United States v. Mark Bozovich
782 F.3d 814
| 7th Cir. | 2015Background
- Defendant Mark Bozovich was convicted of conspiracy to distribute heroin and sentenced to 235 months imprisonment. He appealed both the conviction and the sentence.
- At trial Bozovich testified in his own defense as an addict who bought and used heroin and sometimes gave or sold it to friends; his defense denied a distribution conspiracy.
- On cross-examination the government questioned Bozovich about a pre-arrest statement to DEA agents in which he named suppliers and described purchases and brokering conduct; defense objected under Fed. R. Evid. 611(b).
- The district court overruled the objection, admitted Bozovich’s admissions from the statement, and the jury convicted; at sentencing the court attributed between 1 and 3 kilograms of heroin to Bozovich (base offense level 32).
- Bozovich argued on appeal that the cross-examination exceeded the scope of direct and that the district court erred in its drug-quantity finding (he urged 400–700 g or at most 700 g–1 kg).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of cross-examination under Fed. R. Evid. 611(b) | Gov't: cross‑examination may address matters reasonably related to Bozovich’s direct testimony about heroin use and transactions | Bozovich: cross exceeded scope of direct which he frames narrowly as addiction only; questioning about the DEA statement was impermissible | Court: no abuse of discretion; cross was reasonably related to direct testimony and defense opened these topics |
| Standard of review for Rule 611(b) rulings | Gov't: district court has broad discretion; appellate review is abuse of discretion | Bozovich: district court erred in scope ruling | Court: applied deferential abuse-of-discretion standard and affirmed district court |
| Drug-quantity finding for sentencing | Gov't: preponderance standard; district court may make reasonable estimates based on reliable indicia; evidence supports >1 kg | Bozovich: evidence thin, based on unreliable addict testimony and failed to account for treatment time; urges lower quantity range | Court: clear-error review; district court’s conservative estimates (two independent methods) supported >1 kg; no clear error |
| Reliance on witness testimony and estimation methods | Gov't: judge used conservative assumptions (reduced weekly amounts, limited weeks/years) and jury credibility findings | Bozovich: testimony was unreliable and inconsistent; lower estimate required | Court: judge reasonably discounted and conservatively estimated; Beler distinguished; sentence affirmed |
Key Cases Cited
- United States v. Harbour, 809 F.2d 384 (7th Cir. 1987) (scope of cross-examination is whether it is reasonably related to direct examination)
- United States v. Green, 757 F.2d 116 (7th Cir. 1985) (liberal interpretation of defendant’s direct examination for cross-examination scope)
- United States v. Studley, 892 F.2d 518 (7th Cir. 1989) (management of cross-examination committed to district court discretion)
- Ben-Yisrayl v. Buss, 540 F.3d 542 (7th Cir. 2008) (defendant’s due process right to be sentenced on accurate information)
- United States v. Medina, 728 F.3d 701 (7th Cir. 2013) (drug-quantity findings require preponderance of evidence)
- United States v. Hollins, 498 F.3d 622 (7th Cir. 2007) (sentencing courts may make reasonable, imprecise estimates of drug quantity)
- United States v. Beler, 20 F.3d 1428 (7th Cir. 1994) (vacating sentence where drug-quantity finding rested on thin, inconsistent evidence)
- United States v. Wyss, 147 F.3d 631 (7th Cir. 1998) (conspirators held responsible for amounts they use as well as amounts they sell)
- United States v. Tucker, 404 U.S. 443 (U.S. 1972) (due process requires sentencing on accurate information)
- United States v. Walton, 908 F.2d 1289 (6th Cir. 1990) (courts should err on the side of caution when choosing among plausible drug-quantity estimates)