USA v. Michael Barth

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12791
Non-Argument Calendar
____________________
In re: SEALED SEARCH WARRANT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL S. BARTH,
Interested Party-Appellant.
USCA11 Case: 22-12791 Document: 38-1 Date Filed: 08/04/2023 Page: 1 of 8

-- 1 of 8 --

2 Opinion of the Court 22-12791
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-mj-08332-BER-1
____________________
Before WILSON, J ORDAN, and GRANT, Circuit Judges.
PER CURIAM:
Michael S. Barth appeals from the district court’s denial of
his motion to intervene in a search warrant proceeding. Because
we find no error in the district court’s denial of the motion to
intervene, we dismiss the appeal for lack of jurisdiction.
I.
In August 2022, the government obtained a search warrant
to search the Mar-a-Lago residence of former President Donald J.
Trump. The search warrant and an affidavit demonstrating
probable cause were filed under seal. Two days after the search
was executed, Judicial Watch, Inc. moved to unseal these
documents. Judicial Watch said that it was investigating “the
potential politicization” of the FBI and Department of Justice and
whether they are “abusing their law enforcement powers to harass
a likely future political opponent.” Various news organizations
intervened shortly thereafter for the purpose of unsealing and
obtaining access to all the search warrant materials. The Florida
Center for Government Accountability, Inc., a nonprofit focusing
USCA11 Case: 22-12791 Document: 38-1 Date Filed: 08/04/2023 Page: 2 of 8

-- 2 of 8 --

22-12791 Opinion of the Court 3
on ensuring government accountability and transparency,
intervened for the same purpose.
Barth is proceeding pro se as a member of the public. He
sought to intervene “for the limited purpose of miscellaneous relief
to unseal all the remaining documents (including the Court’s
notes), related to the sealed search warrant.” His motion said that
he intends to “adopt and incorporate the applicable legal references
in the memorandums of law filed by the Media Intervenors.”
A magistrate judge denied Barth’s motion to intervene
under Federal Rule of Civil Procedure 24 because the “interests
asserted by the movant are adequately represented by the media-
intervenors.” Barth filed a letter seeking review by a district judge,
which the district court construed as an objection to the magistrate
judge’s order. Barth’s objection was overruled. The district court
agreed with the magistrate judge that the parties who have been
permitted to intervene “have thoughtfully and professionally
litigated their position” and concluded “with certainty” that Barth’s
interests were adequately represented. Moreover, the district
court found no evidence of collusion with the government, no
adverse interest between the existing intervenors and Barth, and
that the intervenors have not failed in the fulfillment of their duties.
Barth now appeals.1 He argues that the district court erred
by denying his request to intervene because the existing parties
1 Since the date that Barth filed this suit, criminal prosecution related to the
underlying search warrant has begun and various materials and excerpts
USCA11 Case: 22-12791 Document: 38-1 Date Filed: 08/04/2023 Page: 3 of 8

-- 3 of 8 --

4 Opinion of the Court 22-12791
would not necessarily represent his interests. He says that counsel
for the media intervenors made two “fatal mistakes”: (1) conceding
that the warrant was supported by probable cause and (2)
conceding that the government has an interest in protecting its
methods that may, in some cases, outweigh the public right to
access. He also argues that the media may only want to “unseal
this matter so far” because they do not “really. . . want to know
‘both sides of the story.’” And he suggests that the government
and media are colluding by leaking details of the investigation.
II.
An order denying a motion to intervene is not a final order.
Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1301 (11th Cir. 2008). Under
the “anomalous rule,” however, “we exercise ‘provisional
jurisdiction’ to determine whether a district court erred in denying
intervention as of right under Rule 24(a), or clearly abused its
discretion in denying permissive intervention under Rule 24(b).”
United States v. US Stem Cell Clinic, LLC, 987 F.3d 1021, 1024 (11th
Cir. 2021) (quoting Fox, 519 F.3d at 1301)). If “we discover no
reason to reverse the district court, then ‘our jurisdiction
evaporates’ and we dismiss the appeal.” Id.
III.
A party seeking to intervene as of right under Rule 24(a)(2)
must show that: “(1) his application to intervene is timely; (2) he
related to it have already been unsealed. This appeal is not moot because
portions of the search warrant affidavit remain under seal.
USCA11 Case: 22-12791 Document: 38-1 Date Filed: 08/04/2023 Page: 4 of 8

-- 4 of 8 --

22-12791 Opinion of the Court 5
has an interest relating to the property or transaction which is the
subject of the action; (3) he is so situated that disposition of the
action, as a practical matter, may impede or impair his ability to
protect that interest; and (4) his interest is represented inadequately
by the existing parties to the suit.” Fox, 519 F.3d at 1302–03. When
a party fails to establish one of these requirements, it is unnecessary
to analyze any of the remaining requirements. See, e.g., Worlds v.
Dep’t of Health & Rehab. Servs., 929 F.2d 591, 595 (11th Cir. 1991).
The district court’s decision denying Barth’s intervention
rested on the fourth requirement. Representation is adequate if (i)
no collusion is shown between the representative and an opposing
party; (ii) the representative does not have or represent an interest
adverse to the intervenor; and (iii) the representative does not fail
in the fulfillment in their duty. Fed. Sav. & Loan Ins. Corp. v. Falls
Chase Special Taxing Dist., 983 F.2d 211, 215 (11th Cir. 1993). Unless
one of these three conditions are met, we “will presume that a
proposed intervenor’s interest is adequately represented when an
existing party pursues the same ultimate objective as the party
seeking intervention.” Id.; Int’l Tank Terminals, Ltd. v. M/V Acadia
Forest, 579 F.2d 964, 967 (5th Cir. 1978).
We conclude that the district court correctly denied Barth’s
motion to intervene. Barth’s interest in the unsealing of the search
warrant and all related materials is adequately protected by the
existing intervenors. Judicial Watch, the media organizations, and
the Florida Center for Government Accountability all share the
same ultimate objective and continue to forcefully litigate to
USCA11 Case: 22-12791 Document: 38-1 Date Filed: 08/04/2023 Page: 5 of 8

-- 5 of 8 --

6 Opinion of the Court 22-12791
achieve it. Indeed, the existing intervenors have, for the most part,
accomplished this interest. The search warrant and large portions
of the affidavit have been unsealed. And almost a year later, the
existing intervenors continue to move for further unsealing. The
media organizations recently moved for the government to
periodically reassess and report on unsealing of the search warrant
affidavit as changed circumstances may undermine the
government interests justifying the seal. We therefore presume
that Barth’s interest is adequately represented by the existing
intervenors who share the same ultimate objective.
Barth has not presented any reason to counter that
presumption. The persistent effort of the existing intervenors to
unseal the search warrant materials undercuts Barth’s
unsubstantiated suggestion that they only want to unseal the
matter “so far.” His further contention that the government is
colluding with the intervenors is unsupported by any evidence in
the record. And he has not explained how his interests are adverse
to the existing intervenors given that they all share the same
objective as him in unsealing the search warrant affidavit.
The “fatal mistakes” that Barth points to also do not suggest
that the existing intervenors have failed in the pursuit of this goal.
The record makes clear that the magistrate judge—not the existing
intervenors—stated that the search warrant was supported by
probable cause. At a hearing that took place before the affidavit
was partially unsealed, counsel for the media intervenors
characterized the warrant as being “based on alleged probable
USCA11 Case: 22-12791 Document: 38-1 Date Filed: 08/04/2023 Page: 6 of 8

-- 6 of 8 --

22-12791 Opinion of the Court 7
cause.” The magistrate judge interjected: “Not alleged probable
cause, I found there is probable cause.” Counsel responded:
“Indeed you did, your Honor.” In context—where the intervenors
could not have independently concluded that probable cause
existed because the affidavit had not yet been unsealed—we do not
interpret this exchange as a concession that probable cause existed.
In any event, conceding that probable cause existed to support the
warrant would not undercut efforts to unseal the affidavit.
Barth’s second “fatal mistake” is not a mistake at all. The
magistrate judge asked counsel for the media intervenors whether
“as an abstract matter, maintaining the integrity of the
investigation, and particularly the sources and methods of
conducting the investigation, can be[,] in the right case[,] a
legitimate and sufficient Government interest to overcome the
public right of access.” Counsel responded that “with the caveats
that the Court has mentioned, in the right case, at the right
moment of the right case” he “would agree with that principle as a
general matter.” This is a correct statement of law and counsel’s
agreement with it does not suggest that the existing intervenors are
inadequately representing Barth’s interest. See United States v.
Valenti, 987 F.2d 708, 714–15 (11th Cir. 1993) (holding that district
court properly denied motion to unseal “as a necessary means to
achieving the government’s compelling interest in the protection
of a continuing law enforcement investigation”). Accordingly, we
conclude that Barth’s interest is adequately represented by the
existing parties to the litigation.
USCA11 Case: 22-12791 Document: 38-1 Date Filed: 08/04/2023 Page: 7 of 8

-- 7 of 8 --

8 Opinion of the Court 22-12791
* * *
The district court correctly denied Barth’s motion to
intervene as of right under Rule 24(a) and Barth does not argue that
he sought permissive intervention under Rule 24(b). Therefore,
we have no reason to reverse the district court and dismiss the
appeal for lack of jurisdiction.2
DISMISSED.
2 We previously dismissed this appeal to the extent that it concerned Barth’s
motion for recusal and do not address the arguments that the parties raised on
that matter in the briefing.
USCA11 Case: 22-12791 Document: 38-1 Date Filed: 08/04/2023 Page: 8 of 8

-- 8 of 8 --