Kenneth Smukler, a Philadelphia political consultant and former aide to U.S. Congressman Bob Brady, failed to convince the federal judge overseeing his criminal case to throw out evidence obtained from a March 2017 FBI raid of Smukler’s home.
U.S. District Judge Jan E. DuBois of the Eastern District of Pennsylvania denied Smukler’s motion to suppress evidence gathered by federal agents. Smukler was indicted in October 2017 for allegedly paying off one of Brady’s rivals in the 2012 Democratic primary to drop out of the race. He was charged last month in a superseding indictment with allegedly making hundreds of thousands of dollars in illegal donations to former Congresswoman Marjorie Margolies’ campaign in her failed 2014 bid to reclaim the seat, while obstructing the corresponding federal investigation.
Smukler argued that the FBI’s search warrant was faulty because a federal agent intentionally omitted the fact that the Federal Election Commission had previously investigated and dismissed one of the claims against the Margolies campaign alleged in the search warrant affidavit.
However, DuBois said that the allegations in the affidavit went beyond the scope of the FEC’s inquiry into Margolies’ 2014 campaign finances.
“Defendant argues that the FEC dismissed a complaint based on the central allegations in the search warrant affidavit, and, if information regarding the FEC’s dismissal had been included in the affidavit, the magistrate judge could not have found probable cause to issue the search warrant. The court disagrees,” DuBois said in his opinion.
“An examination of both the FEC dismissal and the affidavit reveals that the allegations in the affidavit exceeded the scope of and alleged substantially different conduct than was covered in the FEC decision,” DuBois continued. “The court concludes that, after inserting the omitting information regarding the FEC dismissal, the affidavit supports a finding of probable cause.”
DuBois said the FEC investigation dealt with whether Margolies’ campaign violated 11 C.F.R. Section 102.9(e)(2), which governs contributions and expenditures, while the FBI’s warrant affidavit alleged that Smukler and Margolies “‘committed violations of 18 U.S.C. Section 371 (conspiracy), 18 U.S.C. Section 1519 (producing false records), 52 U.S.C. Section 30104 (causing false campaign contribution reports), and 52 U.S.C. 30116 (limits on campaign contributions and expenditures).’” (Margolies has not been charged with a crime.)
“The violations in the affidavit may arise out of the same core set of facts as the FEC decision, but the affidavit alleged distinct criminal violations,” DuBois said.
And while Smukler argued that a search warrant never would have been issued had information about the FEC dismissal been included in the affidavit, DuBois said that argument “ignores the fact that the affidavit stated the Margolies campaign and Smukler provided false information to the FEC during the course of that investigation by disguising certain unlawful campaign contributions as ‘refunds’ in FEC disclosure forms and in response to the FEC’s inquiry.”
Smukler’s lawyer, Brian McMonagle, did not respond to a request for comment.
The superseding indictment issued by a federal grand jury in Philadelphia on March 20 restated the original charges against Smukler involving a $90,000 payment to Brady’s opponent, former Philadelphia Judge Jimmie Moore, and added new charges alleging that Smukler used his companies to inject cash into Margolies’ losing campaign in the 2014 Democratic congressional primary, while also having false financial reports filed to the FEC to hide the illicit payments made to the campaign.
According to the indictment, the campaign was running out of money to pay for primary election expenses, but Smukler directed the campaign treasurer to continue purchasing goods and services. Prosecutors allege Smukler used his companies, Black and Blue Media and InfoVoter Technologies, to funnel money to the campaign while it was active and also after it had lost the election in order to pay off its debts. The alleged contributions exceeded the limits set by the Federal Election Campaign Act of 1971 for individual donors during a single election cycle, the indictment said.
Smukler was first indicted Oct. 24. While the case against Smukler, who pleaded not guilty to the initial charges, is ongoing, the investigation has netted guilty pleas from former Brady aide and political consultant Don “D.A.” Jones, Moore and Moore’s former campaign manager, Carolyn Cavaness. It is not clear how these guilty pleas might affect the case against Smukler.
Brady was never charged and prosecutors have since missed their window to indict him. His lawyer, James Eisenhower of Dilworth Paxson, has consistently maintained the congressman is innocent of any wrongdoing.