               Case: 14-15541       Date Filed: 11/01/2016      Page: 1 of 38


                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELVENTH CIRCUIT
                             ________________________

                                    No. 14-15541
                              ________________________

                        D.C. Docket No. 1:12-cr-20592-CMA-1


UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

ANDRES CAMPO,

                                                                      Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                    (November 1, 2016)

Before HULL, MARTIN, and BALDOCK *, Circuit Judges.

BALDOCK, Circuit Judge:



       *
        Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting
by designation.
              Case: 14-15541     Date Filed: 11/01/2016   Page: 2 of 38


      A jury convicted Defendant Andres Campo on four counts related to the

murder of Erik Comesana, six counts related to a firearm trafficking scheme, and

two counts related to possessing a firearm or ammunition while a fugitive from

justice. On appeal, Campo argues that there was insufficient evidence to convict

him on all four counts related to the murder and one of the six counts related to the

firearm trafficking scheme. He also challenges the admission of testimony from

the murder victim’s brother, alleges ineffective assistance of counsel, and argues

that the imposition of sentences on two of the murder counts violated the Double

Jeopardy Clause of the Fifth Amendment. For the reasons set forth below, we

affirm Campo’s convictions and sentences but decline to consider his ineffective

assistance of counsel claim.

                                       I. Facts

      Because Campo challenges several of his convictions on sufficiency of the

evidence grounds, we set forth in detail the facts a reasonable jury could find from

the evidence presented at trial, taking the evidence in the light most favorable to

the government and drawing all reasonable inferences in support of the jury’s

verdicts. See United States v. Doe, 661 F.3d 550, 560 (11th Cir. 2011) (setting

forth the standard of review for sufficiency of the evidence challenges).




                                          2
             Case: 14-15541     Date Filed: 11/01/2016   Page: 3 of 38


      A. Arms trafficking scheme

      Between 2008 and his arrest in July 2012, Campo led an international arms

trafficking organization based in Miami, Florida. Campo hired people to act as

straw purchasers who would obtain firearms and firearm parts in their own names

and transfer them to him. Campo’s workers would also disassemble the firearms

and firearms parts into smaller pieces; conceal them within innocuous looking

items such as barbeque grills, sawhorses, work lights, and lawn chairs; and reseal

the items to make them appear new. Campo’s workers completed this work at

various locations in Miami, including a warehouse at 4283 SW 75th Avenue,

where they would paint individual pieces to better disguise them; a warehouse

approximately five blocks away at 4606 SW 75th Avenue, where they would

disassemble and package the parts; and a garage at 340 NW 132nd Avenue. Using

addresses Campo provided, Campo’s employees would then ship the items to

Colombia using commercial airlines such as Avianca Express. Campo’s associates

in Colombia reconstructed the pieces into operational firearms and sold them for

profit to Colombian rebels.




                                         3
                Case: 14-15541       Date Filed: 11/01/2016       Page: 4 of 38


       B. Erik Comesana’s role in the organization

       In 2009, Erik1 worked for Campo purchasing firearms and packaging them

for shipment to Colombia. In October 2009, Erik and Michael Romero went to the

Florida Gun Exchange in Port Orange, Florida, with money from Campo to

purchase AR-15 lower receivers, the portion technically considered the firearm.

While Erik waited in the car, Romero entered the store and attempted to purchase

seven lower receivers. An ATF agent who was working undercover as a new

salesman spoke with Romero and suspected he was conducting a straw purchase.

After the agent identified himself as an ATF agent, Romero admitted he was

buying the lower receivers for “a guy named Campos [sic],” R. 330 at 165:18, 2 and

that the person who was going to transfer the guns to the real buyer was sitting

outside in the car. Another officer then brought Erik into the store. Erik admitted

to making straw purchases and made a handwritten affidavit stating that “Andres

Campos [sic] gave me money to buy guns with Mike Romero” to purchase and

bring back to him. R. 330 at 172:2-4; Trial Ex. 32. The agent allowed Erik and

Romero to leave without arresting them in the hopes that they would cooperate and

help set up a sting operation to catch Campo. The agent instructed Erik to give

Campo an excuse as to why he could not purchase the firearms so they could
       1
         Because we discuss both Erik and his brother Kristian Comesana, we refer to Erik and
Kristian by their first names.
       2
         References to the record refer to the district court docket number followed by the page
and line numbers of the trial transcript.
                                                4
              Case: 14-15541     Date Filed: 11/01/2016    Page: 5 of 38


complete the sting operation at a later date, but when Campo called Erik and asked

about the purchase, Erik told him “something to the effect of, [t]he cops nabbed

me,” and Campo hung up the phone. R. 330 at 180:18–19. Although Erik called

the agent periodically over the next few weeks, the agent realized Erik was not

going to be forthcoming with information and would not cooperate.

      C. Erik’s arrest

      In March 2011, ATF agents arrested Erik on gun trafficking charges. Erik

was released on bond pending trial. As part of Erik’s conditions on release, Erik

had a curfew of 8 p.m. and had to wear an ankle bracelet so probation could

monitor his movements. Erik’s brother Kristian Comesana, who also worked for

Campo, called Campo to let him know that Erik had been arrested. Campo

“seemed kind of distraught,” R. 331 at 83:2, and told Kristian that he would cover

Erik’s legal fees. Campo wanted to see a copy of Erik’s arrest paperwork, which

Kristian provided to him. Campo became upset when he saw his name—

“Campos”—specifically mentioned in Erik’s criminal complaint. Trial Ex. 117 at

5 (stating, in the agent’s affidavit attached to Erik’s criminal complaint, that

“Romero said Comesana had provided him the money to buy the guns and that

Comesana intended to transfer the guns to a third person named ‘Campos’”).

Campo sent his employee Crisanto Diego Trejos-Ortiz with Erik to find an

attorney and provided $4,000, which covered a portion of the lawyer’s fee.

                                           5
              Case: 14-15541     Date Filed: 11/01/2016    Page: 6 of 38


      Even though Campo was willing to pay for Erik’s attorney, their relationship

changed after Erik was arrested and released pending trial—the two fought about

money, Campo would only talk to Erik through a temporary phone that Campo

provided to Kristian (a “burner phone”), and Campo became increasingly nervous

that Erik would reveal the firearm trafficking scheme to authorities. Campo told

Kristian to relay messages to Erik, including that Erik “better not snitch,” R. 331 at

87:9, and that “he [Campo] knows people from Colombia that would take care of

him [Erik],” R. 331 at 123:25–124:1. On one occasion, Campo called Kristian and

was “flipping out,” thinking that Erik would “snitch.” R. 331 at 200:18–19. Erik

spoke to Campo to calm him down and assure him that he would not reveal

Campo’s business. Erik also repeatedly asked Campo for the remaining money for

his attorney’s fees. At one point, he told Campo over Kristian’s burner phone:

      I’m going to jail for you. Like, I need this money. I am going to jail.
      I am doing time for you. They showed me a picture of you and I told
      them that I haven’t seen -- like, I haven’t seen you, I haven’t talked to
      you, like, I don’t know you.

R. 331 at 199:13–17. David Loaiza, one of Campo’s employees, heard Erik

“demanding that he needed $10,000 to pay the lawyer,” R. 333 at 73:21–22, and

Campo directing Trejos-Ortiz to tell Erik to “stop whining and bitching and

crying,” R. 333 at 73:24–25. Campo also said that “if he [Erik] snitches on me, he

better watch out because once I get out, if I have to do three to five years, I will do

it. And once I get out, he -- I am going to get him, he’s going to get his.” R. 333
                                           6
              Case: 14-15541    Date Filed: 11/01/2016   Page: 7 of 38


at 74:13–17. Julio Rodriguez, another of Campo’s employees, knew that Campo

was upset that his name was mentioned in Erik’s complaint. Campo explained to

Rodriguez that he had moved part of his firearms trafficking operations because

“Erik was trying to extortion [sic] him, asking for money to keep quiet and not to

snitch him to the authority.” R. 332 at 167:17–19. Campo then said, “I am going

to kill this guy. He want -- He not going to extortion [sic] me, I don’t want to pay

that kind of money he asking for [sic].” R. 332 at 168:3–5. Rodriguez suggested

Campo should handle the situation differently, but Campo did not respond.

      D. Events of May 27, 2011

      On May 27, 2011, there was a public notice on Erik’s criminal docket sheet

that Erik intended to change his plea at a hearing set for June 2011. That morning,

Campo and his employee Carlos Rios left their house together in Campo’s black

Range Rover. That afternoon, Campo told Kristian that he had the rest of Erik’s

money for the lawyer and that he wanted Erik to pick up the money at the 4283

warehouse. Per Campo’s instructions, Kristian relayed the message to Erik and

told Erik to wait at a bar around the corner from the warehouse. After receiving

word from Campo that he was at the warehouse, Kristian called Erik to tell him to

meet Campo at the warehouse. Erik responded, “All right.” R. 331 at 94:13.

      After half an hour to an hour, Kristian began to get worried that he had not

heard from Erik. Kristian called Erik’s phone and sent text messages, but Erik

                                          7
              Case: 14-15541     Date Filed: 11/01/2016   Page: 8 of 38


never responded. When Kristian called Campo, Campo said that he (Campo) had

been waiting at the warehouse but that Erik hadn’t arrived. Campo also directed

Kristian to tell Erik to “hurry up, because I am not going to be here all day.”

R. 331 at 96:12–13. When Erik still did not respond to Kristian’s calls and texts,

Kristian called Campo again, who sounded angry that Erik had not shown up but

directed Kristian to go to the garage at 340 NW 132nd Avenue to package some

firearm parts inside a sawhorse. Kristian drove to the garage but did not go inside,

waited until close to 8 p.m.—Erik’s curfew—and then went home. When he saw

that Erik was not yet home and learned that Erik’s girlfriend Genevieve

LaFontaine had also been trying unsuccessfully to contact Erik, Kristian retrieved

Erik’s pistol from the attic and brought LaFontaine and two friends to go to the

warehouse where Campo had been waiting for Erik. LaFontaine had a GPS

application on her phone that connected to Erik’s phone, and she was able to

identify that Erik’s phone was near the 4283 warehouse.

      After getting a key from the 4606 warehouse, Kristian went to the

warehouse at 4283 SW 75th Ave. Kristian opened the warehouse door, turned on

the lights, saw “a whole bunch of blood on the floor,” and immediately thought

that Campo had “killed my brother.” R. 331 at 102:10–12. Kristian panicked and

ran back to the car, leaving the warehouse door open and lights on, and told

LaFontaine to call the police. He attempted to drive away but went the wrong

                                          8
             Case: 14-15541     Date Filed: 11/01/2016   Page: 9 of 38


direction, turned around, and drove past the warehouse again. He saw what he

identified as Campo’s vehicle—the black Range Rover—pull up to the warehouse

and saw Rios get out of the passenger side. Kristian drove away and LaFontaine

called 9-1-1 at 9:03 p.m. Kristian told the 9-1-1 dispatcher that he had seen blood

in the warehouse and that his brother had been killed. Kristian continued: “Listen

to me. Listen to me, okay. I know who killed him. I know who killed him. His

name is Andres Campo.” R. 331 at 111:24–112:1. The dispatcher told them to

wait at a nearby Wendy’s. Kristian drove to the Wendy’s and waited but then

drove away when he saw what he thought was Campo’s vehicle pull into the

Wendy’s parking lot. Kristian saw that his burner phone was ringing, but he

“freaked out” and threw it out the window. R. 331 at 103:17. Still upset, Kristian

drove away and ended up behind a university. There, he spoke with police officers

and explained that he thought he had been followed by “the people that killed my

brother.” R. 331 at 115:24–116:2.

      Around the time Campo had sent Kristian to the garage to finish packing a

sawhorse, he told Rodriguez to come to the warehouse to pick up a box of parts to

take to the garage. When Rodriguez reported to the warehouse around 7:30 p.m.,

Trejos-Ortiz was at the warehouse door and would not let him enter. Rodriguez

saw Campo inside the warehouse wearing dishwashing gloves with a bottle that he

thought was bleach or another cleaner. Campo told him, “Don’t get in here, I’m

                                         9
                Case: 14-15541        Date Filed: 11/01/2016         Page: 10 of 38


doing some surgery.” R. 332 at 172:23. Rodriguez then believed that Campo had

“carried out the threat” he had made against Erik. R. 332 at 174:2–3. Later that

night around 11:30 p.m. or later, Loaiza met with Trejos-Ortiz in Sunny Isles.

Trejos-Ortiz had two white bags with him, one with two pistols inside. He directed

Loaiza where to drive so that he could dispose of the bags, other papers from his

apartment, and a GPS unit. Because Trejos-Ortiz and Loaiza had exchanged

vehicles that morning, Trejos-Ortiz then directed Loaiza to drive to the 4283

warehouse to pick up Loaiza’s vehicle. When they approached the warehouse,

they saw yellow tape around the warehouse and a lot of policemen in the area.

Trejos-Ortiz spoke to Campo on the phone and said, “I knew we shouldn’t -- we

shouldn’t have done it this way.” R. 333 at 86:16–17.

       After Kristian reported what he believed to be his brother’s murder to police

officers, officers entered the warehouse, saw a large amount of blood smeared on

the floor, and smelled a strong scent of bleach. They saw tables set up, equipment

related to firearms, plastic buckets, a mop, bottles of bleach, gloves, and a fast food

bag. After a more thorough search, officers also found, among other things,

bloody gloves, clothing that had what appeared to be bullet holes, a filet knife, a

machete, two spent casings, and two projectiles. 3 Around 10:18 p.m., firefighters

received a call regarding a fire in rural Miami-Dade County. After they

       3
          A round of ammunition is made up of four parts: (1) the casing; (2) the gun powder;
(3) the primer, an explosive material at the rear of the casing; and (4) the projectile, or bullet.
                                                  10
             Case: 14-15541     Date Filed: 11/01/2016   Page: 11 of 38


extinguished the large fire, the firefighters found Erik’s badly burned body tied

with an extension cord and wrapped in plastic. The autopsy revealed that Erik had

been shot twice and had a blunt force trauma to the back right side of his head.

      At 10:25 p.m., Campo, nervous and scared, called his mother Gloria Zapata.

He told her, “Mom, something bad has happened, something bad has happened and

I have to leave.” Trial Ex. 454 at 19:5–11. He did not explain what happened or

where he was going. Around 11 p.m., Campo and Rios returned to their home and

asked Sharon Mendoza, Campo’s girlfriend, to go on a trip with them that night to

Orlando. After they packed, they left in Mendoza’s red Mercedes, which Campo

had purchased for her. While they were driving, Campo threw out his cell phone

and otherwise limited the information he shared with Mendoza. See R. 332 at

130:22–131:4 (“Q. [D]id you ask Andres, hey, what’s going on? A. Uh-huh.

Q. What did Andres answer? A. That the least [sic] I knew was better. Q. Was it

what you said before, The less I knew, the longer I lived? A. It’s the same.”).

Campo, Rios, and Mendoza went to Orlando and then New York for some time

before returning to Florida.

      E. Campo talks about Erik’s murder

      By late 2011, Campo had returned to Florida, resumed his international

firearms trafficking operation, and hired a new employee, Jose Torres. In March

2012, he returned to Miami. One day while Campo, Rios, and Torres were driving,

                                         11
             Case: 14-15541     Date Filed: 11/01/2016   Page: 12 of 38


they saw a bush fire. Torres said, “That bush fire is pretty big.” R. 330 at 23:2.

Campo and Rios looked at each other and smirked, and Campo said “Erik’s fire

was bigger.” R. 330 at 23:3. At that point, Torres did not know who Erik was. On

more than five occasions, Campo recounted to Torres how and why he killed Erik.

Campo explained that Erik was a friend that had been “informing to the ATF.” R.

330 at 24:1. Campo’s plan had been to get Erik to the warehouse to kill him.

When Erik was at the warehouse, Campo received a call from his girlfriend and,

during the conversation, Erik said, “Instead of buying your girlfriend a Mercedes,

you should have given me the money to keep my mouth closed.” R. 330 at 25:7–9.

Campo then pulled out his gun and fired three to four times, but the gun jammed.

Some of the bullets hit Erik and he fell to the ground, and Rios then hit him twice

in the head with a monkey wrench. Campo felt that Erik was still alive, and so he

grabbed a filet knife and decapitated Erik. Campo and Rios also cut off Erik’s foot

with a machete to remove the GPS tracker he had while on house arrest. Campo

and Rios then wrapped up Erik’s body and went to Home Depot to pick up cement.

They had planned to wrap the body with cement to weigh it down and throw it in a

lake, but they had to alter their plan when Erik’s brother entered the warehouse and

saw Erik wrapped in plastic. The brother ran out, called the police, and then called

Campo and said, “I called the police on you, please don’t kill me, please don’t kill

me.” R. 330 at 26:18–19. Campo and Rios then loaded the victim into the back of

                                         12
               Case: 14-15541       Date Filed: 11/01/2016      Page: 13 of 38


a white pickup, drove to a grassy field, doused the body with gasoline, and set it on

fire. Campo picked up his girlfriend and fled with Rios to New York. On one

occasion when Campo told Torres this story outside of Rios’ presence, Campo said

that Rios picked up a shell casing without fingerprinting and threw it in the

garbage. Campo was concerned that might be evidence for them to get caught.4

       F. Arrest of Campo and Rios

       On July 26, 2012, ATF agents waited for Campo and Rios in the parking lot

of a Motel 6 in Cutler Bay in Miami-Dade County. They saw Campo walk to a

Nissan Altima and open the left-rear passenger door while Rios walked to the front

passenger seat. Officers arrested Campo and chased down and arrested Rios. As

Campo was arrested, he said, “You finally got me.” R. 333 at 178:12–13. In

searching the car, officers found a loaded Taurus revolver with a wooden handle

inside the vehicle, additional ammunition, several cell phones, a firearms textbook

and catalog, calling cards to Colombia, a list of Avianca Express locations, a list

reading “twenty-five 80 percent,” R. 330 at 123:6, and a note that said,

“Tomorrow, Home Depot, get three sawhorses,” R. 330 at 123:18. In the trunk,

officers found an AR-15 upper receiver.


       4
         Evidence at trial demonstrated that parts of Campo’s alleged confession to Torres were
false. The autopsy indicated that Erik’s head and foot were intact and Erik’s body did not have
any signs of deep cuts. Kristian’s testimony also conflicts with parts of Campo’s alleged
confession. Kristian testified that he saw only blood in the warehouse and did not see his
brother. He also testified that when he saw Campo was trying to call his burner phone, he threw
the phone out of the window rather than talking to Campo.
                                              13
             Case: 14-15541    Date Filed: 11/01/2016   Page: 14 of 38


                              II. Procedural History

      A federal grand jury indicted Campo on 12 counts. Counts 1–4 related to

the murder, Counts 5–9 and 11 related to the trafficking scheme, and Counts 10

and 12 related to Campo’s possession of firearms and ammunition as a fugitive. At

trial, the government elicited testimony from a number of Campo’s former

employees, including Kristian, Romero, Rodriguez, Loaiza, and Torres. Erik’s

girlfriend LaFontaine and Campo’s girlfriend Mendoza also testified, and the

government introduced sworn testimony from Campo’s mother Zapata. The

government also presented evidence regarding cell phone records, fingerprint

evidence, ballistics results, and DNA evidence. Campo cross-examined many

witnesses but did not present any evidence or call any witnesses.

      Campo moved for a judgment of acquittal under Federal Rule of Criminal

Procedure 29(a), which the district court denied. The jury convicted Campo on all

counts except for part of Count 3 that would have led to a higher mandatory

minimum sentence on that count. Campo moved for a new trial under Federal

Rule of Criminal Procedure 33 alleging ineffective assistance of counsel and

insufficient evidence on Counts 1–4 and Count 11. The district court denied that

motion, as well. The district court sentenced Campo to concurrent life sentences

on Counts 1, 2, and 4, a consecutive 120-month term on Count 3, a concurrent 60-

month term on Count 5, and concurrent 120-month terms on Counts 6–12. Campo

                                        14
               Case: 14-15541        Date Filed: 11/01/2016        Page: 15 of 38


now appeals, arguing that there was insufficient evidence on multiple counts, that

the district court erred in permitting “lay opinion” testimony from Kristian, and

that the district court violated his Fifth Amendment right against Double Jeopardy

when it sentenced him on both Counts 3 and 4. 5

                                         III. Discussion

       A. Insufficiency of the Evidence

       Campo contends that, because the evidence was insufficient for a reasonable

jury to convict him on counts 1–4 and count 11, the district court erred in denying

his motion for judgment of acquittal under Federal Rule of Criminal Procedure

29(a). “We review de novo whether there is sufficient evidence to support a jury’s

verdict in a criminal trial.” United States v. Doe, 661 F.3d at 560. In performing

this review, we view the evidence in the light most favorable to the government

and resolve all reasonable inferences and credibility determinations in favor of the

jury’s verdict. Id. Evidence is sufficient to support a conviction if a reasonable

jury could find that the evidence established guilt beyond a reasonable doubt.


       5
          Campo also argues on appeal that he received constitutionally deficient representation
during trial and, thus, the district court erred in denying his motion for a new trial. Although the
district court considered Campo’s ineffective assistance of counsel claim and denied it, we find
that the record is insufficiently developed on the claim and decline to review the claim at this
juncture. “The preferred means for deciding a claim of ineffective assistance of counsel is
through a 28 U.S.C. § 2255 motion ‘even if the record contains some indication of deficiencies
in counsel’s performance.’” United States v. Patterson, 595 F.3d 1324, 1328–29 (11th Cir.
2010) (quoting Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1694 (2003)). We
do not suggest that Campo’s counsel was ineffective, but Campo may raise his claim in a 28
U.S.C. § 2255 motion if he so chooses and timely files it.
                                                 15
             Case: 14-15541    Date Filed: 11/01/2016   Page: 16 of 38


United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009). We will not vacate a

conviction on sufficiency of the evidence grounds when a defendant does nothing

more than “put forth a reasonable hypothesis of innocence,” because “the issue is

not whether a jury reasonably could have acquitted but whether it reasonably could

have found guilt beyond a reasonable doubt.” Id. at 840–41 (citation and internal

quotation marks omitted).

      1. Counts 1–4

      Campo challenges the sufficiency of the evidence for Counts 1–4 relating to

Erik’s murder. Count 1was a conspiracy count that alleged Campo, in violation of

18 U.S.C. § 1512(a)(1)(C) and § 1512(k), conspired with Rios and other persons to

kill Erik with the intent to prevent Erik from communicating with a law

enforcement officer regarding the commission of a federal offense, and that the

killing was first degree murder. Count 2 was the substantive count that Campo

murdered Erik to prevent him from communicating with a law enforcement officer

regarding a federal offense in violation of 18 U.S.C. § 1512(a)(1)(C). Counts 3

and 4 charged Campo with knowingly carrying and using a firearm during and in

relation to a crime of violence. Count 3 alleged that the firearm was discharged in

violation of 18 U.S.C. § 924(c)(1)(A)(iii), and Count 4 charged that Campo’s use

of a firearm resulted in death, in violation of 18 U.S.C. § 924(j). We have

thoroughly reviewed the record and conclude that, despite Campo’s best attempts

                                         16
             Case: 14-15541    Date Filed: 11/01/2016    Page: 17 of 38


to cast doubt on the evidence, the evidence against him was overwhelming and the

jury reasonably found Campo guilty on all four counts beyond a reasonable doubt.

      First, there is sufficient evidence to support the jury’s verdict that Campo

conspired with at least one other person to kill Erik. “To support a conspiracy

conviction, the government must prove (1) an agreement between the defendant

and one or more persons, (2) the object of which is to do either an unlawful act or a

lawful act by unlawful means.” United States v. Smith, 289 F.3d 696, 706 (11th

Cir. 2002) (citation and internal quotation marks omitted). To prove participation

in a conspiracy, the government must prove beyond a reasonable doubt, even if

only by circumstantial evidence, that a conspiracy existed and that the defendant

knowingly and voluntarily joined the conspiracy. United States v. Charles, 313

F.3d 1278, 1284 (11th Cir. 2002). “[B]ecause the crime of conspiracy is

predominantly mental in composition, it is frequently necessary to resort to

circumstantial evidence to prove its elements.” United States v. Pineiro, 389 F.3d

1359, 1369 (11th Cir.2004) (citation and internal quotation marks omitted).

      Count 1 alleged that Campo conspired specifically with Rios to kill Erik.

Some of the evidence to support the jury’s finding on this count is as follows:

Mendoza, Campo’s girlfriend who lived with Campo and Rios, testified that

Campo and Rios left together on the morning of May 27, 2011, in Campo’s black

Range Rover. Physical evidence shows that Campo and Rios were together at the

                                         17
             Case: 14-15541    Date Filed: 11/01/2016   Page: 18 of 38


warehouse a few hours before Erik was killed there—officers found a Checkers

fast food bag in the warehouse along with a receipt dated 5/27/11 at 4:45 p.m.

DNA from a napkin inside the bag matched Rios’ DNA profile, and a piece of

bread matched Campo’s DNA profile. Torres testified that when he pointed out a

brush fire, both Campo and Torres smirked before Campo said, “Erik’s fire was

bigger.” Campo also told Torres that Rios hit Erik twice in the back of the head

with a monkey wrench, which was consistent with the medical examiner’s finding

that Erik had a blunt force trauma on the back right of his head. And after Kristian

saw the blood in the warehouse, he saw Campo’s black Range Rover arrive at the

warehouse and saw Rios get out of the passenger side. Although the government

did not call Rios, the jury could rely on circumstantial evidence to find that Campo

and Rios conspired together.

      Other evidence would support a finding that Campo conspired with other

“known and unknown persons,” such as with Trejos-Ortiz. Trejos-Ortiz was with

Campo when Campo read Erik’s criminal complaint, accompanied Erik to speak

with an attorney so that he could keep Campo apprised of the case, communicated

Campo’s threats against Erik over the phone, and was present when Campo told

Rodriguez that he planned to kill Erik. Trejos-Ortiz also participated in covering

up part of the crime by keeping Rodriguez out of the warehouse when Campo was

inside “doing some surgery”—that is, cleaning up Erik’s blood—and disposing of

                                         18
               Case: 14-15541       Date Filed: 11/01/2016      Page: 19 of 38


what a jury could infer was evidence of the crime, including two pistols.

Rodriguez further heard Trejos-Ortiz tell Campo over the phone, “I knew we

shouldn’t -- we shouldn’t have done it this way,” which a jury could likewise infer

was Trejos-Ortiz’s admission to participating in the conspiracy to kill Erik and

helping to conceal the evidence.6 A reasonable jury had more than sufficient

evidence by which it could find Campo guilty beyond a reasonable doubt of

conspiring with at least one other person to kill Erik.

       Next, there is overwhelming evidence that Campo intended to kill Erik to

prevent Erik from communicating with law enforcement about Campo’s firearm

trafficking scheme. Kristian and Rodriguez testified that Campo was upset that his

name was mentioned in Erik’s complaint. Kristian, Rodriguez, and Loaiza heard

Campo either directly or indirectly warn Erik not to “snitch” and that there would

be consequences if he did. Campo warned that people from Colombia “would take

care of” Erik, which Kristian understood to be a threat against Erik’s life. Loaiza

heard Campo say that Erik “better watch out because once I [Campo] get out, if I

have to do three to five years, I will do it. And once I get out, he -- I am going to

get him, he’s going to get his.” And Campo told Rodriguez directly that he would

       6
         This is not to say the evidence establishes that Trejos-Ortiz killed Erik. Despite
Campo’s best efforts to pin the murder on Trejos-Ortiz, the evidence points more convincingly to
Campo as the murderer, consistent with the jury’s verdict. Cell phone records for a phone the
government connected to Trejos-Ortiz show that he was in the area of his residence from 5:56
p.m. until 7:00 p.m. Cell phone records also are consistent with Rodriguez’s testimony that
Trejos-Ortiz arrived at the warehouse roughly the same time as Rodriguez around 7:30 p.m.,
when Rodriguez saw Campo cleaning up Erik’s blood.
                                              19
             Case: 14-15541    Date Filed: 11/01/2016    Page: 20 of 38


kill Erik for threatening to extort him. Perhaps most damning is Torres’ testimony.

Although Torres never met Erik and had no reason to know details of his death,

Campo repeatedly retold Torres the story of how he killed Erik, a friend “that was

informing to the ATF.” Campo said “his plan was to get Erik to the warehouse to

kill him” and embellished the story of how he succeeded.

      Campo attempts to undermine these witnesses’ testimonies, but credibility

determinations belong to the jury and all reasonable inferences and credibility

choices must be made in favor of the government and the jury’s verdict. United

States v. Massey, 89 F.3d 1433, 1438 (11th Cir. 1996). For example, Campo

asserts that Torres was unbelievable because some of the details Torres described

of Erik’s murder were demonstrably false, such as that Campo decapitated Erik or

cut off his foot with a machete. Campo is correct that the autopsy showed Erik’s

head and foot intact and did not reveal any deep lacerations, but these

inconsistencies do not demonstrate that Torres had to be lying. A reasonable jury

could believe that, when Campo told Torres about how he murdered Erik, he

provided mostly accurate details but exaggerated some to sound even more ruthless

and emphasize to this new member of his firearm trafficking business the

consequences of betraying him. Campo also attacks Torres’ credibility because

Torres is a convicted felon who admitted that he cooperated with the hope of

reducing his sentence. He likewise suggests that other witnesses fabricated stories

                                         20
              Case: 14-15541      Date Filed: 11/01/2016    Page: 21 of 38


to receive the benefit of cooperating with the government, including Kristian, who

was never charged with a crime, and Loaiza, who had already received a sentence

reduction. But Campo’s credibility attacks fall short. Although these witnesses

had lied and committed crimes in the past, the jury could reasonably believe that

they were telling the truth at trial, even if their motivation to tell the truth was self-

serving.

      Campo also contends there was insufficient evidence that Erik intended to

communicate with law enforcement officers, but he’s mistaken as to the relevant

inquiry. It doesn’t matter if Erik was actually planning to communicate with law

enforcement; what matters is that Campo believed Erik was planning to do so or

would be forced to do so. Erik’s attorney at the time he was murdered testified

that, while Erik had decided to plead guilty, he had not yet agreed to cooperate

with the government. Campo, however, may not have known that. Campo could

have feared that Erik would be forced to provide details of the firearm trafficking

scheme when he pleaded guilty or spoke to probation regarding his sentence. And

plenty of evidence suggests that Campo was scared that Erik was going to “snitch,”

even when Erik tried to tell Campo otherwise.

      Finally on this point, Campo argues that there was insufficient evidence that

he killed Erik to prevent him from snitching because there was no evidence that he

sought to harm other witnesses who cooperated with the government and testified

                                            21
             Case: 14-15541      Date Filed: 11/01/2016    Page: 22 of 38


against him at trial. Perhaps most pertinent is that Campo never threatened

Romero, who was also arrested and charged with Erik. But Romero’s testimony

revealed that he was not intimately involved in Campo’s organization like Erik

was. Erik recruited Romero to help purchase firearms and told Romero that he was

purchasing the firearms for a friend who was selling them at gun shows. Romero

did not know the true details of Campo’s operation and only knew Campo’s name

because he overheard Erik talking on the phone about “Campos.” R. 330 at

209:22–24. Romero simply did not present the same threat to Campo’s business

that Erik did if he “snitched.” While Campo did not directly threaten most

witnesses, Torres testified that he was scared to tell police the full details of what

he knew when he was initially arrested because Campo was “still on the streets” at

that time, and it wasn’t until Campo was arrested that he felt he could disclose

more details against Campo. R. 330 at 46:11–16. The fact that Campo didn’t

threaten other witnesses who testified against him about the firearm trafficking

scheme ultimately does not prove that he didn’t threaten and kill Erik.

      To the extent Campo challenges the evidence that he participated in

murdering Erik, we again emphasize the overwhelming evidence against him.

Campo threatened Erik through proxies and bragged about killing him almost a

year after the fact. Numerous witnesses’ testimonies and the government’s




                                           22
             Case: 14-15541    Date Filed: 11/01/2016   Page: 23 of 38


exhibits corroborate each other and support the jury’s finding that, beyond a

reasonable doubt, Campo murdered Erik.

      First, the cell phone records corroborate a number of witnesses’ testimonies.

The cell phone records show incoming and outgoing calls, call duration, and which

cell phone tower the phone was connected to when the call was initiated and

terminated. Networks connected the phones to the closest towers with an

unobstructed signal with ranges that varied from a half mile in heavily populated

areas to ten miles in more rural areas. For instance, Erik’s phone network had a

range of about two miles within the more heavily populated areas of Miami,

meaning that his phone could be anywhere within a couple feet to two miles away

from the tower it used. The phone number that the government tied to Campo used

a network that connected to towers within a half-mile radius. While the records

cannot place a cell phone more precisely within that range, the government’s

witnesses were able to identify key locations within those ranges consistent with a

phone using a particular tower. For example, Campo’s phone was often using the

north side of a tower at 4338 SW 74th Avenue, which was to the south of the

warehouse at 4283 SW 75th Avenue and within the half mile range for that

network’s tower. Although witnesses could not say Campo’s phone was certainly

at the warehouse, a jury would certainly be justified in drawing that conclusion.

For ease of explanation, we will state that cell phone records place certain phones

                                         23
               Case: 14-15541       Date Filed: 11/01/2016       Page: 24 of 38


in the area of significant locations. On the afternoon of May 27, cell phone records

place Campo’s phone in the area of the 4283 warehouse from 4:09 p.m. to

4:45 p.m. The phone used other towers from 4:50 p.m. until 5:47 p.m., but then

was again using the tower near the warehouse at 6:09 p.m. Kristian testified that

he told Erik to wait at a bar near the warehouse until Campo was ready to meet him

at the warehouse, and records place Erik’s cell phone in the area of La Curva, the

restaurant at 4201 SW 75th Avenue, near the 4283 warehouse, from 5:06 p.m. until

6:04 p.m. An officer also testified that, based on surveillance video from La

Curva, Erik came into the restaurant at approximately 5:22 p.m., consumed a few

beers, used his cell phone, and left at 6:11 p.m. 7 Cell phone records show that Erik

answered a call at 6:03 p.m. from a number the government tied to Kristian’s

burner phone. The call lasted for 28 seconds, consistent with Kristian’s testimony

that the final time he spoke to his brother was to tell him Campo was at the

warehouse waiting for him, and Erik responded, “All right.” According to the

story Campo told Torres almost a year later, Erik arrived at the warehouse and,

while the two were talking, Campo’s girlfriend Mendoza called. Erik then

remarked that, “[i]nstead of buying your girlfriend a Mercedes, you should have


       7
          At the time the officer viewed the video, the time stamp on the video was off by an hour
and five minutes. The officer adjusted the time to conclude Erik entered the restaurant at 5:22
p.m. and left at 6:11 p.m. The video was also not available because, by the time officers returned
to the restaurant to record a copy of the video, the surveillance video had already recorded over
itself. We provide details from the officer’s testimony regarding the video to emphasize several
sources corroborate that Erik went to the restaurant in the early evening of May 27.
                                               24
             Case: 14-15541    Date Filed: 11/01/2016   Page: 25 of 38


given me the money to keep my mouth closed,” and then Campo shot Erik. Cell

phone records confirm that a phone attributed to Mendoza called Campo at

6:12 p.m., connecting for 1 minute, 10 seconds, and again called at 6:29 p.m.,

connecting for 1 minute and 16 seconds. Campo called Mendoza back at

6:55 p.m., still using a tower consistent with Campo being at the warehouse.

      Kristian testified that when he arrived at the warehouse, he unlocked the

door, turned on the lights, panicked when he saw blood on the floor, and drove

away, only to return shortly later to see Campo’s black Range Rover pull up to the

warehouse and Rios jump out of the passenger side. LaFontaine called 9-1-1 at

9:03 p.m. and reported that they believed the people who had killed Erik were

around because they had seen Rios get out of Campo’s vehicle. Cell phone records

show that Campo’s phone used towers southwest of the warehouse starting at

8:36 p.m., but then used the tower near the warehouse again at 9:10 p.m.,

consistent with Campo pulling up to the warehouse at a time when Kristian was

frantically trying to leave the area. Cell phone records also show Campo’s phone

using a different side of the tower near the warehouse at 9:20 p.m. and moving to

the southwest, and then using a tower at 9:52 p.m. that is consistent with where

firefighters located Erik’s body. Consistent with Zapata’s testimony that Campo

called her late at night and told her, “Mom, something bad has happened,

something bad has happened and I have to leave,” records show that Campo’s

                                         25
                Case: 14-15541        Date Filed: 11/01/2016        Page: 26 of 38


phone connected with Zapata at 10:25 p.m. for 2 minutes and 33 seconds.

Mendoza testified that when she saw Campo later that night, “around 10:30,

something like that,” he asked her to go on a trip that night to Orlando. Cell phone

records show that Campo’s phone had traveled back toward their residence by

10:53 p.m.

        Autopsy and DNA evidence also convincingly incriminates Campo together

with Rios as Erik’s killers. When officers searched the 4283 warehouse, they

found, among other items, an orange bucket that contained a machete, a spent

casing, and four gloves, three turned inside out. DNA evidence from the exterior

of all four gloves matched Erik’s DNA to a reasonable degree of scientific

certainty. 8 The interior of one pair of gloves had a mixture of DNA profiles, with a

major component matching Campo’s DNA profile to a reasonable degree of

scientific certainty. The interior of the other pair also had a mixture of DNA

profiles, with a major component matching Rios’ DNA profile to a reasonable

degree of scientific certainty. Although Campo did not cut off Erik’s foot to

remove the GPS tracker, it is possible that he used the machete to cut off the

tracker itself as the DNA profile from a stain on the machete matched Erik’s DNA

profile to a reasonable degree of scientific certainty. Inside a garbage can in the


       8
           The minimum statistic for finding that a DNA profile matches a person’s DNA sample
to a reasonable degree of scientific certainty is that, in the absence of an identical twin, the match
is rarer than 1 in 300 billion.
                                                 26
             Case: 14-15541     Date Filed: 11/01/2016    Page: 27 of 38


warehouse, officers found blood-stained clothing that matched LaFontaine’s

description of Erik’s clothing the day he was killed—a black t-shirt, black shorts,

and brown sandals. The black t-shirt had what appeared to an officer to be two

bullet holes near the sleeve of the shirt and another possible bullet hole on the other

side of the shirt. Erik’s DNA matched the DNA profile found on the shirt.

      Campo challenges the probative value of these DNA matches. For example,

he elicited testimony on cross-examination that the gloves that were inside out

were inside a bucket with fresh blood in the bottom and that they were transferred

to the lab in one bag, suggesting that DNA could have transferred among the items

or from other items in the bucket. Further, the DNA analyst admitted that it is

possible that someone else could have used the gloves without leaving DNA on

them. Campo’s challenges were an attempt to cast doubt on the DNA evidence,

but taking all inferences in favor of the jury’s verdicts shows that the DNA

evidence connecting Campo and Rios to these gloves with Erik’s blood on them

was reliable. Even though three of the gloves were turned inside out, there were no

blood stains on the inside of the gloves where the DNA analyst found matches for

Campo’s and Rios’ DNA, indicating that the gloves were not likely contaminated

by the fresh blood in the bucket. As the government convincingly argued in

closing statements, “Andres Campo literally had Erik Comesana’s blood on his

hands.” R. 335 at 91:9–10.

                                          27
             Case: 14-15541     Date Filed: 11/01/2016   Page: 28 of 38


       Finally, there is sufficient evidence that Campo discharged a firearm

resulting in Erik’s death. The autopsy revealed that Erik was shot twice and that

was the most likely cause of his death. According to the story Campo told Torres,

he shot his gun multiple times and, although the gun jammed, some of the shots hit

Erik. Officers recovered two spent casings and two projectiles from the

warehouse. The ballistics examiner testified that the casings were Remington 9

mm Luger casings. The marks indicated that a firearm with an elliptical firing pin

shot both casings, which narrowed the potential firearms to either a Glock or a

Smith & Wesson pistol. The projectiles were also 9 mm projectiles and the

markings revealed that the firearm that shot the projectiles had six lands and

grooves cut into the barrel with a left-hand twist. Two possible weapons that could

have fired the projectiles include a Colt AMT or a Glock pistol with an aftermarket

barrel—that is, a barrel purchased separately to replace the original barrel. The

ballistics examiner compared the casings and projectiles to various firearms

recovered during the course of the investigation, including two Smith & Wesson

pistols Trejos-Ortiz had given to his neighbor for safekeeping, the pistol Kristian

brought with him to look for his brother, and Rodriguez’s Sig Sauer firearm. The

examiner concluded that none of those firearms fired the casings and projectiles.

Both Rodriguez and Loaiza testified that Campo carried a Glock pistol with an

aftermarket barrel. Rodriguez testified that Campo carried two guns, a revolver

                                         28
             Case: 14-15541     Date Filed: 11/01/2016    Page: 29 of 38


with a wooden handle and a Glock, either a 26 or 27 model, and that Campo had

ordered some threaded barrels for the Glock pistol. Loaiza testified that Campo

carried a 9 mm Glock 17 and that Rios carried a baby Glock pistol, potentially a

.22 caliber, and that both had a modified barrel on their pistols. Other evidence

also suggested that Campo changed out barrels on his Glock pistol. When officers

searched the garage associated with Campo’s firearm trafficking scheme, they

found a .40-caliber Glock 27 slide and a Lone Wolf 9 mm barrel with a threaded

end cap and threaded barrel. The Lone Wolf barrel can be placed on a Glock .40-

caliber frame that, with a 9 mm firearm magazine, creates an operable firearm that

uses 9 mm ammunition. Campo argues that the government could not prove that

the casings and projectiles had anything to do with Erik’s death because there was

no visible blood or body tissue on the projectiles. But Kristian testified that the

warehouse was never used for target practice. Further, Campo told Torres that he

was concerned about a spent casing that Rios placed in the trash that would be

evidence against him, and officers in fact found one of the spent casings in the

orange bucket that contained the used, bloody gloves. A reasonable jury could

conclude the casings and projectiles were connected to Erik’s death.

      All in all, there is sufficient evidence for the jury to find, beyond a

reasonable doubt, that Campo conspired with at least one other person to kill Erik;

that he killed Erik to prevent Erik from communicating with law enforcement

                                          29
             Case: 14-15541    Date Filed: 11/01/2016   Page: 30 of 38


officers regarding Campo’s firearm trafficking scheme; and that Campo carried,

used, and discharged a firearm, thereby causing Erik’s death.

      2. Count 11

      Regarding the firearm trafficking offenses, Campo challenges only the

charges in Count 11, which allege that on July 26, 2012—the date Campo was

arrested—he knowingly received, concealed, bought, and facilitated the

transportation and concealment of an AR-15 upper receiver, prior to exportation,

knowing that it was intended for exportation, in violation of 18 U.S.C. § 554.

Campo contends there is insufficient evidence that he intended to export the AR-15

upper receiver.

      When police arrested Campo, they saw him approach and enter a Nissan

Altima. After searching the car, they found the AR-15 upper receiver in the trunk.

In the main part of the car, they found several documents including an Avianca

Express document with different office locations highlighted, a list reading

“twenty-five 80 percent,” which is an unfinished firearm that goes along with

many rifles including AR-15s, and a note that said “Tomorrow, Home Depot, get

three sawhorses.” R. 330 at 123:6–24. They also found a Taurus revolver with a

wooden handle.

      Sufficient evidence indicates that Campo intended to export the AR-15

upper receiver. Torres testified that in 2012, the firearm that Campo carried and

                                         30
             Case: 14-15541      Date Filed: 11/01/2016    Page: 31 of 38


used was a .38 revolver with a wooden grip, not an AR-15 rifle. Campo’s

trafficking operation often used Avianca Express to ship parts to Colombia, and

they used sawhorses to conceal AR-15 lower receivers. Torres also testified as to

how he would break apart an AR-15 upper receiver and hide its pieces within lawn

chairs, barbecue grills, and file holders to conceal the firearm part from customs.

The jury reasonably concluded that Campo intended to export the AR-15 upper

receiver that police found when they arrested him.

      B. Lay Opinion Evidence

      Campo contends that the district court plainly erred when it permitted

Kristian to offer his “lay opinion” that, in the aftermath of seeing blood in the

warehouse, he thought Campo had killed his brother. Federal Rule of Evidence

701 provides that a lay witness’s “testimony in the form of an opinion” must be

“rationally based on the witness’s perception,” “helpful to clearly understanding

the witness’s testimony or to determining a fact in issue,” and “not based on

scientific, technical, or other specialized knowledge within the scope of Rule 702.”

Fed. R. Evid. 701. Because Campo acknowledges that he did not object to

Kristian’s testimony at trial, he argues that the district court plainly erred by

admitting it. When “a defendant fails to preserve an evidentiary ruling by

contemporaneously objecting, our review is only for plain error.” United States v.

Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). Under the plain error standard,

                                           31
              Case: 14-15541     Date Filed: 11/01/2016    Page: 32 of 38


Campo must show that: (1) an error occurred; (2) the error was plain; and (3) it

affected his substantial rights. Id. at 1276. If Campo shows all three conditions,

we may exercise our “discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (citation and internal quotation marks omitted).

      Campo challenges Kristian’s testimony explaining the 9-1-1 recordings:

      Q.     And when you were communicating “It’s in a warehouse. It’s in
      a warehouse,” what did you mean it was in a warehouse?
      A.     It was in the warehouse where I sent my brother.
      Q.     And the address that you all are providing to the police when
      you’re in that [panicked] state, what address is that?
      A.     4283 Southwest.
      Q.     And is that the address where it happened?
      A.     Yeah.
      Q.     When you are saying, “They killed my fucking brother,” who is
      the “they” that you are referring to?
      A.     Andres.
      ...
      Q.     And you [then say]: “Listen to me. Listen to me, okay. I know
      who killed him. I know who killed him. His name is Andres
      Campo.” Why were you giving the police Andres Campo’s name at
      the time?
      A.     Because he was the one who told my brother to go over there
      and that’s -- I assumed that he was the one who did it. There was all
      his blood on the floor, it had to have been him.
      Q.     And had Andres ever told you that he had left the warehouse
      when you called?
      A.     No.

R. 331 at 110:11–22, 111:24–112:8. Campo also challenges Kristian’s testimony

when he described speaking with a police officer to report what he had seen:

      Q.     When you told [the police officer] the situation, what was your state?
                                           32
             Case: 14-15541     Date Filed: 11/01/2016   Page: 33 of 38


      A.   That I thought we were being followed by the people that killed
      my brother.
      Q.   Who did you think had killed your brother?
      A.   Andres.

R. 331 at 115:23–116:2.

      Campo contends that, because Kristian did not witness Erik’s murder, his

opinion about who killed his brother cannot be based on his own perception and is

speculation based on a hunch. Campo relies primarily on United States v.

Marshall, 173 F.3d 1312 (11th Cir. 1999), in which the Eleventh Circuit vacated a

conviction after the district court improperly admitted lay opinion evidence. In

that case, a DEA agent who had supervised the investigation stated during cross-

examination that his informant had at least three separate sources of cocaine. Id. at

1315. On redirect examination, the government asked, “Do you believe that [the

informant] acquired the crack cocaine that was recovered on the [dates in question]

from another source?” to which the agent answered “No, sir, I believe it came from

[the defendants].” Id. at 1315 & n.5. Because the agent was not present at the

meetings between the informant and the defendants and had no personal

knowledge regarding the origin of the cocaine the informant gave him, the

admission of the testimony was improper under Rule 701. Id. at 1315. Notably,

the Eleventh Circuit reviewed for abuse of discretion rather than plain error

because the defendant objected to the testimony before the district court.



                                         33
             Case: 14-15541     Date Filed: 11/01/2016    Page: 34 of 38


      The government argues that Kristian’s statements did not constitute opinion

testimony subject to Rule 701, but rather show Kristian’s state of mind in the

immediate aftermath of seeing blood in the warehouse. The government contends

that a witness’s testimony “about the contents of his mind at a prior point in time”

is not opinion testimony of the kind that Rule 701 addresses, “even if expressed to

the jury as a statement of opinion or belief.” Brief for the United States at 36

(emphasis added) (citing, e.g., United States v. Morton, 391 F.3d 274, 277 (D.C.

Cir. 2004) (“A witness’s testimony about his own state of mind is not opinion

testimony.”)).

      We do not have to decide whether Kristian’s previous “state of mind” as to

who killed his brother is something other than opinion testimony subject to Rule

701’s limitations because, even if it is opinion evidence, the district court did not

plainly err in admitting the testimony. As the government argues, had Campo

objected to the testimony at trial, it could have laid a foundation that Kristian’s

opinion about who killed his brother was “rationally based on [his] perception” and

helpful to understanding Kristian’s testimony. Fed. R. Evid. 701; see Morton, 391

F.3d at 277 (noting that the defendant’s failure to object to an officer’s testimony

“deprived the Government of any opportunity to lay a proper foundation”). To that

end, although Kristian did not see the killing, he witnessed events that led to his

opinion and also testified to those events, including Campo’s threats against Erik,

                                          34
             Case: 14-15541      Date Filed: 11/01/2016    Page: 35 of 38


Campo’s request that Erik meet him at the warehouse that evening, Campo’s

admission that he was at the warehouse, and that Campo’s vehicle was at the

warehouse right after Kristian found blood inside the warehouse. And even though

Kristian’s “opinion” about who killed his brother addresses an ultimate issue in the

case, that alone does not make the testimony objectionable. See Fed. R. Evid.

704(a) (“An opinion is not objectionable just because it embraces an ultimate

issue.”); Carter v. DecisionOne Corp., 122 F.3d 997, 1004 (11th Cir. 1997)

(stating that lay opinions regarding the “ultimate issue” in a case “are properly

admitted if they are based on the personal observations of the witness”). Finally,

even if the district court erred in admitting Kristian’s lay opinion testimony,

Campo has not met his burden to show that the error affected his substantial rights.

See Turner, 474 F.3d at 1278 (noting that the defendant must bear the burden

under the third prong of the plain-error analysis to show that the error “affected the

outcome” of the trial, that is, that the error “made a difference in the jury’s

verdict”). As we discussed in relation to the sufficiency of the evidence, the

evidence against Campo was overwhelming even without Kristian’s “opinion” that

Campo killed Erik. Any purported error here does not warrant a new trial because

Campo cannot show that correcting the error would have affected the jury’s

verdict.




                                           35
              Case: 14-15541     Date Filed: 11/01/2016     Page: 36 of 38


      C. Double Jeopardy

      Campo argues the district court violated the Double Jeopardy Clause of the

Fifth Amendment when it sentenced him to consecutive sentences for Counts 3 and

4 because, in his view, Count 3 is a lesser included offense of Count 4. We usually

review claims of double jeopardy de novo, but when, as here, the issue was not

properly raised before the district court, we review for plain error. United States v.

Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009); Fed. R. Crim. P. 52(b). “It is the law

of this circuit that, at least where the explicit language of a statute or rule does not

specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

      In Count 3, Campo was charged with violating 18 U.S.C. § 924(c)(1)(A)(iii),

which provides that “any person who, during and in relation to any crime of

violence . . . uses or carries a firearm, or who, in furtherance of any such crime,

possesses a firearm, shall . . . be sentenced to a term of imprisonment of not less

than 10 years” if the firearm is discharged. Count 4 charged a violation of

§ 924(j), which provides that “[a] person who, in the course of a violation of

subsection (c), causes the death of a person through the use of a firearm, shall . . .

be punished by death or by imprisonment for any term of years or for life” when

the killing is a murder. Campo strongly argued on appeal that Count 3 is a lesser

                                           36
             Case: 14-15541     Date Filed: 11/01/2016    Page: 37 of 38


included offense of Count 4 and that Congress did not authorize cumulative

punishments for these offenses. But he cannot show precedent from the Supreme

Court or this Court that directly resolves the issue in his favor. On the contrary,

any error here cannot be plain because, as Campo admits, the Eleventh Circuit “has

suggested a different result.” Appellant’s Br. at 48. In United States v. Julian, 633

F.3d 1250 (11th Cir. 2011), the issue was whether § 924(c)(1)(D)’s prohibition on

concurrent imprisonment terms applied to a conviction under § 924(j). 633 F.3d at

1252; see 18 U.S.C. § 924(c)(1)(D)(ii) (“[N]o term of imprisonment imposed on a

person under this subsection shall run concurrently with any other term of

imprisonment imposed on the person, including any term of imprisonment imposed

for the crime of violence . . . during which the firearm was used, carried, or

possessed.”). As part of the government’s argument that § 924(j) established a

sentencing factor applicable to a conviction under § 924(c) rather than creating a

separate offense from § 924(c), the government argued that sentencing under both

§ 924(c) and § 924(j) would violate the Double Jeopardy Clause. Id. at 1256. The

panel was unpersuaded. It noted that “‘[i]f the statutes under which the defendant

was sentenced specifically authorize cumulative punishments for the same offense,

a court may impose cumulative punishment without running afoul of the Double

Jeopardy Clause.’” Id. (quoting United States v. Kaiser, 893 F.2d 1300, 1304

(11th Cir. 1990)). Further, the panel stated that “it is irrelevant for Double

                                          37
             Case: 14-15541     Date Filed: 11/01/2016   Page: 38 of 38


Jeopardy purposes that proof of a violation of section 924(j) always proves a

violation of § 924(c).” Id. at 1257 (citation and internal quotation marks omitted).

Rather than showing the district court plainly erred, these statements in Julian

suggest the opposite is true. We conclude the district court did not plainly err and

affirm its imposition of separate sentences for Counts 3 and 4.

                                  IV. Conclusion

      In light of the foregoing, we affirm Campo’s convictions and sentences.

Because we decline to review Campo’s ineffective assistance of counsel claim on

direct appeal, Campo may raise it in a subsequent 28 U.S.C. § 2255 motion if he

chooses and timely files it.

      AFFIRMED.




                                         38
