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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

UNITED STATES OF AMERICA,

v.

PATRICK WOOD CRUSIUS,

Defendant.

§

§

§

§

§

§

§

EP-20-CR-00389-DCG

NOTICE REGARDING DISCLOSURE OF AMOUNT PAID TO DEFENDANT’S 

APPOINTED COUNSEL AND SERVICE PROVIDERS

The Court has received requests to unseal certain records and information in the abovecaptioned case. From the date this Court sentenced Defendant Patrick Wood Crusius, the Court 

and its staff have been diligently reviewing each document under seal to determine whether 

applicable law permits, requires, or forbids the Court from publicly disclosing sealed filings. 

This Notice only addresses media requests to disclose the total dollar amount that Defendant’s

defense team incurred (i.e., the amounts paid to Defendant’s appointed attorneys and expert 

service providers). The Court will address all other requests separately.

1

 

Defendant opposes the disclosure of the amount spent on his defense during this federal 

criminal prosecution. Defendant still faces a death penalty prosecution in state court and fears 

that revealing the amounts his defense team expended in his federal prosecution could prejudice 

his defense in the ongoing state proceedings.2 

1 E.g., the Court will address the Government’s Motion to Unseal, see ECF No. 308, and El Paso 

Matters’ Motion for Leave, see ECF No. 311, in a separate order. 

2

See Objs. to Public Disclosure of Att’y & Expert Service Provider Payments, ECF No. 309; 

Objs. to Public Disclosure of Sealed, Ex Parte Pleadings, ECF No. 310. 

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There are two applicable statutes “that cooperate to provide for the appointment and 

compensation of counsel for indigent defendants” in federal criminal prosecutions.3

The first, [the Criminal Justice Act (“CJA”) under] 18 U.S.C. § 3006A, generally 

provides for the appointment of counsel in federal criminal cases and sets 

guidelines for compensation and reimbursement of expenses. In contrast, 18 U.S.C. 

§ 3599 expounds upon § 3006A and specifically governs the payment of fees to 

appointed counsel in federal capital cases.4 

Accordingly, while “prior versions of . . . § 3006A encompassed the appointment of 

representation in all federal criminal cases[,] Congress separately enacted § 3599 to ensure 

capital defendants received enhanced representation given the stakes of their litigation” in capital 

cases.5 Thus, because the Government charged Defendant with a crime potentially punishable 

by death in this case,6 18 U.S.C. § 3599 governs if and when the Court must disclose the 

amounts paid for Defendant’s defense as the media requests.

7

3 Ottinger v. United States, 164 Fed. Cl. 379, 381 (2023).

4

Id.

5

Id. at 385; see also id. at 382 (“Before 1988, the CJA of 1964 governed the appointment of 

counsel in all federal criminal cases and habeas litigation, regardless of whether the matter involved a 

capital or non-capital offense. In 2006, Congress enacted § 3599 which clarified rights afforded to a 

defendant charged or convicted of crimes punishable by death. In enacting these separate laws, Congress 

sought to provide capital defendants with experienced counsel and reasonably necessary litigation 

resources.” (emphasis added) (cleaned up) (quoting Martel v. Clair, 565 U.S. 648, 658 (2012))).

6 Although the Government opted not to pursue the death penalty in this case, § 3599 still applies 

because Defendant was charged with a crime which may be punishable by death. See 18 U.S.C. 

§ 3599(a)(1) (“[I]n every criminal action in which a defendant is charged with a crime which may be 

punishable by death, a defendant who is or becomes financially unable to obtain adequate representation 

or investigative, expert, or other reasonably necessary services at any time . . . shall be entitled to the 

appointment or one or more attorneys and the furnishing of such other services in accordance with 

subsections (b) through (f).” (emphasis added)).

See also Superseding Indictment, ECF No. 82 (identifying counts 24-46 as offenses that carry a 

possible penalty of death); Order Appointing Counsel, ECF No. 27 (appointing counsel under § 3599); 

Order File Notice, ECF No. 239 (indicating that the Government could have pursued the death penalty in 

this case). 

7

See Martel, 565 U.S. at 659 (“Congress enacted the legislation now known as § 3599 to govern 

appointment of counsel in capital cases, thus displacing § 3006A for persons facing execution.” (emphasis 

added)).

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Only one subsection of the statute, (g)(3), addresses public disclosure of the amounts paid

for defense costs. In relevant part, the statute provides that the fees and expenses paid both to 

attorneys and for any investigative, expert, or other reasonably necessary services “shall be 

disclosed to the public, after the disposition of the petition.”8 The plain text, however, does not 

define “petition” or designate the point at which the “disposition of the petition” in a case occurs.

To answer those questions, the Court will consult the Guide to Judiciary Policy, Volume 

7, Part A (“CJA Guidelines”)9 promulgated by the Judicial Conference, which other courts have 

consulted for guidance when interpreting and applying § 3006A and § 3599.

10

 In “set[ting] forth 

8

18 U.S.C. § 3599(g)(3). 

9 At an earlier phase of this case (but in a different context), the Court held that the CJA 

Guidelines are “entitled to respectful consideration” but are not binding on the Court. See United States v. 

Crusius, EP-20-CR-00389-DCG, 2020 WL 4340550, at *6 (W.D. Tex. July 28, 2020) (quoting United 

States v. Slone, 969 F. Supp. 2d 830, 833 (E.D. Ky. 2013)). There, Defendant relied on the CJA 

Guidelines when asking the Court to reschedule the date of the Government’s pre-authorization mitigation 

presentation—which is essentially a conference during which defense counsel has “an opportunity to 

submit and present any mitigating evidence that would militate against a death sentence” before the 

Government decides whether to pursue the death penalty. Id. at *1. The Court denied Defendant’s 

motion and held that neither the CJA Guidelines nor any other statute authorized courts to “commandeer 

the scheduling of the pre-authorization mitigation presentation from the Government.” Id. at *7. 

The Court’s earlier ruling that the CJA Guidelines aren’t binding is fully consistent with the 

Court’s decision to consult the CJA Guidelines today. There, the Court lacked authority altogether to 

grant the relief Defendant sought “because the pre-authorization mitigation presentation is not a judicial 

proceeding presided over by a judge, but part of an administrative, discretionary decision-making process 

of whether to seek the death penalty.” Id. at *4 (quoting United States v. Shakir, 113 F. Supp. 2d 1182, 

1188 (M.D. Tenn. 2000)). Here, on the other hand, the Court is statutorily authorized to disclose 

information on defense costs; the Court therefore considers CJA Guidelines to clarify its duties rather than 

create new ones. The Court’s consideration of the CJA Guidelines in this context accords with the 

Supreme Court’s instruction in a different context that “the policy conclusions of the Judicial Conference” 

are “entitled to respectful consideration” even though they are “not binding on the lower courts.” See 

Hollingsworth v. Perry, 558 U.S. 183, 193 (2010) (cleaned up) (quoting In re Sony BMG Music Ent., 564 

F.3d 1, 6 (1st Cir. 2009)). 

10 See, e.g., Ottinger, 164 Fed. Cl. at 382 (“The CJA authorizes the Judicial Conference, a 

congressionally-created policymaking body for the federal courts, to issue rules and regulations governing 

the operation of plans formulated under the CJA. Under this authority, the Judicial Conference 

promulgates a comprehensive regulatory framework for administering the CJA that is set out in [the CJA 

Guidelines,] which afford guidance to courts for creating and maintaining a CJA plan.” (cleaned up) 

(quoting In re Commonwealth’s Motion to Appoint Couns. Against or Directed to Def. Ass’n of Phila., 790 

F.3d 457, 461 (3d Cir. 2015))). 

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the policy on the public disclosure of information pertaining to the activities under the Criminal 

Justice Act . . . and related statutes” like § 3599,

11 the Guidelines specify that in capital cases, 

disclosure of payments to attorneys and service providers “must be after the disposition of the 

petition for habeas corpus.”

12 The Guidelines thus clarify that “petition” in § 3599(g)(3) means 

“petition for habeas corpus,” and the Court agrees with that interpretation.13

See also id. at 382 n.3 (“The CJA Guidelines, as well as the CJA Plans, address appointment and 

compensation of counsel in capital proceedings.” (first citing Jud. Council of the Fifth Circuit, Plan for 

Representation on Appeal Under the Criminal Justice Act, (Oct. 7, 2021) (Fifth Circuit CJA Plan), 

https://www.lb5.uscourts.gov/cja2/CJADocs/CircuitCJAPlan.pdf (last visited Jan. 30, 2023); then citing 

CJA Guidelines, Vol. 7A, §§ 620, 630; Fifth Circuit CJA Plan §§ 3, 5.B., 7)).

11 CJA Guidelines § 510.10. 

12 Id. at §§ 520.10(b), 530(b) (second emphasis added). 

In a petition for habeas corpus, an individual in custody moves the court to vacate, set aside, or 

correct his sentence. See, e.g., 28 U.S.C. § 2255. As a post-conviction remedy, a habeas corpus petition 

may be a prisoner’s final opportunity to challenge his incarceration and obtain relief (i.e., a reduced 

prison sentence or a voided conviction) once appeals have been exhausted, or when a direct appeal is 

unavailable. See, e.g., Rodriguez v. Fla. Dep’t Corr., 748 F.3d 1073, 1080 (11th Cir. 2014) (“Federal 

habeas corpus proceedings are the last chance a petitioner has to present arguable constitutional violations 

and errors to a court capable of correcting them.”). 

13 The Court concedes that its interpretation of § 3599(g)(3) differs from that of at least one other 

court. In United States v. Tsarnaev, the District of Massachusetts concluded that § 3599(g)(3)’s “after the 

disposition of the petition” language should not be “[t]aken literally . . . to apply only to cases involving 

an actual habeas ‘petition.’” No. 13-10200, 2016 WL 4994954, at *1 (D. Mass. Sept. 16, 2016). The 

Tsarnaev court reasoned that § 3599(g)(3) “was enacted as part of the Anti-Terrorism and Effective Death 

Penalty Act of 1996 (‘AEDPA’),” and that Congress was therefore “focused on expediting capital habeas 

procedures” when it drafted § 3599(g)(3)’s “after the disposition of the petition” language. Id. The 

Tsarnaev court therefore surmised that Congress’s “use of the term ‘petition’ in § 3599(g)(3)” reflects “an 

inadvertent reflection of that focus” on habeas procedures. Because the Tsarnaev court found “no 

objective indications in the legislative record that Congress meant” to require federal courts to disclose 

capital defense costs in cases where the defendant files a habeas petition—while keeping that information 

private if the defendant never files a habeas petition—the District of Massachusetts concluded “that the 

phrase ‘after the disposition of the petition’ is a slip of the legislative pen”—i.e., a “drafting error.” Id. at 

*1 & n.2. Thus, reasoned the Tsarnaev court, courts should not interpret “after the disposition of the 

petition” literally, but should instead read § 3599(g)(3) more loosely to mandate financial disclosures 

“after the case is over” (irrespective of whether the defendant ultimately files a habeas petition). Id. at *1.

The Court respectfully rejects Tsarnaev’s conclusion that § 3599(g)(3)’s “after the disposition of 

the petition” language is a drafting mistake that federal courts have the authority to correct or overlook. 

Although it’s true that courts may disregard “obvious technical drafting errors” when interpreting statutes 

under the “scrivener’s error” doctrine, that rule only applies “in exceptional circumstances” that aren’t 

present here. See Niz-Chavez v. Garland, 593 U.S. 155, 161 n.1 (2021); see also, e.g., DaimlerChrysler 

Fin. Servs. Ams., LLC v. Miller (In re Miller), 570 F.3d 633, 639 (5th Cir. 2009) (opining that “[i]f 

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Still, § 3599 contains a statutory gap, as the plain text does not make clear—by 

specifying the latest date by which the Court must disclose the amounts paid under § 3599—

whether the Court may disclose the amounts paid any earlier or whether it is explicitly foreclosed 

from doing so. At least one court has concluded that courts have discretion to disclose

Congress enact[s] into law something different from what it intended,” the federal courts possess no wideranging authority “to rescue Congress from its drafting errors” by “rewriting [the] rules” (quoting Lamie 

v. U.S. Trustee, 540 U.S. 526, 542 (2004))). A court may dismiss otherwise unambiguous statutory text as 

a mere drafting mistake only when “the error . . . is so ‘unthinkable’ that any reasonable reader would 

know immediately both (1) that it contains a ‘technical or ministerial’ mistake, and (2) the correct 

meaning of the text.” Lexington Ins. Co. v. Precision Drilling Co., 830 F.3d 1219, 1223 (10th Cir. 2016) 

(Gorsuch, J.) (quoting ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 237-38 (2012)); see also, 

e.g., United States v. Lauderdale County, 914 F.3d 960, 962 n.2 (5th Cir. 2019) (appearing to adopt a 

similar conception of the scrivener’s error doctrine). So, for instance, if a statute “provide[d] that the 

‘winning party’ . . . must pay the other side’s reasonable attorney’s fees,” it would be “plain to any 

reasonable reader” that Congress meant to say “losing party.” Lexington, 830 F.3d at 1223 (emphases 

added). 

Applying those principles here, the fact that a reader would have to know the context surrounding 

AEDPA’s enactment in order to adopt Tsarnaev’s preferred interpretation of the statute illustrates that the 

“correct meaning” of the statute would not be “immediately” obvious to “any reasonable reader.” 

Furthermore, it is not “unthinkable” that Congress would mandate the disclosure of financial 

information only in cases where a capital defendant files a habeas petition. Habeas petitions are often a 

capital defendant’s final opportunity to challenge his conviction before being executed. See Fla. Dep’t 

Corr., 748 F.3d at 1080. These petitions, however, may come years after a defendant is convicted and 

sentenced. See United States v. Rodriguez, 858 F.3d 960, 962 (5th Cir. 2017) (indicating the one-year 

period to seek post-conviction relief runs from the latest of four possible dates, “one of which is the date 

on which the facts supporting the claim or claims presented could have been discovered through the 

exercise of due diligence” (cleaned up) (quoting 28 U.S.C. § 2255(f)(4))); see also In re Young, 789 F.3d 

518, 528 (5th Cir. 2015) (finding the time limitation to file a habeas petition did not start until 

approximately ten years after capital defendant had been sentenced to death because witnesses coming 

forward and recanting their prior testimony served as “newly discovered evidence”). In only requiring 

disclosure from capital defendants whose habeas petitions the court has already disposed of, Congress 

may have intended to shield a defendant from public disclosure up until his execution is finalized (i.e., all 

other remedies are exhausted)—however long that may be from the date of sentencing. 

Because Tsarnaev thus incorrectly applied the scrivener’s error doctrine, Court must enforce the 

statutory text as written.

Notably, the Williams case cited below accords with this Court’s conclusion that the term 

“petition” refers to a habeas corpus petition. See United States v. Williams, No. 06-00079 JMS/KSC, 

2014 WL 2932365, at *1 (D. Haw. June 30, 2014).

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information relating to defense costs before disposing of a defendant’s petition for habeas 

corpus.14

The Court need not now decide whether it may disclose the information sought under 

§ 3599 before Defendant files a petition for habeas corpus and the Court disposes of it. Even 

assuming arguendo that the Court does in fact have the discretion to disclose the amounts paid 

toward Defendant’s defense, the Court would not exercise such discretion at this time.

Defendant is currently facing the death penalty in an on-going state prosecution. Although 

disclosing the total defense costs expended in this federal prosecution wouldn’t compromise the 

defense team’s strategy in the state case (because disclosing the non-itemized total wouldn’t 

reveal how the federal defense team spent that money), releasing the total federal defense costs 

now would unnecessarily generate additional pre-trial publicity that could make it harder for the 

state court to select an impartial jury.

15

 The Court will therefore revisit whether to disclose the 

amounts as the state case progresses. 

So ORDERED and SIGNED this 17th day of January 2024.

____________________________________

DAVID C. GUADERRAMA

SENIOR U.S. DISTRICT JUDGE

14 See Williams, 2014 WL 2932365, at *2 (holding that § 3599(g)(3) “does not preclude 

disclosure of the amounts of defense fees and costs before the disposition of any petition that might be 

filed in this case” because § 3599(g)(3) merely “provides that the court must make [the required] 

disclosure after disposition of the habeas petition, and leaves silent whether the court may exercise its 

discretion in disclosing such information earlier”).

15 Cf. United States v. Brown, 218 F.3d 415, 423 (5th Cir. 2000) (“Intense publicity surrounding a 

criminal proceeding . . . poses significant and well-known dangers to a fair trial . . . [as there is] the 

potential that pretrial publicity may taint the jury venire, resulting in a jury that is biased toward one party 

or another.”); United States v. McVeigh, 918 F. Supp. 1452, 1465 (W.D. Okla. 1996) (identifying 

problems that may occur when courts reveal total defense costs before a death penalty trial ). 

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