United States v. John Bloch, III

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2784
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN W. B LOCH, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:12cr2-001—Robert L. Miller, Jr., Judge.
A RGUED JANUARY 18, 2013—D ECIDED M AY 20, 2013
Before P OSNER, F LAUM, and SYKES, Circuit Judges.
S YKES, Circuit Judge. Police officers in Elkhart, Indiana,
responded to a report of gunfire at an apartment on
Delaware Street and were greeted at the door by an
obviously intoxicated John Bloch. Given the exigent
nature of the call, the officers told Bloch to step outside
while they checked to see if anyone was injured. The
apartment belonged to Bloch’s girlfriend, who was
inside; the officers told her to wait outside as well. As it
2 No. 12-2784
turned out, there were no gunshot victims in the apart-
ment, but the officers located a loaded Glock handgun
and an SKS assault rifle in plain view.
As the officers removed the firearms from the apart-
ment, Bloch protested that the guns were his and de-
manded their return. This was a bold statement under
the circumstances; Bloch is a felon and also has a con-
viction for a domestic-violence misdemeanor, making
his firearm possession a federal crime. See 18 U.S.C.
§ 922(g)(1), (g)(9). He was arrested and indicted for
unlawfully possessing a firearm as a felon and as a
domestic-violence misdemeanant. While in jail awaiting
trial, he made another series of remarks he would later
come to regret. He told a fellow inmate that the police
found his Glock and SKS rifle at his girlfriend’s apart-
ment and that he should have hidden them better.
A jury found Bloch guilty as charged, and the district
court imposed consecutive sentences of 120 months
and 18 months on the two counts, for a total sentence
of 138 months.
The main issue on appeal is whether the evidence
was sufficient to prove that Bloch possessed the fire-
arms. Bloch makes the remarkable claim that his spon-
taneous demand for return of the guns was categori-
cally unreliable as evidence of possession because he
was drunk when he said it. To the contrary, the jurors
were entitled to credit this evidence if they found it
persuasive; and they obviously did. Maybe they relied
on the common wisdom found in the proverb in vino
veritas (“wine speaks the truth”). See W ILLIAM B ARKER,
No. 12-2784 3
T HE A DAGES OF E RASMUS 100 (2001). Besides, while
sober, Bloch confided to another jail inmate that he
kept his Glock and his SKS rifle at his girlfriend’s apart-
ment and regretted that he had not hidden them well
enough. The evidence was sufficient to prove possession.
Bloch also challenges his consecutive sentences on
the two convictions, but the government raises a
more fundamental error that requires correction and
resentencing. A single incident of firearm possession
can yield only one conviction under § 922(g), no matter
how many disqualified classes the defendant belongs
to or how many firearms he possessed. Because Bloch’s
convictions for violating § 922(g)(1) and § 922(g)(9) arise
out of the same incident of firearm possession, they
must be merged into a single count of conviction and
Bloch must be resentenced.
I. Background
One evening in November 2011, Elkhart police re-
sponded to a report of shots fired at an apartment on
Delaware Street. When the officers arrived and knocked
on the door of the apartment, an obviously intoxicated
Bloch answered. Because they were investigating a
report of gunfire, the officers told Bloch to step outside
while they swept the apartment to ensure that no one
was injured. The apartment belonged to Bloch’s girl-
friend, and she too was asked to wait outside during
the sweep.
No one was in fact injured, but the officers found a
fully loaded Glock .40-caliber semi-automatic handgun
4 No. 12-2784
sitting on a nightstand in a bedroom and an SKS assault
rifle in an open closet. Next to the assault rifle was a
clip containing 54 rounds of ammunition, and nearby
were 144 rounds of .40-caliber ammunition for the pis-
tol. The officers seized the guns and the ammunition.
As the officers carried the firearms and ammunition
out of the apartment, Bloch objected to the confisca-
tion of his property. Lubricated by drink and using lan-
guage occasionally laced with profanity, Bloch told
the officers that the guns were his and demanded their
return. But as a convicted felon, Bloch’s possession of
the firearms was illegal, so the officers arrested him.
As he was taken off to jail, Bloch continued to demand
the return of his guns.
A grand jury indicted Bloch on two counts:
(1) unlawful possession of a firearm by a felon, see 18
U.S.C. § 922(g)(1); and (2) unlawful possession of a
firearm after having been convicted of a domestic-
violence misdemeanor, see id. § 922(g)(9). While in jail
awaiting trial, Bloch was housed with Demetrius
Johnson, an inmate who was facing charges of check
fraud and burglary. They became friends, sharing food
and playing chess, and eventually Bloch confided to
Johnson about the circumstances that landed him in
jail. He explained that he had been partying at his girl-
friend’s apartment when someone called the police
about “shots fired.” When the police responded, they
searched the apartment and found his guns. Johnson
pressed Bloch for details about the firearms. Bloch ex-
plained that he owned a Glock handgun and an
No. 12-2784 5
assault rifle, and kept them upstairs at his girlfriend’s
apartment. He also said he should have hidden them
in the baby’s room.
A jury convicted Bloch on both counts. At sentencing
the district court grouped the § 922(g)(1) and § 922(g)(9)
convictions pursuant to U.S.S.G. § 3D1.2(d). Based
on certain aggravating offense characteristics and
Bloch’s lengthy criminal record, the resulting offense
level was 26, which when combined with a criminal
history category of VI, yielded an advisory guidelines
range of 120 to 150 months. The district court weighed
the statutory sentencing factors, see 18 U.S.C. § 3553(a),
and settled on a sentence of 138 months, struc-
tured as follows: 120 months—the maximum—on the
§ 922(g)(1) count, and a consecutive 18 months on
the § 922(g)(9) count.
II. Discussion
Bloch’s first argument on appeal is a challenge to the
sufficiency of the evidence. More specifically, he claims
that the evidence was insufficient to prove that he pos-
sessed the firearms that were seized during the search
of his girlfriend’s apartment. The burden on a sufficiency-
of-the-evidence challenger is heavy. See United States
v. Carter, 695 F.3d 690, 698 (7th Cir. 2012) (“A defendant
who challenges the sufficiency of the evidence faces
a daunting standard of review.”). Evaluating the weight
of the evidence is the job of the finder of fact, see Jackson
v. Virginia, 443 U.S. 307, 319 (1979), so appellate review
is highly deferential. We view the evidence and draw
6 No. 12-2784
all reasonable inferences in the light most favorable to
the jury’s verdict and will reverse “only if no rational
jury could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Johnson,
592 F.3d 749, 754 (7th Cir. 2010).
Bloch was charged with unlawfully possessing the
handgun and rifle as both a felon and as a domestic-
violence misdemeanant. To convict him of these crimes,
the government had to prove that he possessed a
firearm that had traveled in or affected interstate com-
merce, and also that he had the requisite felony
and domestic-violence misdemeanor convictions. United
States v. Allen, 383 F.3d 644, 646-47 (7th Cir. 2004). There
is no dispute about Bloch’s record of convictions, nor
is there any question that the two firearms seized from
his girlfriend’s apartment passed through or affected
interstate commerce. Bloch challenges only the govern-
ment’s evidence of possession.
Possession in this context can be actual or constructive.
See United States v. Villasenor, 664 F.3d 673, 681 (7th Cir.
2011). The two types of possession are qualitatively
different, but their legal effect is the same. See United
States v. Ellis, 622 F.3d 784, 794 (7th Cir. 2010). Actual
possession occurs when the defendant has immediate
physical possession or control of a firearm. United States
v. Hampton, 585 F.3d 1033, 1040 (7th Cir. 2009); United
States v. Baker, 453 F.3d 419, 423 (7th Cir. 2006). Construc-
tive possession does not require immediate physical
possession or control; instead, the government must
prove that the defendant “knowingly had both the
No. 12-2784 7
power and the intention to exercise dominion and
control over the object, either directly or through others.”
United States v. Griffin, 684 F.3d 691, 695 (7th Cir.
2012). This construct sometimes presents challenges
in differentiating between “true possessors” and “mere
bystanders” who have no connection to a gun but are
merely in the same vicinity. Id. Because the law does
not ascribe constructive possession to mere bystanders,
the government must establish a nexus between the
defendant and the gun. See id.; Villasenor, 664 F.3d at
681. The “nexus” inquiry sometimes invites its own
complexities.
Bloch spared the government the problems of proof
ordinarily associated with constructive possession, par-
ticularly the complexities that sometimes arise when
firearms are discovered in a place occupied by the de-
fendant but outside of his exclusive control. See Griffin,
684 F.3d at 695-98. Here, the government established
possession largely through Bloch’s unguarded state-
ments at the scene of the search. As the officers were
removing the Glock handgun and the SKS rifle from
his girlfriend’s apartment, Bloch blurted out that the
guns were his and demanded their return. He insists
that these statements are wholly unreliable as evidence
of possession because he uttered them while drunk. To
the contrary, Bloch’s intoxication does not categorically
undermine the reliability of this evidence; it was instead
a factor for the jury to consider in deciding what weight,
if any, to give to the statements. See Mergner v. United
States, 147 F.2d 572, 572 (D.C. Cir. 1945) (discussing
the evidentiary principle that a defendant’s intoxication
8 No. 12-2784
is a factor for the jury to consider in determining the
weight to give a confession); 2 JOHN H ENRY W IGMORE,
E VIDENCE IN T RIALS AT C OMMON L AW § 499, at 708
(James H. Chadbourn ed., Little, Brown & Company
rev. ed. 1979) (same).
Perhaps the jury found Bloch’s claim of ownership
more reliable precisely because he made it while under
the influence of alcohol. If so, we would have no reason
to question that judgment; Bloch offers no evidence
or authority to establish that his intoxication would
have made his statements unreliable. In these circum-
stances, the law relies on the collective common sense
and human experience of the jury. And in that domain,
“ ‘[i]n vino veritas’ is an expression that did not
originate in fancy.” Britt v. Commonwealth, 512 S.W.2d
496, 500 (Ky. 1974). “Wine speaks the truth” is “[a]n
adage found in many classical authors, meaning that
strong drink strips the mind of its pretences and brings
out into the open what is hidden in a man’s heart.”
B ARKER, supra, at 101. It has long been observed
that “[t]here is truth in wine; it extracts secrets from the
locked-up bosom, and puts not only the reserved, but
even the habitual liar off his guard.” Hudgins v. Georgia,
2 Ga. 173, 188 (1847). Notwithstanding his intoxication,
Bloch’s impulsive demand that the officers return his
guns is quite reliable as evidence of possession.
If more were needed, the jury also heard evidence that
a sober Bloch admitted to Johnson, his fellow inmate
and chess partner in the jail, that the Glock pistol and
the SKS rifle were his. He also admitted that he kept
No. 12-2784 9
the guns at his girlfriend’s apartment and said he
regretted not having hidden them in the baby’s room.
Bloch’s own statements at the scene and in the jail, con-
sidered separately or together, were easily sufficient
to establish his possession of the firearms.
Bloch also challenges his sentence, arguing that the
district court committed a guidelines error by imposing
consecutive terms of imprisonment. The government
raises a different and more fundamental error, however,
and forthrightly acknowledges that it must be corrected.
The jury found Bloch guilty of two § 922(g) crimes—count
one was based on his status as a felon, see § 922(g)(1),
and count two was based on his status as a domestic-
violence misdemeanant, see id. § 922(g)(9). But a person
cannot be convicted of more than one § 922(g) crime
based on a single incident of possession. We have held
that “[a]lthough the government is free to pursue
multiple theories of violation at trial, only one convic-
tion may result under § 922(g) for a single incident of
possession, even though the defendant may belong to
more than one disqualified class.” United States v. Parker,
508 F.3d 434, 440 (7th Cir. 2007) (citation omitted). In
Parker we adopted the unanimous position of our sister
circuits that Ҥ 922(g) cannot support multiple convic-
tions based on a single firearm possession because
the allowable unit of prosecution is the incident of pos-
session, not the defendant’s membership in a class
(or classes) of persons disqualified from possession.” Id.
Moreover, a single act of possession can yield only
one conviction under § 922(g) even if the defendant
10 No. 12-2784
possessed multiple firearms at the same time. See
United States v. Moses, 513 F.3d 727, 731 (7th Cir. 2008)
(recognizing that for § 922(g) “the unit of prosecution
[is] the act of possession, and not the number of firearms
possessed”); United States v. Buchmeier, 255 F.3d 415, 422
(7th Cir. 2001) (“We have thus determined that when a
defendant’s possession of multiple firearms is simulta-
neous and undifferentiated, the government may only
charge that defendant with one violation of § 922(g)(1) and
§ 922(j), regardless of the actual quantity of firearms
involved.”); United States v. Richardson, 439 F.3d 421, 422
(8th Cir. 2006) (“We now . . . join all the other Circuits that
have addressed this issue to hold that Congress intended
the ‘allowable unit of prosecution’ to be an incident of pos-
session regardless of whether a defendant satisfied
more than one § 922(g) classification, possessed more
than one firearm, or possessed a firearm and ammuni-
tion.”).
Bloch’s two convictions are therefore multiplicitous
and must be merged. The convictions arose from the
same incident of firearm possession, and the only differ-
ence between them is the disqualified class to which
Bloch belonged. That Bloch possessed two firearms
does not affect this conclusion. The proper remedy for
the multiplicity error is merger; one conviction must
be vacated and merged into the other. Parker, 508 F.3d
at 441-42. Once the convictions are merged, the statu-
tory maximum is 120 months. See 18 U.S.C. § 924(a)(2).
Because Bloch’s sentence exceeds that maximum, he
must be resentenced. We commend the government
for raising the error.
No. 12-2784 11
For the foregoing reasons, we V ACATE the judgment
and R EMAND for further proceedings consistent with
this opinion. The district court shall merge the two
§ 922(g) convictions and resentence Bloch on a single
count of conviction.
5-20-13