In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2784

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN W. BLOCH, 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.

ARGUED JANUARY 18, 2013—DECIDED MAY 20, 2013

Before POSNER, FLAUM, and SYKES, Circuit Judges.

SYKES, 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 apartment, but the officers located a loaded Glock handgun

and an SKS assault rifle in plain view.

As the officers removed the firearms from the apartment, Bloch protested that the guns were his and demanded their return. This was a bold statement under

the circumstances; Bloch is a felon and also has a conviction 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 apartment 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 firearms. Bloch makes the remarkable claim that his spontaneous demand for return of the guns was categorically 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 WILLIAM BARKER,
No. 12-2784 3

THE ADAGES OF ERASMUS 100 (2001). Besides, while

sober, Bloch confided to another jail inmate that he

kept his Glock and his SKS rifle at his girlfriend’s apartment 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 responded 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 girlfriend, 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 pistol. The officers seized the guns and the ammunition.

As the officers carried the firearms and ammunition

out of the apartment, Bloch objected to the confiscation of his property. Lubricated by drink and using language 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 domesticviolence 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 girlfriend’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 explained 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, structured 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 possessed the firearms that were seized during the search

of his girlfriend’s apartment. The burden on a sufficiencyof-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 domesticviolence misdemeanant. To convict him of these crimes,

the government had to prove that he possessed a

firearm that had traveled in or affected interstate commerce, 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 government’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). Constructive 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, particularly the complexities that sometimes arise when

firearms are discovered in a place occupied by the defendant but outside of his exclusive control. See Griffin,

684 F.3d at 695-98. Here, the government established

possession largely through Bloch’s unguarded statements 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 HENRY WIGMORE,

EVIDENCE IN TRIALS AT COMMON LAW § 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 circumstances, 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.”

BARKER, 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, considered 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 domesticviolence 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 conviction 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 “§ 922(g) cannot support multiple convictions based on a single firearm possession because

the allowable unit of prosecution is the incident of possession, 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 simultaneous 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 possession regardless of whether a defendant satisfied

more than one § 922(g) classification, possessed more

than one firearm, or possessed a firearm and ammunition.”).

Bloch’s two convictions are therefore multiplicitous

and must be merged. The convictions arose from the

same incident of firearm possession, and the only difference 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 statutory 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 VACATE the judgment

and REMAND 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