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11-4841-cr

United States v. Rumble

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 

IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING 

A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A 

PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). 

A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 

2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 8

th 3 day of April, two thousand thirteen.

4

5 PRESENT: BARRINGTON D. PARKER,

6 RAYMOND J. LOHIER, JR.,

7 SUSAN L. CARNEY,

8 Circuit Judges.

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10

11 UNITED STATES OF AMERICA,

12

13 Appellee,

14

15 v. No. 11-4841-cr

16

17 JOHN RUMBLE,

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19 Defendant-Appellant.

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22

23 FOR APPELLANT: JEREMY GUTMAN, New York, NY.

24

25 FOR APPELLEE: ELIZABETH S. RIKER, Assistant United States Attorney 

26 (Ransom P. Reynolds, Assistant United States 

27 Attorney, on the brief), for Richard S. Hartunian, 

28 United States Attorney for the Northern District of New 

29 York, Syracuse, NY. 
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30 Appeal from a judgment of the United States District Court for the Northern District 

31 of New York (David N. Hurd, Judge).

32 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

33 AND DECREED that the judgment of the District Court is AFFIRMED.

34 Defendant-appellant John Rumble appeals from a judgment of conviction entered in 

35 2011, following a jury trial. The jury found Rumble guilty on six firearms-related counts 

36 charged in the second superseding indictment, but was unable to reach a verdict on the 

37 seventh count, which charged Rumble with threatening to kill a Federal agent in retaliation 

38 for the performance of the agent’s official duties, in violation of 18 U.S.C. § 115(a)(1)(B)

39 (“Count Seven”). After determining that Rumble’s Sentencing Guidelines range was 121 

40 to 151 months’ imprisonment, the District Court sentenced Rumble to a term of 

41 imprisonment of 121 months. On appeal, Rumble argues (1) that the District Court 

42 admitted at trial prejudicial evidence of Rumble’s alleged threats against the Federal agent, 

43 requiring a new trial, and (2) that the District Court erred in calculating Rumble’s base 

44 offense level under the Guidelines. We assume the parties’ familiarity with the facts and 

45 record of the prior proceedings, to which we refer only as necessary to explain our decision 

46 to affirm. 

47 1. The Evidence Relating to the Alleged Threats

48 Rumble argues that he should receive a new trial because the District Court 

49 admitted prejudicial evidence, some of it hearsay, relating to Count Seven. Most of the

50 evidence was admitted without objection, and our review is therefore for plain error. 

51 However, Rumble did object to one question during the testimony of the agent who was 

52 threatened: During the agent’s direct examination, the Government asked the agent if the 

53 threat “affected you and your family,” to which the agent replied, “[i]t has.” Where a

54 defendant preserves a challenge to a district court’s evidentiary ruling, we review the 

55 ruling for abuse of discretion. United States v. Abreu, 342 F.3d 183, 190 (2d Cir. 2003). 
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56 “Additionally, we will not order a new trial because of an erroneous evidentiary ruling if 

57 we conclude that the error was harmless.” Id.

58 As an initial matter, the District Court did not abuse its discretion by admitting 

59 evidence about the effect of the alleged threats on the agent and his family. The effect of a 

60 statement on its subject may be “highly relevant” to the question of whether or not the 

61 statement is a threat, United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994), and the agent’s 

62 simple response, “[i]t has,” was not inflammatory. Moreover, because the jury did not 

63 convict Rumble of Count Seven, we cannot say that any of the evidence that Rumble now 

64 challenges—all of which pertained to Count Seven—prejudiced the jury such that a new 

65 trial is required. See United States v. Diaz, 922 F.2d 998, 1007-08 (2d Cir. 1990). 

66 Rumble argues that, in the absence of the challenged evidence relating to Count 

67 Seven, he might not have been convicted on the other six counts, which related to making 

68 false statements in federal firearms licensing documents, the sale of firearms to a drug user,

69 and the possession of firearms by a drug user. We discern no basis in the record for such 

70 an argument. Because the evidence with respect to those counts was strong separate and 

71 apart from the evidence relating to Count Seven, we conclude that the claimed evidentiary

72 errors were in any event harmless.

73 2. Sentencing

74 Rumble also argues that the District Court erred in calculating his base offense level 

75 during sentencing. Rumble argues that the District Court should not have applied 

76 U.S.S.G. § 2K2.1(a)(4)(B), which mandates a base offense level of 20 if, as applicable 

77 here, “the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a 

78 large capacity magazine . . . .” The Application Note for § 2K2.1(a)(4)(B) provides as 

79 follows:

80 [A] “semiautomatic firearm that is capable of accepting a large capacity 

81 magazine” means a semiautomatic firearm that has the ability to fire many 

82 rounds without reloading because at the time of the offense (A) the firearm 
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83 had attached to it a magazine or similar device that could accept more than 15 

84 rounds of ammunition; or (B) a magazine or similar device that could accept 

85 more than 15 rounds of ammunition was in close proximity to the firearm. 

86 U.S.S.G. § 2K2.1 cmt. n.2. Rumble argues that the Government did not establish by a 

87 preponderance of the evidence that any of the firearms that he sold, or that were found at 

88 his home, had large capacity magazines either attached to them or in close proximity. 

89 This argument lacks merit. At trial, Scott Bentley, who illegally bought an AK-47 

90 from Rumble, testified that Rumble gave him twenty- and thirty-round magazines along 

91 with the AK-47. Moreover, at sentencing, the Government submitted an affidavit from a 

92 New York State Police supervisor of the unit that executed the search warrant on Rumble’s 

93 residence. In his affidavit, the supervisor, who had inventoried all of the firearms taken

94 from Rumble’s residence, explained that, according to the inventory, at least 38 

95 semiautomatic weapons with attached magazines capable of accepting more than 15 

96 rounds of ammunition were found in Rumble’s home, and that 36 of those were loaded. 

97 Based on both the affidavit and Bentley’s trial testimony, the District Court did not err in 

98 applying U.S.S.G. § 2K2.1(a)(4)(B).

99 We have considered all of Rumble=s remaining arguments and conclude that they 

100 are without merit. For the foregoing reasons, the judgment of the District Court is 

101 AFFIRMED.

102 FOR THE COURT:

103 Catherine O=Hagan Wolfe, Clerk of Court

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