In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-1435

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

v.

MARK 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.

____________________

ARGUED SEPTEMBER 8, 2014 — DECIDED APRIL 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 
2 No. 14-1435

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 har-
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 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 
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 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 suppli-
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 crossexamination. 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 some-
6 No. 14-1435

where 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 twolevel 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 (1972), and Townsend v. Burke, 334 

U.S. 736, 741 (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.”) (in1 These calculations were based on the 2013 version of the Sentencing Guidelines in effect at the time of sentencing. Amendment 782 took 

effect on November 1, 2014 to reduce by two levels the various base offense levels. Amendment 788 makes Amendment 782 retroactive for 

purposes of 18 U.S.C. § 3582(c)(2) after November 1, 2015.

 
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 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 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, precision 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-
8 No. 14-1435

tive finding” by the district court does not constitute clear 

error.

One estimate of the drug quantity attributable to Bozovich 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 estimate how much heroin Bozovich sold. One witness estimated that Bozovich sold 40 grams of heroin per week. Two other witnesses also testified about his sales of heroin, one saying 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 sug2 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 receive 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 discretion. He argued that Bozovich was buying heroin because he was “addicted 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.”

 
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 assumptions that Bozovich sold just 20 grams of heroin per week for 

just 52 weeks of the six-year conspiracy would make Bozovich 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 testimony, the district court conservatively assumed that Bozovich 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
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 account 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 estimates 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 sentence when the drug quantity finding underlying that sentence 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, however, was the fact that this witness testified at trial without 

providing a drug quantity. Instead, he submitted two affidavits after the trial. The affidavits were inconsistent with each 

other and with his trial testimony. In the face of such competing 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 finding and otherwise carefully scrutinized the drug quantity 

evidence, Beler does not control.
No. 14-1435 11

The judgment of the district court is AFFIRMED.