This matter arose out of a continuing investigation commenced in approximately
April 1992, by the local Wichita, Kansas police and the United States
Department of Revenue into a large number of wire transfers of money in amounts
of $1,000.00 or greater. The investigation eventually led the authorities to
what they believed was a ring of Wichitans who were involved in a conspiracy to
sell drugs. Western Union was used by the alleged conspirators to send money
from Wichita to California to pay for drugs and for other purposes.
According to the government, some of the men involved in the conspiracy came to
Wichita from California to set up shop and sell cocaine. These men recruited
local women whom they paid to transfer and pick up currency at various Western
Union outlets. Some of the women transported cocaine from California to
Wichita. Sonya Singleton was identified as being one of the women who allegedly
wired transferred money.
In the process of identifying the individuals whom the authorities believed
were involved in the conspiracy, the authorities discovered one Napoleon Ransom
Douglas. At the time Douglas was interviewed by the authorities he was serving
a prison sentence in Mississippi for conspiracy to sell cocaine. In exchange
for promises made by the Assistant United Sates Attorney, Mr. Douglas
cooperated with the authorities and provided them with his understanding of how
the conspiracies to distribute cocaine and laundering money worked.
Ultimately Ms. Singleton, Eric, Johnson, Ronald O. McClelland, Napoleon
Douglas, Jonathan Wendell Searcy, and Stephanie Coats were charged in a
multiple count indictment with conspiracy to distribute powder cocaine and
money laundering. Ms. Singleton moved to sever her trial from that of
McClelland, Searcy, Douglas, Coats and Johnson. Her motion was sustained, in
part, and her trial was severed from the trails of Douglas, McClelland, Searcy
and Coats. On January 14, 1997, the United States dismissed all charges against
Mr. Johnson, and Ms. Singleton proceeded to trial.
Prior to trial, Ms. Singleton moved to suppress the testimony of Mr. Douglas on
the grounds that his testimony had been procured by the United States in
violation of Title 18 United States Code, Section 201(c)(2) and Rule 3.4(b) of
the Model Rules of Professional Conduct as adopted by the State of Kansas by
Kansas Supreme Court Rule 225, and effective from and after March 1, 1988. On
the first day of the trial, and prior to the selection of the jury, Judge Theis
denied Ms. Singleton's motion, holding that §201(c)(2) did not apply to
After Detective Jacobs of the Wichita Police Department and Special Agent
McCormack of the Internal Revenue Service explained to the jury how the
investigation had begun and what the authorities had learned about suspected
cocaine sales and money laundering, the government presented the testimony of
Mr. Douglas. The only evidence concerning sales of cocaine, and the only
testimony which allegedly linked Ms. Singleton with a conspiracy to distribute
cocaine, came from Douglas.
Douglas testified that he was a convicted cocaine distribution conspirator and
money launderer, and that the United States had promised to file a motion
seeking a downward departure from his sentence if he cooperated in the case
against Ms. Singleton. He then testified that he had first come to Wichita,
Kansas at the request of Ronald McClelland to make money selling drugs.
According to Douglas, for approximately two weeks he lived in the MacArthur
Apartments in Wichita with McClelland, Eric Johnson, and Ms. Singleton. During
that time he observed Eric Johnson package cocaine, he engaged with Eric
Johnson in conversations about drugs, and Ms. Singleton was present when there
were drugs in the apartment. Douglas never saw Ms. Singleton sell drugs. ...
The American judicial system has long recognized that there exists an inherent
danger of untruthfulness in the paid "occurrence" witness. In criminal cases
payment can take many forms, ranging from outright cash payments to promises of
leniency in the government's treatment of the "paid" witness. In reflecting
upon the dangers of using paid witnesses in criminal cases, the Fourth Circuit
Court of Appeals has written: "Obviously promises of immunity or leniency
premised on cooperation in a particular case may provide a strong inducement to
testify falsely in that case." United States v. Meinster, 619 F.2d 1041,
1045 (4th Cir. 1980).
It is a crime to pay a witness -- other than an expert -- for testifying. Title
18 United States Code, Section 201 addresses the issue of providing something
of value to a witness in exchange for his testimony. The section provides in
pertinent part that:
(c) Whoever -
(2) directly or indirectly, gives, offers or promises anything of value to
any person, for or because of the testimony under oath or affirmation given
or to be given by such person as a witness upon a trial, hearing, or
other proceeding, before any court, any committee of either House or both
Houses of Congress, or any agency, commission, or officer authorized by the
laws of the United States to hear evidence or take testimony, or for or because
of such persons absence therefrom;
shall be fined under this title or imprisoned for not more than
two years or both. 18 U.S.C. 201(c)(2) (Emphasis added).
Section 201(c)(2) does not require that the offer be made with the intention of
the offeror to influence the testimony of the witness. ...
Despite this section of the United States Code which clearly prohibits and
makes criminal the provision of anything of value to a witness in exchange for
his testimony, the government, through the Department of Justice and the
various United States Attorney's Offices, has a well established policy of
providing witnesses with valuable consideration -- things of value -- in
exchange for their testimony in criminal cases. It is not at all unusual for
the government to promise leniency at sentencing, or to agree to accept a plea
of guilty to a lesser charge, or to agree to file for a sentencing departure
under §5K1 of the Sentencing Guidelines, or agree to intercede with the
courts of the several states if the offeree agrees to cooperate and testify at
the trial of others who stand accused of crimes. In fact, the Department of
Justice has on several occasions paid substantial sums of money to witnesses
who testify. See J. Richard Johnston, "Paying the Witness," Criminal
Justice, Pages 21-22, Volume 11, Number 4, Winter 1977.
So common is the practice of offering things of value to witnesses for their
testimony that prior to trial Ms. Singleton believed that such promises had
been made to Douglas. This belief was ultimately borne out by the testimony of
Douglas when he admitted that in exchange for his cooperation the government
had promised to seek a departure from his sentence for conspiracy and money
laundering and that the government planned to ask the courts of Mississippi to
reduce his sentence in that state.
Prosecution is appropriate for those who violate §201(c)(2). Can there be
any doubt, if defense counsel began to offer things of value to occurrence
witnesses, that the government would have a field day announcing prosecutions
of the defense bar? However; it is unrealistic to expect the government to
prosecute Assistant Untied States Attorneys for violating §201(c)(2) when
the courts have, over the years, been liberal in allowing the testimony of
witnesses who have been "paid."...
Promises of leniency are strong inducements to testify falsely. The use of
purchased testimony is not only unethical, it is unlawful and dangerous. While
the courts have been willing to admit the testimony of "paid" witnesses over
challenges arising other than out of §201(c)(2), the courts have also
recognized that the government's paying witnesses and offering reduced
sentences in exchange for testimony breaches established ethical standards and
"patently permits perversion of the trial process." U.S. v
Cervantes-Pacheco, 826 F.2d 310, 315-15 (concurring opinion) (5th Cir.
Over the passage of time the courts have become more and more willing to allow
the admission of the paid testimony of occurrence witnesses. An interesting
discussion of this process can be found in United States v. Cervantes -
Pacheco, 826 F.2d 310 (5th Cir. 1987). It appears that the courts, with the
encouragement of the Department of Justice, have all too willingly accepted the
testimony of paid occurrence witnesses as a method of fighting the war on
drugs. The ends, convicting drug lords, have come to justify the means - the
use of the paid testimony of criminals. This has resulted in a coarsening of
the trial process which has come to match the coarsening which occurred in
By presenting these "paid" witnesses, the government provides them with a
mantle of credibility, reliability, and respectability. It is then assumed by
the courts that, through the process of vigorous cross examination, the
reliability and veracity of the paid witness can be challenged and the jury
will be able to divine the truth.
When the government offers the paid testimony of a admitted and convicted
felon, it enters into a compact with evil. The result is the ultimate erosion
of respect for government which all people must have in order to maintain a
free society. The courts should not allow the law to be used to aid the
government in this process.
Justice Brandeis recognized this danger and foreshadowed it in 1928, when he
The court's aid is denied only when he who seeks it has violated the law in
connection with the very transaction as to which he seeks legal redress. Then
aid is denied despite the defendant's wrong. It is denied in order to maintain
respect for law; in order to promote confidence in the administration of
justice; in order to preserve the judicial process from contamination . . .
Decency, security, and liberty alike demand that government officials shall be
subjected to the same rules of conduct that are commands to the citizen. In a
government of laws, existence of the government will be imperiled if it fails
to observe the law scrupulously. Our government is the potent, the omnipresent
teacher. For good or for ill, it teaches the whole people by its example . .
.To declare that in the administration of the criminal law the end justifies
the means - to declare that the government may commit crimes in order to secure
the conviction of a private criminal - would bring terrible retribution.
Against that pernicious doctrine this court should resolutely set its face.
Olmstead v. United States, 277 U.S. 438, 484, 48 S.Ct. 564, 574-75, 73
L.Ed. 944 (1928) (Brandeis, J., dissenting) (footnote omitted).
If the government breaks the law in an attempt to secure a conviction, as it
has in the present case by its violation of §201(c)(2), it is the province
and the duty of the courts to say, "No, this cannot be." This court has the
enviable duty of protecting the government from itself. As Justice Brandeis
recognized, in a free democratic society, the end may never justify the
When the government allies itself with criminals, when the ends of fighting the
war on drugs justifies the means of the fight, is it then any wonder that the
people no longer respect the government, the law, or the United States? By
granting Ms. Singleton's motion for sanctions, this court strikes a blow which
promotes confidence in the administration of justice.
The government has not paid heed to Justice Brandeis. It has ignored his
warning and it continues to argue that the only way to secure convictions of
organized criminals, conspirators, and others is to make deals with other
criminals. It believes that in order to triumph over lawbreakers it must
embrace lawbreakers. Things of value have regularly been given to "paid"
witnesses to secure their cooperation and testimony. Prior criminal conduct is
regularly overlooked. And it had gotten worse.
In the case of John Gotti, the reputed boss of the former Gambino crime family,
the government relied primarily on the testimony of a mass murderer, Gotti's
lieutenant and co-defendant Salvatore "Sammy the Bull" Gravano (spelling
approximate). Gravano -- hardly an alter boy - an admitted multiple murderer
and organized crime soldier, was offered valuable considerations by the United
States in order to induce him to testify against Gotti. Gravano accepted the
offer, testified, and Gotti was convicted. Now Gravano has written a book about
his experience, and the government is assisting him in retaining the royalties.
Was Gotti a modern day godfather? Quite possibly. Is society worsened by the
government's embrace of the mass murderer Gravano? Undoubtedly!
In the motion picture Batman, the Joker, asked his victims, "Ever dance with
the devil in the pale moonlight?" The United States dances that dance every
time it offers valuable considerations to criminals to induce them to
"cooperate." The government clutches to its bosom and wraps the flag about
criminal "paid" witness.
Douglas was such a "paid" criminal witness. ... The value he received for his
testimony was the assistance of the United States in seeking to reduce his
various prison sentences. His testimony was solicited and offered by the
government in clear violation of the prohibitions of §201(c)(2) and Rule
4.3 of the Model Rules of Professional Conduct as adopted by the Kansas Supreme
The District Court erred in admitting the testimony of Douglas over the
objection of Ms. Singleton. The testimony of "paid" witnesses should not be
submitted to any jury and it should not have been admitted to this jury. The
testimony should have been stricken, and had it been, there would have been no
evidence that Ms. Singleton may have been involved in a cocaine conspiracy or
money laundering. Her convictions for conspiracy to distribute cocaine and
money laundering should be overturned.