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United States v. Bozovich

United States Court of Appeals, Seventh Circuit

April 7, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee.
v.
MARK BOZOVICH, Defendant-Appellant

Argued: September 8, 2014.

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:11-cr-170-005--Rudy Lozano, Judge.

For United States of America, Plaintiff - Appellee: David E. Hollar, Attorney, Office of The United States Attorney, Hammond, IN.

For Mark Bozovich, Defendant - Appellant: Michael W. Bosch, Attorney, Bosch & Dedelow, Highland, IN.

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

OPINION

Page 815

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.

Page 816

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 ...


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