Petition for Writ of Certiorari — William Glenn Chunn, Petitioner v. United States

Supreme Court briefMay 10, 2024

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IN THE SUPREME COURT OF THE UNITED STATES

WILLIAM GLENN CHUNN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

BRAD ERIC FRANKLIN

Counsel of Record

Criminal Justice Act (CJA) Panel Attorney

Eastern District of Texas

485 Milam St.

Beaumont, TX 77701

Tel. (409) 245-0001

eric@franklinfranklinlaw.com

Counsel for Petitioner

RICO ACT CASE

QUESTION PRESENTED

Whether a defendant’s right to assistance of counsel and due

process are upheld when he has no right to review discovery or

confer with his attorney, and the trial court fails grant a

continuance.

PARTIES TO THE PROCEEDING

Petitioner is William Glenn Chunn, defendant-appellant below.

The United States of America is the respondent on review.

iii

STATEMENT OF RELATED PROCEEDINGS

Petitioner William Glenn Chunn was tried with his codefendant Jesse Blankenship. The case in the trial court and the court

of appeals are listed below.

United States District Court for the Eastern District of Texas:

United States v. William Glenn Chunn, No. 1:20-CR83 (December 7, 2022)

United States Court of Appeals for the Fifth Circuit:

United States v. William Glenn Chunn, No. 22-40619

(February 15, 2024) (judgment)

Co-defendant Jesse Blankenship has not joined in this petition. Only

Petitioner William Glenn Chunn files this Petition for Writ of Certiorari

before this Court.

TABLE OF CONTENTS

QUESTION PRESENTED........................................................................ ii

PARTIES TO THE PROCEEDING ......................................................... iii

STATEMENT OF RELATED PROCEEDINGS .................................... iv

TABLE OF AUTHORITIES .................................................................... vi

PETITION FOR A WRIT CERTIORARI.................................................. 1

OPINION BELOW ....................................................................................1

JURISDICTION ........................................................................................1

RELEVANT PROVISIONS .......................................................................1

INTRODUCTION ......................................................................................1

STATEMENT OF THE CASE ..................................................................4

Petitioner was denied his right to a fair trial when he was

denied the assistance of counsel in preparation of his

defense……………..…………………………………………...4

The trial court failed to remedy the constitutional

violations when it refused to grant a continuance………..5

REASONS FOR GRANTING THE PETITION .....................................7

CONCLUSION ..........................................................................................9

APPENDICES

Appendix 1: United States v. Blankenship; Chunn, No. 22-40619

(5th Cir. Feb. 15, 2024)................................................................ 1A

Appendix 2: Relevant Provisions ......................................................... 36A

CASES

TABLE OF AUTHORITIES

Brady v. Maryland, 373 U.S. 83 (1963) ....................................................2

Powell v. Alabama, 287 U.S. 45 (1932) ................................................. 2, 5

United States v. Aguilar, 503 F.3d 431 (5th Cir. 2007) .......................... 2

United States v. Dorvin, 817 F.3d 438 (5th Cir. 2016) ........................... 2

United States v. Hughey, 147 F.3d 423 (5th Cir. 1998) .......................... 7

United States v. Morales, 807 F.3d 717 (5th Cir. 2015).......................... 7

United States of America v. Jesse Paul Blankenship; William Glenn Chunn,

No. 22-40619 (5th Cir. February 15, 2024) ............................................. 1

FEDERAL CONSTITUTION, STATUTES AND RULES

18 U.S.C. § 1962 ....................................................................................... 1

18 U.S.C. § 1962(d) ................................................................................... 4

28 U.S.C. § 1254(1) ................................................................................... 1

Sup. Ct. R. 10(a)........................................................................................ 8

Sup. Ct. R. 10(c) ........................................................................................ 8

Sup. Ct. R. 13.1 ..........................................................................................1

U.S. Const. Amend. V ...............................................................................2

U.S. Const. Amend. VI ..............................................................................2

PETITION FOR A WRIT OF CERTIORARI

William Glenn Chunn respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of Appeals

for the Fifth Circuit in this case.

OPINION BELOW

The opinion for the court of appeals is an unpublished opinion styled

United States of America v. Jesse Paul Blankenship; William Glenn Chunn, No.

22-40619 (5th Cir. February 15, 2024). App. 3A

JURISDICTION

The court of appeals entered judgment on February 15, 2024. App.

1A. This petition is timely filed within ninety (90) days after entry of the

judgment. Sup. Ct. R. 13.1. This Court has jurisdiction to grant

certiorari under 28 U.S.C. § 1254(1). App. 36A.

RELEVANT PROVISIONS

This case involves the Fifth and Sixth Amendments to the

Constitution, and the Racketeer Influenced and Corrupt Organizations

Act (“RICO”) 18 U.S.C. § 1962. The full texts of the Amendments and

the relevant portions of the Act are reprinted in the Appendix to this

petition. App. 37A–39A.

INTRODUCTION

The Sixth Amendment mandates the right to the assistance of

counsel for defense in criminal matters. U.S. Const. Amend. VI. This

Court has clarified that a critical part of the fundamental right to

assistance of counsel is the ability of a defendant to “have sufficient time

to advise with counsel and prepare his defense.” Powell v. Alabama, 287

U.S. 45, 59 (1932). If a criminal defendant is denied the aid of counsel,

then the due process guaranteed by the Fifth Amendment has not been

accorded. See id. at 69; U.S. Const. Amend. V.

The Due Process clause of the Fifth Amendment further requires

disclosure of any material favorable to the accused’s defense. Brady v.

Maryland, 373 U.S. 83 (1963). However, United States courts have

refused to extend the duty of disclosure to include discovery of all

potential evidence. In the instant case, the Fifth Circuit has interpreted

this Court’s prior ruling as establishing that “there is no general

constitutional right to pretrial discovery of witnesses in non-capital

cases.” App. 7A. This Court has given district courts “great latitude in

fashioning the appropriate remedy for alleged discovery errors.” United

States v. Dorvin, 817 F.3d 438, 454 (5th Cir. 2016) (citation omitted). A

defendant is only granted a new trial for discovery errors or violations if

the “defendant demonstrates prejudice to his substantial rights.” United

States v. Aguilar, 503 F.3d 431, 434 (5th Cir. 2007).

Courts routinely put protective orders in place in criminal

matters, which often allow the accused’s attorney to view the materials,

but not the criminal defendant. Simply providing materials to an

accused’s attorney without giving that defendant the opportunity to

advise with counsel and prepare a defense violates the rights to

assistance of counsel and due process.

The current law requires that a criminal defendant guess,

surmise, or divine what discovery materials may exist and how they may

affect his defense at trial. The law further requires that an attorney have

the wherewithal or sheer luck to ascertain the significance of evidence

that the defendant has never seen and to which the accused cannot

respond, clarify, or strategize.

If certain discovery materials are not introduced at trial, a

defendant may never know those materials even exist. A protective

order can prohibit access by the defendant, and if the accused’s attorney

fails to properly understand the relevance of the material, it is as if the

evidence never existed.

Yet, current case law requires a defendant to demonstrate

prejudice to his substantial rights regarding material that may have

never been seen or discussed. The United States Constitution cannot

require a criminal defendant to know the unknown.

In Petitioner’s case, he was charged with RICO violations. Trial

lasted fourteen days. The government presented evidence spanning

many years and across multiple states. Petitioner went to trial having

seen approximately three percent (3%) of discovery materials and

without having discussed the vast majority of the material with his

attorney. Petitioner’s motion for continuance was denied, citing concerns

over the protective order in place.

The Fifth Circuit found that there was no abuse of discretion, and

there therefore was no violation of Petitioner’s Fifth or Sixth

Amendment rights. Because the Fifth Circuit’s ruling touches and

concerns a fundamental, enumerated constitutional right, this Court

should grant review.

STATEMENT OF THE CASE

Following a 14-day jury trial, Petitioner William Glenn Chunn,

along with his co-defendant Jesse Blankenship, was convicted and

sentenced to life imprisonment for conspiracy to participate in a

racketeering enterprise, in violation of the RICO Act, 18 U.S.C. §

1962(d). The court in 2022 sentenced each to life imprisonment.

Petitioner was denied his right to a fair trial when

he was denied the assistance of counsel in preparation of

his defense.

Petitioner Chunn was denied his Fifth and Sixth Amendment

rights to have sufficient time to advise with counsel and prepare his

defense, and a motion for continuance should have been granted to

remedy the issue. First, Petitioner’s limited ability to meet and confer

with his attorney prior to trial constitutes a denial of assistance of

counsel. Second, denial of Petitioner’s motion for continuance to address

the failure to adequately meet and prepare for trial should have been

granted, and failure to grant the motion was a denial of assistance of

counsel and a violation of due process.

Prior to trial, the United States Bureau of Prisons prevented

Petitioner’s counsel from adequately conferring with Petitioner. Phone

calls to Petitioner by his counsel and in-person visits were severely

limited, effectively allowing trial counsel to speak with Petitioner about

once a week for a short period of time. ROA.8364. The discovery

produced to Petitioner’s counsel consisted of approximately 30,000 pages

of documents and hundreds of hours of video and audio recordings.

ROA.805, 814. The time available to Petitioner’s counsel to meet and

confer with Petitioner severely and grossly deprived Petitioner of the

“aid of counsel,” which is “essential to any fair trial of a case against a

prisoner.” Powell, 287 U.S. at 69–70.

The trial court failed to remedy the constitutional

violations when it refused to grant a continuance.

As Petitioner’s trial date approached, the prosecution produced

approximately 20,000 additional pages of discovery about a month

before trial. ROA.805. Petitioner’s trial counsel filed a motion for

continuance thereafter. At the hearing on the motion for continuance,

Petitioner’s counsel stated that Petitioner had only reviewed two or

three percent of the discovery materials. ROA.805.

Petitioner’s counsel stated that it was not only important to have

Petitioner to assist counsel with the defense, but that specifically trial

counsel needed the Petitioner to review discovery materials to do so.

ROA.806. In that same hearing, Petitioner’s trial counsel advised the

trial court of his inability to meet confidentially with Petitioner.

ROA.8364.

Petitioner’s counsel proposed to the trial court that Petitioner be

allowed to review discovery materials on a computer in the prison

library, which was what a different district court had done in a separate

case. ROA.805–06. Counsel for Petitioner further stated that this

proposal would comply with the standing agreed protective order issued

by the trial court. ROA.809.

The trial court rejected the proposal, siding with the government

that counsel’s request that Petitioner review discovery was an attempt

to bypass or breach the protective order in place. ROA.446. Trial court

denied the motion for continuance. The case proceeded to trial on

schedule, approximately one month after the massive discovery dump

by the government. At the time of trial, Petitioner had not reviewed

around ninety-seven percent (97%) of discovery materials, nor had he

been able to adequately confer with his counsel regarding how to

respond to the materials and prepare for trial.

As regards the denial of the motion for continuance, the Fifth

Circuit rejected Petitioner’s arguments, reasoning that, first, there was

an agreed protective order controlling discovery. App. 9A (emphasis

original). Second, the Fifth Circuit found that the trial court did not

abuse its discretion in denying Petitioner access to discovery materials

because the factors courts consider in modifying a protective order

weighed against modification. App. 10A. Additionally, the court

reasoned that Petitioner failed to show good cause for modifying the

protective order, as he could not show any “changed circumstances or

new situations.” App. 10A (quoting United States v. Morales, 807 F.3d

717, 723–24 (5th Cir. 2015).

Finding that the trial court did not abuse its discretion, the Fifth

Circuit found that there was no violation of Petitioner’s Fifth or Sixth

Amendment rights because there was no arbitrary or unreasonable

denial of the requested continuance. “[O]nly an arbitrary or

unreasonable denial of a requested continuance will constitute a

violation of the defendant’s Fifth or Sixth Amendment rights”. United

States v. Hughey, 147 F.3d 423, 431 (5th Cir. 1998).

REASONS FOR GRANTING THE PETITION

Whether or not to grant a writ is within the court’s discretion.

Rule 10 states that the Court may grant a writ where a United States

court of appeals “entered a decision in conflict with the decision of

another United States court of appeals on the same important matter”

or “has decided an important question of federal law that has not been

but should be settled by this Court[.]” Sup. Ct. R. 10(a), (c). This petition

presents distinct issues regarding denial of assistance of counsel and

due process as regards access to discovery and motions for continuance.

Each issue needs to be settled by this Court. The Court should therefore

grant certiorari to review these issues.

The Fifth Circuit’s decision effectively creates an impossible

hurdle for a criminal defendant. Here, the Petitioner had no ability to

review discovery, yet, simultaneously, he must state with specificity the

precise evidence, witnesses, and defensive strategies he would have

employed given more time. This circular argument presumes that

Defendant has some knowledge of the tens of thousands of pages of

documents he never saw. Particularly in RICO case, where the evidence

and witnesses span many years and across many states, a criminal

defendant is required to know the unknown. The constitutional standard

cannot be that a defendant must divine what evidence will be used

against him when he has no inkling of what that evidence may be. The

proper remedy should have been to grant a continuance and allow the

defendant time to review discovery and prepare a defense with his

counsel, which did not occur. The Fifth and Sixth Amendment rights to

due process, assistance of counsel, and, ultimately, a fair trial demand a

higher standard. Therefore, because of the importance of the rights

involved, this Court should grant review.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

/s/ B. Eric Franklin

Brad Eric Franklin