EXHIBIT 

Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 1 of 18
ECE' 

COURT 

CLER<. WES TRCT OF TEXPS 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

EL PASO DIVISION 

UNITED STATES,OF AMERICA, § 

V. § 

§ 

§ PATRICK WOOD 'CRUSIUS, § § 

§ Defendant. § § 

No. 3:20-CR-00389 

(The Honorable David C. Guaderrama) 

MOTION TO INTERVENE AND TO UNSEAL JUDICIAL RECORDS 

El Paso Matters, a nonprofit media organization focused on in-depth and investigative 

reporting about the El Paso and Paso del Norte region, hereby seeks to intervene in this matter to 

obtain an order unsealing judicial records. In support thereof, El Paso Matters respectfully shows 

the Court as follows: 

SUMMARY OF THE ARGUMENT 

On November 2, 2023, the United States (the "Government" or "prosecution") filed a 

motion to unseal the following sealed documents in the above-captioned case: ECF Nos. 73, 233, 

234, 235, 246, 247, 248, 249 1, 2, 3, and sealed attachments 1-4 to ECF Nos. 72 and 73. See ECF 

No. 308. As detailed herein, Proposed Intervenor El Paso Mattersa nonprofit news organization 

focused on in-depth and investigative reporting about the El Paso and Paso del Norte region 

agrees with the Government's argument that those judicial records should be promptly unsealed. 

Further, El Paso Matters also seeks to unseal all other sealed judicial records in this case, including 

1 

Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 2 of 18
thefollowing:ECFNos. 118, 118-1,118-2,118-3,127-28,168,170,184,244,244-1,245,250, 

250-1, 251, 253, 260, 266-1, 266-2, 267-71, and 282 (hereinafter the "Sealed Records").' 

Pursuant to the First Amendment and the common law right of access, the Sealed Records 

in this case should be unsealed in their entirety or with, at most, only limited redactions 

necessitated by a compelling interest. El Paso Matters should be permitted to intervene for the 

limited purpose of challenging closure and the sealing orders in this case. 

PROCEDURAL HISTORY AND STATEMENT OF FACTS 

Defendant Patrick Wood Crusius ("Defendant") pled guilty to 90 federal charges after he 

opened fire in an El Paso Walmart in August 2019, killing 23 people and wounding 22 others. 

ECF No. 82. Defendant initially entered a plea of "not guilty" in 2020, ECF No. 89, and the case 

proceeded toward trial. On January 17, 2023, the prosecution filed a notice stating that "the 

Government will not seek the death penalty in the instant case." ECF No. 254. Defendant moved 

for rearraignment four days later and changed his plea to "guilty" on February 8, 2023. ECF No. 

261. The addendum to the plea agreement is sealed. ECF No. 260. Defendant's guilty plea and 

the Government's decision not to seek the death penalty received national attention. See, e.g., 

Emily Schmall, Man Pleads Guilty to Hate Crimes in El Paso Massacre That Killed 23, N.Y. 

Times (Feb. 8, 2023), https:/'perma.cc/BR6S-RYCX; Robert Moore, Ramon Bracamontes & 

Cindy Ramirez, Feds won 't seek death penalty against alleged Walmart gunman, El Paso Matters 

(Jan. 17, 2023), https: /perrna.cc/5JCJ-XWGB. 

Defendant's sentencing hearing took place on July 5, 6, and 7, 2023. See ECF No. 272; 

ECF Nos. 277-79. On July 7, 2023, Defendant was sentenced to 90 consecutive life terms in 

prison. ECF No. 280; see also Edgar Sandoval, Gunman in El Paso Mass Shooting Sentenced for 

Since many entries are missing from the public docket, see infra note 6, this list may be under-inclusive. 

Because of that, El Paso Matters also seeks to unseal the missing docket entries. 

2 

Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 3 of 18
Federal Hate Crimes, N.Y. Times (July 7, 2023), https://perma.cc/OM9N-B2FX. On October 5, 

2023, this Court entered an amended judgment in Defendant's case to include the parties' agreedupon restitution. ECF No. 306. Thereafter, on November 2, the prosecution filed a motion to 

unseal severalbut not allsealed motions filed by the Government in this matter and the Court's 

corresponding orders. ECF No. 308 (moving to unseal ECF Nos. 73, 233, 234, 235, 246, 247, 248, 

249 1, 2, 3, and sealed attachments 1-4 to ECF Nos. 72 and 73) 

El Paso Matters has reported extensively on the above-captioned matter. See, e.g., Robert 

Moore & Priscilla Totiyapungprasert, Man who killed 23 at El Paso Walmart pleads guilty to hate 

crimes, El Paso Matters (Feb. 8, 2023), https://perma.cc/ZN6K-42LK; René Kladzyk, Should the 

Walmart shooter get the death penalty? El Paso is divided, El Paso Matters (July 30, 2021), 

https:!/perma.cc/XX6G-ASRY; Robert Moore & Priscilla Totiyapungprasert, Racist mass killer 

formally sentenced to 90 life prison terms/or El Paso carnage, El Paso Matters (July 7, 2023), 

https://perma.cc/MF94-2SJN. Though it has endeavored to report on this case as thoroughly as 

possible, the extensive sealing of judicial records in this case, which include transcripts of 

proceedings, has significantly hindered El Paso Matters' coverage and the public's understanding 

of how this case proceeded. For example, the public, to this day, knows little about the details of 

Crusius' attack. Nor does the public have an understanding of why the Government decided not 

to seek the death penalty in this case. Though sentencing proceedings revealed publicly for the 

first time that Crusius suffers from mental illness, Moore & Totiyapungprasert, Racist mass killer 

formally sentenced to 90 lfè prison terms for El Paso carnage, supra, it is unclear whether this 

documented mental illness was a factor in the Government's decision. El Paso Matters seeks 

access to the Sealed Records to provide the public with a more fulsome picture of how Crusius 

was prosecuted and sentenced for his crimes. 

3 

Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 4 of 18
Discovery in the above-captioned matter was subject to a protective order entered by the 

Court on February 14, 2020. ECF No. 39. According to the unopposed motion filed by the 

prosecution, the protective order was necessary "to protect the dignity and privacy of the victims, 

witnesses, and their family members," to "ensure a fair trial," and to "ensure that sensitive 

information [was] treated properly by both federal and state parties." ECF No. 26 at 3-5 

(capitalization altered).2 

Two provisions of the protective order state that the following types of documents are to 

be filed under seal and remain under seal until otherwise ordered by the Court: "[a]ny discovery 

material that the defense team files with the Court in connection with pre-trial motions, trial, or 

other matters before the Court" and "any discovery material the defense team files with any Court 

or tribunal in connection with post-conviction matters, or any matters before any Court or 

tribunal." Id. at 10-11. 

Many documents were filed under seal after entry of the protective order, including 

motions, exhibits, and court orderssome filed by the Defendant, some by the prosecution, and 

some by the Court itself The numbering of docket entries also reflects several gaps, suggesting 

that there may be additional sealed records for which no information is provided on the public 

docket. See, e.g., ECF Nos. 42, 50 (missing docket entries 43-49). For that reason, El Paso 

Matters cannot identify with certainty all of the Sealed Records in this matter. 

El Paso Matters agrees with the Government that the sealed judicial records addressed in 

its November 2 motion to unseal should be unsealed. El Paso Matters also respectfully seeks an 

2 For legal authority, the prosecution relied primarily on Federal Rule of Criminal Procedure 16(d), which 

states that "[alt any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other 

appropriate relief." Fed. R. Crim. P. 16(d). The prosecution also cited the Crime Victims' Rights Act, 18 U.S.C. § 

3771, which gives crime victims the right to be "reasonably protected from the accused," id. § 3771(a)(1), and "treated 

with fairness and with respect for [their] dignity and privacy," id. § 377 1(a)(8). 

Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 5 of 18
order from the Court unsealing the remaining Sealed Records, which include sentencing 

documents,3 legal briefs,4 court orders,5 and any missing docket entries and their underlying 

records,6 not captured by the Government's pending unsealing request. See ECF No. 308. 

STANDARD OF REVIEW 

Members of the news media have standing to challenge court orders when those orders 

impede their ability to gather news and receive protected speech. Davis v. E. Baton Rouge Par. 

Sch. Bd., 78 F.3d 920, 927 (5th Cir. 1996). Judicial records are presumptively open to the public 

under the First Amendment and the common law. See Nixon v. Warner Cornrnc 'ns, Inc., 435 U.S. 

589, 597 (1978); In re Hearst Newspapers, LLC, 641 F.3d 168, 176 (5th Cir. 2011) ("Hearst 

Newspapers"); United States v. Raybould, 130 F. Supp. 2d 829, 833 (N.D. Tex. 2000). 

Proceedings and documents to which the public's qualified First Amendment right of access 

applies may be closed or sealed only if-and only to the extent-such closure or sealing is 

necessary to serve a compelling government interest. Press-Enter. Co. v. Superior Ct., 464 U.S. 

501, 510 (1984) ("Press-Enterprise 1"). Where only the common law presumption of access 

applies, district courts have discretion to seal judicial records, but such discretion "is to be 

exercised charily" ad only after considering the public's interest in access. Fed. Say. & Loan Ins. 

Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1987). Both the common law and First Amendment 

rights of access require that a court considering closure or sealing conduct an on-the-record 

analysis explaining why the public's interest in access to the specific proceeding or record is 

overcome and that closure or sealing is no broader than necessary to serve the compelling 

See, e.g., ECF Nos. 260, 266-1, 266-2, and 268. 

See, e.g., ECFNos. 118, 118-1, 118-2, 118-3, 127, 168, 244, 244-1, 245, 250, 250-1, and 270. 

See, e.g., ECF Nos. 128, 170, 184, 251, 253, 267, 269, 271, and 282. 6 See, e.g., ECF Nos. 2,8-10, 14-16, 25, 29-35, 43-49, 51-53, 56-59, 61-64, 67-69, 75-78, 83, 97-117, 

119-25, 129-46,149-51, 153-55, 162, 167, 169, 171, 174-79,189-94,229-32,262-65, and 283. 

5 

Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 6 of 18
interest(s) identified by the court. See June Med. Servs., L.L.C. v. Phillips, 22 F.4th 512, 519 (5th 

Cir. 2022); Hearst Newspapers, 641 F.3d at 181. 

ARGUMENT 

I. El Paso Matters' Motion to Intervene Should Be Granted. 

Under well-established Fifth Circuit precedent, members of the news media may intervene 

in criminal matters for the limited purpose of challenging restrictions on access to court records 

and proceedings. See, e.g., Hearst Newspapers, 641 F.3d at 172-73 (noting that the court below 

granted media intervenor's motion to intervene for the purpose of asking the court to unseal court 

records and chall4iging closure of court proceedings); see also United States v. Aldawsari, 683 

F.3d 660, 664-65 (5th Cir. 2012) (reversing district court's denial of journalist's motion to 

intervene for purpose of challenging gag order on case participants). 

El Paso Matters clearly has standing to challenge the continued sealing of the Sealed 

Records in the above-captioned criminal prosecution. The Fifth Circuit has concluded that where 

a court's closure or sealing orders 'impede. . . news agencies' abilities to gather the news and to 

receive protected .speech," the requirements for standing are satisfied. Davis, 78 F.3d at 927. 

Because the sealing of records in this case has impeded and is continuing to impede El Paso 

Matters' ability to gather news and report on this case, including reporting on how this matter was 

prosecuted and why the Government did not seek the death penalty, El Paso Matters has standing 

to move to unseal the Sealed Records. Its motion to intervene for that limited purpose should, 

accordingly, be granted. 

II. The Sealeti Records Should Be Unsealed. 

A. The first Amendment Guarantees the Press and Public a Presumptive Right 

of Access to the Sealed Records. 

Said to predate even the Constitution itself, the public's right of access to criminal 

Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 7 of 18
proceedings is deeply rooted in American history and is "an indispensable attribute" of our 

criminal justice system. Richmond Newspapers, Inc. i'. Virginia, 448 U.S. 555, 564-69 (1980). 

Such openness "enhances . . . the basic fairness of the criminal trial," as well as "the appearance 

of fairness so essential to public confidence in the system." Press-Enterprise I, 464 U.S. at 508. 

"This rationale" applies fully in the context of sentencing, which is "an integral part of a criminal 

prosecution." Hearst Newspapers, 641 F.3d at 177 (quoting United States v. Alcantara, 396 F.3d 

189, 197 & n.7 (2d Cir. 2005)). 

"[T]wo complementary considerations" govern whether a particular judicial proceeding or 

court document is subject to the First Amendment presumption of access. Press-Enter. Co. v. Superior Ct., 478 U.S. 1, 8-9 (1986) ("Press-Enterprise If'). The first is whether it is the type of 

judicial proceeding or record that has "historically been open to the press and general public." Id. 

(explaining that a "tradition of accessibility implies the favorable judgment of experience[]" 

(citations omitted)). The second is "whether public access plays a significant positive role in the 

functioning of the particular process in question." Id. 

The Fifth Circuit has expressly held that the public has a qualified First Amendment right 

of access to criminal proceedings, including sentencing proceedings. See Hearst Newspapers, 641 

F.3d at 176-77, 179 (noting that "openness in the sentencing context allows the public to observe 

whether the defendant is being justly sentenced, especially where the court, rather than a jury, is 

determining the sentence"). Though the Fifth Circuit has not had occasion to expressly address 

the issue, all other federal circuit courts of appeals to consider it have determined that the qualified 

First Amendment right of access also applies to judicial records in criminal matters. See, e.g., 

United States v. Defournett, 817 F.3d 479, 481 (6th Cir. 2016); United States v. Ochoa-Vasquez, 

428 F.3d 1015, 1030 (11th Cir. 2005); In re Providence J. Co., 293 F.3d 1, 10 (1st Cir. 2002); 

7 

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United States v. Graham, 257 F.3d 143, 147 (2d Cir. 2001); United States v. Smith, 123 F.3d 140, 

146 (3d Cir. 1997); In re Wash. Post Co., 807 F.2d 383, 390 (4th Cir. 1986); CBS, Inc. v. US. 

Dist. Ct., 765 F.2d 823, 825 (9th Cir. 1985). 

In particular, "courts of appeals have. . . recognized a First Amendment right of access to 

documents filed for use in sentencing proceedings," Hearst Newspapers, 641 F.3d at 176 

(collecting cases), as well as plea agreements, see DeJournett, 817 F.3d at 485 (finding that "plea 

agreements are the quintessential judicial record, entitled to the protection of the First Amendment 

right to public access of judicial records"); Wash. Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 

1991) (finding that First Amendment right of access applies to plea agreements); Oregonian 

Publ'g Co. v. US. Dist. Ct., 920 F.2d 1462, 1466 (9th Cir. 1990) (finding that First Amendment 

right of access applies to plea agreements and related documents); In re Wash. Post Co., 807 F.2d 

at 390 (finding that First Amendment right of access applies to "documents filed in connection 

with plea hearings and sentencing hearings").7 

Similarly, numerous federal courts of appeals have found that docket sheets and docket 

entries are subject to the First Amendment right of access. See, e.g., Pellegrino, 380 F.3d at 91; 

United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993); In re State-Rec. Co., 917 F.2d 124, 

129 (4th Cir. 1990) (per curiam). Indeed, absent access to docket sheets, "the ability of the public 

In addition to applying the Press-Enterprise II framework to determine whether the constitutional 

presumption of access applies to specific judicial records, certain federal courts of appeals also look to the connection 

between the judicial records at issue and the proceeding to which they relate. For example, the Second Circuit has 

found a First Amendment right of access to court records where access is a "necessary corollary" of the public's right 

to attend the proceeding. See, e.g., Newsday LLC v. Cnty. of Nassau, 730 F.3d 156, 1 64-65 (2d Cir. 2013) (citation 

omitted); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (recognizing a constitutional right 

of access to judicial documents that "are 'derived from or [are] a necessary corollary of the capacity to attend the 

relevant proceedings" (citation omitted)); Hartford courant Go. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004); see 

also United States v. Antar, 38 F.3d 1348, 1359-60 (3d Cir. 1994) (finding that First Amendment right of access to 

voir dire proceedings "encompasses equally the live proceedings and the transcripts which document those 

proceedings" and explaining that "[i]t would be an odd result indeed were we to declare that our courtrooms must be 

open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it 

extends only to those who can squeeze through the door?"). 

Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 9 of 18
and press to attend civil and criminal cases would be merely theoretical" and the presumptive right 

of the press and the public to inspect judicial documents would likewise be frustrated. Pellegrino, 

380 F.3d at 93-94. 

And numerous courts have also held that the First Amendment right extends to court orders 

in both civil and criminal matters. Doe v. Pub. Citizen, 749 F.3d 246, 267 (4th Cir. 2014) (finding 

"little difficulty in concluding" that "the First Amendment right of access extends to a judicial 

opinion"); United States v. Doe, 962 F.3d 139, 146 (4th Cir. 2020) ("[A] court order denying a 

sentence reduction [1 is likely encompassed by the First Amendment right of access."); 

Hardy v. Equitable Lfe Assurance Soc y of US., 697 F. App'x 723, 725 (2d Cir. 2017) ("The First 

Amendment also creates a presumption of public access that likewise attaches to court orders."); 

see also Union Oil Co. of Cal. V. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) ("[T]t should go 

without saying that the judge's opinions and orders belong in the public domain."). 

Finally, courts of appeals also have recognized that the constitutional right of access 

attaches to legal briefs, including motions filed in connection with sentencing. See In re 

Providence J. Co., 293 F.3d at 4S (holding that briefs are presumptively public under the First 

Amendment because they "contain the substance of a movant's argument or a nonmovant's 

opposition: pertinent facts, case law, statutory references, and legal reasoning"); see also In re 

Krynicki, 983 F.2d 74, 75-77 (7th Cir. 1992) (noting that, "by constitutional command," "briefs 

themselves, including all of the legal argument, belong in the public domain"); United States v. Gerena, 869 F.2d 82, 85 (2d Cir. 1989) (holding constitutional right of access attaches to "briefs 

and memoranda") 

Where the qualified First Amendment right applies, sealing is proper only if it is found to 

be necessitated by a compelling government interest and no broader than necessary to serve that 

Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 10 of 18
interest. Press-Enterprise 1, 464 U.s. at 510; Hearst Newspapers, 641 F.3d at 181. Thus, to close 

a proceeding or seal a judicial record to which the First Amendment right of access applies, a 

district court must se.t forth written findings demonstrating that such closure or sealing is necessary, 

including an explanation as to why less-restrictive alternatives to such closure or sealinglike 

redactionwould not suffice. Press-Enterprise I, 464 U.S. at 510; Hearst Newspapers, 641 F.3d 

at 181; United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006) (emphasizing that courts "must 

consider reasonable alternatives to closure"). 

B. El Paso Matters Also Has a Qualified Common Law Right of Access to the 

Sealed Records. 

The public also enjoys a presumptive right of access to judicial records under the common 

law. See S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) (citing Nixon, 435 U.s. 

at 597). Like the constitutional right of public access, the common law right "promotes the 

trustworthiness of the judicial process, curbs judicial abuses, and provides the public with a better 

understanding of the judicial process, including its fairness." United States v. Sealed Search 

Warrants, 868 F.3d 385, 395 (5th Cir. 2017) (citing Van Waevenberghe, 990 F.2d at 849). "These 

salutary effects . . . support public access to sentencing memoranda" and other documents that 

"bear directly on criminal sentencing in that they seek to influence the judge's determination of 

the appropriate sentence." United States v. Kravetz, 706 F.3d 47, 56-57 (1st Cir. 2013). 

The common law right of access applies to all documents that qualif' as "judicial records." 

Van Waeyenberghe, 990 F.2d at 848. The Fifth Circuit has applied the common law right to a 

wide range of documents created by or filed with courts. See, e.g., Binh Hoa Le v. Exeter Fin. 

Corp., 990 F.3d 410, 421 (5th Cir. 2021) (holding the common law right of access applies to 

"[ijegal arguments, and the documents underlying them"); Bradley ex rel. AJW v. Ackal, 954 F.3d 

216, 225-27 (5th Cir. 2020) (finding that common law right of access applies to recording of 

10 

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meeting fol1owin settlement conference and meeting minutes about the conference); Sealed 

Search Warrants, 868 F.3d at 390 (pre-indictment search warrant materials); United States v. Holy 

Land Found. ForRlief& Dev., 624 F.3d 685, 690 (5th Cir. 2010) (district court's order and 

opinion); Van Wa'yenberghe, 990 F.2d at 848-49 (final order of permanent injunction; transcript 

of parties' oral report on settlement conference). 

Further, as the late Judge McBryde in the Northern District of Texas explained, in holding 

the common law right applicable to a motion for downward departure in sentencing, "[i]f those 

aspects of a criminal case were to be kept secret, the public and the press would have reason to 

question the trustworthiness of the judicial process and whether judicial and prosecutorial abuses 

might be occurring." Raybould, 130 F. Supp. 2d at 833. 

The sealing in this case is extensive, with even the Court's orders sealing records hidden 

from the public eye. And because some of the docket entries are hidden from the public, El Paso 

Matters cannot determine whether it has identified all of the Sealed Records with specificity. To 

the extent that the gaps in docket entries reflect documents that are sealed and unavailable to the 

public, however, the common law extends the public a presumptive right to inspect those docket 

entries, which provide "a 'kind of index to judicial proceedings," In re Leopold to Unseal Certain 

Elec. Surveillance Applications & Orders, 964 F.3d 1121, 1129 (D.C. Cir. 2020) (quoting 

Pellegrino, 380 F.3d at 93), in addition to the underlying documents themselves. Any party 

seeking such extensive sealing bears a heavy burden in seeking to demonstrate that sealing is 

warranted. 

In applying the common law right of access, the Fifth Circuit has instructed lower courts 

"[to] be ungenerous with their discretion to seal judicial records." Binh Hoa Le, 990 F.3d at 418; 

see also Blain, 808 F.2d at 399 ("The district court's discretion to seal the record of judicial 

11 

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proceedings is to be exercised charily{.]"). And, in determining whether records subject to the 

common law right should be sealed, either in whole or in part, a district court must take into 

consideration the public's interest in access to the documents. See BP Expi. & Prod., Inc. V. Claimant ID 100246928, 920 F.3d 209, 211-12 (5th Cir. 2019). "[T]he greater the public interest 

in the litigation's subject matter, the greater the showing necessary to overcome the presumption 

of access." June Med. Servs., 22 F.4th at 520 (quoting Shane Grp., Inc. v. Blue Cross Blue Shield 

of Mich., 825 F.3d 299, 305 (6th Cir. 2016)). 

C. The First Amendment and Common Law Rights of Access to the Sealed 

Records Have Not Been Overcome. 

The public docket does not contain a sealing order, except to the extent that, "[p]ractically 

speaking," the Court's entry of the unopposed protective order submitted by the prosecution in this 

case "doubles as Jie court's sealing order." Binh I-ba Le, 990 F.3d at 420 n.39. However, the 

mere agreement of the parties is not enough to "satisf' the stringent sealing-order standard." Id. 

at 417-18. Further, the protective order offers "no document-by-document inquiry," "no grappling 

with public and private interests," "no consideration of less drastic alternatives," and "no assurance 

that the extent of sealing [is] congruent to the need." Id. at 420. In sum, the available record fails 

to establish a compelling interest in favor of continuing to withhold the Sealed Records, in their 

entirety, from the public. Any compelling interest that may have existed while the case was 

ongoing is no longer present now that sentencing and restitution proceedings have concluded. The 

prosecution's November 2 motion to unseal its briefs and this Court's corresponding orders, which 

El Paso Matters agrees should be granted, only underscores the fact that, even if secrecy may have 

been justified while this case was ongoing, it is no longer justified. ECF No. 308. 

In contrast, the public interest in this criminal casewhich arises from the 2019 shooting 

at a Walmart in El Paso that left 23 people dead and 22 others injuredcannot be overstated. The 

12 

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horrendous nature of the shooting and the tragic loss of life and grief endured by the El Paso 

community captured the attention of the entire nation. And the prosecution's controversial 

decision not to seek the death penalty was the subject of widespread debate. See, e.g., Moore et 

al., Feds won 't seek death penalty against alleged Walmart gunman, supra; Associated Press, 

Walmart Shooting Suspect to Plead Guilty to Federal Charges, NBCDFW (Jan. 24, 2023), 

https:!iperrna.cc"TPM 3 -Z PVQ. 

There is a particularly powerful public interest in access to the sentencing memoranda filed 

in this case, which were utilized by the Court to determine the Defendant's sentence. For example, 

the prosecution announced that it would not seek the death penalty without any public explanation 

for that decision. ECF No. 254. To the extent the sentencing memoranda explain the prosecution's 

reasons for not seeking the death penalty, the public has a vital interest in knowing those reasons. 

There is likewise strong public interest in a more complete understanding as to how this 

case proceeded prior to Defendant's sentencing. "Dispositive documents," like the legal briefs 

filed by the parties in this case "that influence[d] or underpin[ned a] judicial decision," are of 

particular public interest. In re Sealing & Non-Disclosure of Pen/Trap/2 703(d) Orders, 562 F. 

Supp. 2d 876, 890 (S.D. Tex. 2008). So too are "documents authored or generated by the court 

itself in discharging its public duties, including opinions, orders, judgments, [and] docket 

sheets"documents included among the Sealed Records in this case. Id. at 891. 

The public also has a significant interest in understanding what happened on the day of the 

shooting. Because so many records in this case are sealed, it has been hard to put together a 

complete timeline of events even four years after the shooting. Access to these records would 

facilitate community catharsis after this tragedy. Access only to those judicial records addressed 

by the Government's November 2 motion to unseal would provide an incomplete and slanted 

13 

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picture of these proceedings, since that motion seeks to unseal only the prosecution's own filings 

and this Court's corresponding orders. 

For these reasons, the public's interest in the Sealed Records in this case is particularly 

strong. No compelling or countervailing interest warrants continued, wholesale sealing of the 

judicial records in this case. Accordingly, all records should be unsealed. 

III. To the Extent Continued Sealing of the Sealed Records Is Necessary, Such Sealing 

Must Be Narrowly Tailored and Supported by Specific, On-the-Record Findings. 

Even if the Court finds that a compelling interest necessitates the continued sealing of some 

portion of the Sealed Records, such as protecting the privacy rights of victims, any such restrictions 

on public access must be no greater than necessary to serve that interest. See Press-Enterprise I, 

464 U.s. at 510. Less restrictive alternatives should be employed when possible, including 

redaction of documents in lieu of wholesale sealing. See id.; Hitt, 473 F.3d at 154. Further, any 

such sealing or closure must be supported by specific, on-the-record factual findings sufficient to 

allow a reviewing court to determine whether the sealing or closure was proper. See PressEnterprise 1, 464 U.s. at 510; Sealed Search Warrants, 868 F.3d at 397 n.5. Such findings have 

not been made by the Court in this case. 

CONCLUSION AND PRAYER 

For the reasons set forth above, El Paso Matters requests that the Court enter an order 

requiring the Clerk of the Court to unseal the Sealed Records in the above-captioned matter. 

14 

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Dated: November 21, 2023 

15 

Respectfully submitted, 

/s/Amanda N. Crouch 

Amanda N. Crouch 

State Bar No. 24077401 

JACKSON WALKER LLP 

1900 Broadway, Suite 1200 

San Antonio, TX 78215 

Phone: 210.978.7784 

acrouch(ijw.com 

/s/ Katie Townsend 

Katie Townsend* 

REPORTERS COMMITTEE FOR 

FREEDOM OF THE PRESS 

1156 15th St. NW, Suite 1020 

Washington, D.C. 20005 

Phone: 202.795.9300 

Facsimile: 202.795.9310 

ktownsend@rcfp.org 

Counsel for Proposed 

Intervenor El Paso Matters 

* Pro hac vice application 

pending 

Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 16 of 18
CERTIFICATE OF CONFERENCE 

I certify that I contacted Ian Hanna, counsel for the United States in this matter, and Joe 

Spencer, counsel for Defendant, via e-mail on November 1 6, 2023, to ascertain their clients' 

position on the relief sought by this Motion. The United States takes no position on this Motion 

and the defense opposes it. 

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/s/Amanda N. Crouch 

Amanda N. Crouch 

Counsel for El Paso Matters 

Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 17 of 18
CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing was electronically filed on November21, 2023. 

Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing 

system. Parties may access this filing through the Court's system. 

/s/Amanda N. Crouch 

Amanda N. Crouch 

Counsel for El Paso Matters 

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Case 3:20-cr-00389-DCG Document 311-2 Filed 11/21/23 Page 18 of 18