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Judge delays sentencing of Fox Leaks co-conspirator

Marco Gaudino admitted to helping Florida journalist Timothy Burke trespass into computer systems used by Fox News and other broadcasters.

Marco Gaudino admitted to helping Florida journalist Timothy Burke trespass into computer systems used by Fox News and other broadcasters.

Marco Gaudino of Washington is accused of conspiring with Florida journalist Timothy Burke to break into online services. (Photo via social media)

A federal judge has delayed the sentencing of a Washington man who admitted to helping Florida journalist Timothy Burke access computer systems used by Fox News and other broadcasters.

Marco Gaudino, 24, was originally scheduled to be sentenced in July after reaching a plea agreement with federal prosecutors and subsequently admitting to felony criminal conspiracy. However, his sentencing has been delayed to November at the earliest, because prosecutors believe Gaudino will help in their prosecution of Burke, who was indicted on 14 criminal counts in February.

Under the plea agreement, Gaudino affirmed his willingness to cooperate with investigators in their case against Burke, which could include testifying against the journalist if his case proceeds to trial. A trial date has been tentatively scheduled for mid-October.

Prosecutors say the two men spent several months looking for usernames and passwords that would allow Burke access into computer systems used by sports organizations and news broadcasters. A pair of credentials passed by Gaudino to Burke ultimately gave the journalist access to a cloud-based video transmission service that offered up live, unedited feeds of Fox News programming.

Burke later admitted to being the source of numerous unaired clips from Fox News programs, including behind-the-scenes video from “Tucker Carlson Tonight,” that were later published by Vice News and Media Matters for America. The clips included an unaired portion of an interview between Tucker Carlson and rapper Kanye “Ye” West in which West makes anti-Semitic remarks. They also show Carlson disparaging Fox Nation, the streaming service that hosted two of his television programs.

While Gaudino has admitted to the conduct, Burke is vigorously fighting the allegations. Attorneys representing Burke say he is not guilty of a crime, and said the activity alleged by prosecutors is nothing more than good digital journalism.

They say Burke was able to view the Fox News feeds because the web addresses pointing to them were not encrypted. Prosecutors say Burke would not have been able to discover the feeds at all if he didn’t first use a password that didn’t belong to him.

Sources say both men spent a significant amount of time crawling the web for passwords that would allow Burke to publish non-public videos and other materials on his social media account. A source familiar with the investigation told The Desk there was evidence Burke reverse engineered the cloud video service to learn the naming convention for some web addresses, which gave him access to Fox News and other subscribers of the service.

Prosecutors have learned additional details from Gaudino about the scheme, according to another source familiar with the case. He has committed some of those details in writing, the source said, who asked not to be identified because they were not authorized to speak to the media about the matter. The source declined to specify what Gaudino had offered in writing, or what Gaudino has otherwise told investigators.

Burke and his attorneys are currently working with government prosecutors on the “discovery” phase of the case, by which prosecutors must turn over evidence they will or might use against Burke. The practice is meant to ensure Burke can adequately defend himself against the allegations at trial.

The discovery phase is expected to take several weeks, with both sides currently locked in battle over which material should be “protected” from public disclosure in the pre-trial phase and which materials Burke and his attorneys can discuss outside the courtroom.

In court records reviewed by The Desk, Burke’s attorneys complain that some materials the government seeks to designate as privileged relate to the journalist’s work product. To that end, the attorneys argue Burke should not be restrained from disclosing those materials soon, because they are a form of constitutionally-protected speech.

Prosecutors argue that the materials are not legally protected in the way Burke and his attorneys claim, because they are evidence of his alleged crimes. On Tuesday, the judge overseeing the case allowed Burke the opportunity to file a 15-page supplemental brief addressing the concerns, and the government will be allowed to file its own 15-page reply, before a hearing is designated on the matter.

The back-and-forth could see the trial delayed beyond its mid-October start date. If that happens, prosecutors will likely request a delay to Gaudino’s sentencing as well.

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About the Author:

Matthew Keys

Matthew Keys is a nationally-recognized, award-winning journalist who has covered the business of media, technology, radio and television for more than 11 years. He is the publisher of The Desk and contributes to Know Techie, Digital Content Next and StreamTV Insider. He previously worked for Thomson Reuters, the Walt Disney Company, McNaughton Newspapers and Tribune Broadcasting.
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