge Recommends Suppression of Evidence FBI Agents Obtained by Impersonating Internet Repairmen

Caesars Palace in Las Vegas

A federal magistrate judge has recommended that evidence FBI agents obtained by impersonating internet repairmen be suppressed. The agents failed to disclose to another federal magistrate judge that they would be employing a “DSL disruption ruse” to gain entry, without a warrant, to a Caesars Palace villa, where agents believed two men were engaged in an illegal gambling operation.

Wei Seng Phua or Paul and Darren Wai Kit Phua, Wei’s son, were charged with “transmission of wagering information” and “operating an illegal gambling business in violation of the laws” of Nevada. They allegedly were engaged in sports betting around the World Cup soccer tournament.

According to the Phuas’ defense attorneys, the FBI convinced a “hotel computer contractor and the state’s gaming control board to shut off the Internet at different times and at one point delivered a laptop computer to try to see what was happening.” Agents targeted the Phuas’ villa with no evidence of illegality, induced the Phuas to allow agents pretending to be repairmen to enter when they did not consent to giving up their privacy and further violated their rights by remaining in the villa after the internet connection had been restored.

“Serious misrepresentations in the warrant application hid the likely unconstitutionality of the government’s warrantless intrusions into the villas and deprived the magistrate judge from determining whether the application was based on legally-acquired evidence,” the defense attorneys claimed.

The court determined [PDF] that the search warrant application was rife with “false and misleading statements,” which, when removed, failed to support the probable cause requirement necessary for authorizing a search. The FBI deliberately used false or misleading statements link Paul to an illegal sports betting operation in a villa they were not occupying. The agency used the phrase “Phua’s and his associates” or “Phua’s associates” or “at the behest of Phua or one of his associates” to make it appear Paul was involved in criminal conduct when he was not.

The sting operation unfolded in June 2014. Special Agent Minh Pham, who has been a part of the organized crime squad in Las Vegas for about four years, learned from another special agent that Caesars employees suspected they had uncovered an illegal gaming operation. Pham lacked evidence initially. The special agent claimed individuals in the villas had been arrested in Macau not long ago and the operation at Caesars was linked.

There were three villas the FBI sought to target—villa 8881, villa 8882 and villa 8888. Pham had probable cause evidence for villa 8888 but lacked evidence for villa 8881 and villa 8882, where the Phuas were staying.

Assistant US Attorney Kimberly Frayn was asked for legal advice from Pham on “approaching Caesars employees to get consent to disrupt the villas’ occupants’ cable, Dish Network or DirecTV service, and if Caesars’ consent would be sufficient to permit agents to enter the villas with Caesars employees to see what was going on inside the villas,” according to Judge Peggy Leen’s decision [PDF]. “Frayn advised Pham that as long as agents got consent from Caesars, that would suffice, but she was going to look into it and let him know if there was a problem.”

Caesars had a problem with violating “guest privacy” by entering the villas but had no problem with the FBI using an “outside contractor.” (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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