United States v. Randolph Bosley
615 F.2d 1274, 5 Fed. R. Serv. 1267, 60 A.L.R. Fed. 1 (1980)
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Rule of Law:
Federal Rule of Evidence 608(b) prohibits the admission of extrinsic evidence of a witness's specific instances of conduct, not resulting in a criminal conviction, solely for the purpose of attacking the witness's credibility, even when the witness's broad denial was elicited by specific questions on cross-examination.
Facts:
- Randolph Bosley, Cameron Wakefield, Steven Rolph, and John Paul Jones were all indicted on charges of distribution of cocaine and conspiracy to commit that crime.
- A government informant, Reginald Thomas, testified that Bosley and Jones arranged for him 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.
- Steven Rolph generally corroborated Thomas’s testimony regarding the sale but was unable to recall the extent of Bosley’s participation.
- Bosley testified that, although he visited Rolph’s apartment with Jones and Thomas, he was not involved in the sale of drugs.
- On cross-examination, Bosley denied ever delivering cocaine, stating 'I delivered no cocaine,' and in response to subsequent specific questions, 'No cocaine' and 'No, sir' to 'To anybody?' He also explicitly denied delivering anything to Hezekiah Rhodes.
- Hezekiah Rhodes testified on rebuttal that Bosley had delivered cocaine to him on one occasion.
Procedural Posture:
- Randolph Bosley, Cameron Wakefield, Steven Rolph, and John Paul Jones were indicted on charges of distribution of cocaine and conspiracy to distribute cocaine.
- Charges against Wakefield were dismissed before trial, and Rolph agreed to plead guilty and testify for the Government.
- Bosley and Jones were tried by a jury on the charges.
- During Bosley's jury trial, the district court admitted Hezekiah Rhodes's testimony, over Bosley's objection, stating that Bosley had delivered cocaine to him, for the purpose of evaluating Bosley's credibility.
- The district court denied Bosley’s motion for a mistrial following the admission of Rhodes's testimony.
- Bosley appeals his conviction to the Ninth Circuit Court of Appeals.
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Issue:
Does Federal Rule of Evidence 608(b) permit the admission of extrinsic evidence of a witness's specific act, not resulting in a criminal conviction, for the sole purpose of impeaching the witness's credibility, especially when the witness's broad denial was in response to specific questions on cross-examination?
Opinions:
Majority - Hug, Circuit Judge
No, Federal Rule of Evidence 608(b) does not permit the admission of extrinsic evidence of a specific act, not resulting in a criminal conviction, for the sole purpose of impeaching a witness's credibility, particularly when the witness's broad denial was elicited by specific questions on cross-examination. Fed.R.Evid. 608(b) expressly provides that specific instances of conduct not resulting in a criminal conviction may not be proved by extrinsic evidence solely for the purpose of attacking a witness's credibility. The district court erred in admitting Rhodes's testimony because, upon Bosley’s denial, the Government could only attempt further cross-examination, not introduce extrinsic evidence. The court rejected the Government's argument for an exception to Rule 608(b) for 'volunteered misleading information,' finding that Bosley's statements were responses to specific, although at times confusing, questions and thus 'elicited,' not 'unelicited.' The initial statement, 'I delivered no cocaine,' was reasonably interpreted as limited to the charged conspiracy, and subsequent broader denials were in direct response to the prosecutor's specific follow-up questions. The court also determined that Rhodes's testimony was not independently admissible as substantive evidence under Rule 404(b) (motive, knowledge, or intent) or as evidence of association with the conspiracy, as the Government failed to establish a necessary link to the charged conspiracy. The improper admission of Rhodes's testimony was not harmless error because it severely damaged Bosley’s credibility, a crucial factor in the trial, and created a significant risk that the jury considered it as substantive evidence of his participation in the conspiracy, despite limiting instructions.
Concurring - Wallace, Circuit Judge
While I concur with the reversal, I conclude that the majority improperly rejects the district court’s finding that Bosley 'volunteered' his exculpatory statement on cross-examination, which should have been upheld as not an abuse of discretion, thereby requiring a confrontation with whether Rule 608(b) permits extrinsic testimony to rebut such volunteered statements. Justice Wallace argued that the majority erred in finding the district court abused its discretion by determining Bosley's statement was volunteered. He emphasized that the trial judge had the unique opportunity to observe the exchange between Bosley and the prosecutor, including crucial pauses and vocal emphasis, which should warrant deference to the judge's finding. Because he would have upheld the finding that Bosley's statement was volunteered, Justice Wallace believed the court should have then directly addressed the 'difficult question' of whether Rule 608(b) allows the use of extrinsic testimony to rebut a witness's volunteered exculpatory statement on cross-examination, rather than avoiding that legal question.
Analysis:
This case significantly clarifies the strict limitations of Federal Rule of Evidence 608(b) regarding the use of extrinsic evidence to impeach witness credibility. It establishes that a witness's broad denials, even if seemingly sweeping, do not necessarily 'open the door' to extrinsic evidence if those denials were elicited by specific questions on cross-examination, rather than being truly volunteered. The ruling underscores the potential for severe prejudice when such evidence is improperly admitted, particularly when it mirrors the charged conduct, reinforcing that limiting instructions may be insufficient to cure the error. Future courts must meticulously distinguish between genuinely volunteered statements and those that are direct responses to prosecutorial questioning when considering exceptions to Rule 608(b).
