In United States v. Gbenedio, No. 22-12044 (Mar. 6, 2024) (CJ Pryor, Rosenbaum, Abudu), the Court affirmed Mr. Gbenedio’s convictions and sentence for unlawful drug dispensing. The charges were based on allegations that Mr. Gbenedio, a licensed pharmacists, had operated his business as a “pill mill.” The Court addressed six issues:

First, the district court did not abuse its discretion in denying Mr. Gbenedio’s motion to dismiss. Mr. Gbenedio conceded that the indictment alleged facts about him and his pharmacy, the Controlled Substances Act, and all of the fake prescriptions that Mr. Gbenedio allegedly filled. The prosecution had no obligation to explain its legal theory as to why the prescriptions were invalid, or to provide a detailed disclosure of its evidence before the trial. And in any event, Mr. Gbenedio had learned the prosecution’s theory, including the details in a bill of particulars, as recent as one year before trial.

Second, the district court did not abuse its discretion in admitting a DEA agent’s testimony about convictions of employees from a pain clinic that was associated with Mr. Gbenedio’s pharmacy, including testimony that law enforcement learned of the pharmacy while investigating the clinic. The Court rejected argument that the testimony was offered as substantive evidence of Mr. Gbenedio’s guilt. Instead, it determined, the testimony was offered in response to questions about why law enforcement investigated Mr. Gbenedio and what the investigation uncovered. Also, the testimony caused no prejudice under Rule 403, because Mr. Gbenedio’s own counsel first presented similar testimony.

Third, the district court did not abuse its discretion in allowing lay-witness agents to testify that Mr. Gbenedio had the requisite intent, in violation of the rule prohibiting expert witnesses from opining about a defendant’s mental state. On the one hand, the testimony was based on the agents’ experiences as investigators. On the other hand, the testimony was not based on scientific, technical, or other specialize knowledge. And unlike other cases, none of the agents were described to the jury as an expert.

Fourth, the district court did not abuse its discretion in preventing Mr. Gbenedio from using an officer’s testimony to impeach a government witness’s testimony. Because the officer would have confirmed a fact that the witness had already admitted, there was nothing for the officer to contradict under Rule 608(b). Further, the officer’s and the witness’s testimonies would have been cumulative under Rule 403.

Fifth, for these reasons, there was no error—much less a cumulative one.

Sixth, the district court did not clearly err by imposing a $200,000 fine. Mr. Gbenedio’s failure to cooperate with probation’s requests for financial information permitted an inference that Mr. Gbenedio had the ability to pay a fine but was concealing assets. Mr. Gbenedio did not object to parts of the presentence investigation report where probation indication that he failed to establish his inability to pay a fine. Mr. Gbenedio’s argument that his attorney was responsible for providing requested information might have supported an ineffective-assistance-of-counsel claim. But Mr. Gbenedio failed to identify competent evidence of the attorney’s deficient performance.

*202212044.pdf (