Denied: Detective Shade Briefly Recants, Loses Sentence Reduction
The U.S. Sentencing Guidelines, while generally strict, aren't entirely unfair; a defendant who "accepts responsibility," (i.e. cooperates and pleads guilty), can receive a sentence reduction.
Unfortunately for defendants, judges in the Eighth Circuit Court of Appeals employ a "no take-backs" rule: if a defendant recants his confession at any time, he doesn't qualify for a sentence reduction.
Appellant Kevin Shade, formerly an auto theft detective with the St. Louis Metropolitan Police Department, was charged with "knowingly devising and intending to devise a scheme to defraud by material falsehoods" the St. Louis Metropolitan Police Department of its material and intangible rights to honest services.
Shade was accused of inspecting and passing obviously-flawed vehicles on behalf of the Department, in exchange for bribes from a local towing company.
Shade agreed to plead guilty in a written plea agreement with the government in exchange for a sentence reduction. The plea agreement stated that Shade would be ineligible for the sentence reduction if he later denied responsibility.
After the agreement was signed, but before sentencing, the FBI interviewed Shade twice about the car inspection scheme. (His attorney was present at both interviews.) The FBI reports indicate that Shade admitted his criminal conduct in the first interview, but denied it in a second interview.
Despite the fact that Shade had unequivocally admitted his guilt to the probation officer in the case the day before sentencing, the district court found that Shade's alleged recant with the FBI was enough to deny Shade a reduced sentence under the terms of the plea agreement.
The Eighth Circuit Court of Appeals agreed.
In addition to the FBI recant, the Eighth Circuit noted that Shade's admissions to the probation officer were inconsistent with his statements to the court.
At his pleading hearing, Shade knowingly and voluntarily pleaded guilty to the indictment, which specifically described 10 cars for which Shade falsified documents. In interviews with the probation officer, by contrast, Shade could only remember one of those cars, thus Shade's statement during his probation officer interview was inconsistent with his guilty plea before the district court.
If you're advising a criminal defendant who is "accepting responsibility" to get a sentence reduction, advise your client that he must consistently accept responsibility for his actions, or risk losing his sentence reduction. Don't let your client suffer the same fate as Detective Shade: If you're with your client during an interview in which he begins to recant, stop the interview and advise him of the potential impact on his reduced sentence.
- U.S. v. Kevin Shade (Eighth Circuit Court of Appeals)
- Rule 35(b) Sentence Reduction Not Solely Based on Cooperation (FindLaw's Eighth Circuit blog)
- Eighth Circuit Rejects Defendant's Motion to Withdraw Guilty Plea (FindLaw's Eighth Circuit blog)