In United States v. Gbenedio, No. 22-12044 (Mar. 6, 2024) (CJ Pryor, Rosenbaum, Abudu), the Court affirmed Mr. Gbenedio’s convictions and sentence for unlawful drug dispensing. The charges were based on allegations that Mr. Gbenedio, a licensed pharmacists, had operated his business as a “pill mill.” The Court addressed six issues:
First, the district court did not abuse its discretion in
denying Mr. Gbenedio’s motion to dismiss. Mr. Gbenedio conceded that the
indictment alleged facts about him and his pharmacy, the Controlled Substances
Act, and all of the fake prescriptions that Mr. Gbenedio allegedly filled. The
prosecution had no obligation to explain its legal theory as to why the prescriptions
were invalid, or to provide a detailed disclosure of its evidence before the
trial. And in any event, Mr. Gbenedio had learned the prosecution’s theory,
including the details in a bill of particulars, as recent as one year before
trial.
Second, the district court did not abuse its discretion in admitting
a DEA agent’s testimony about convictions of employees from a pain clinic that
was associated with Mr. Gbenedio’s pharmacy, including testimony that law enforcement
learned of the pharmacy while investigating the clinic. The Court rejected
argument that the testimony was offered as substantive evidence of Mr. Gbenedio’s
guilt. Instead, it determined, the testimony was offered in response to
questions about why law enforcement investigated Mr. Gbenedio and what the investigation
uncovered. Also, the testimony caused no prejudice under Rule 403, because Mr. Gbenedio’s
own counsel first presented similar testimony.
Third, the district court did not abuse its discretion in allowing
lay-witness agents to testify that Mr. Gbenedio had the requisite intent, in
violation of the rule prohibiting expert witnesses from opining about a
defendant’s mental state. On the one hand, the testimony was based on the
agents’ experiences as investigators. On the other hand, the testimony was not based
on scientific, technical, or other specialize knowledge. And unlike other
cases, none of the agents were described to the jury as an expert.
Fourth, the district court did not abuse its discretion in
preventing Mr. Gbenedio from using an officer’s testimony to impeach a
government witness’s testimony. Because the officer would have confirmed a fact
that the witness had already admitted, there was nothing for the officer to
contradict under Rule 608(b). Further, the officer’s and the witness’s testimonies
would have been cumulative under Rule 403.
Fifth, for these reasons, there was no error—much less a
cumulative one.
Sixth, the district court did not clearly err by imposing a
$200,000 fine. Mr. Gbenedio’s failure to cooperate with probation’s requests
for financial information permitted an inference that Mr. Gbenedio had the ability
to pay a fine but was concealing assets. Mr. Gbenedio did not object to parts
of the presentence investigation report where probation indication that he
failed to establish his inability to pay a fine. Mr. Gbenedio’s argument that
his attorney was responsible for providing requested information might have
supported an ineffective-assistance-of-counsel claim. But Mr. Gbenedio failed
to identify competent evidence of the attorney’s deficient performance.
