Terry Leon Blankenship v. United States

A 12-year-old girl alleged that Petitioner sexually abused her. Weeks later, she fully recanted the allegation: “Everything was a lie. I made it all up.” Months after that, Petitioner, who was on supervised release for a prior sex offense, was arrested for violating the conditions of that release. He was later charged with enticement of a minor, although the grand jury was never told about the girl’s recantation. A later indictment dropped the enticement count, but charged Petitioner with obstruction, witness tampering, and conspiring (with his wife) to tamper with a witness, allegedly to ensure that the girl stuck by her recantation. Petitioner went to trial on those charges. The Government’s case was made up largely of portions of recorded conversations between Petitioner and his wife, one of which ended with his wife stating that if the girl did not tell the truth “it’s gonna’ get ugly.” Petitioner’s counsel sought to ask the Government’s witness what came next, to show that “it’s gonna’ get ugly” referred to how diligently defense counsel would treat the matter. After losing an objection to that question, the Government argued that if defense counsel asked the question, it would “open the door” to evidence that defense counsel had previously cross-examined the girl in a prior case, leaving her in tears. The district court agreed and counsel decided not to ask the question. Petitioner was convicted on all counts. At sentencing, the driving issue was whether Petitioner had, in fact, sexually abused the girl. The girl never testified in court or otherwise under oath. Instead, the district court reviewed videos of two forensic interviews with the girl – one from -1- after her initial allegation and the second from after her recantation. From those videos, the district court concluded that the girl’s initial allegation was truthful, but her recantation was not. Concluding that Petitioner had sexually abused the girl, the district court calculated the advisory Guideline range accordingly and, ultimately, imposed an upward variance sentence. This Petition presents two issues: First, whether the usual clear error standard of review for factual determinations at sentencing should give way to de novo review in a case, such as this one, where the key factual determination is based almost entirely on video evidence reviewed by the district court that can be similarly reviewed by the Court of Appeals. Second, whether the Government’s evidence regarding Petitioner’s counsel’s prior cross-examination of his accuser would have been relevant to any matter the jury needed to consider, so as to support a conclusion that counsel would have “opened the door” by asking a question about the next portion of an exhibit presented by the Government. -2-