United States of America v. Mark Bozovich

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1435
U NITED S TATES OF A MERICA,
Plaintiff-Appellee.
v.
M ARK BOZOVICH ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:11-cr-170-005—Rudy Lozano, Judge.
____________________
A RGUED S EPTEMBER 8, 2014 — DECIDED A PRIL 7, 2015
____________________
Before WOOD, Chief Judge, and POSNER and HAMILTON ,
Circuit Judges.
HAMILTON , Circuit Judge. Mark Bozovich was convicted of
conspiracy to distribute heroin. He now appeals, seeking a
new trial or at least a lower sentence. Bozovich argues that
he is entitled to a new trial on the theory that the district
court erred by allowing the government to cross-examine
him well beyond the scope of his direct testimony. He also

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2 No. 14-1435
argues that his 235-month prison sentence was based on an
erroneous drug quantity finding. We affirm both the convic-
tion and the sentence.
I. Rule 611(b) and the Scope of Cross-Examination
Bozovich testified in his own defense at his trial about his
criminal record and his heroin addiction. This direct testi-
mony was intended to show that Bozovich was an addict,
not a conspirator in heroin distribution. The government
then cross-examined. After some preliminary questions
about Bozovich’s employment and earnings history, the
cross-examination homed in on a statement Bozovich had
made to a pair of DEA agents before he was arrested on the
conspiracy charge being considered here. In that statement
he had told DEA agents about who supplied him and his as-
sociates with heroin.
Bozovich’s lawyer objected to the questioning about the
statement, asserting that it was beyond the scope of direct
examination and hence impermissible under Federal Rule of
Evidence 611(b). The district judge overruled the objection
and the government proceeded with its questioning. Bo-
zovich admitted most of the contents of the statement, in
which he identified a number of people who supplied heroin
to him and others. On re-direct, defense counsel tried to es-
tablish that while Bozovich sometimes shared his heroin
with friends who were sick from withdrawal, he did not par-
ticipate in a conspiracy to distribute heroin.
Rule 611 governs the mode and order of examining wit-
nesses, and it gives broad discretion to the district judge to
manage the process to promote determination of the truth,
to avoid wasting time, and to protect witnesses from har-

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No. 14-1435 3
assment or undue embarrassment. Rule 611(b) provides
more specifically: “Cross-examination should not go beyond
the subject matter of the direct examination and matters af-
fecting the witness’s credibility.” The standard under Rule
611(b) is whether the cross-examination was “reasonably re-
lated to the subject matter of direct examination.” United
States v. Harbour, 809 F.2d 384, 388 (7th Cir. 1987). Determin-
ing the “subject matter” of the direct examination is not an
exact science, and “both the United States Supreme Court
and our court have liberally interpreted the extent of the de-
fendant's direct examination for purposes of establishing the
proper scope of the cross-examination,” id. at 388–89 (brack-
ets omitted), quoting United States v. Green, 757 F.2d 116, 120
(7th Cir. 1985).
Our standard of review on appeal is the deferential
“abuse of discretion” standard, United States v. Carter, 910
F.2d 1524, 1530 (7th Cir. 1990), which requires us to keep in
mind the trial judge’s more immediate feel for the case and
the fact that the judge ordinarily must rule on the question
without full knowledge of what cross-examination is likely
to show. The deferential standard of review under Rule
611(b) is consistent with our cases emphasizing that “man-
agement of cross-examination is peculiarly committed to the
district court's discretion.” United States v. Studley, 892 F.2d
518, 529 (7th Cir. 1989), quoting United States v. Castro, 788
F.2d 1240, 1244 (7th Cir. 1986) (internal quotation marks
omitted). The district court here did not abuse its discretion
under Rule 611(b).
The defense theory of this case was clear. Counsel for Bo-
zovich began his opening statement: “I represent Mark Bo-
zovich; Mark Bozovich, heroin addict.” He quickly conceded

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4 No. 14-1435
that Bozovich bought heroin, used heroin, and sometimes
even sold heroin. He just as quickly denied, however, that
Bozovich conspired to distribute heroin. Defense counsel
ended his opening statement by posing these rhetorical
questions to the jury: “Was it a conspiracy? Was it really? Or
was it just a bunch of people getting high together?”
The direct examination of Bozovich by his counsel, in
particular the questioning about his drug use, advanced this
theory. Bozovich testified about how long he had been a her-
oin addict—approximately five or six years—and how ex-
pensive his heroin addiction had been at its height—
approximately $100 a day. (At sentencing the district judge
took $100 to be the price of a gram of heroin.) Bozovich de-
scribed his multiple attempts at recovery followed by re-
lapse. The direct examination concluded:
Q. So you lost your home. You’ve lost your kid.
You’ve lost your girlfriend, all because of your addic-
tion?
A. Yeah. And overdraft on my bank account. They
closed it probably about eight months ago, nine
months ago.
Q. And you can’t stay off of it, can you?
A. No, I can’t.
On appeal, Bozovich frames the scope of direct testimony
narrowly as his heroin addiction, so that “the only proper
cross-examination would have been for the Government to
try and prove that Bozovich was not addicted to heroin.” In
our view, though, it was not an abuse of discretion for the
district judge to view the scope of the direct examination
more broadly as Bozovich’s heroin use, including his suppli-

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No. 14-1435 5
ers and his ability to pay for the heroin over the years in
question. Those were the principal subjects of the cross-
examination. By testifying on direct about his heroin pur-
chasing habits and the motives for his purchases, Bozovich
“opened himself up for cross-examination” as to those top-
ics. See Harbour, 809 F.2d at 389.
According to the government, Bozovich had admitted in
his statement to DEA agents to buying heroin from several
suppliers, buying heroin in quantities much larger than $100
a day, and brokering drug deals among his associates. On
cross-examination Bozovich accused the agents of lying
about some aspects of his statement, but the accuracy of dif-
ferent versions of events is for the jury to decide. It is enough
to withstand scrutiny under Rule 611(b) that the district
judge could reasonably treat these subjects as “matters rea-
sonably related to the subject matter of direct examination.”
Id. at 388.
II. Drug Quantity for Sentencing
Bozovich received a 235-month prison sentence, the low
end of the 235- to 240-month guideline range the court calcu-
lated for the offense. The sentencing range in this case, as in
most drug cases, was driven primarily by estimating the
quantity of drugs for which the defendant should be held
responsible. The district judge determined that Bozovich
was responsible for conspiring to distribute between one and
three kilograms of heroin, which produced a base offense
level of 32. Bozovich argued instead that he was responsible
for between 400 and 700 grams, which would have produced
a base offense level of 28. If the right answer were some-

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6 No. 14-1435
where in the middle—between 700 grams and one kilo-
gram—the base offense level would have been 30.1
Bozovich’s offense level was raised by four levels (two for
possession of a weapon and two for obstruction of justice),
and he was in criminal history category III. Lowering his
base offense level by four levels would have reduced the low
end of his range to 151 months, or about one-third. A two-
level reduction would have reduced the low end of the range
to 188 months, or exactly one-fifth.
A convicted defendant has a “due process right to be sen-
tenced on the basis of accurate information.” Ben-Yisrayl v.
Buss, 540 F.3d 542, 554 (7th Cir. 2008), citing United States v.
Tucker, 404 U.S. 443, 447 (1972), and Townsend v. Burke, 334
U.S. 736, 741 (1948). In applying that general principle, how-
ever, it is “well-established that a preponderance of the evi-
dence is all that is required for a factual finding of drug
quantity under the Sentencing Guidelines, due process con-
cerns notwithstanding.” United States v. Medina, 728 F.3d 701,
705 (7th Cir. 2013). Determining drug quantities under the
Sentencing Guidelines is often difficult, and district courts
may make reasonable though imprecise estimates based on
information that has indicia of reliability. See, e.g., United
States v. Hollins, 498 F.3d 622, 631 (7th Cir. 2007) (“[T]he sen-
tencing guidelines permit some amount of reasoned specula-
tion and reasonable estimation by a sentencing court.”) (in-
1 These calculations were based on the 2013 version of the Sentenc-
ing Guidelines in effect at the time of sentencing. Amendment 782 took
effect on November 1, 2014 to reduce by two levels the various base of-
fense levels. Amendment 788 makes Amendment 782 retroactive for
purposes of 18 U.S.C. § 3582(c)(2) after November 1, 2015.

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No. 14-1435 7
ternal quotation marks and citation omitted); United States v.
Rodriguez, 67 F.3d 1312, 1325 (7th Cir. 1995) (“Recognizing
that drug dealers ordinarily do not use invoices and bills of
lading, we have held that sentencing courts may make rea-
sonable estimates as to drug quantities.”).
Our standard of review on appeal is clear error, which is
a “highly deferential standard of review.” United States v.
Hankton, 432 F.3d 779, 789 (7th Cir. 2005). At the same time,
while “a district court does not automatically commit clear
error when it fails to use the most conservative calculation
possible,” United States v. Longstreet, 567 F.3d 911, 929 (7th
Cir. 2009), a district court choosing among “plausible esti-
mates of drug quantity” should normally “err on the side of
caution,” United States v. Beler, 20 F.3d 1428, 1436 (7th Cir.
1994), quoting United States v. Walton, 908 F.2d 1289, 1302
(6th Cir. 1990).
For guideline purposes, the drug quantity attributable to
Bozovich can be approached in terms of what he purchased
or what he sold and what he used. Normally we would ex-
pect the first amount to equal the second. Lacking records
that document those amounts, the district court had to do its
best to estimate. Here the district judge drew on testimony
about how much heroin Bozovich sold and testimony about
how much heroin he purchased to arrive at two independent
estimates of drug quantity. Both estimates are imperfect, as
are the ways they were calculated. But in this endeavor, pre-
cision is not be expected or required. What matters is that
both of these estimates were conservative and both were
over one kilogram, the drug quantity the district court used
to calculate the guideline range. This “extremely conserva-

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8 No. 14-1435
tive finding” by the district court does not constitute clear
error.
One estimate of the drug quantity attributable to Bo-
zovich focused on his sales of heroin. This estimate would
necessarily underestimate the drug quantity attributable to
Bozovich, since under the guidelines participants in a drug
distribution conspiracy are held responsible for amounts
they use as well as amounts they sell. United States v. Wyss,
147 F.3d 631, 632 (7th Cir. 1998).2 Using this estimate is thus
one way in which the district judge used conservative factors
in in his drug quantity finding.
The judge also used conservative assumptions to esti-
mate how much heroin Bozovich sold. One witness estimat-
ed that Bozovich sold 40 grams of heroin per week. Two oth-
er witnesses also testified about his sales of heroin, one say-
ing that he observed these sales and the other saying that he
bought heroin from Bozovich. Bozovich admitted that he
frequently acquired heroin in large quantities, which sug-
2 While Wyss answers the argument that the personal use amount of
a participant in a drug distribution conspiracy should not count under
the guidelines in a drug quantity calculation, it does not foreclose the
argument that a conspirator who is primarily a personal user should re-
ceive a lower sentence in light of the 18 U.S.C. § 3553(a) factors. Defense
counsel made that argument at the sentencing hearing and the district
judge did not err by rejecting it. After the judge had already made his
drug quantity finding and calculated the sentencing range, counsel for
Bozovich then made an argument for the exercise of sentencing discre-
tion. He argued that Bozovich was buying heroin because he was “ad-
dicted to it, not as a part of the conspiracy.” The judge reminded defense
counsel that Bozovich was also responsible for “a rather substantial
amount of heroin that was being dealt.”

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No. 14-1435 9
gests an intent to resell. He also told the DEA agents that his
acquisitions of heroin, and hence his potential resales,
spanned a six-year period, or at least so testified one of the
DEA agents. Bozovich testified that he told them three to six
years, probably closer to three. Ultimately the district judge
found that the conspiracy lasted six years, and we have no
basis to upset that finding. Based on all of that testimony, the
district court calculated that even the conservative assump-
tions that Bozovich sold just 20 grams of heroin per week for
just 52 weeks of the six-year conspiracy would make Bo-
zovich responsible for at least 1,040 grams of heroin.
The second estimate of the drug quantity attributable to
Bozovich focused on his purchases of heroin. Bozovich told
the DEA agents that sometimes he would buy up to $300 of
heroin a day from just one of his suppliers. Another of his
suppliers testified that Bozovich would buy approximately
five grams of heroin every four or five days. And, again, the
conspiracy persisted for six years. Based on all of that testi-
mony, the district court conservatively assumed that Bo-
zovich purchased an average of just four grams of heroin per
week for five years of the six-year conspiracy. This estimate
also holds Bozovich responsible for at least 1,040 grams of
heroin.
Bozovich attacks these estimates in two main ways. First,
he derides much of the testimony on which these estimates
are based as “what junkies said about other junkies.” That is
one reason why estimates should err on the low side, and
the district judge heeded that caution. Also the jury must
have credited some of the government witnesses in finding
Bozovich guilty beyond a reasonable doubt. The jury may
well have done so for the same reason the judge did: “their

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10 No. 14-1435
testimony is generally consistent in that each establish[ed]
that Bozovich was purchasing large quantities of heroin over
an extended period of time and that some portion of that
heroin was being sold.”
Second, Bozovich maintains that these estimates must
take account of the time he spent in drug treatment during
the conspiracy. Even if the district judge had not taken ac-
count of this time in treatment, that would not constitute
clear error. Bozovich admitted that he was not free of heroin
during his attempts at rehabilitation. In any event, though,
the assumptions the district judge used in both of his esti-
mates were more than conservative enough to allow for this
factor.
The case Bozovich cites that is most helpful to him is
United States v. Beler, 20 F.3d 1428 (7th Cir. 1994), but that
case is still quite different from his. In Beler we vacated a sen-
tence when the drug quantity finding underlying that sen-
tence was supported only thinly if at all. The drug quantity
in Beler was based on the testimony of one man. He was a
“cocaine addict and government informant,” id. at 1435, as
Bozovich emphasizes. Central to our holding in Beler, how-
ever, was the fact that this witness testified at trial without
providing a drug quantity. Instead, he submitted two affida-
vits after the trial. The affidavits were inconsistent with each
other and with his trial testimony. In the face of such com-
peting and shifting stories from the sole witness, we held
that the district judge had not scrutinized the drug quantity
evidence sufficiently before making a finding. Id. at 1433–35.
Because the district judge here made a clear credibility find-
ing and otherwise carefully scrutinized the drug quantity
evidence, Beler does not control.

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No. 14-1435 11
The judgment of the district court is AFFIRMED.

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