United States v. Randolph Bosley

concurring:

Although I concur, I conclude that the majority improperly rejects the district court’s finding that Bosley “volunteered” his exculpatory statement on cross-examination. The proper test to be applied, as indicated by the majority, is whether the district judge abused his discretion. I conclude there was no abuse. Even after several readings of the relevant passage, see ante at 1276 n.l, I cannot agree, that the district judge’s finding had no reasonable basis in the record. The question whether Bosley’s statement, “I delivered no cocaine,” went beyond the scope of the government’s question seems a close one. However, unless a reading of the record clearly reveals that the admission of the government’s rebuttal evidence was an abuse of discretion, I think we must defer to the judgment of the district judge as to whether Bosley’s statement was volunteered. We must always remember, I suggest, that it was the district judge who had the opportunity to observe the exchange between Bosley and the prosecutor, and to hear the possibly crucial pauses and vocal emphasis.

On the basis of his ruling that Bosley volunteered his statement, the district judge admitted Rhodes’…

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 The 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…

615 F.2d 1274 60 A.L.R. Fed. 1, 5 Fed. R. Evid. Serv. 1267 UNITED STATES of America, Plaintiff-Appellee, v. Randolph BOSLEY, Defendant-Appellant. No. 79-1230. United States Court of Appeals, Ninth Circuit. April 2, 1980. Murray B. Guterson, Culp, Dwyer, Guterson & Grader, Seattle, Wash., for defendant-appellant. Francis J. Diskin, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before PECK * , WALLACE and HUG, Circuit Judges. HUG, Circuit Judge: 1 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. 2 * 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…