[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12044

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS UKOSHOVBERA A. GBENEDIO, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:17-cr-00430-TWT-JSA-1

____________________

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2 Opinion of the Court 22-12044

Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and ABUDU, 

Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether the district court 

abused its discretion by denying a motion to dismiss an indictment 

and making certain evidentiary rulings, and whether it clearly erred 

by imposing a $200,000 fine. A grand jury charged Thomas Ukoshovbera A. Gbenedio, formerly a licensed pharmacist, with 72 

counts of unlawful drug dispensing and one count of refusing an 

inspection of his pharmacy. The indictment charged that he filled 

prescriptions “outside the course of professional practice and for 

other than a legitimate medical purpose.” In other words, Gbenedio allegedly operated a “pill mill.” A jury convicted Gbenedio on 

all but two counts of unlawful drug dispensing. The district court 

sentenced him to 188 months of imprisonment and ordered him to 

pay a fine. Because the indictment alleged enough facts to give 

Gbenedio notice of the charges against him, the district court did 

not abuse its discretion in its evidentiary rulings, and Gbenedio admitted that he could pay a fine within the guideline range, we affirm. 

I. BACKGROUND

Gbenedio was a licensed pharmacist and the sole proprietor 

of Better Way Pharmacy, an independent pharmacy in Mableton, 

Georgia. He managed the day-to-day operations at Better Way, 

which included dispensing controlled substances and interacting 

with customers. Federal investigators learned about Better Way 

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while investigating other entities, including Express Health, a 

nearby pain clinic. Investigators determined that from 2013 to 

2015, Gbenedio filled nearly 500 fraudulent prescriptions for highly

addictive controlled substances such as oxycodone, hydromorphone, and hydrocodone. As a licensed pharmacy, Better Way was 

subject to inspections by the federal Drug Enforcement Administration. In 2017, agents arrived for an inspection of Better Way, 

but Gbenedio stood in the way and refused to allow the agents to 

conduct their inspection. An agent arrested him for obstruction. 

A grand jury returned a 71-count indictment against Gbenedio. The indictment charged 70 counts of unlawful drug dispensing, see 21 U.S.C. § 841(a)(1), and one count of refusing an inspection, see id. § 842(a)(6). The indictment charged that Gbenedio 

filled the prescriptions “outside the course of professional practice 

and for other than a legitimate medical purpose.” Then, in table 

format, the indictment listed the specific prescriptions and, for each 

count, specified the date Gbenedio distributed the controlled substance, the prescription number, the kind and amount of the controlled substance, and the initials of the customer who received it.

In 2018, Gbenedio moved for a bill of particulars. He asked 

the prosecutors to specify how he acted “outside the course of professional practice and for other than legitimate medical purposes.”

The prosecution opposed the motion but informed Gbenedio that 

“the primary manner” in which it alleged that Gbenedio “illegally 

dispensed controlled substances involved dispensing pursuant to 

prescriptions [Gbenedio] knew or should have known were forged 

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and/or fraudulent.” Gbenedio then moved to dismiss the unlawful 

dispensing counts. Although he conceded that his motion was untimely, Gbenedio argued that the indictment was legally insufficient because it failed to provide notice of the “basis for the prosecution” and “the prosecution’s theory of the case.”

A magistrate judge denied the motion for a bill of particulars. And it recommended that the district court deny the motion 

to dismiss the indictment because the motion was untimely and the 

indictment was legally sufficient. The district court adopted the 

magistrate judge’s recommendation.

One week before trial was scheduled to begin, Gbenedio 

moved to continue trial. The district court granted the motion and 

ordered the government to supplement its response to Gbenedio’s 

motion for a bill of particulars. In its amended response, the government explained that to prove that Gbenedio acted “outside the 

scope of professional practice” and “without a legitimate medical 

purpose,” it intended to introduce testimony about a pharmacist’s 

responsibilities when handling controlled substances and various 

“red flags” present on the face of the prescriptions that Gbenedio 

filled.

Gbenedio filed a renewed motion to dismiss the unlawful 

dispensing counts. The magistrate judge again recommended that 

the district court deny the motion to dismiss, and the district court 

adopted that recommendation. Nevertheless, the magistrate judge 

granted Gbenedio’s motion for a bill of particulars. So the prosecution complied and offered its theory of the case. Consistent with

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its earlier filings, the prosecution explained that it planned to introduce testimony about a pharmacist’s responsibilities when handling controlled substances and various “red flags” on the face of 

the prescriptions that Gbenedio filled.

A grand jury later charged Gbenedio in a superseding indictment that added two counts of unlawful drug dispensing. The operative indictment charged 72 counts of unlawful drug dispensing

(counts 1–72), see id. § 841(a)(1), and one count of refusing an inspection (count 73), see id. § 842(a)(6). Like the earlier indictment, 

this one charged that the prescriptions were filled “outside the 

course of professional practice and for other than a legitimate medical purpose.” And for each of the first 72 counts, the indictment 

specified the date of distribution, the prescription number, the kind 

and amount of the controlled substance, and the initials of the customer who received it. Gbenedio moved to dismiss the unlawful 

dispensing counts. The district court adopted the magistrate 

judge’s recommendation to deny the motion.

In October 2021, Gbenedio proceeded to trial on all counts. 

During opening statements, the prosecutor outlined the charges 

against Gbenedio and previewed the evidence it would present. As 

expected, the prosecutor asserted that Gbenedio filled “fake and 

fraudulent” prescriptions. Gbenedio’s counsel previewed the defense and explained that while operating his business, Gbenedio 

“ran into people who were running their own scheme.” In other 

words, although Gbenedio filled fake prescriptions, he did so 

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because he was misled by bad actors. Gbenedio’s counsel also told 

the jury that the prosecution would rely on testimony from felons.

During the prosecution’s case-in-chief, witnesses explained 

the legal obligations of pharmacists. A witness explained that under the Controlled Substances Act, a pharmacist must verify that a 

prescription was ordered by a doctor acting in the usual course of 

his practice and for a legitimate medical need. If there is any indication that the prescription might be illegitimate, the pharmacist 

must inquire further or refuse to fill the prescription. And if the 

pharmacist dispenses that prescription in the face of unresolved issues, he is as liable as the physician who issued it.

Charlyn Carter, a former medical assistant and office manager at Express Health, testified that while working at Express 

Health, she sold and verified fake prescriptions. She also testified 

that she personally brought fake prescriptions to Better Way and 

that Gbenedio filled them. On cross-examination, defense counsel 

asked about Carter’s criminal history. Counsel asked if Express 

Health was a “pill mill” and if Carter went to prison because she 

participated in a “pill mill.” Carter responded “yes” to both questions. Counsel also questioned Carter about her testimony in the 

trial of an Express Health doctor, Dr. Romie Roland, and about the 

criminal conduct of others at Express Health. 

Dianne Fikes, a former Better Way customer, testified that 

she purchased fake prescriptions from employees of Express 

Health and had them filled at Better Way. She explained that at 

some point, Gbenedio told her that he could no longer fill 

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prescriptions from a certain doctor at Express Health and that she 

should find another doctor. During that conversation, Fikes said 

that Gbenedio handed her a prescription and told her, “[T]his is 

what it should look like.” Fikes said that she created fake prescriptions on her laptop based on Gbenedio’s example and printed them 

on Gbenedio’s printer. According to Fikes, Gbenedio filled the fake 

prescriptions that day. On cross-examination, defense counsel focused on Fikes’s criminal history. Counsel asked Fikes about being 

“arrested and charged with producing false and fraudulent prescriptions in Alabama.” She initially denied the arrest. But after a 

few follow-up questions, she confirmed that she was in fact arrested.

Two doctors, Dr. James Murtaugh and Dr. Benjamin Auerbach, also testified for the prosecution. Their names often appeared 

on the fake prescriptions filled by Gbenedio. When showed the specific prescriptions attributed to them, both doctors denied writing 

them based on the handwriting, the amounts prescribed, and other 

errors.

Agent Jason Allen, the lead investigator, testified that he 

learned about Better Way while investigating Express Health.

When asked what happened to Express Health, Allen explained 

that “we shut them down,” and several people were “convicted.”

He also testified that the administrative inspection of Better Way 

turned into a criminal investigation when he came to believe that 

Gbenedio dispensed “controlled substances without a legitimate 

medical purpose, outside the normal course of practice.” Over 

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Gbenedio’s Rule 704(b) objection, Allen explained how pill mills 

operated. He explained that the Better Way “store front was an air 

of legitimacy,” meant to “give off the appearance of being legitimate when [it was] really just selling . . . prescriptions.” Another 

agent offered similar testimony that Better Way was “just a front.”

Gbenedio offered several witnesses and testified in his own 

defense. He attempted to call Officer Tyler Benson to impeach the 

testimony of Dianne Fikes. Defense counsel explained that Fikes 

had denied her Alabama arrest and that the purpose of Benson’s 

testimony was to impeach that denial. The prosecutor objected 

that because Fikes admitted to the arrest, there was no testimony 

to impeach. Without reviewing the trial transcript, the district 

court ruled, “[M]y recollection is that she admitted she was arrested. So [Benson’s] testimony that she was arrested is merely cumulative, and so I sustain the objection.” Still, it allowed Gbenedio 

to make a proffer outside the presence of the jury. During the proffer, Benson testified that Fikes had forged 30 prescriptions for controlled substances in Alabama and described the steps he took after 

learning that Fikes had forged prescriptions. After the proffer, the 

district court said, “I’ll adhere to my ruling. This is all way beyond 

impeachment.”

The jury found Gbenedio guilty on counts 1 through 70 and 

count 73 and not guilty on counts 71 and 72. The district court ordered Gbenedio to report to probation on the following Monday 

to be placed on electronic monitoring. But Gbenedio fled the 

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jurisdiction. He was arrested in Texas while seeking to board a 

flight to Istanbul.

A probation officer prepared a presentence investigation report. To assist with the report, the office sought financial information from Gbenedio. During an interview with a probation officer, defense counsel and Gbenedio suggested that Gbenedio’s 

wife should prepare a financial statement. But neither Gbenedio 

nor his wife provided the statement, despite several requests from 

the probation office.

The presentence report calculated Gbenedio’s custody 

guideline range at 188 to 235 months and his fine guideline range 

at $40,000 to $400,000. It stated that Gbenedio has been unemployed since 2017 and that he relied on “pension funds, Social Security benefits, and his wife’s earnings.” It also stated that he has 

been incarcerated since November 2021 and has had no income

while in prison. In the same section, the report also recommended

a fine within the guideline range: “Since [Gbenedio] failed to establish he is unable to pay a fine or is not likely to become able to pay 

a fine, it is this officer’s position he has the ability to pay a fine 

within the fine guideline range.”

Gbenedio objected to several items in the report. But he did 

not object to the probation officer’s finding that he could “pay a 

fine within the fine guideline range.” Gbenedio filed a sentencing 

memorandum that focused on his health conditions and age. The 

memorandum did not address his financial condition or ability to 

pay a fine.

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At sentencing, the district court stated that it would “adopt 

the facts in the [p]resentence [r]eport.” It explained, “As set forth in 

[the presentence report], [Gbenedio] has failed to establish that he’s 

unable to pay a fine. Therefore, the Court can impose a fine within 

the guideline range.” It then described its “sentencing options” and 

explained that “[t]he fine guideline range is $40,000 to $400,000.” 

The district court asked defense counsel if there were any objections to the guideline calculations, and counsel replied “[n]o.”

The district court sentenced Gbenedio to 188 months of imprisonment and imposed a $200,000 fine. It stated, “Mr. Gbenedio 

and his family just refuse to cooperate in any investigation by the 

probation officer into what his financial circumstances were, again, 

a demonstration of just total lack of remorse, total lack of respect 

for the law.” Gbenedio’s counsel objected to the sentence and the 

fine. Counsel asserted that Gbenedio was unable to pay a fine, and 

she took personal responsibility for failing to provide Gbenedio’s 

financial information to the probation officer.

II. STANDARDS OF REVIEW

Three standards govern our review. We review de novo

whether an indictment sufficiently alleges an offense, and we review for abuse of discretion a denial of a motion to dismiss an indictment. United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 

2002). We review evidentiary rulings also for abuse of discretion. 

United States v. Carthen, 906 F.3d 1315, 1320 (11th Cir. 2018). A district court abuses its discretion if it “applies an incorrect legal standard, follows improper procedures in making the determination, or 

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makes findings of fact that are clearly erroneous.” United States v. 

Jordan, 582 F.3d 1239, 1249 (11th Cir. 2009) (citation and internal 

quotation marks omitted). And we review for clear error a finding

that a defendant can pay a fine. United States v. McNair, 605 F.3d 

1152, 1232 n.132 (11th Cir. 2010). Clear error arises when “our review of the record leaves us with the definite and firm conviction 

that a mistake has been committed.” United States v. White, 335 F.3d 

1314, 1319 (11th Cir. 2003) (citation and internal quotation marks 

omitted).

III. DISCUSSION

We divide our discussion into six parts. First, we explain why 

the district court did not abuse its discretion by denying Gbenedio’s 

motion to dismiss the superseding indictment. Second, we explain 

why the district court did not abuse its discretion by allowing testimony about other convictions. Third, we explain why the district 

court did not abuse its discretion by allowing opinion testimony 

from federal agents. Fourth, we explain that the district court did 

not abuse its discretion by excluding Officer Benson’s impeachment testimony. Fifth, we explain that no cumulative error requires 

reversal. Last, we explain that the district court did not clearly err 

by imposing a $200,000 fine.

A. The District Court Did Not Abuse its Discretion by Denying 

Gbenedio’s Motion to Dismiss the Superseding Indictment.

Gbenedio argues that the district court abused its discretion 

by denying his motion to dismiss the unlawful dispensing counts 

(counts 1–72) in the indictment. The parties agree that the 

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indictment contained facts about Gbenedio and his pharmacy, the 

Controlled Substances Act, and the prescriptions. But in Gbenedio’s view, the indictment offered “no way of knowing what theory 

the government was proceeding under” and whether it believed 

that the prescriptions were “falsified” or whether they were “actually written by prescribers” when they should not have been.

An indictment “presents the essential elements of the 

charged offense,” “notifies the accused of the charges to be defended against,” and “enables the accused to rely upon a judgment 

under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense.” Jordan, 582 F.3d at 1245

(citation and internal quotation marks omitted). When an indictment describes the offense using statutory language, it must also 

include enough “‘facts and circumstances’” to “‘inform the accused 

of the specific offense . . . with which he is charged.’” United States 

v. Bobo, 344 F.3d 1076, 1083 (11th Cir. 2003) (quoting Russell v. United 

States, 369 U.S. 749, 765 (1962)). But an indictment need not “allege 

in detail the factual proof that will be relied upon to support the 

charges.” United States v. Sharpe, 438 F.3d 1257, 1264 n.3 (11th Cir. 

2006) (citation and internal quotation marks omitted). And the 

prosecution need not describe “all overt acts that might be proven 

at trial.” See United States v. Martell, 906 F.2d 555, 558 (11th Cir. 

1990).

Gbenedio’s indictment was legally sufficient. As he concedes, the indictment alleged facts about him and his pharmacy, the 

Controlled Substances Act, and the 72 prescriptions. It described

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the legal requirements governing the dispensation of controlled 

substances. It explained that, with limited exceptions for medical 

professionals, the Controlled Substances Act makes it “unlawful for 

any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance.” See 21 U.S.C. 

§ 841(a)(1). And it explained that registered pharmacists may dispense controlled substances for a valid prescription, but prescriptions are valid only if “issued for a legitimate medical purpose by 

an individual practitioner acting in the usual course of his professional practice.” See 21 C.F.R. § 1306.04(a). The indictment charged

Gbenedio with 72 counts of unlawful drug dispensing. See 21 U.S.C.

§ 841(a)(1). Each count used statutory language and listed the essential elements of the offense. See Jordan, 582 F.3d at 1245. Each 

count specified the date on which Gbenedio unlawfully distributed 

a controlled substance, the prescription number, the kind and 

amount of the controlled substance, and the initials of the customer who received the controlled substance. These facts gave 

Gbenedio notice of the charges against him. See id. And because 

the indictment described the prescriptions with specificity, Gbenedio may rely on a judgment as a bar against future prosecutions for 

the same distributions. See id.

Gbenedio argues that he was entitled to more information. 

He says that he needed to know what made the prescriptions invalid, and whether the prosecution believed that they were “falsified” 

or “actually written by prescribers.” Gbenedio maintains that he 

needed to know “what theory the government was proceeding under” and “what evidence would be presented at trial.”

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We disagree. Why a prescription is invalid relates to the prosecution’s theory of the case—not the elements of the offense. As 

we explained above, the indictment need not detail “the factual 

proof that will be relied upon to support the charges.” Sharpe, 438 

F.3d at 1264 n.3. Indeed, even when a bill of particulars is required, 

the prosecution has no obligation to “‘explain the legal theories 

upon which it intends to rely at trial.’” United States v. Maurya, 25 

F.4th 829, 838 (11th Cir. 2022) (quoting United States v. Burgin, 621 

F.2d 1352, 1359 (5th Cir. 1980)). And defendants are not entitled to 

a “detailed disclosure of the government’s evidence prior to trial.” 

United States v. Davis, 854 F.3d 1276, 1293 (11th Cir. 2017) (citation 

and internal quotation marks omitted). Gbenedio does not argue 

that he lacked notice of the offenses with which he was charged. He

argues that he was entitled to the government’s “theory” and “evidence.”

Gbenedio compares his indictment to the deficient charges

in Russell v. United States, but the comparison is inapt. 369 U.S. 749. 

The Russell indictments charged defendants who were summoned 

to testify before a congressional committee with refusing to answer 

questions “‘pertinent to the [subject] then under inquiry.’” Id. at 

752. But the indictments never specified the subject “under inquiry.” Id. Under federal law, a witness could lawfully refuse to answer questions if the questions did not pertain to the subject under 

inquiry. Id. at 755. So without knowing the subject under inquiry—

the “very core of criminality” under the statute—a defendant could 

not understand the nature of the accusation against him. Id. at 764–

65. 

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Unlike the indictments in Russell, Gbenedio’s indictment alleged enough details to inform Gbenedio of the charges against 

him. It alleged that Gbenedio “knowingly” distributed controlled 

substances by “filling prescriptions . . . outside the course of professional practice and for other than a legitimate medical purpose.” 

And it described each prescription in unmistakable detail. Gbenedio’s indictment was anything but “cryptic.” See id. at 766.

What is more, Gbenedio learned the prosecution’s theory 

and evidentiary plan before trial. He insists that he was left “speculating” about what evidence would be presented and how to defend 

himself. But the pretrial filings and bill of particulars remedied 

those concerns. See United States v. Colson, 662 F.2d 1389, 1391 (11th 

Cir. 1981) (“The purpose of a bill of particulars is to inform the 

defendant of the charge in sufficient detail to enable adequate defense preparation and to minimize surprise at trial.”). Nearly three 

years before trial, the prosecutors informed Gbenedio in writing 

that “the primary manner” in which it alleged that he “illegally dispensed controlled substances involved dispensing pursuant to prescriptions [Gbenedio] knew or should have known were forged 

and/or fraudulent.” And over 18 months before trial, the prosecution explained that it intended to introduce testimony about “red 

flags” present on the face of the prescriptions. The prosecution reiterated these details in a bill of particulars filed over a year before 

trial.

To be sure, a bill of particulars cannot save an invalid indictment. Russell, 369 U.S. at 770. But Gbenedio’s indictment was 

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legally sufficient. And the bill of particulars fulfilled its “purpose” 

of “enabl[ing] adequate defense preparation” and “minimiz[ing] 

surprise at trial.” Colson, 662 F.2d at 1391. Gbenedio was not entitled to more. See Burgin, 621 F.2d at 1359 (explaining that a bill of 

particulars “is not designed to compel the government to detailed 

exposition of its evidence or to explain the legal theories upon 

which it intends to rely at trial”).

B. The District Court Did Not Abuse its Discretion by 

Allowing Testimony About Other Individuals’ Convictions.

Gbenedio argues that the district court abused its discretion 

by admitting evidence about the investigation and prosecution of 

other wrongdoers. He complains that the district court allowed

Agent Jason Allen of the Drug Enforcement Administration to testify that Better Way came up in other investigations; employees of

Express Health were convicted of similar crimes; Better Way filled 

invalid prescriptions from Dr. Roland; and Better Way filled prescriptions from doctors who have been investigated or indicted.

Gbenedio complains that this evidence was introduced as substantive evidence of his guilt. And even were it not admitted for that 

purpose, Gbenedio contends that the evidence was unduly prejudicial because “it indicated to the jury that the other people involved in pill mills . . . had already been investigated, tried, and convicted.” These arguments fail.

Evidence is relevant if it “has any tendency to make a fact 

more or less probable than it would be without the evidence” and 

“the fact is of consequence in determining the action.” FED. R.

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EVID. 401. Relevant evidence is generally admissible. Id. R. 402. But 

relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice. Id. R. 403. Even 

when relevant, evidence of another person’s conviction may not 

be used as substantive evidence of the defendant’s guilt. United 

States v. DeLoach, 34 F.3d 1001, 1004 (11th Cir. 1994). “It is a basic 

tenet of our criminal jurisprudence that guilt or innocence must be 

determined one defendant at a time without regard to the disposition of charges against others.” United States v. Eason, 920 F.2d 731, 

738 (11th Cir. 1990) (citation and internal quotation marks omitted).

Evidence of another person’s guilt may be admissible for 

other evidentiary purposes. See United States v. McLain, 823 F.2d 

1457, 1465 (11th Cir. 1987), abrogation on other grounds recognized by

United States v. Watson, 866 F.2d 381, 385 n.3 (11th Cir. 1989). When 

the evidence is not offered as substantive evidence of the defendant’s guilt, its admissibility is subject to Rule 403. Id. And when 

making a Rule 403 determination, district courts consider several 

factors, including “‘whether there was a proper purpose in introducing the fact of the guilty plea [or conviction]’” and “‘whether 

the introduction of the plea [or conviction] was invited by defense 

counsel.’” Id. (quoting United States v. King, 505 F.2d 602, 608 (5th 

Cir. 1974)). A district court’s discretion to exclude evidence as unduly prejudicial is “narrowly circumscribed.” United States v. 

McGregor, 960 F.3d 1319, 1324 (11th Cir. 2020) (citation and internal 

quotation marks omitted); see also United States v. King, 713 F.2d 

627, 631 (11th Cir. 1983) (explaining that “the federal rules favor 

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admission of evidence over exclusion if the evidence has any probative value”).

Allen’s testimony was not offered as substantive evidence of 

Gbenedio’s guilt. Instead, it was offered in response to questions 

about why the government investigated Gbenedio and what the 

investigation uncovered. For example, when asked when he heard 

about Better Way, Allen explained that he learned about Better 

Way while investigating Express Health. And when asked “[w]hat 

ultimately happened to Express Health,” Allen responded, “[W]e 

shut them down.” He then said that “[t]he doctor was convicted,” 

“Charlyn Carter was convicted,” and “[t]he clinic owner was convicted.” We have distinguished deliberate questioning about convictions from “inadvertence” or from times when a witness volunteers or “‘blurt[s] out’” the information in response to a question 

that was not directly seeking it. Eason, 920 F.2d at 734 (reversing 

because the prosecutor asked leading questions that stated the facts 

of the coconspirator’s exact charge and that he was convicted); see 

United States v. Griffin, 778 F.2d 707, 709–11 (11th Cir. 1985) (reversing because the district court told jurors that a coconspirator was 

found guilty and read the coconspirator’s indictment to the jury). 

Here, the testimony about other people’s convictions was not expressly elicited by the prosecution; it was part of Allen’s elaboration 

about the investigation. Because the testimony was not offered as 

substantive evidence of Gbenedio’s guilt, its admissibility was subject to Rule 403. 

The testimony also was not unfairly prejudicial because 

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Gbenedio’s counsel had already presented information about other 

people’s convictions to the jury. During his opening statement, 

Gbenedio’s counsel explained that while operating his business, 

Gbenedio “ran into people who were running their own scheme. 

There were people who were stealing prescriptions from doctors’ 

offices, places like Express [Health], people like the Government’s 

witnesses who are running their own scheme.” He told the jury 

that some government witnesses were felons. He said, “[Charlyn 

Carter]’s a convicted felon” and “[Dianne Fikes]’s a convicted 

felon.” He also asserted that the prosecutors were “depending on 

the word of these folks who they have already indicted and prosecuted.” So before Allen ever took the stand, Gbenedio told the jury 

about other people’s convictions. 

Throughout the trial, Gbenedio’s counsel reiterated that Express Health was a pill mill and that affiliated individuals had been 

prosecuted and convicted. On cross-examination of Carter—and 

before Allen took the stand—counsel inquired about criminal activity at Express Health. Counsel asked Carter, “that’s actually why 

you went to prison; is that right . . . [b]ecause you were helping 

further participate in the pill mill?” Counsel also questioned Carter 

about her testimony during Dr. Roland’s trial: “[Y]ou came into 

court and testified against Dr. Roland, right?” And counsel questioned Carter about the criminal conduct of others at Express 

Health.

When determining admissibility under Rule 403, the district 

court was entitled to consider “whether the introduction of the 

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[evidence] was invited by defense counsel.” McLain, 823 F.2d at 

1465 (citation and internal quotation marks omitted). Here, the introduction of evidence about other people’s convictions was not 

only invited by defense counsel; it was introduced by him. Gbenedio 

suffered no prejudice. 

C. The District Court Did Not Abuse its Discretion by Admitting 

Opinion Testimony from Federal Agents.

Gbenedio argues that the district court erred by allowing 

federal agents to offer improper opinion testimony. He contends 

that Allen and other agents who testified as lay witnesses offered 

expert opinions without being qualified as expert witnesses and 

that the district court allowed them to testify that Gbenedio had 

the requisite intent in violation of Federal Rule of Evidence 704(b). 

See FED. R. EVID. 704(b) (prohibiting expert witnesses from opining 

whether the defendant had a mental state or condition that constitutes an element of a crime). But because the agents testified based 

on professional experience and not based on scientific or technical 

knowledge, their testimony was lay opinion, and the district court 

did not abuse its discretion by admitting it.

The Federal Rules of Evidence distinguish between lay and 

expert opinion testimony. Lay 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.” Id. R. 701. “Lay opinion testimony 

cannot provide specialized explanations or interpretations that an 

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untrained layman could not make if perceiving the same acts or 

events.” Great Lakes Ins. SE v. Wave Cruiser LLC, 36 F.4th 1346, 1358 

(11th Cir. 2022) (citation and internal quotation marks omitted). 

Expert opinion, by contrast, is opinion testimony based on “scientific, technical, or other specialized knowledge.” FED. R. EVID. 702.

Expert witnesses must be properly “qualified,” and their opinions 

are admissible only if certain reliability requirements are met. See 

id. In criminal cases, “an expert witness must not state an opinion 

about whether the defendant did or did not have a mental state or 

condition that constitutes an element of the crime charged or of a 

defense.” Id. R. 704(b).

We examine the basis of an opinion to determine whether it 

is lay or expert. See United States v. Williams, 865 F.3d 1328, 1341

(11th Cir. 2017); see also FED. R. EVID. 701, advisory committee’s

note to 2000 amendment. Lay opinion is based on a witness’s personal “perception[s]” and “experiences.” Williams, 865 F.3d at 1341

(citation omitted). Expert opinion is based on “scientific, technical, 

or other specialized knowledge.” FED.R.EVID. 702. The distinction

sometimes blurs when testimony is based on professional work. 

But we have held that a witness may offer “lay opinion testimony 

based on his professional experiences as long as the testimony is 

rationally based on those experiences, rather than on scientific or 

technical knowledge.” Williams, 865 F.3d at 1341 (citation and internal quotation marks omitted); see also United States v. Novaton, 

271 F.3d 968, 1008–09 (11th Cir. 2001) (holding that opinion testimony about the meaning of code words used by defendants was 

based on perceptions and experience as police officers and 

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22 Opinion of the Court 22-12044

constituted lay opinion testimony).

Gbenedio challenges the admission of several statements. 

First, he points to Allen’s testimony that Gbenedio “dispens[ed]

controlled substances without a legitimate medical purpose, outside the normal course of practice.” He also points to Allen’s testimony that the Better Way “store front was an air of legitimacy,” 

meant to “give off the appearance of being legitimate when [it was]

really just selling . . . prescriptions.” He points to Allen’s statement 

that pill mill pharmacies “know they’re subject to inspection. They 

know that the [Drug Enforcement Administration] or the state can 

come in and look . . . . They want to give off the appearance of being legitimate to basically deceive law enforcement.” And Gbenedio challenges the testimony of other witnesses who said that Better Way was “just a front.”

The district court did not abuse its discretion by admitting 

this testimony as lay opinion. See Tampa Bay Shipbuilding & Repair 

Co. v. Cedar Shipping Co., 320 F.3d 1213, 1223 (11th Cir. 2003) (affirming admission of lay opinion testimony when witnesses testified not using scientific or technical “knowledge subject to 

Rule 702” but only “knowledge garnered from years of experience 

within the field”). None of the testimony was based on “scientific, 

technical, or other specialized knowledge.” See FED. R. EVID. 702. 

And none of it “provide[d] specialized explanations or interpretations that an untrained layman could not make if perceiving the 

same acts or events.” See Great Lakes Ins. SE, 36 F.4th at 1358 (citation and internal quotation marks omitted). Instead, the testimony 

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was rationally based on the officers’ experiences as investigators. 

See Williams, 865 F.3d at 1341. And it conveyed the officers’ opinions based on their personal observations during the investigation.

Gbenedio relies on United States v. Hawkins to argue that Allen was an expert, but we disagree with his argument. 934 F.3d 

1251 (11th Cir. 2019). In Hawkins, the prosecutor repeatedly asked 

the witness for his “expert opinion” and “the district court told the 

jury several times that [the witness] was permitted to testify ‘based 

upon his experience and knowledge with respect to technical subject matters.’” Id. at 1265. In other words, the witness was “paraded 

before the jury as an expert.” Id. Here, unlike in Hawkins, the prosecutors did not describe Allen as an expert. The district court told

the jury that Allen could testify only “to what his personal observations were as a layperson.”

D. The District Court Did Not Abuse its Discretion by Excluding Officer 

Tyler Benson’s Impeachment Testimony.

Gbenedio argues that the district court abused its discretion 

by preventing him from using Benson’s testimony to impeach Dianne Fikes. Specifically, he contends that “[w]hen Fikes denied [her 

Alabama arrest] and relevant facts about the incident,” it was then 

appropriate for Gbenedio to impeach her by disproving the testimony she offered. Gbenedio argues that the district court improperly excluded Benson’s testimony under Federal Rule of Evidence 608(b).

To be sure, Rule 608(b) does not prohibit impeachment by 

contradiction. But Benson’s testimony would not have 

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24 Opinion of the Court 22-12044

contradicted Fikes’s testimony. The admissibility of Benson’s testimony was still subject to Rule 403, and the district court did not 

abuse its discretion by excluding it under that Rule.

Under Federal Rule of Evidence 608(b), “extrinsic evidence 

is not admissible to prove specific instances of a witness’s conduct 

in order to attack or support the witness’s character for truthfulness.” District courts have broad discretion when determining the 

admissibility of extrinsic evidence. See United States v. Calle, 822 F.2d 

1016, 1019–20 (11th Cir. 1987). But there is an “absolute bar” on 

extrinsic evidence when “the sole purpose for offering the evidence 

[is] to prove the witness’[s] character for veracity.” FED. R.

EVID. 608, advisory committee’s note to 2003 amendment. In other 

words, extrinsic evidence may never be admitted to prove that 

someone tends to lie. See Carthen, 906 F.3d at 1321 (“Using past conduct to suggest a witness has a generally dishonest character is precisely what Rule 608(b) does not allow.”). 

The scope of Rule 608(b) was amended—and narrowed—in 

2003. See id. at 1323 (W. Pryor, J., concurring). Before the amendment, Rule 608(b) prohibited extrinsic evidence for the purpose of 

attacking a witness’s “‘credibility.’” Id. But in 2003, the Rule was 

amended to replace the word “‘credibility’” with the phrase “‘character for truthfulness.’” Id. “The purpose of this amendment was 

‘to clarify that the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to 

attack or support the witness’[s] character for truthfulness.’” Id. 

(quoting FED. R. EVID. 608, advisory committee’s note to 2003 

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amendment). Put differently, the absolute prohibition applies only 

when extrinsic evidence is offered to prove that a witness is a liar in 

general. But it does not bar extrinsic evidence offered to prove that 

a witness lied on the stand. See FED. R. EVID. 608, advisory committee’s note to 2003 amendment (“[T]he amendment leaves the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, 

bias and mental capacity) to Rules 402 and 403.”). 

Although extrinsic evidence might be used to prove that a 

witness lied on the stand, the admissibility of that evidence remains

subject to Rule 403. See id. Rule 403 permits a district court to exclude relevant evidence “if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” 

Gbenedio tried to call Benson to impeach Fikes, a prosecution witness. Fikes initially denied her arrest for producing false 

prescriptions, but after a few follow-up questions, she confirmed 

that she was in fact arrested. Defense counsel explained that “the 

purpose of [Benson’s testimony]” was to impeach Fikes’s testimony about the arrest. The prosecutor objected because Fikes admitted to the arrest. After a brief exchange with counsel, the district court ruled, “[M]y recollection is that she admitted she was 

arrested. So [Benson’s] testimony that she was arrested is merely 

cumulative, and so I sustain the objection.”

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The district court also allowed defense counsel to make a 

proffer outside the presence of the jury. During the proffer, counsel 

asked Benson to describe the steps he took after learning that Fikes 

had forged prescriptions. Benson explained that he looked at Alabama’s prescription drug monitoring database and saw that Fikes 

forged 30 prescriptions. He also explained that he obtained pharmacy surveillance footage. After the proffer, the district court announced, “I’ll adhere to my ruling. This is all way beyond impeachment or [Rule] 608.”

The district court did not abuse its discretion by excluding 

Benson’s testimony for two reasons. First, the district court correctly determined that Benson’s testimony would not contradict 

Fikes’s testimony. To be sure, Rule 608(b) does not prohibit impeachment by contradiction, and defense counsel described Benson’s testimony as being offered for that purpose. But Fikes admitted that she had been arrested. So there was nothing for Benson to 

contradict as to that fact, and Benson’s testimony was excludable. 

See BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 

1476 (11th Cir. 1992) (“When a witness admits making a prior inconsistent statement, extrinsic proof of the statement is excludable.”). Second, even if Benson’s testimony were admissible under 

Rule 608(b), it remained subject to Rule 403, and the district court 

did not abuse its discretion by excluding it under that Rule. Under 

Rule 403, relevant evidence may be excluded “if its probative value 

is substantially outweighed by a danger of . . . needlessly presenting 

cumulative evidence.” Fikes’s earlier testimony confirmed that she 

was arrested. So, as the district court explained, “[Benson’s] 

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testimony that she was arrested is merely cumulative.” And though

Fikes denied the facts of that arrest, which Gbenedio argues would 

have shown that she knew how to forge prescriptions even before 

meeting Gbenedio, there was other evidence in the record that 

Gbenedio did not teach Fikes for the first time how to forge prescriptions. So again, the testimony was properly excluded as cumulative evidence.

E. There is No Cumulative Error.

Gbenedio argues that even if the evidentiary rulings described above are nonreversible errors, the combined prejudice 

they cause requires reversal. “The cumulative error doctrine provides that an aggregation of non-reversible errors (i.e., plain errors 

failing to necessitate reversal and harmless errors) can yield a denial 

of the constitutional right to a fair trial, which calls for reversal.” 

United States v. Margarita Garcia, 906 F.3d 1255, 1280 (11th Cir. 2018) 

(citation and internal quotation marks omitted). But the district 

court did not make any erroneous evidentiary rulings. Because 

Gbenedio has not identified any error, “his argument that all of his 

claimed errors, when taken together, compel reversal necessarily 

fails.” United States v. Benjamin, 958 F.3d 1124, 1137 (11th Cir. 2020).

F. The District Court Did Not Clearly Err by Imposing a $200,000 Fine.

Last, Gbenedio argues that the district court clearly erred by 

imposing a $200,000 fine. He contends that the record establishes 

that he is unable to pay and that his attorney is to blame for failing 

to provide financial information to the probation office. Because 

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Gbenedio had the burden of proving his inability to pay and failed 

to do so, the district court committed no clear error.

The Sentencing Guidelines require district courts to “impose 

a fine in all cases, except where the defendant establishes that he is 

unable to pay and is not likely to become able to pay any fine.” 

United States Sentencing Guidelines Manual § 5E1.2(a) (Nov. 2021). 

If the defendant establishes that he is unable to pay or that a fine 

would unduly burden his dependents, the district court may impose a lesser fine or waive it. U.S.S.G. § 5E1.2(e). The defendant has 

the burden of proving inability to pay. United States v. Gonzales, 541 

F.3d 1250, 1255 (11th Cir. 2008).

Gbenedio argues that certain facts in the presentence report 

reveal that he is unable to pay. The report states that Gbenedio has 

been unemployed since 2017, that he relied on “pension funds, Social Security benefits, and his wife’s earnings,” and that he has been 

incarcerated since November 2021 and has no income. Gbenedio 

also explains that two judges declared him indigent and that eligibility for appointed counsel is a “significant indicator[]” of inability 

to pay. See U.S.S.G. § 5E1.2, cmt. n.3. 

Gbenedio ignores other parts of the presentence report. In 

the section that explains that Gbenedio is incarcerated, the report 

recommends a fine: “Since [Gbenedio] failed to establish he is unable to pay a fine or is not likely to become able to pay a fine, it is 

this officer’s position he has the ability to pay a fine within the fine 

guideline range.” Gbenedio did not address this paragraph in his 

objections to the report or in his final sentencing memorandum.

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And “failure to object to allegations of fact in a [presentence report] 

admits those facts for sentencing purposes.” United States v. Turner, 

626 F.3d 566, 572 (11th Cir. 2010) (citation and internal quotation 

marks omitted). 

Before sentencing, Gbenedio failed to cooperate with the 

probation officer’s requests for financial information. “[U]nwillingness to answer specific questions” from the probation officer about 

one’s financial status “may permit the inference” that one is “concealing assets.” United States v. Hernandez, 160 F.3d 661, 666 (11th 

Cir. 1998). When a defendant is not forthcoming about his financial 

circumstances, the district court may find that he has not carried 

his burden of proving inability to pay. Gbenedio argues that the 

failure to provide financial information was his counsel’s mistake. 

But Gbenedio had the burden of proving his inability to pay. Gonzales, 541 F.3d at 1255. And he concedes that “he did not provide 

the requested financial information” to the probation officer.

Even at sentencing, Gbenedio made no effort to prove his 

inability to pay. The district court explained that it was adopting the 

facts in the presentence report “to which no objection has been 

made.” Defense counsel did not object. The district court said, “As 

set forth in [the presentence report], [Gbenedio] has failed to establish that he’s unable to pay a fine. Therefore, the Court can impose 

a fine within the guideline range.” Again, defense counsel did not 

object. The district court then described its “sentencing options” 

and explained that “[t]he fine guideline range is $40,000 to 

$400,000.” It asked defense counsel directly if there were any 

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objections to the guideline calculations, and counsel replied “[n]o.” 

Later, the district court imposed Gbenedio’s sentence and $200,000 

fine. It explained, “I’m imposing a fine within the guideline range 

because, again, Mr. Gbenedio and his family just refuse to cooperate in any investigation by the probation officer into what his financial circumstances were, again, a demonstration of just total lack 

of remorse, total lack of respect for the law.” Gbenedio’s counsel 

objected to the fine for the first time after it was imposed, but he 

offered no proof of inability to pay it. The district court did not err.

Gbenedio argues that the failure to provide requested information to the probation officer was his counsel’s mistake, not his 

own. That argument might support a claim for ineffective assistance of counsel, but we consider ineffective-assistance-of-counsel 

claims on direct appeal only “if the record is sufficiently developed.” United States v. Camacho, 40 F.3d 349, 354 (11th Cir. 1994), 

overruled in part on other grounds by United States v. Sanchez, 269 F.3d 

1250 (11th Cir. 2001) (en banc). Gbenedio has not identified any evidence that suggests that his counsel was ineffective. That his counsel accepted responsibility for mistakes is not evidence. See United 

States v. Valois, 915 F.3d 717, 726 (11th Cir. 2019) (“[S]tatements and 

arguments of counsel are not evidence.” (citation and internal quotation marks omitted)). So the record is not sufficiently developed 

to consider this argument at this stage.

IV. CONCLUSION

We AFFIRM Gbenedio’s convictions and sentence.

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