United States v. Robert E. Bourlier

518 F. App'x 848
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 15, 2013
Docket11-15268
StatusUnpublished
Cited by2 cases

This text of 518 F. App'x 848 (United States v. Robert E. Bourlier) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Robert E. Bourlier, 518 F. App'x 848 (11th Cir. 2013).

Opinion

PER CURIAM:

Until he was convicted in this case, Appellant Robert Bourlier was a medical doctor licensed by the State of Florida. Here, he appeals his convictions for health care fraud, dispensing controlled substances in violation of the Controlled Substances Act (CSA), and dispensing a controlled substance resulting in death. Mr. Bourlier was charged in a 151-count indictment with twenty counts of health care fraud in violation of 18 U.S.C. §§ 1347(a)(l)-(2), 1349; 128 counts of unlawful dispersal of a controlled substance in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), (b)(1)(D), and (b)(2) and 18 U.S.C. § 2; and two counts of dispensing a controlled substance resulting in death. 1 The government’s theory of prosecution for the charges under each statute was essentially the same — that Robert had prescribed unnecessary or excessive quantities of controlled substances without a legitimate medical purpose and outside the usual course of professional practice.

A jury found Robert guilty of 143 of the 150 charged counts. The jury acquitted him of two of the fraud counts and one count of unlawful dispersal. The jury did not reach a verdict as to one fraud count and three unlawful dispersal counts. He was sentenced to a total term of 360 months.

In his direct appeal, Robert argues: (1) that there was insufficient evidence to support the convictions; (2) that the district court erred by admitting death certificates *851 related to uncharged patient deaths into evidence; and (3) that the district court erred by declining to give certain jury instructions proposed by Robert.

I. SUFFICIENCY OF THE EVIDENCE

Robert’s first argument on appeal is that there was insufficient evidence to support his convictions. He makes several claims in support of this argument. First, he argues that the government only proved that he was a bad or reckless doctor. He suggests that his practice was merely “sloppy” because he has multiple sclerosis. Second, he argues that the court improperly allowed the jury to find “guilt by association or as a result of a pattern.” Third, he argues that the evidence was insufficient because the government never established the appropriate standard of care and how much he deviated from that standard.

This Court reviews a challenge to the sufficiency of the evidence de novo, viewing the evidence and making all reasonable inferences in the light most favorable to the government. United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir.2005). We must affirm the convictions “unless, under no reasonable construction of the evidence, could the jury have found the appellants guilty beyond a reasonable doubt.” Id.

“[Ajlthough [Robert] was convicted of both substantive fraud counts and dispensing controlled substances counts, the convictions are inextricably intertwined.... Thus, we evaluate the sufficiency of the evidence for the fraud and dispensing counts together ... focusing upon the requirements under the CSA.” United States v. Ignasiak, 667 F.3d 1217, 1227 (11th Cir.2012). To convict a physician licensed to prescribe controlled substances, such as Robert, under § 841 “it [is] incumbent upon the government to prove that he dispensed controlled substances for other than legitimate medical purposes in the usual course of professional practice, and that he did so knowingly and intentionally.” Id. at 1228 (quotation marks omitted); see also United States v. Tobin, 676 F.3d 1264, 1282 (11th Cir.2012).

There was ample evidence to support Robert’s convictions. Our precedent establishes that “conduct where an inordinately large quantity of controlled substances was prescribed, ... large numbers of prescriptions were issued, ... no physical examination was given,.... [and] that [the physician] knew or should have known that his patients were misusing their prescriptions” suggests that a defendant distributed a prescription without a legitimate medical purpose and outside the usual course of professional practice. United States v. Joseph, 709 F.3d 1082, 1104 (11th Cir.2013) (quotation marks and alterations omitted). There was evidence that Robert engaged in this type of conduct. A Drug Enforcement Administration diversion investigator testified that between 2004 and 2008, Robert wrote 43,-051 prescriptions for controlled substances. See Ignasiak, 667 F.3d at 1229 (finding that there was sufficient evidence in part based on the fact the defendant had “written more than 43,000 prescriptions for controlled substances over a five year period”). Also, a pharmacist testified that Robert typically prescribed the same three controlled substances to each patient and rarely prescribed any other medications. An expert who reviewed Robert’s files stated that there was scant initial history of the patients and “typically there was no documented evidence of any physical exam being done.” The government also pointed to circumstantial evidence that Robert knew or should have known that at least some of his patients were misusing their prescriptions. For exam- *852 pie, there was evidence that “patients beg[a]n to demonstrate ... aberrant behavior ... with their use of their medicines” such as “coming back on ... multiple episodes early,” and that some family members had called Robert’s office to ask him to stop writing prescriptions to addicted patients.

Our review of the record also reveals other evidence supporting Robert’s convictions. For example, there was evidence that he continued to prescribe controlled substances to patients he knew had experienced withdrawal symptoms or who had overdosed in the past. Cf. Ignasiak, 667 F.3d at 1223 (noting, as a positive, the fact that the doctor had stopped prescribing controlled substances to a patient who became addicted and almost overdosed). Robert had a pattern of writing the same prescriptions for different patients, which could support a finding that there was not a “logical relationship between the drugs prescribed and treatment of the condition.” United States v. Rosen, 582 F.2d 1032, 1036 (5th Cir.1978). 2

The government also presented an expert in prescribing controlled substances, Dr. Parran. He reviewed the medical files of patients who were the subject of the indictment, as well as other patient files. Dr. Parran testified that “the prescribing on [each charged] occasion was done in a way that was inconsistent with the usual course of medical practice and for other than legitimate medical purpose.” Unlike the trial in United States v. Tran Trong Cuong, 18 F.3d 1132

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
518 F. App'x 848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-e-bourlier-ca11-2013.