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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

UNITED STATES OF AMERICA, §

 §

Plaintiff, §

 § EP-20-CR-00389-DCG

v. §

 §

PATRICK WOOD CRUSIUS, §

 §

Defendant. §

 

OBJECTIONS TO PUBLIC DISCLOSURE OF SEALED, EX PARTE PLEADINGS

AND RELATED MATTERS CONCERNING APPOINTED COUNSEL

NOW INTO COURT, through undersigned counsel, comes PATRICK WOOD CRUSIUS, 

who hereby files his objections, pursuant to the Fifth, Sixth and Eighth Amendments to the U.S. 

Constitution and 18 U.S.C. §§ 3005 and 3599(a), and in the interests of justice, to the public 

disclosure of sealed, ex parte pleadings, including motions, orders, minutes and transcripts, filed 

in this prosecution concerning the appointment and compensation of private attorneys and expert 

service providers.

Relevant Procedural History

On February 6, 2020, the federal Government filed a 90-count indictment against Mr. 

Crusius charging him with death penalty-eligible crimes as the result of the mass shooting on 

August 3, 2019, at a Walmart located in El Paso, Texas. ECF No. 1. On July 9, 2020, a 90-count 

superseding indictment issued against the defendant again charging him with death penaltyeligible federal crimes. ECF No. 82. On January 17, 2023, the Government filed a notice that it

would not seek the death penalty in this case. ECF No. 254. On February 8, 2023, Mr. Crusius 

was rearraigned pursuant to a plea agreement whereby he pled guilty to all 90 counts of the 

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indictment. ECF Nos. 259-261. An Amended Judgment In A Criminal Case was entered on 

October 5, 2023, reflecting the 90 consecutive life sentences imposed by this Court on July 7, 

2023, as well as restitution to the victims in the amount of $6,238,845.55. ECF No. 306.

Undersigned counsel Joe A. Spencer, Jr., Mark Stevens, Felix Valenzuela, and Rebecca 

Hudsmith, all learned in the law applicable to capital cases, were appointed by this Court to 

represent Mr. Crusius in connection with this federal death penalty-eligible prosecution. Private 

counsel Mr. Spencer, Mr. Valenzuela and Mr. Stevens, who also have been appointed to represent 

Mr. Crusius in the pending Texas state court death penalty prosecution against him, have been paid 

for their work defending Mr. Crusius in federal court pursuant to federal judicial policy as reflected 

in the Guide to Judiciary Policy, Vol. 7: Defender Services. 1

The Nature of the Federal District Court Sealed Pleadings and Related Matters at Issue

The process by which counsel is appointed in a federal death-penalty eligible prosecution 

is governed by the provisions of 18 U.S.C. Section 3599, the Guide to Judiciary Policy, Vol 7: 

Defender Services, the Plan for Representation on Appeal under the Criminal Justice Act (Fifth 

Circuit Plan), Section 7.B.2., and the Amended Western District of Texas CJA Plan Revised April 

13, 2023), Section XIV. The sealed pleadings at issue, submitted ex parte, concern the 

appointment of qualified counsel and the service providers needed to assist them, in this deathpenalty eligible prosecution, the proposed budgets for compensation of counsel and service

providers, and related orders, minutes and transcripts of the District Court and orders of the Circuit 

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Originally, private counsel appointed to represent Mr. Crusius included David A. Lane, Cori 

Ann Harbour-Valdez, Jane Fisher-Bryialsen, Kathleen McGuire, and Louis E. Lopez, Jr., along 

with Ms. Hudsmith. Each of these private attorneys ceased representing Mr. Crusius by 

September of 2020, after which time private counsel Mr. Spencer, Mr. Stevens and Mr. 

Valenzuela were appointed, along with Ms. Hudsmith. The objection to disclosure of sealed 

pleadings concerning attorney appointment and budget issues herein applies as well to these 

private counsel and any expert service providers they were Court-authorized to hire.

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Court, in addressing these submissions. The pleadings submitted ex parte and under seal in support 

of the need for qualified death penalty counsel and the compensation needed to support their work 

necessarily reflect detailed information as to defense litigation strategies and concerns, attorney 

work-product and other privileged and sensitive matters in justification. The pleadings filed in 

connection with issues involving appointed counsel and related matters in this death-penalty 

eligible prosecution are necessarily filed in the case itself, but properly filed under seal and ex 

parte, without any input from the Office of the United States Attorney prosecuting the case. 

Rather, the input comes from those within the judiciary, who regularly comply with the relevant 

statutory authorities and judicial policies, including the District Court and Chief Circuit Court 

Judges, the Circuit Case Budgeting Attorney, the Federal Public Defender for the Western District 

of Texas, and the National Federal Death Penalty Resource Counsel. The same applies to sealed 

court orders and any minutes and transcripts reflecting these issues.

Once counsel are appointed for an indigent defendant in a federal death-penalty eligible 

case, and a budget for payment of counsel is approved by the federal courts, payments to private 

counsel for their work as court-appointed counsel is made through the Federal District Court’s 

non-public eVoucher system, which is separate from the CM/ECF District Court case filing system 

and PACER. 2

Applicable Statutory Provisions

The statutory provisions specific to the appointment and funding of the indigent 

defense function in a Federal death penalty case can be found at 18 U.S.C. Section 3599(a). This 

2 The process applicable to appointed private counsel regarding budgeting for and payment of 

attorney fees and expenses does not apply to Ms. Hudsmith, who is the Federal Public Defender 

for the Middle and Western Districts of Louisiana and who is a full-time federal judiciary 

employee. Moreover, as an agency within the judiciary branch, the FPD office is not subject to 

the Freedom of Information Act nor the Privacy Act, referenced herein. 

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section governs the appointment of counsel in criminal prosecutions in which a defendant is 

charged with a crime which may be punishable by death, and the defendant is financially unable 

to obtain adequate representation or investigative, expert, or other reasonably necessary services. 

Subsections (b), (c) and (d) provide for the qualifications of counsel appointed under Section 3599. 

Subsection (e) defines the scope of appointed counsel’s representation of the defendant. 

Subsection (f) provides that the Court may authorize appointed private counsel to 

obtain investigative, expert, or other services, where found to be reasonably necessary for the 

representation of the defendant, and shall order payment of such fees and expenses, which 

proceedings, communications, or requests may be ex parte on a proper showing of the need for 

confidentiality. 

Subsections (g)(1) and (2) of Section 3599 provide for the hourly rate at which 

private counsel appointed under the Section are paid and the limits on the payment of investigative, 

expert, and other reasonably necessary services, unless approved by the Chief Judge of the federal 

Circuit Court. Subsection (g)(3) of Section 3599 provides that “amounts paid under this paragraph 

for services in any case shall be disclosed to the public, after the disposition of the petition.” 

Provisions of the Guide to Judiciary Policy

Volume 7, Pt.A, Chapter 5 of the Guide to Judiciary Policy provides guidelines 

generally regarding the public disclosure of information pertaining to activities under the Criminal 

Justice Act (CJA), 18 U.S.C. Section 3006A, and related statues. At the outset, Section 510.20 

provides that neither the Freedom of Information Act, (5 U.S.C. Section 552) nor the Privacy Act 

(5 U.S.C. Section 552a) applies to the judiciary, and “neither is applicable to requests for release 

to the public of records and information pertaining to activities under the CJA and related statues.” 

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Section 510.30 provides with respect to limitations on disclosure of information on 

CJA-related activities that such information which is not otherwise routinely available to the public 

should be made available unless it: 

(a) Is judicially placed under seal;

(b) Could reasonably be expected to unduly intrude upon the privacy of attorneys or 

defendants;

(c) Could reasonably be expected to compromise defense strategies, investigative procedures, 

attorney work product, the attorney-client relationship or privileged information provided 

by the defendant or other sources; or

(d) Otherwise adversely affect the defendant’s right to the effective assistance of counsel, a 

fair trial, or an impartial adjudication.

Section 520.10(b) provides for only the disclosure of payments to counsel and 

further provides that “[f]or capital cases, disclosure must be after the disposition of the petition 

for habeas corpus.” (emphasis in original). Furthermore, Section 520.20(b) provides that 

“[d]ocumentation submitted in support of, or attached to, payment may not be disclosed at any 

time.” (emphasis added). The same principles apply to the timing of disclosure of payments to 

service providers. Section 530.

The Guide to Judiciary Policy, Vol. 7, Pt. A, Ch. 6: Federal Death Penalty and 

Capital Habeas Corpus Representations, Section 640 governs case budgeting, which is required in 

all capital cases. According to Section 640.20(b), “[c]ase budgets should be submitted ex parte

and filed and maintained under seal.” (emphasis added). Section 650.20(d) provides that the 

“budget should be incorporated into a sealed initial pretrial order that reflects the understandings 

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of the court and counsel regarding all matters affecting counsel compensation and reimbursement 

and payments for investigative, expert, and other services.” 

Legal Authorities Relative to Issues of Public Disclosure of Sealed Matters 

In June Medical Services, L.L.C. v. Phillips, 22 F.4th 512, 512-515 (5th Cir. 2022), 

the Fifth Circuit vacated a district court’s order in a civil case brought by an abortion clinic and 

three doctors who provide abortions, who sought to seal information that could jeopardize their 

privacy and the privacy of their staffs. According to the Court, the district court’s order “sealing 

and ordering redaction of voluminous documents without a proper legal basis,” included such 

publicly available information as a transcript of proceedings held in open court, a famous 

Pennsylvania grand jury report that is available as a book on the Amazon website, an arrest report 

from a police department’s website, articles from The New York Times and Rolling Stone, and an 

obituary from a public website. Id. at 515. In vacating the district court’s sealing order, the Court 

noted that judicial records belong to the American people, and they are public, not private 

documents. Id. at 519. Additionally, the Court distinguished the discovery stage, where parties 

are exchanging information pursuant to a valid protective order from the adjudicative stage, when 

materials enter the record, and the standard for shielding records from public view is far more 

arduous, requiring a stricter balancing test. Id. at 521. According to the Court, with regard to 

judicial records, the working presumption is that they should not be sealed, and the district court 

must undertake a document-by-document, line-by-line balancing of the public’s common law right 

of access against the interests favoring nondisclosure. Id. 

In the context of criminal prosecutions, the Supreme Court has provided guidance 

as to the existence of a qualified First Amendment right of public access to criminal trials and 

certain preliminary proceedings in criminal cases. See Press-Enterprise Co. v. Superior Court, 

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478 U.S. 1 (1986) (Press-Enterprise II) (right of access to preliminary hearings). The opinion sets 

forth a two-step analytical framework to be followed: first, the court determines whether a 

qualified First Amendment right of access attaches to a particular criminal trial related process

and, if so, then the court determines whether closure services a compelling interest. The first step 

emphasizes two complimentary considerations, which should be separately analyzed on the 

threshold question of whether the First Amendment right of access even attaches. Id. at 8. The 

court first considers whether the place and process have historically been open to the press and 

general public. Id. Then, the court considers whether public access plays a significant positive 

role in the functioning of the particular process in question. Id. If these two “considerations of 

experience and logic” favor disclosure, a qualified First Amendment right of access applies to a 

particular criminal trial related process. Id. at 9. If, applying these tests, a qualified First 

Amendment right is found to exist, the right may be overcome “by an overriding interest based on 

findings that closure is essential to preserve higher values and is narrowly tailored to serve that 

interest.” Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (Press-Enterprise I)

(right of access to jury selection). 

In United States v. Gonzales, 150 F.3d 1246 (10th Cir. 1998), the Tenth Circuit was 

presented with the issue whether the press has a constitutional, common law, or statutory right of 

access to court-sealed fee, cost and expense applications and related information filed under the 

Criminal Justice Act, 18 U.S.C. Section 3006A, by court-appointed criminal defense attorneys, as 

well as transcripts from hearings and court orders concerning those applications. Assuming that 

the analysis of Press-Enterprise II applied to the documents at issue, the Court concluded that 

there is no First Amendment right of access to CJA-related backup documentation, motions, orders 

and hearing transcripts. Id. at 1261. With respect to a common law right of access, the Court 

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concluded that the CJA statutory scheme supplants any common law right of access, and CJA 

materials are not “judicial materials” as that term is used by courts that have applied the common 

law right of access and are, instead, administrative documents to which there is not right of access 

under the common law. Id. at 1263.

The Sealed Status of Pleadings and Related Documents and Matters Concerning the 

Appointment and Budgets of Counsel Must Be Maintained

The Fifth Circuit’s holding in June Medical Services, L.L.C. that the public has a 

common law right of access to judicial records does not govern in the present context. Rather, 

Section 3599 and judiciary policy as set forth in the Guide to Judiciary Policy govern and make 

clear that public disclosure of information with regard to court-appointed counsel is limited to the 

amount of the payments made through the eVoucher system to appointed private counsel, or to 

any service providers hired by private counsel after approval by the Courts, and does not include 

any documentation in support, including case budget motions and orders. Moreover, the earliest

that such disclosure of payments can be made is after the disposition of any habeas corpus petition 

filed by the defendant as a federal prisoner. Furthermore, according to Section 510.30 of the Guide 

to Judiciary Policy, a decision on public disclosure must be guided by consideration of the adverse 

impact of the public disclosure on the defendant’s constitutionally guaranteed rights to the 

effective assistance of counsel and to a fair trial, in this case, in connection with the pending Texas 

state court death penalty prosecution against Mr. Crusius. Any such adverse impact would weigh 

against public disclosure of the sealed matters at issue.

Notably, despite the broad sweep of the Court’s language in June Medical Services, 

L.L.C., it was not a death penalty prosecution in which disclosure of information concerning the 

appointment and payment of private counsel is governed by Section 3599 and the Guide to 

Judiciary Policy, and the Court makes no reference to the appropriate legal standard for sealing 

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documents in the present context. Moreover, the sealed documents at issue here are not public 

information filed under seal, but information filed both ex parte and under seal that is not otherwise 

publicly available. 

Additionally, the sealed pleadings at issue in this case, while necessarily filed in 

the court record, are not “judicial records” in the sense that they are neither the part of the discovery 

stage nor the adjudicative stage of this prosecution. As noted in Gonzales, 150 F.3d at 1254-55, 

the process relied upon by the federal courts to appoint counsel in criminal cases is administrative 

in nature. The guidelines for appointment and payment of counsel are generated by the 

Administrative Office of the U.S. Courts under authority granted by the Judicial Conference of the 

United States. Therefore, the guidelines are purely administrative, and the court acts essentially 

as an administrative, not a judicial, capacity when it approves requests for appointment of counsel 

and related motions for trial assistance. Id. The administrative nature of the process of 

appointment of counsel is apparent in that the process is non-adversarial, and the court acts ex 

parte. Id. at 1255. The documents are not used at trial to show the guilt or innocence of the 

defendant and are not evidence of anything and are, thus, entirely ancillary to the trial. Id.

Furthermore, the two “considerations of experience and logic” set forth in PressEnterprise II do not favor disclosure or a qualified First Amendment right of access to the sealed, 

ex parte pleadings and related matters at issue. With respect to the experience consideration, 

certain aspects of criminal proceedings, such as criminal trials, have traditionally been open to the 

public throughout this country’s history, while other aspects, such as grand jury proceedings, have 

not. There is no historical tradition of open public access to documents submitted by a defendant 

relative to appointment of counsel or a budget for appointed counsel. See United States v. Lexin, 

434 F.Supp.2d 836, 851 (S.D. Ca. 2006) (finding a defendant’s personal financial information 

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submitted in support of appointment of counsel should be sealed and not subject to public 

disclosure) (“Applying the experience factor, the court finds no historical tradition of open public 

access to documents submitted by a defendant in support of a request for appointment of 

counsel.”). See also United States v. Gonzales , 150 F.3d at 1258 (the Court concludes “that no 

history, experience or tradition of access exists as to the release at any time of backup 

documentation, motions, orders, and hearing transcripts regarding requests for CJA assistance.”) 

Such documents are peripheral to the defendant’s trial, and the process of appointing counsel for 

a financially eligible defendant and budgeting for counsel’s work on the case is a non-adversarial, 

ex parte process closed to the prosecution. 

The logic consideration seeks to determine “whether public access plays a 

significant positive role in the functioning of the particular process in question.” Press-Enterprise 

II, 478 U.S. at 8. The determinations relative to appointment and funding of counsel for an indigent 

defendant do not implicate the merits of a criminal case. See United States v. Lexin, 434 F.Supp.2d 

at 852 (“The determination of whether a defendant is eligible for appointed counsel does not 

implicate judicial power or the meris of the criminal case.”). Nor does access to such information 

serve the need of the public to have a full understanding necessary to serve as an effective check 

on the judicial system. Id. at 853 (under the logic consideration standard, “the positive role [of 

public access] in the functioning of the appointment of counsel process is, at best, minimal” and 

“could actually play a negative, rather than a positive, role”). See also United States v. Gonzales, 

150 F.3d at 1258-59 (the Court concludes that “public access to the backup documentation, 

motions, orders, and hearing transcripts will not play a significant positive role in the functioning 

of the CJA process” and, in fact, access would play “a negative role in the process.”).

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Simply put, neither the common law right of access to judicial records outlined in

June Medical Services, L.L.C. nor the qualified First Amendment right of access to criminal trials 

and proceedings recognized in Press-Enterprise II require or support the unsealing of the sealed, 

ex parte matters relating to the appointment of counsel and their budgets. To the contrary, the 

statutory provision of Section 3599 and the Guide to Judiciary Policy governing court-appointed 

counsel matters mandate that these pleadings, orders, minutes, transcripts and underlying 

documentation remain sealed.

WHEREFORE, defendant PATRICK WOOD CRUSIUS, through undersigned 

counsel, respectfully prays that this Court, pursuant to the Fifth, Sixth and Eighth Amendments to 

the U.S. Constitution and 18 U.S.C. §§ 3005 and 3599(a), and in the interests of justice, maintain 

the sealed, ex parte status of the pleadings, including motions, orders, minutes and transcripts,

filed in this prosecution concerning the appointment and compensation of private attorneys and 

expert service providers.

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 Respectfully submitted,

 /s/ Joe A. Spencer

JOE A. SPENCER

1009 Montana 

El Paso, Texas 79902 

(915) 532-5562 

joe@joespencerlaw.com

State Bar of Texas No. 18921800 

REBECCA L. HUDSMITH

LA Bar No. 7052 

Office of the Federal Public Defender for 

the Middle and Western Districts of 

Louisiana 

102 Versailles Blvd., Suite 816 

Lafayette, LA 70501 

(337) 262-6336 

Facsimile: (337) 262-6605 

Rebecca_hudsmith@fd.org 

MARK STEVENS

310 S. St. Mary’s Street 

Tower Life Building, Suite 1920 

San Antonio, TX 78205 

(210) 226-1433 

State Bar No. 1918420 

mark@markstevenslaw.com

FELIX VALENZUELA

701 Magoffin Avenue 

El Paso, Texas 79901 

(915) 209-2719 

State Bar No. 24076745 

 felix@valenzuela-law.com

Attorneys for Patrick Crusius

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CERTIFICATE OF SERVICE

Undersigned counsel hereby certifies that on this 14th day of November, 2023, a true and 

correct copy of the foregoing pleading was filed electronically with the Clerk of Court using the 

CM/ECF System through which all parties entitled to service and notice will be served.

 /s/Rebecca L. Hudsmith

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