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Court affirms amount of heroin attributable to defendant

April 8, 2015
A man convicted of conspiracy to distribute heroin could not convince the 7th Circuit Court of Appeals that the trial court incorrectly found him to be responsible for buying and selling at least 1,040 grams of heroin over a six-year period. 
 
Mark Bozovich challenged his conviction and 235-month sentence, claiming 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 claimed his sentence was based on an erroneous drug quantity finding. 
 
“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,” Judge David Hamilton wrote. “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.” 
 
Regarding his sentence, Bozovich was sentenced on the low end of the sentencing guideline range based on his base-offense level and a four-level enhancement for possession of a weapon and obstruction of justice. If the court would have attributed less of the drug to him, his sentence could have been reduced up to 80 months. 
 
Hamilton noted that since the District Court lacked records documenting the amounts attributable to Bozovich regarding how much heroin he purchased and sold, it relied on testimony to determine that Bozovich sold and purchased at least 1,040 grams of heroin during the six years in question. The 7th Circuit affirmed his sentence, finding the District judge made a clear credibility finding and otherwise carefully scrutinized the drug quantity evidence. 
 
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