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Monday, May 20, 2013

Ind. Decisions - 7th Circuit decides one Indiana case today

In UNITED STATES OF AMERICA v. JOHN W. BLOCH, III (ND Ind., Miller), an 11-page opinion, Judge Sykes writes:

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 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, 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.

Posted by Marcia Oddi on May 20, 2013 12:03 PM
Posted to Ind. (7th Cir.) Decisions