United States v. Thomas Ukoshovbera A. Gbenedio

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[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 Uko-
shovbera 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, Gbene-
dio 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 ad-
mitted that he could pay a ﬁne within the guideline range, we af-
ﬁrm.
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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22-12044 Opinion of the Court 3

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, hydromor-
phone, and hydrocodone. As a licensed pharmacy, Better Way was
subject to inspections by the federal Drug Enforcement Admin-
istration. 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 Gbene-
dio. The indictment charged 70 counts of unlawful drug dispens-
ing, see 21 U.S.C. § 841(a)(1), and one count of refusing an inspec-
tion, 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 sub-
stance, the prescription number, the kind and amount of the con-
trolled 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 pro-
fessional 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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4 Opinion of the Court 22-12044

and/or fraudulent.” Gbenedio then moved to dismiss the unlawful
dispensing counts. Although he conceded that his motion was un-
timely, Gbenedio argued that the indictment was legally insuﬃ-
cient because it failed to provide notice of the “basis for the prose-
cution” and “the prosecution’s theory of the case.”
A magistrate judge denied the motion for a bill of particu-
lars. 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 gov-
ernment 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 prose-
cution complied and oﬀered its theory of the case. Consistent with
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its earlier ﬁlings, the prosecution explained that it planned to intro-
duce testimony about a pharmacist’s responsibilities when han-
dling controlled substances and various “red ﬂags” on the face of
the prescriptions that Gbenedio ﬁlled.
A grand jury later charged Gbenedio in a superseding indict-
ment that added two counts of unlawful drug dispensing. The op-
erative indictment charged 72 counts of unlawful drug dispensing
(counts 1–72), see id. § 841(a)(1), and one count of refusing an in-
spection (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 med-
ical 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 cus-
tomer 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 de-
fense 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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6 Opinion of the Court 22-12044

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 un-
der 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 indi-
cation 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 is-
sues, he is as liable as the physician who issued it.
Charlyn Carter, a former medical assistant and oﬃce man-
ager 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 ques-
tions. 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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22-12044 Opinion of the Court 7

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 prescrip-
tions 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 fo-
cused on Fikes’s criminal history. Counsel asked Fikes about being
“arrested and charged with producing false and fraudulent pre-
scriptions in Alabama.” She initially denied the arrest. But after a
few follow-up questions, she conﬁrmed that she was in fact ar-
rested.
Two doctors, Dr. James Murtaugh and Dr. Benjamin Auer-
bach, also testiﬁed for the prosecution. Their names often appeared
on the fake prescriptions ﬁlled by Gbenedio. When showed the spe-
ciﬁc 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 legiti-
mate 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 ar-
rested. So [Benson’s] testimony that she was arrested is merely cu-
mulative, and so I sustain the objection.” Still, it allowed Gbenedio
to make a proﬀer outside the presence of the jury. During the prof-
fer, Benson testiﬁed that Fikes had forged 30 prescriptions for con-
trolled 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 or-
dered 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 re-
port. To assist with the report, the oﬃce sought ﬁnancial infor-
mation from Gbenedio. During an interview with a probation of-
ﬁcer, 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 unem-
ployed since 2017 and that he relied on “pension funds, Social Se-
curity 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 estab-
lish 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 objec-
tions to the guideline calculations, and counsel replied “[n]o.”
The district court sentenced Gbenedio to 188 months of im-
prisonment 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 re-
view for abuse of discretion a denial of a motion to dismiss an in-
dictment. 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 dis-
trict court abuses its discretion if it “applies an incorrect legal stand-
ard, follows improper procedures in making the determination, or
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22-12044 Opinion of the Court 11

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 re-
view 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 testi-
mony 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 impeach-
ment 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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12 Opinion of the Court 22-12044

indictment contained facts about Gbenedio and his pharmacy, the
Controlled Substances Act, and the prescriptions. But in Gbene-
dio’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 “actu-
ally 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 de-
fended against,” and “enables the accused to rely upon a judgment
under the indictment as a bar against double jeopardy for any sub-
sequent prosecution for the same oﬀense.” Jordan, 582 F.3d at 1245
(citation and internal quotation marks omitted). When an indict-
ment 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 con-
cedes, 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, distrib-
ute, or dispense . . . a controlled substance.” See 21 U.S.C.
§ 841(a)(1). And it explained that registered pharmacists may dis-
pense controlled substances for a valid prescription, but prescrip-
tions are valid only if “issued for a legitimate medical purpose by
an individual practitioner acting in the usual course of his profes-
sional 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 es-
sential 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 cus-
tomer 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, Gbene-
dio 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 inva-
lid, 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 un-
der” and “what evidence would be presented at trial.”
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We disagree. Why a prescription is invalid relates to the pros-
ecution’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 “evi-
dence.”
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 in-
quiry.” Id. Under federal law, a witness could lawfully refuse to an-
swer 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 al-
leged 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 pro-
fessional practice and for other than a legitimate medical purpose.”
And it described each prescription in unmistakable detail. Gbene-
dio’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 “specu-
lating” 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 de-
fense 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 dis-
pensed controlled substances involved dispensing pursuant to pre-
scriptions [Gbenedio] knew or should have known were forged
and/or fraudulent.” And over 18 months before trial, the prosecu-
tion explained that it intended to introduce testimony about “red
ﬂags” present on the face of the prescriptions. The prosecution re-
iterated these details in a bill of particulars ﬁled over a year before
trial.
To be sure, a bill of particulars cannot save an invalid indict-
ment. Russell, 369 U.S. at 770. But Gbenedio’s indictment was
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16 Opinion of the Court 22-12044

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 enti-
tled 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 tes-
tify 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 pre-
scriptions from doctors who have been investigated or indicted.
Gbenedio complains that this evidence was introduced as substan-
tive evidence of his guilt. And even were it not admitted for that
purpose, Gbenedio contends that the evidence was unduly preju-
dicial because “it indicated to the jury that the other people in-
volved in pill mills . . . had already been investigated, tried, and con-
victed.” 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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22-12044 Opinion of the Court 17

EVID. 401. Relevant evidence is generally admissible. Id. R. 402. But
relevant evidence may be excluded if its probative value is substan-
tially 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 disposi-
tion of charges against others.” United States v. Eason, 920 F.2d 731,
738 (11th Cir. 1990) (citation and internal quotation marks omit-
ted).
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 defend-
ant’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 intro-
ducing 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 un-
duly 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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18 Opinion of the Court 22-12044

admission of evidence over exclusion if the evidence has any pro-
bative 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 con-
victed.” We have distinguished deliberate questioning about con-
victions from “inadvertence” or from times when a witness volun-
teers 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) (revers-
ing 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 ex-
pressly 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 sub-
ject to Rule 403.
The testimony also was not unfairly prejudicial because
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22-12044 Opinion of the Court 19

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 prose-
cuted.” So before Allen ever took the stand, Gbenedio told the jury
about other people’s convictions.
Throughout the trial, Gbenedio’s counsel reiterated that Ex-
press 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 ac-
tivity 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 ques-
tioned 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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20 Opinion of the Court 22-12044

[evidence] was invited by defense counsel.” McLain, 823 F.2d at
1465 (citation and internal quotation marks omitted). Here, the in-
troduction 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 consti-
tutes 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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22-12044 Opinion of the Court 21

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 “scien-
tific, 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 per-
sonal “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 in-
ternal quotation marks omitted); see also United States v. Novaton,
271 F.3d 968, 1008–09 (11th Cir. 2001) (holding that opinion testi-
mony 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, out-
side the normal course of practice.” He also points to Allen’s testi-
mony 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 be-
ing legitimate to basically deceive law enforcement.” And Gbene-
dio challenges the testimony of other witnesses who said that Bet-
ter 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) (af-
firming admission of lay opinion testimony when witnesses testi-
fied 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 interpreta-
tions that an untrained layman could not make if perceiving the
same acts or events.” See Great Lakes Ins. SE, 36 F.4th at 1358 (cita-
tion and internal quotation marks omitted). Instead, the testimony
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22-12044 Opinion of the Court 23

was rationally based on the officers’ experiences as investigators.
See Williams, 865 F.3d at 1341. And it conveyed the officers’ opin-
ions based on their personal observations during the investigation.
Gbenedio relies on United States v. Hawkins to argue that Al-
len 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 sub-
ject matters.’” Id. at 1265. In other words, the witness was “paraded
before the jury as an expert.” Id. Here, unlike in Hawkins, the pros-
ecutors did not describe Allen as an expert. The district court told
the jury that Allen could testify only “to what his personal obser-
vations 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 Di-
anne 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 testi-
mony she oﬀered. Gbenedio argues that the district court improp-
erly excluded Benson’s testimony under Federal Rule of Evi-
dence 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 testi-
mony 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 truthful-
ness.” 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 con-
duct to suggest a witness has a generally dishonest character is pre-
cisely 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 amend-
ment, 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 “‘char-
acter for truthfulness.’” Id. “The purpose of this amendment was
‘to clarify that the absolute prohibition on extrinsic evidence ap-
plies 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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22-12044 Opinion of the Court 25

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 commit-
tee’s note to 2003 amendment (“[T]he amendment leaves the ad-
missibility of extrinsic evidence oﬀered for other grounds of im-
peachment (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 ex-
clude relevant evidence “if its probative value is substantially out-
weighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly pre-
senting cumulative evidence.”
Gbenedio tried to call Benson to impeach Fikes, a prosecu-
tion 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 testi-
mony about the arrest. The prosecutor objected because Fikes ad-
mitted to the arrest. After a brief exchange with counsel, the dis-
trict 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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26 Opinion of the Court 22-12044

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 Ala-
bama’s prescription drug monitoring database and saw that Fikes
forged 30 prescriptions. He also explained that he obtained phar-
macy surveillance footage. After the proﬀer, the district court an-
nounced, “I’ll adhere to my ruling. This is all way beyond impeach-
ment or [Rule] 608.”
The district court did not abuse its discretion by excluding
Benson’s testimony for two reasons. First, the district court cor-
rectly determined that Benson’s testimony would not contradict
Fikes’s testimony. To be sure, Rule 608(b) does not prohibit im-
peachment by contradiction, and defense counsel described Ben-
son’s testimony as being oﬀered for that purpose. But Fikes admit-
ted 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 in-
consistent statement, extrinsic proof of the statement is excluda-
ble.”). 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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22-12044 Opinion of the Court 27

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 pre-
scriptions. So again, the testimony was properly excluded as cumu-
lative evidence.
E. There is No Cumulative Error.
Gbenedio argues that even if the evidentiary rulings de-
scribed above are nonreversible errors, the combined prejudice
they cause requires reversal. “The cumulative error doctrine pro-
vides 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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28 Opinion of the Court 22-12044

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 im-
pose 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, So-
cial 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 eligi-
bility 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 una-
ble 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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22-12044 Opinion of the Court 29

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]nwilling-
ness to answer speciﬁc questions” from the probation oﬃcer about
one’s ﬁnancial status “may permit the inference” that one is “con-
cealing 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. Gon-
zales, 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 estab-
lish 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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30 Opinion of the Court 22-12044

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 cooper-
ate in any investigation by the probation oﬃcer into what his ﬁnan-
cial 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 infor-
mation to the probation oﬃcer was his counsel’s mistake, not his
own. That argument might support a claim for ineﬀective assis-
tance of counsel, but we consider ineﬀective-assistance-of-counsel
claims on direct appeal only “if the record is suﬃciently devel-
oped.” 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 ev-
idence that suggests that his counsel was ineﬀective. That his coun-
sel 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 quo-
tation 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.