                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                             August 14, 2012
                                  PUBLISH                  Elisabeth A. Shumaker
                                                               Clerk of Court
                  UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                  No. 11-1076

 ANTHONY SHIPPLEY, a/k/a Buddy,

       Defendant-Appellant.


                 Appeal from the United States District Court
                         for the District of Colorado
                     (D.C. No. 1:08-CR-00340-REB-3)


Todd E. Mair of Peters, Mair, and Wilcox, Denver, Colorado, for Defendant-
Appellant.

Sangita K. Rao, Attorney, Criminal Division, United States Department of
Justice, Washington, D.C. (John F. Walsh, United States Attorney, and Pegeen D.
Rhyne and Kasandra R. Carleton, Assistant United States Attorneys, District of
Colorado; and Lanny A. Breuer, Assistant Attorney General, Greg D. Andres,
Acting Deputy Assistant Attorney General, and Daniel Steven Goodman,
Attorney, Criminal Division, United States Department of Justice, Washington,
D.C. on the brief) for Plaintiff-Appellee.


Before GORSUCH, ANDERSON, and MATHESON, Circuit Judges.


GORSUCH, Circuit Judge.
      Anthony Shippley served as the “Sergeant at Arms” for a chapter of the

Mongols Motorcycle Club. And the title wasn’t ceremonial: his job was to

ensure members were armed and ready for confrontations with rival gangs. After

a massive nationwide investigation and “take down” of the club in 2008, Mr.

Shippley found himself facing a federal drug conspiracy charge. His chief

accuser, Benjamine Maestas — a former club president, longtime felon, and

sometimes federal informant — testified at trial that Mr. Shippley was responsible

for supplying considerable amounts of high quality cocaine for resale to retail

customers.

      At the end of trial, though, something strange happened. The jury returned

a general verdict finding Mr. Shippley guilty of the conspiracy charge. But in

response to the court’s special interrogatories, the jury indicated that Mr.

Shippley had not conspired to distribute any of the drugs listed in the indictment.

In effect, the jury both convicted and acquitted Mr. Shippley of the charged

conspiracy.

      What to do? In this appeal we wrestle with the question as the district

court did before us. For its part, the district court ordered the jury to deliberate

further — and those further deliberations quickly yielded an unambiguous guilty

verdict. For our part, we cannot say the district court’s chosen course was legally

impermissible, at least not for the reasons Mr. Shippley offers. In this appeal, we




                                         -2-
also address and ultimately reject Mr. Shippley’s challenges to a second and

separate drug conviction as well as to a sentencing enhancement.

                                           I

      But first things first. When instructing the jury on the conspiracy charge

(21 U.S.C. § 846), the court explained that it could convict only if it unanimously

agreed Mr. Shippley conspired to distribute at least 50 grams of

methamphetamine, 500 grams of cocaine, or any amount of ecstacy. The court

then gave the jury two documents to fill out: one, a general verdict form (asking

the jury to answer guilty or not guilty); the other, a set of special interrogatories

(asking which drug kinds and quantities were involved). Before us, no one seeks

to contest the propriety of the court’s initial instructions or verdict forms. But

ultimately those forms did prove a source of confusion: while the jury returned

with a guilty verdict on the general verdict form, it answered “no” to each of the

special interrogatories, indicating that Mr. Shippley conspired to distribute none

of the drugs at issue in the case.

      Perplexed, the district court sought advice from counsel and then decided to

ask the jury to deliberate again. The court read a supplemental instruction,

explaining that “[y]our ostensible verdict of guilty as to the crime of conspiracy

as charged in Count One of the Indictment is inherently inconsistent with your

answers to the Special Questions.” ROA v.1 at 1092. The court indicated that, if

the jury wished to render a verdict of not guilty it should reconsider its answer in

                                          -3-
the general verdict form. It explained that if the jury wanted to render a guilty

verdict it should reconsider its answers to the special interrogatories. The court

also made clear that the jury could, if it chose, stand on its existing verdict; that

any changes must be unanimous; and that nothing the court said was meant to

“intimate or indicate what I think your verdicts or answers should be. Those

decisions are entirely up to you.” Id. Soon after all this, the jury returned with a

guilty verdict and an answer to a special interrogatory indicating that Mr.

Shippley had conspired to distribute 500 grams or more of cocaine.

      Mr. Shippley argues this was error. More precisely, he argues that (a)

under the Supreme Court’s holdings in United States v. Powell, 469 U.S. 57

(1984), and United States v. Dotterweich, 320 U.S. 277 (1943), the district court

should have entered a verdict of acquittal; and (b) the district court coerced the

jury, violating his Fifth Amendment right to due process and his Sixth

Amendment right to a jury trial. These, we pause to underscore, are the only

arguments he makes and the only ones we address in this opinion. Mr. Shippley

does not dispute that the jury’s initial verdict was inconsistent, or argue that any

provision of the Constitution compelled the district court as a matter of lenity to

interpret the initial verdict as an acquittal. Neither does he suggest the court’s

course in ordering additional deliberations violated the Double Jeopardy Clause

of the Fifth Amendment. With enough to do today to address the arguments he

does press, we do not pass on those, like these, he does not.

                                          -4-
                                          A

      Mr. Shippley first insists that Powell and Dotterweich required the district

court to enter an acquittal rather than order the jury to deliberate further. So we

must begin by trying to get our hands around those holdings.

      In Powell, the jury acquitted the defendant of a felony but found him guilty

of using a telephone in the commission of that same felony. The district court

entered judgment just as the jury’s verdict indicated. But before the Supreme

Court, the defendant argued that as a matter of issue preclusion and logic the

guilty verdict shouldn’t be allowed to stand. After all, the defendant said, how

could it be that he didn’t commit the underlying felony but used a telephone to do

just that? The Supreme Court acknowledged that the jury’s verdicts were

logically at odds but explained that it was “unclear whose ox ha[d] been gored”:

while it was possible the verdict was a “windfall to the Government at the

defendant’s expense,” it was “equally possible” the jury’s inconsistent verdicts

benefitted the defendant as a result of mistake, compromise, or lenity. 469 U.S.

at 65. And given this, the Court held, the district court was within its rights to

allow the jury verdict to stand, inconsistent though it was. Id.

      Dotterweich isn’t much different. There, the defendant argued his guilty

verdict should be set aside because of an inconsistent verdict against his

corporation, even though the evidence against both was much the same. Again,

the Supreme Court held as a matter of federal common law that this logical

                                         -5-
inconsistency did not preclude the district court from entering the jury’s verdict

as issued. 320 U.S. at 279.

      As comes apparent from stating their holdings, nothing in Powell or

Dotterweich speaks to the propriety of ordering further deliberations in the face of

inconsistent verdicts against the same defendant on the same count. In fact,

neither opinion speaks to the question of further deliberations at all. Both simply

hold the district court was allowed to enter a guilty verdict on one count despite a

logically inconsistent verdict on another. So how might the opinions help Mr.

Shippley in a case where the district court did order further deliberations?

      Mr. Shippley invokes an inference. From the fact Powell and Dotterweich

allowed inconsistent verdicts to stand, Mr. Shippley thinks this means they

(implicitly) ruled out the possibility of further jury deliberations. Unfortunately,

however, neither opinion holds as much. And, unfortunately too, Mr. Shippley

doesn’t identify what rule of law he thinks might compel such an inference.

Maybe he thinks the Double Jeopardy Clause precludes compelling more

deliberations after an inconsistent verdict is rendered. Maybe he thinks some

other constitutional provision is in play, or perhaps just federal common law. But

he does not say.

      The closest he comes to supplying an answer is when he points to the

Federal Rules of Criminal Procedure. He acknowledges that federal courts in

civil cases are permitted by rule to order further deliberations to address an

                                         -6-
inconsistency between a general verdict and special interrogatories. See Fed. R.

Civ. P. 49(b)(3)(B). But, he points out, the criminal rules contain no

corresponding provision — and he argues this omission is suggestive —

suggestive that the procedure is disfavored in criminal cases. It might be, too,

except for the fact the criminal rules contain a catch-all provision in Fed. R.

Crim. P. 57(b) expressly addressing what to do when the rules fail to address a

question. And this catch-all provision explains that, in the absence of express

directions from the rules themselves, judges may “regulate practice in any manner

consistent with federal law.” So even after resort to the rules it remains

incumbent on Mr. Shippley as the appellant to explain why the district court’s

decision to order further deliberations was inconsistent with federal law, and this

he does not attempt to do. That alone is enough to undo his appeal.

      But there’s another and even larger problem lurking in his logic. Even

accepting for argument’s sake Mr. Shippley’s premise that Powell and

Dotterweich implicitly require (rather than permit, as they hold) a district court to

accept a verdict logically inconsistent as between counts or defendants, that still

does not speak to our case. In our case, it wasn’t just logically incongruous to

enter the jury’s verdict, it was metaphysically impossible. Powell and Dotterwich

involved logical inconsistencies between counts and between defendants.

However illogical, the verdicts in those cases could be given full effect. This

case, by contrast, involves an inconsistency on the same count with the same

                                         -7-
defendant — an inconsistency that simply could not have been given full effect.

Something had to give in our case that didn’t have to give in these other cases.

To enter an acquittal, the district court would have needed to disregard the fact

that the jury expressly found Mr. Shippley guilty. To enter a guilty verdict, the

court would have needed to overlook the special verdict findings that Mr.

Shippley did not conspire to distribute any of the drugs at issue in the case. And

nothing in Powell or Dotterwich speaks either explicitly or implicitly about what

a court’s to do in these circumstances, let alone suggests the district court

committed an error of constitutional magnitude (or otherwise) in proceeding as it

did in this case.

       If anything, Powell might even suggest the opposite conclusion. The Court

in Powell refused to undo the defendant’s conviction on a compound offense

despite his acquittal on the underlying felony because it was “unclear whose ox

ha[d] been gored”: the jury’s inconsistent verdict may have favored the

government, but it was equally possible it benefitted the defendant. 469 U.S. at

65. That same sort of problem exists here. To enter any verdict when the jury

first returned, the district court would have had to choose to “gore” one side or

the other — just what Powell suggests courts should not do.

       In reply to all this, Mr. Shippley directs our attention to a line of circuit

court cases, which he regards as an extension of Powell. When a defendant is

indicted for participating in a conspiracy to distribute several different drugs and

                                          -8-
the jury’s guilty verdict fails to indicate which particular drugs the defendant

conspired to distribute, these cases hold a sentencing court must base its sentence

on the statutory maximum for the drug bearing the least severe punishment. See,

e.g., Morales v. United States, 635 F.3d 39, 46 (2d Cir. 2011); United States v.

Arnold, 416 F.3d 349, 357 n.8 (5th Cir. 2005); see also United States v.

McCalister, 165 F. App’x 599, 606-07 (10th Cir. 2006) (unpublished). Given all

this, Mr. Shippley reasons, the district court was required to enter a judgment of

acquittal in his case because the jury’s initial special verdict form indicated that

he had not conspired to distribute any amount of drugs.

      But this line of reasoning suffers at least one flaw, as well. None of the

decisions Mr. Shippley cites addresses whether a district court may ask a jury to

deliberate further when the jury’s drug quantity findings are unclear or

inconsistent. All they hold is that when a jury verdict is ambiguous, the district

court cannot later interpret this ambiguity against a defendant at sentencing.

They say nothing about what, if anything, a district court can do to clarify an

ambiguous initial verdict at trial, long before any sentencing occurs.

      To be very clear, our rejection of Mr. Shippley’s appeal is limited to his

effort to analogize to Powell, Dotterwich, and their putative progeny. We do not

purport to address other arguments, possibly emanating from the Double Jeopardy

Clause or otherwise, he doesn’t raise. Likewise, our holding is limited to the

situation before us, where a jury returns a guilty verdict but indicates in its

                                         -9-
answers to special interrogatories that the defendant is innocent. We do not

hazard a guess what should happen in the opposite situation — when a jury

returns a verdict of not guilty but answers special verdict questions indicating that

the government has met its burden of proof. In that situation, we can imagine that

a defendant might try to argue the jury’s verdict could be given full effect,

reasoning that though the government proved the defendant’s guilt, the jury found

the defendant not guilty as a matter of lenity. But however that argument might

fare, it isn’t available here because it’s difficult to see how a jury might have

been lenient to the defendant by finding Mr. Shippley guilty despite its conclusion

that the government had failed to prove the facts necessary to support such a

verdict. Neither, in any event, does Mr. Shippley attempt to try to argue

otherwise.

                                           B

      Beyond analogizing to Powell and Dotterwich, Mr. Shippley suggests the

district court’s order requiring further deliberations unlawfully coerced the jury in

violation of his Fifth Amendment right to due process of law and his Sixth

Amendment right to trial by jury. In support, he directs our attention to Jenkins

v. United States, 380 U.S. 445 (1965) (per curiam), where the Supreme Court held

that a judge unconstitutionally coerced a jury by telling it “You have got to reach

a decision in this case.” Id. at 446.




                                         - 10 -
      The trouble is, the district court’s supplemental instruction here can’t be

fairly compared to a Jenkins charge. While it’s true the district court told the jury

that its “ostensible verdict” of guilty was “inherently inconsistent” with the

special verdict findings, and while one can argue whether the jury might have

taken this language in isolation as a criticism and perhaps even coercive, the court

didn’t stop there. It proceeded to emphasize that the jury was free to retain its

existing verdicts if it wished. ROA v.1 at 1092. And the district court expressly

added that it did not intend to “intimate or indicate what I think your verdicts or

answers should be. Those decisions are entirely up to you.” Id. Viewed in

whole, this instruction was nothing like a Jenkins charge and Mr. Shippley

identifies no authority holding instructions comparable to those issued in this case

unconstitutionally coercive.

      Now, Mr. Shippley’s brief might be read as making a different but related

argument. It might be read as suggesting that the mere act of asking the jury to

deliberate further, however nicely put, is inherently coercive after the jury has

reached a definitive if inconsistent verdict. But Mr. Shippley cites no authorities

and supplies no reasoning to support such an argument. And certainly his bare

assertion of a constitutional violation, without authorities or developed argument,

is insufficient to warrant reversal of his conviction. See Fed. R. App. P.

28(a)(9)(A) (the appellant’s brief must contain “appellant’s contentions and the




                                        - 11 -
reasons for them, with citations to [ ] authorities” (emphasis added)); United

States v. Fishman, 645 F.3d 1175, 1194 (10th Cir. 2011).

                                           II

      Beyond the larger drug conspiracy charge, Mr. Shippley was indicted for

and convicted of a second crime — using a “communication facility” (a

telephone) to facilitate an illegal sale of Percocet pills to Mr. Maestas for his

personal use. See 21 U.S.C. § 843(b). On appeal, Mr. Shippley contests one of

the district court’s evidentiary rulings related to this charge: in his view, it was

error to allow Mr. Maestas to testify that Mr. Shippley sold him Percocet pills on

at least twenty prior occasions separate and apart from the sale charged in the

indictment. The district court allowed this testimony as both “intrinsic” to the

charged offense, and as admissible prior act evidence under Fed. R. Evid. 404(b).

Before us, Mr. Shippley and the government fiercely debate both theories of

admissibility, as well as whether the evidence’s admission was harmless under

Fed. R. Crim. P. 52. In our view, the government is correct on at least one of

these scores — the district court did not commit reversible error in allowing Mr.

Maestas’s testimony under Rule 404(b).

      “To determine if the admission of Rule 404(b) evidence was proper, we

apply a four-part test which requires that: (1) the evidence was offered for a

proper purpose under Fed. R. Evid. 404(b); (2) the evidence was relevant under

Fed. R. Evid. 401; (3) the probative value of the evidence was not substantially

                                         - 12 -
outweighed by its potential for unfair prejudice under Fed. R. Evid. 403; and (4)

the district court, upon request, instructed the jury to consider the evidence only

for the purpose for which it was admitted.” United States v. Wilson, 107 F.3d

774, 782 (10th Cir. 1997) (citing Huddleston v. United States, 485 U.S. 681, 691-

92 (1988)). We review the district court’s application of this test for an abuse of

discretion and will not reverse unless its ruling falls outside “the bounds of

permissible choice in the circumstances.” United States v. Mares, 441 F.3d 1152,

1156 (10th Cir. 2006) (quotation omitted).

        On the first prong, the district court correctly observed that Mr. Maestas’s

testimony wasn’t offered to show Mr. Shippley’s propensity to commit a crime

but instead to explain the meaning of a phrase used by Mr. Shippley. Fed. R.

Evid. 404(b). As evidence that Mr. Shippley used a “communication facility” or

telephone to facilitate illegal sales of Percocet to Mr. Maestas, the government

played audio tapes of telephone calls between the pair. In one call, Mr. Shippley

told Mr. Maestas “that girl called me for them things that you get all the time,”

and the two men then discussed the quantity and price of the “things.” ROA v.3

at 437. Mr. Maestas’s testimony that Mr. Shippley sold him Percocet on twenty

prior occasions was offered to show simply that during the call at issue in the case

the phrase “them things that you get all the time” referred to drugs, not something

else.




                                         - 13 -
      In response, Mr. Shippley cites United States v. Edwards, 540 F.3d 1156

(10th Cir. 2008), where we held evidence of prior drug possession inadmissible

under Rule 404(b) because the defendant “never asserted that he was unaware of

the nature of the substances at issue but simply argued that he was not personally

involved in the distribution or possession for distribution of these substances.”

Id. at 1163. The upshot of all this, Mr. Shippley says, is that Rule 404(b) permits

evidence of prior drug offenses only when a defendant claims he is unaware of

the nature of a substance.

      This overreads Edwards. The passage on which Mr. Shippley relies only

seeks to explain why lack of mistake was not an issue in that particular case, not

to set down an unyielding rule about Rule 404(b) evidence for all drug cases, no

matter their variation. Besides, the nature of the substance Mr. Shippley spoke of

when referring to “them things that you get all the time” was an issue in this case.

By arguing he did not use a telephone to facilitate a drug sale, Mr. Shippley

necessarily contested the government’s argument that he was referring to Percocet

pills when he used this phrase. Accordingly, evidence about the nature of the

“things” Mr. Maestas purchased all the time was at issue and thus permissible

even under Mr. Shippley’s reading of Edwards.

      Moving to step two of the analysis, the district court correctly determined

that Mr. Maestas’s testimony was relevant under Rule 401. By supporting the

government’s theory that Mr. Shippley was referring to Percocet pills during a

                                        - 14 -
phone call at issue in the indictment, Mr. Maestas’s testimony about prior drug

sales helped to prove that Mr. Shippley used a telephone to facilitate drug

trafficking. Mr. Shippley disputes this, arguing that drug activity on an isolated

basis long in the past is categorically irrelevant to the current charges. See

Wilson, 107 F.3d at 785 (“[P]rior narcotics involvement is relevant when that

conduct is close in time, highly probative, and similar to the activity with which

the defendant is charged.” (quotation omitted)). But whatever other problems

may exist with this argument, there’s simply no indication in this record that the

parties’ drug exchanges were isolated and long ago. To the contrary, Mr. Maestas

spoke of at least twenty different sales. And Mr. Maestas testified he was only

addicted to Percocet in the five years prior to his arrest in connection with the

2008 “take down” of the motorcycle gang, so the sales must have occurred during

this time. ROA v.3 at 434. In these circumstances, we cannot say the district

court’s relevancy determination amounts to an abuse of discretion.

      Neither, at the third step of the analysis, do we see any reversible error in

the district court’s Rule 403 assessment. While Mr. Shippley is certainly correct

that Mr. Maestas’s testimony about the twenty prior Percocet sales was

prejudicial, the district court concluded that the risk of unfair prejudice did not

“substantially outweigh[]” the probative value of the testimony. Fed. R. Evid.

403. We agree. The jury had already heard testimony that Mr. Shippley was

involved in other drug-trafficking activities, so Mr. Maestas’s testimony was not

                                        - 15 -
as prejudicial as it might have been if offered against a defendant with no other

drug involvement. And the testimony was highly probative — it went to the heart

of the government’s case, showing that Mr. Shippley used a “communications

facility” to facilitate a drug transaction when he called Mr. Maestas and offered to

sell “them things that you get all the time.”

         Finally, the district court expressly indicated that it was willing to give a

limiting instruction upon request. ROA v.3 at 302. Although no instruction was

given in the end, this is only because Mr. Shippley never requested one. And “it

is not error for a trial court to fail to [issue a limiting instruction] in the absence

of a proper request by counsel.” United States v. Record, 873 F.2d 1363, 1376

(10th Cir. 1989).

         In light of all these factors, we conclude that the district court did not abuse

its discretion in allowing Mr. Maestas’s testimony under Rule 404(b) and so we

need not (and do not) address the government’s other arguments for affirming the

district court.

                                             III

         Mr. Shippley’s final argument concerns the application of a sentencing

enhancement. At sentencing, the district court cited and relied on U.S.S.G.

§ 2D1.1(b)(1), an enhancement applicable to defendants who possess a dangerous

weapon during a drug trafficking offense. Mr. Shippley argues that this was

error.

                                           - 16 -
      The difficulty is, Leonard Martinez, the secretary and treasurer of the

motorcycle club and a co-conspirator in the drug trafficking operations, testified

at trial that Mr. Shippley gave him a chrome pistol for his protection. ROA v.3 at

859. And the district court found this happened during the course of the

conspiracy. Supp. ROA v.5 at 37-38. If that finding stands, it is legally

sufficient to sustain the enhancement. It is because the government’s initial

burden in seeking a § 2D1.1(b)(1) enhancement is simply to prove, by a

preponderance of the evidence, that the gun in question was “present” or

“possessed” either during the charged offense or during other drug trafficking

activity that was “part of the same course of conduct or common scheme or plan

as the offense of conviction.” See United States v. Foy, 641 F.3d 455, 470 (10th

Cir. 2011) (quotation omitted); United States v. Roederer, 11 F.3d 973, 982 (10th

Cir. 1993) (discussing U.S.S.G. § 1B1.3’s definition of relevant conduct). Once

the government proves that much, the burden shifts to the defendant to show that

it is “clearly improbable that the weapon was connected with the offense.” Foy,

641 F.3d at 470. And in his appeal Mr. Shippley doesn’t even attempt to carry

this burden.

      Because the district court’s factual finding is itself legally sufficient to

support a § 2D1.1(b)(1) enhancement in this case, we may reverse only if the

finding is itself clearly erroneous. See United States v. Beltran, 571 F.3d 1013,

1020 (10th Cir. 2009). And that’s a high standard to meet. A finding is clearly

                                         - 17 -
erroneous “only if [it] is without factual support in the record or if, after

reviewing all the evidence, we are left with a definite and firm conviction that a

mistake has been made.” United States v. Mullins, 613 F.3d 1273, 1292 (10th

Cir. 2010) (quotation omitted). It is not enough that the finding is “possibly or

even probably wrong; the error must be pellucid to any objective observer.” Id.

(quotation omitted).

      Neither can we say that much in this case. Mr. Maestas testified that Mr.

Shippley’s duties as “Sergeant at Arms” included providing guns and ammunition

for club members, most if not all of whom were involved in the drug conspiracy.

ROA v.3 at 527. For his part, Mr. Martinez testified that he received a gun from

Mr. Shippley, whom he met only after joining the Mongols Motorcycle Club

sometime in 2003. ROA v.3 at 848. We know too that Mr. Martinez was taken

into custody in May of 2008, id. at 846, so Mr. Shippley must have given Mr.

Martinez the gun sometime in this approximately five year period. Mr. Shippley

objects that the charged conspiracy only lasted from August 2006 to October

2008, so it is just as (if not more) likely that the gun transfer occurred sometime

before this. But the district court’s finding that Mr. Shippley gave Mr. Martinez a

gun during the drug trafficking conspiracy wasn’t limited to the charged

conspiracy: the court was free to find that the drug trafficking conspiracy began

well before August 2006. See Roederer, 11 F.3d at 982 (a § 2D1.1(b)(1)

enhancement applies if a dangerous weapon was present or possessed during

                                         - 18 -
uncharged drug trafficking activity that constitutes relevant conduct under

§ 1B1.3); see also United States v. Rodriguez-Felix, 450 F.3d 1117, 1131 (10th

Cir. 2006) (United States v. Booker, 543 U.S. 220 (2005), does not prohibit

sentencing courts from considering uncharged relevant conduct in calculating a

defendant’s sentencing guidelines range). And evidence at trial suggested as

much. Mr. Maestas testified that he had been receiving drugs from California

members of the motorcycle club for several years before 2006. ROA v.3 at 539.

And Mr. Martinez testified that by the time the charged conspiracy began in

August 2006, he was already spending 70 percent of his free time, about 4 hours a

day, working for Mr. Maestas’s drug operations. ROA v.3 at 839.

      Assembled together, these facts are enough to permit a rational person to

conclude, by a preponderance of the evidence, that the gun Mr. Shippley gave to

Mr. Martinez was present or possessed during the drug trafficking conspiracy.

The conclusion may not be unavoidable. It may not be the same conclusion

another factfinder would reach on the same record. But it is not clearly wrong.

And in our legal order where so much deference is due the factfinder who sees

and hears the witnesses, that is the only question we as appellate judges, with but

a written record in hand, are authorized to ask and answer.

      Affirmed.




                                       - 19 -
