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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 3:10cr30/MCR

ROBERT E. BOURLIER and 

VICTORIA BOURLIER,

Defendants.

_______________________________/

ORDER

Pending before the court is Defendant Robert E. Bourlier’s Renewed Motion for

Judgment of Acquittal (doc. 295) and Motion for New Trial (doc. 294), which the

government opposes (docs. 298 & 299). Following a three-week jury trial, Defendant Dr.

Robert Bourlier, a physician, was convicted of one hundred and forty-three (143) counts

of the one hundred-fifty (150) count indictment against him. The indictment charged

crimes of executing a scheme to defraud health care benefit programs, in violation of 18

U.S.C. §§ 1347(1),(2) and 1349; and dispensing controlled substances, and dispensing

controlled substances resulting in two deaths, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(C), (b)(1)(D), (b)(2) and 18 U.S.C. § 2. Having presided over the trial and having

carefully reviewed the record, including the evidence presented at trial, pertinent law, and

the parties’ arguments, the court finds that the motions should be denied. 

Renewed Motion for Judgment of Acquittal

Defendant renews his motion for judgment of acquittal, arguing (1) that the

government failed to call as witnesses at trial all of the defendant’s former patients who

were listed in the indictment, (2) that the government failed to establish an applicable

threshold standard of medical care by which the jury could measure his conduct, (3) that

Dr. Bourlier acted within the course of professional medical practice because he followed

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FDA-approved labeling and prescribing directions in prescribingcontrolled substances, and

(4) that the government failed to establish that Dr. Bourlier caused patient deaths. See

Fed. R. Crim. P. 29. The government asserts that the evidence was in all respects

sufficient to sustain the convictions. 

All criminal convictions must be proven by “evidence necessary to convince a trier

of fact beyond a reasonable doubt of the existence of every element of the offense.” 

Jackson v. Virginia, 443 U.S. 307, 316 (1979). Thus, to sustain a verdict on a motion for

judgment of acquittal challenging the sufficiency of the evidence, the court must determine

whether the evidence, when viewed in the light most favorable to the government and

drawing all reasonable inferences in favor of the jury’s verdict, was sufficient for a

reasonable jury to find the defendant guilty of all essential elements of the offense charged

beyond a reasonable doubt. United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011). 

“A conviction must be upheld unless the jury could not have found the defendant guilty

under any reasonable construction of the evidence.” United States v. Chastain, 198 F.3d

1338, 1351 (11th Cir. 1999), cert. denied 532 U.S. 996 (2001); see also United States v.

Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997) (noting “[i]t is not necessary that the

evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with

every conclusion except that of guilt” (internal marks omitted)), cert. denied 522 U.S. 1133

(1998), modified in part on other grounds by United States v. Toler, 144 F.3d 1423, 1427

(11th Cir. 1998).

Defendant’s argument that the evidence is insufficient because the government

failed to call as a witness every patient whose records served as a basis for a count in the

indictment is not supported by law. Defendant argues that of the 55 patients identified in

the indictment, “only several” of them were called to testify; that the government’s expert

witness did not physically examine the patients; and that medical records alone do not

justify conviction, relying heavily on United States v. Tran Trong Cuong, 18 F.3d 1132 (4th

Cir. 1994) (holding expert testimony regarding a pattern of conduct based on a summary

of patient files could not sustain convictions). There is no legal requirement that each

count must be proven by direct evidence such as patient testimony, as opposed to

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circumstantial evidence. In fact, the statute provides for conviction where death results,

and thus no direct patient testimony would be possible. Here, the government presented

the direct testimony of eight patients who were identified in the indictment and

circumstantial evidence regarding the remaining counts. Family members of some patients

testified as did several patients who were not identified in the indictment. Importantly, the 1

medical records and prescriptions of every patient identified in the indictment and

representing a separate count of the indictment were admitted into evidence and reviewed

by the government’s expert medical witness, Dr. Parran. At trial, Dr. Parran rendered an

opinion as to each count that, based on his review, Dr. Bourlier had acted outside the

bounds of legitimate medical practice and for no legitimate medical purpose. There was

evidence that Dr. Bourlier conducted minimal medical examinations, ignored warning signs,

and did not conduct the type of examinations, screening or tests that could have revealed

that a patient’s subjective pain complaints were a ruse. Dr. Bourlier repeatedly failed to

obtain medical records for his patients or record all necessary information properly, and he

routinely refilled prescriptions early and prescribed medication with minimal or no objective

supporting documentation in the patient’s medical record. The evidence was sufficient to

support the verdicts. 

Tran Trong Cuong, on which Defendant relies, does not stand for the proposition

that patients must testify to support each charge; instead, the Fourth Circuit reversed

convictions on 80 out of 127 counts where the patients neither testified nor were presented

to the jury through the physician’s medical records. 18 F.3d at 1141. Those counts had

been supported solely by evidence of prescriptions and a summary report of patient files. 

The expert witness in that case did not discuss by name the patients who did not testify nor

did he comment on their treatment or lack of treatment or their prescriptions that were in

evidence; he stated only that he had identified a pattern of prescribing that he did not think

was justified. Id. More importantly, the expert admitted that some of the medical charts

did not provide sufficient information from which to conclude that the prescriptions were

Seven of the 55 patients identified in the indictment were deceased by the time of trial and so could

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not have testified.

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actually improper; nevertheless this information was included in the summary and formed

the basis of separate counts. Id. The court therefore reversed 80 of the 127 convictions

stating, “[a] defendant is entitled to individual consideration of every count in an indictment

by the jury and evidence sufficient to convict on each count beyond a reasonable doubt.” 

Id. at 1142. Such evidence is more often than not circumstantial. See generally United

States v. Martinez, 588 F.3d 301, 314 (6th Cir. 2009) (noting in a health care fraud case

where the government “did not offer individualized patient testimony” that “circumstantial

evidence alone can sustain a guilty verdict” where expert testimony is “sufficiently specific

to the patient, date, and services in the indictment”), cert. denied, 131 S. Ct. 990 (2011);

United States v. Brown, 553 F.3d 768, 780 (5th Cir. 2008) (upholding a verdict convicting

pharmacists of distributing drugs other than for a legitimate medical purpose and noting

that “our standard of review does not change if the evidence that sustains the conviction

is circumstantial rather than direct” (internal marks omitted)), cert. denied, 130 S. Ct. 246

(2009). Here, contrary to Dr. Bourlier’s assertion, the government did not rely on mere

summaries or an impermissible presumption that Defendant must be guilty on all counts

due to a pattern that evolved from the testimony of a few witnesses. Instead, as noted, the

record at trial included the patient medical files from Defendant’s practice and prescriptions

supporting every count in the indictment as well as testimony about each patient named

in the indictment from patients, patient families, pharmacists and medical experts from

which a rational juror could find Defendant guilty beyond a reasonable doubt of each count

presented.2

Defendant’s argument that the government failed to establish an applicable

threshold standard of medical care by which the jury could measure Dr. Bourlier’s conduct

also fails. A prescription for a controlled substance is lawful if issued “for a legitimate

medical purpose” by a physician “acting in the usual course of his professional practice.” 

21 C.F.R. § 1306.04(a). As Defendant argues, the difference between civil malpractice

Furthermore, the fact that the jury found Dr. Bourlier not guilty on one of the controlled substances

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counts and was unable to agree with regard to three of the controlled substances counts supports the court's

conclusion that Defendant received individual consideration by the jury as to each count.

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and criminal conduct is a matter of degree, but precisely for this reason, a clearly

articulated criminal standard for every medical decision is not possible. The Eleventh

Circuit has indicated, consistent with Supreme Court precedent, that it is appropriate to

instruct the jury to focus on whether the doctor acted “‘in accordance with a standard of

medical practice generally recognized and accepted in the United States.’” United States

v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008) (quoting United States v. Moore, 423 U.S.

122, 139 (1975)). The government presented expert medical testimony regarding

acceptable medical standards and whether Dr. Bourlier’s conduct was outside its bounds,

and the Defendant also presented expert medical testimony regarding the applicable

medical standards. The court finds that there was sufficient evidence of a “generallyaccepted standard of medical practice,” id., to guide the jury’s consideration of whether that

standard was violated by the Defendant. Moreover, the court specifically cautioned the jury

that Dr. Bourlier was not on trial for medical malpractice or negligence. The jury was

required to find that the Defendant issued each prescription with knowledge that it was

being issued not for a legitimate medical purpose in the ususal course of professional

medical practice, and viewing the record in the light most favorable to the government and

drawing all reasonable inferences in favor of the jury’s verdict, the evidence was sufficient

for a reasonable jury to find the defendant guilty of all essential elements of the offense

charged beyond a reasonable doubt.

Defendant argues that the evidence is insufficient to sustain the convictions

because Dr. Bourlier followed FDA-approved labeling and prescribing directions in

prescribing the controlled substances. The legal standard is not whether the FDA

approved dosages were followed, but whether the defendant’s conduct was not for a

legitimate medical purpose in the usual course of practice. While evidence of FDA labeling

could contribute to a finding that a defendant’s actions were within the usual course of

practice, and the defendant was free to make this argument, the jury was likewise free to

reject that evidence and argument in favor of other evidence indicating that his conduct

was not within the ususal course or for a legitimate medical purpose. The government’s

medical expert, Dr. Parran, testified that Dr. Bourlier’s conduct was not for a legitimate

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purpose in the usual course of practice, and the jury was free to rely on this testimony. 

Finally, Defendant argues that the evidence was insufficient because the

government failed to establish that his treatment or prescriptions were the proximate cause

of the two patient deaths charged in the indictment. The court disagrees with counsel’s

assertion that the legal standard of proximate cause was required. The statute requires

proof that death “results” from the distribution of a controlled substance, 21 U.S.C.

§ 841(b)(1)(C), and the jury here was required to find that the deaths resulted from the

defendant’s conduct if the deaths would not have occurred but for but for the decedents’

use of the charged controlled substances dispensed by the defendant as charged. This

“but for” standard is a correct statement of the level of causation required under the statute. 

See, e.g., United States v. Houston, 406 F.3d 1121, 1124 (9th Cir. 2005) (holding the

passive language of “death results” eliminates any statutory requirement of foreseeability);

United States v. Soler, 275 F.3d 146, 152-53 (1st Cir.) (holding reasonable foreseeability

is not required), cert. denied, 535 U.S. 1071 (2002); United States v. McIntosh, 236 F.3d

968, 972-73 (8th Cir. 2001) (holding that the language of section 841(b)(1)(A), which is

identical to section 841(b)(1)(C), is “unambiguous and that giving effect to its plain meaning

prohibits us from superimposing upon the statute a foreseeability or proximate cause

requirement”), cert. denied, 532 U.S. 1022 (2001); United States v. Robinson, 167 F.3d

824, 831 (3d Cir.) (holding Congress’s use of the plain language of “death resulted” does

not require application of common law concepts of proximate cause), cert. denied, 528

U.S. 846 (1999); see also United States v. Hatfield, 591 F.3d 945, 948 (7th Cir. 2010)

(stating the language “results from” requires the minimum concept of cause, which is a “but

for” standard; that is, that the death would not have occurred had the drugs not been

ingested, but expressing “some misgivings” about interpreting it to impose strict liability).3

See also United States v. Rebmann, 226 F.3d 521, 525 (6th Cir. 2000) (commenting in dicta that

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“[o]n its face, the statute is, in effect, a strict liability statute”), overruled on other grounds by United States v.

Leachman, 309 F.3d 377, 385 (6th Cir. 2002). The Sixth Circuit has not since revisited the question directly

in the context of 21 U.S.C. § 841, except to reserve the issue for another day. See United States v. Atkins,

289 Fed. Appx. 872, 877 & n.3 (stating, “[w]e leave for a more appropriate case he question of whether to join

our sister circuits in holding that § 841(b)(1)(C) does not require proof of proximate cause or the foreseeability

of death”). However, that court has since concluded that proximate cause is the appropriate standard in the

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The court finds that the evidence at trial was sufficient on each element for a rational

juror to have found Dr. Bourlier guilty on the counts of which he was convicted. See

Jackson, 443 U.S. at 319 (requiring convictions to be upheld if “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt”). 

Therefore, Defendant’s renewed motion for acquittal will be denied. 

Motion for New Trial

The court may vacate a judgment and grant a new trial “if the interest of justice so

requires.” Fed. R. Crim. P. 33. Defendant suggests error throughout the trial, both

individually and cumulatively, has deprived him of a fair trial. See United States v. Baker,

432 F.3d 1189, 1223, 1203 (11th Cir. 2005) (noting the court will reverse if the cumulative

effect of errors is prejudicial). Dr. Bourlier argues that the court erred in rejecting his

proposed jury instructions regarding proximate cause and defining the standards of care,

erred in admitting improper expert testimony, and improperly admitted facts regarding the

deaths of patients whose deaths were not charged in the indictment. The court has

already considered and rejected these arguments. 

The court has concluded, as noted above and in earlier rulings, that proximate

cause is not the proper standard of causation based on the plain language of the statute,

and that the jury was properly instructed regarding the standard of care. The court

instructed the jury that to establish death resulted, the government had to prove that the

defendant’s conduct “directly and in natural and continuous sequence produced or

contributed substantially to producing the death, so that it can reasonably be said that ‘but

for’ the Defendant’s conduct, the death would not have occurred.” (Doc. 244, at 11) A

defendant is entitled to an instruction on his theory of defense when it is supported by law,

but “[i]f the charge given to the jury adequately and correctly covers the substance of the

requested instruction, there is no reversible error.” See United States v. Lanzon, 639 F.3d

context of the “death results” enhancement for health care fraud, 18 U.S.C. § 1347, which is a willful crime.

See Martinez, 588 F.3d at 318-19. The court noted that the parties had not challenged the district court’s

application of the proximate cause standard, and the opinion does not cite Rebmann or discuss any cases

dealing with the enhanced penalty under the Controlled Substances Act. See id. at 318. The court thus finds

Martinez to be distinguishable.

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1293, 1302 (11th Cir. 2011) (internal marks omitted). The court finds no basis for granting

a new trial on this claim because the instruction correctly stated the law, as outlined above. 

See United States v. Rodriguez, 279 F.3d 947, 951 (11th Cir. 2002). 

Defendant argues that there was insufficient notice of what standards of care

applied to his conduct and that the jury was not adequately instructed on state medical

standards of care by which to judge the degree of his departure from those standards. The

court rejected Defendant’s series of proposed instructions regarding particular standards

of medical care but permitted the defense to present evidence regarding the appropriate

standard. The Defendant presented the expert testimony of Dr. Richard Rauck, who

disagreed with the government’s expert. See United States v. Chube II, 538 F.3d 693,

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698 (7th Cir. 2008) (noting both sides are entitled to put in their theory of the case

regarding the appropriate standard of medical care). The court’s instruction on the

standard of care stated left the determination of the appropriate standard to the jury, stating

in part, as follows: 

A controlled substance is prescribed by a physician in the usual

course of professional practice and, therefore, lawfully, if the substance is

prescribed by him in good faith as part of his medical treatment for the

patient in accordance with the standards of medical practice generally

recognized and accepted in the United States. 

Good faith is a complete defense to the charges in Counts 21 through

150 of the indictment since good faith on the part of the Defendant is

inconsistent with the essential element of knowledge or intent to issue a

prescription not for a legitimate medical purpose. Good faith means good

intentions and the honest exercise of good professional judgment as to a

patient's medical needs. It is an honest effort on the physician's part to

prescribe controlled substances in compliance with an accepted standard of

medical practice. A doctor who knowingly issues a prescription not for a

legitimate medical purpose in the usual course of professional practice does

not act in good faith.

In order to determine whether or not a prescription or prescriptions

During the cross examination of a Government witness, Defendant admitted exhibit DOH-1, a copy

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of a Florida Administrative Code rule, Florida Standards of Practice for Medical Doctors – Standards for the

Use of Controlled Substances for Treatment of Pain.

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were issued by the Defendant in good faith for a legitimate medical purpose

in the usual course of a professional practice, you may consider all of the

evidence admitted at trial, including, but not limited to, the circumstances

surrounding the prescribing of the substance in question, the statements of

the parties to the prescription transactions, any expert testimony as to what

is the usual course of medical practice, and any other competent evidence

bearing on the purpose for which the substances in question were

prescribed.

I caution you that the Defendant is not on trial in this case for medical

malpractice or negligence, neither of which constitutes a crime. In other

words, the Defendant cannot be found guilty based solely on your finding

that he failed to exercise reasonable medical care on behalf of his patients

by his prescription practices, that he acted outside the standard of care, or

even if you believe he is a bad doctor. Instead, in order to find the

Defendant guilty, you must find that at the time he issued a prescription, he

did so with knowledge that it was not being issued for a legitimate medical

purpose in the usual course of his professional practice. 

(Doc. 279, at 21-22)

This instruction plainly required the jury to consider whether the prescriptions were

issued by the Defendant in good faith for a legitimate medical purpose in the usual course

of a professional practice, considering all of the evidence admitted at trial, including, but

not limited to, the circumstances surrounding the prescribing of the substance in question,

the statements of the parties to the prescription transactions, and any expert testimony as

to what is the usual course of medical practice. As noted above, the appropriate standard

is “whether the physician prescribes medicine ‘in accordance with a standard of medical

practice generally recognized and accepted in the United States.’” Merrill, 513 F.3d 1306

(quoting Moore, 423 U.S. at 139). The instruction given was consistent with that language,

and the instructions as a whole did not convey to the jury that breaching a civil standard

of care alone could result in conviction, but in fact advised them otherwise. See generally,

United States v. Smith, 573 F.3d 639, 649 (8th Cir. 2009). Moreover, the instruction also

clearly informed the jury that good faith was a defense. See id. (noting the good faith

instruction must rest on an objective “generally-accepted standard of medical practice”). 

Determining what conduct lies beyond the bounds of professional medical practice and

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whether the Defendant knowingly engaged in that conduct was a task for the jury. See

United States v. Johnson, 322 Fed. Appx. 660, 667 (11th Cir. 2009) (unpublished)

(indicating that criminal knowledge and intent are issues for the jury). 

Defendant argues that the court erred in admitting improper expert testimony

because the government’s expert, Dr. Parran, was not qualified to testify regarding medical

standards in Florida, and that the standard applicable to pain specialists does not apply to

Dr. Bourlier. The court finds no error. The record does not reflect that Dr. Bourlier was

improperly held to a standard of care that applied only to specialists and not to him. 

Defendant also argues that Dr. Parran was permitted to provide improper legal opinion. 

The court again disagrees. Testimony that Dr. Bourlier’s conduct was outside the course

of professional practice and not for legitimate medical purpose did not constitute improper

legal opinion. Experts are permitted to testify regarding, and to disagree about, whether

a defendant’s conduct was within or outside of applicable medical standards. See

generally United States v. Moore, 423 U.S. 122 (1975); United States v. Katz, 445 F.3d

1023, 1032 (8th Cir.) (stating experts are prohibited from offering opinion on a defendant’s

mental state not from providing opinions that link standards of care to the existence of a

legitimate medical purpose), cert. denied, 549 U.S. 956 (2006). In this case, Dr. Parran

was not permitted to testify regarding the ultimate issues of the defendant’s intent or

knowledge, or guilt or innocence of the crimes charged. See Chube II, 538 F.3d at 700

(affirming admission of Dr. Parran’s expert testimony where expert was not allowed to offer

opinion on defendant doctor’s subjective intent); see also United States v. McIver, 470 F.3d

550, 561-62 & n.14 (4th Cir. 2006) (noting whether the defendant acted outside the bounds

of professional practice is a question of fact for the jury on which expert testimony is

appropriate), cert. denied, 550 U.S. 936 (2007). Instead, Dr. Parran properly set forth the

applicable standards by which appropriate medical care is determined and offered his

opinion that the defendant’s conduct exceeded that medical standard. 

Finally, the defendant argues that the court erred by permitting testimony regarding

other patients’ deaths, which were not charged in the indictment. The court rejected these

arguments by order dated April 23, 2011 (doc. 232), denying defendant’s motion in limine

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(doc. 178) on this ground, and now denies the motion for new trial on this basis for the

same reasons already stated in the prior order. See Merill, 513 F.3d at 1303 (“[E]vidence

of the quantity and combination of prescriptions [defendant] wrote during the relevant

period is directly related to . . . whether [defendant] was relieved of liability under the

Controlled Substances Act because he acted in the ‘usual course of professional

practice.’”). 

Accordingly, it is hereby ORDERED that defendant’s renewed motion for judgment

of acquittal (doc. 295) and motion for new trial (doc. 294) are DENIED.

DONE and ORDERED this 26th day of August, 2011.

M. Casey Rodgers

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

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