United States v. Randolph Bosley
This text of 615 F.2d 1274 (United States v. Randolph Bosley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Randolph Bosley appeals his conviction for distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846. He challenges the district court’s admission for impeachment purposes of extrinsic evidence of a specific act. We find that the admission of the evidence was prejudicial error; therefore, we reverse.
I
Bosley, Cameron Wakefield, Steven Rolph, and John Paul Jones were all indicted on the charges of distribution of cocaine and conspiracy to commit that crime. Before trial, the charges against Wakefield were dismissed, and Rolph agreed to plead guilty and testify as a Government witness. Bosley and Jones were tried by jury on the charges.
[1276]*1276The Government’s case rested largely upon the testimony of Rolph and one Reginald Thomas, a Government informant. Thomas testified that Bosley and Jones had arranged for Thomas to purchase an ounce of cocaine from Rolph. Thomas further testified that the sale took place in Rolph’s apartment and that Bosley played an active role in the transaction. Rolph generally corroborated Thomas’s testimony with respect to the sale of cocaine at Rolph’s apartment, but he was unable to recall the extent to which Bosley participated in the sale.
Bosley took the stand and testified that, although he visited Rolph’s apartment with Jones and Thomas, he was not involved in the sale of drugs. On cross-examination, the Government asked an involved series of questions, which were objected to and rephrased and which finally resulted in the following questions and answers by Bosley:
Q Have you ever delivered cocaine during the course of this conspiracy that you acquired from Steven Douglas Rolph?
A Have I ever — well, first of all, I delivered no cocaine.
Q Never delivered any cocaine?
A No cocaine.
Q To anybody?
A No, sir.
The Government subsequently questioned Bosley whether he had ever delivered cocaine to one Hezekiah Rhodes. Bosley denied having delivered anything to Rhodes.1 On rebuttal, the Government offered the testimony of Hezekiah Rhodes. Over Bosley’s objection, the court allowed Rhodes to testify that Bosley had delivered cocaine to Rhodes on one occasion. The court denied Bosley’s motion for a mistrial but instructed the jury to consider Rhodes’s testimony solely for the purpose of evaluating Bosley’s credibility.
II
Fed.R.Evid. 608(b) provides that specific instances of conduct of a witness not resulting in a criminal conviction may not be proved by extrinsic evidence solely for the purpose of attacking the credibility of the witness. Applying the express provisions of Rule 608(b) to the facts of this case, the district court erred in admitting Rhodes’s testimony. Upon Bosley’s denial that he had delivered cocaine to Rhodes or anyone else, the Government could attempt on further cross examination to elicit a response from Bosley contradicting his prior [1277]*1277testimony, but it could not properly impeach Bosley through extrinsic evidence of Bosley’s delivery of cocaine to Rhodes. See, e. g., United States v. Wood, 550 F.2d 435, 441 (9th Cir. 1976).
The Government, however, urges this court to read into Rule 608(b) an exception that would permit extrinsic impeachment of a witness who has volunteered misleading information on direct examination or as an unelicited statement on cross-examination. The Government asserts that Bosley’s response on cross examination, “I delivered no cocaine,” went beyond the scope of the question asked and constituted an unelicited representation that Bosley had never delivered cocaine from any source to anyone, thereby inviting rebuttal. We need not decide whether there exists such an exception to Rule 608(b), because we cannot agree with the Government’s characterization of Bosley’s response. The response “I delivered no cocaine,” in light of the question asked, is most reasonably interpreted as a statement that he had delivered no cocaine during the course of this conspiracy. It is important to note that Bosley did not state at this point that he had never delivered any cocaine to anybody. This representation occurred only after the two specific questions:
Q Never delivered any cocaine?
A No cocaine.
Q To anybody?
A No sir.
This response also could well be interpreted to relate back to the initial question and mean only that he never delivered cocaine to anybody during the course of this conspiracy. However, even if these last two answers are interpreted as a representation by Bosley that he had never delivered any cocaine to anybody at any time, whether in the course of this conspiracy or not, we cannot say that this was unelicited testimony by Bosley on cross-examination because it was in response to specific questions. We aré thus confined to Bosley’s response “I delivered no cocaine.” We conclude that the response must be interpreted as being limited to the parameters of the question posed by the Government. Bosley’s failure simply to answer “no” is most reasonably attributed to a desire on his part to clarify his response in the face of a series of confusing questions to which several objections had been sustained. The admission of Rhodes’s testimony for impeachment purposes was error.2
' The Government argues that use of Rhodes’s testimony for impeachment purposes was permissible because that testimony was independently admissible as substantive proof of Bosley’s association with the charged conspiracy. The district court [1278]*1278correctly ruled, however, that Rhodes’s testimony was not admissible as evidence of association with the conspiracy; the Government failed to establish any link between the delivery to Rhodes and the particular conspiracy charged in the indictment.
The Government also contends that Rhodes’s testimony was independently admissible as substantive proof of motive, knowledge, or intent under Fed.R.Evid. 404(b). Evidence may not be admitted under Rule 404(b) unless it satisfies a three-part test that includes the balancing of the probative value of the evidence against its prejudicial effect. See United States v. Bronco, 597 F.2d 1300, 1302-03, 1325 (9th Cir. 1979); United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 565 (1977). The trial court refused to admit the testimony as substantive evidence; rather, Rhodes’s testimony was admitted only for impeachment purposes, and the jury was so instructed.
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615 F.2d 1274, 60 A.L.R. Fed. 1, 5 Fed. R. Serv. 1267, 1980 U.S. App. LEXIS 19013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-randolph-bosley-ca9-1980.