United States v. Bozovich

• Decision Date: 07 April 2015
• Docket Number: No. 14–1435.,14–1435.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Mark BOZOVICH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

782 F.3d 814

UNITED STATES of America, Plaintiff–Appellee

v.Mark BOZOVICH, Defendant–Appellant.

No. 14–1435.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 8, 2014.

Decided April 7, 2015.

David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

Michael W. Bosch, Attorney, Bosch & Dedelow, Highland, IN, for Defendant–Appellant.

Before WOOD, Chief Judge, and POSNER and HAMILTON, Circuit Judges.

Opinion

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 argues that his 235–month prison sentence was based on an erroneous drug quantity finding. We affirm both the conviction 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 testimony 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 associates 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. Bozovich 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 establish that while Bozovich sometimes shared his heroin with friends who were sick from withdrawal, he did not participate in a conspiracy to distribute heroin.

Rule 611 governs the mode and order of examining witnesses, 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 harassment or undue embarrassment. Rule 611(b) provides more specifically: “Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility.” The standard under Rule 611(b) is whether the cross-examination was “reasonably related to the subject matter of direct examination.” United States v. Harbour, 809 F.2d 384, 388 (7th Cir.1987). Determining 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 defendant's direct examination for purposes of establishing the proper scope of the cross-examination,” id. at 388–89 (brackets 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 “management 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 Bozovich began his opening statement: “I represent Mark Bozovich; Mark Bozovich, heroin addict.” He quickly conceded 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 heroin addict—approximately five or six years—and how expensive 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 described his multiple attempts at recovery followed by relapse. The direct examination concluded:

Q. So you lost your home. You've lost your kid. You've lost your girlfriend, all because of your addiction?

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 suppliers 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 purchasing habits and the motives for his purchases, Bozovich “opened himself up for cross-examination” as to those topics. 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 different 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 reasonably 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 calculated 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 somewhere in the middle—between 700 grams and one kilogram—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 sentenced 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, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). In applying that general principle, however, it is “well-established that a preponderance of the evidence is all that is required for a factual finding of drug quantity under the Sentencing Guidelines, due process concerns 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 sentencing guidelines permit some amount of reasoned speculation and reasonable estimation by a sentencing court.”) (internal 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 reasonable 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 estimates 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 expect the first amount to equal the second. Lacking records that document those...