Florida journalist Timothy Burke is not entitled to computers, notebooks and other materials seized by federal law enforcement investigators as part of an ongoing criminal investigation into the leak of raw Fox News videos, an appeals court determined earlier this month.
In a four-page order issued by the Eleventh Circuit Court of Appeals, a panel of three judges refused a request by Burke to force federal investigators to return the materials, saying they were rightfully seized as part of a broad criminal investigation concerning cyber espionage and theft.
Through his lawyers and in media interviews, Burke has acknowledged being the source of numerous video clips that showed Fox News personalities engaged in off-air banter with production crew and, in some cases, sources — clips that portrayed the subjects of Fox News interviews and executives at the news channel in a poor and unflattering light.
Court documents reviewed by The Desk and sources familiar with the criminal investigation reveal Burke gained access to a cloud-based service called LiveU Matrix, which is used by Fox and other broadcasters to send live video between TV studios. His access was facilitated by a Washington man who found a username and password to LiveU Matrix that was accidentally published on the website of a CBS News Radio affiliate several years ago.
Burke was arrested in February after a grand jury indicted him on a dozen counts related to conspiracy, criminal hacking and electronic interception. He has entered a plea of not guilty in the case. Burke’s co-conspirator, Marco Gaudino, pled guilty last month and has agreed to cooperate with prosecutors. He faces sentencing in July.
Prior to the indictment, Burke filed a motion with a federal magistrate in Florida’s Middle District seeking the return of items seized from his home last year. The motion was part of a case filed by the Tampa Bay Times, which sought affidavits and other records in support of the search and seizure order on Burke’s home.
The magistrate judge overseeing the case issued a split decision that found in favor of the Times’ request for a partially-redacted version of certain search-related materials. The judge denied Burke’s request for the return of some materials after being persuaded by the government that they were part of the criminal investigation against him, though he ordered some computers and phones to be returned to Burke once the government determined they were no longer needed for the case.
Burke’s legal defense team promptly filed a motion for reconsideration with the Eleventh Circuit Court of Appeals, complaining that the former Deadspin video editor was entitled to an evidentiary hearing on the lower court request, but wasn’t afforded the opportunity. They also complained that the government had not furnished a copy of the search warrant affidavit to Burke.
Earlier this year, federal prosecutors asked the appellate court to toss Burke’s motion for lack of jurisdiction after a redacted copy of the search warrant affidavit was unsealed and made public. They also argued Burke’s appeal before the court was moot, because he has since been charged with numerous crimes, which were the essence of their investigation in the first place.
Last week, the three-judge panel found in favor of the government, saying Burke was not entitled to a favorable judgment on appeal because the pre-indictment motion was not independent of the case at hand.
DOCUMENT: Download the Eleventh Circuit Court of Appeals order [PDF, Pro Access]
“In order for a ruling on a pre-indictment motion to be immediately appealable, it must be independent from the judgment,” the judges wrote in the order.
The panel hinted that Burke’s motion might have succeeded on appeal, had the government not eventually secured an indictment against him. The indictment proved that the government’s interest in retaining the seized property was related to an ongoing criminal case, the order said.
“Only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent,” the panel wrote, citing a 1962 Supreme Court case that dealt with the same issue. “A pending criminal investigation, even in the absence of a formal charge, may be enough to show that the motion is tied to a criminal prosecution.”
“Here, there were ongoing criminal proceedings at the time Burke filed his motion, given that materials were seized from his residence pursuant to a search warrant and an indictment subsequently was returned against him based on the seized materials,” the panel affirmed. “Furthermore, Burke’s motion attacked the constitutionality of the seizure. He argued that the property was wrongfully seized because he did not commit a crime, explaining that the government fundamentally misinterpreted [computer fraud and electronic interception laws], the statutes which he was ultimately charged with violating in the indictment.”
Through his motion, Burke wanted to suppress all the evidence seized by federal investigators last year, characterizing the materials as the product of his work as a journalist. Earlier this year, the Tampa Bay Times noted that Burke didn’t describe himself as a journalist online until after the raid on his home; instead, he worked on the re-election campaign of his wife, a Tampa Bay city council member, and as an advocate for various community initiatives.
After federal investigators visited Burke’s home and seized numerous computers, phones, hard drives and other items, Burke launched a legal defense fund and began promoting himself as a journalist on social media. The Times noted this was an apparent ploy to drum up sympathy for his case. Numerous news organizations and press advocacy groups initially flocked to his defense; some have since backed away from supporting Burke after the charges were filed against him.
The Court of Appeals took no position on whether Burke should be recognized as a journalist, but said he was not entitled to have his items returned to him because they were rightly seized as part of a criminal investigation.
“Although he argues that he was not seeking to suppress evidence, an indirect result of a favorable decision on his motion would be the suppression of evidence, as he sought return of all the seized materials, including all copies of electronic data,” the judicial panel wrote. “A favorable decision also would have implicated the viability of the charges in the indictment because those charges were grounded in the seized property. Accordingly, the order denying his motion for return of property is not sufficiently independent from the criminal matter to be immediately appealable.”
Burke’s criminal case is scheduled to go to trial in October, though the date is expected to be delayed as the government works to provide his legal defense team with an opportunity to examine evidence in the case.
