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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. Case No. 3:10cr30/MCR

ROBERT E. BOURLIER

and

VICTORIA BOURLIER

______________________________/

O R D E R

Pending before the court is Defendant Robert E. Bourlier's Motion to Dismiss the

Indictment (doc. 80), and the Government's Response (doc. 101). Bourlier, a physician,

is charged in a one-hundred-and-fifty-one count indictment consisting of substantive

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

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

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

(b)(1)(C), (b)(1)(D), (b)(2) and 18 U.S.C. § 2; and criminal forfeiture, in violation of 18

U.S.C. § 982(a)(7). Bourlier moves to dismiss the indictment as insufficient and on

grounds that the Controlled Substances Act is unconstitutionally vague as applied to him.

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The Government opposes the motion. Having fully considered the arguments of the

parties, the motion is DENIED. 

The court may dismiss a criminal prosecution on grounds of "a defect in the

indictment." Fed. R. Crim. P. 12(b)(3)(B). However, an indictment is sufficient as long as

it sets forth "a plain, concise, and definite written statement of the essential facts

constituting the offense charged." Fed. R. Crim. P. 7(c)(1). The Eleventh Circuit instructs

that "[a]n indictment is sufficient if it (1) presents the essential elements of the charged

offense; (2) notifies the accused of the charges to be defended against, and (3) enables

Bourlier's arguments in the motion to dismiss all relate to the controlled substances charges; he sets

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forth no arguments challenging as insufficient the counts related to medicare fraud (counts 1-20).
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the accused to rely upon a judgment under the indictment as a bar against double jeopardy

for any subsequent prosecution for the same offense." United States v. Steele, 147 F.3d

1316, 1320 (11th Cir. 1998) (en banc). The general rule is that the sufficiency of the

indictment should be determined from the face of the indictment, and an indictment is

sufficient if it charges the language of the statute. See United States v. Critzer, 951 F.2d

306, 307 (11th Cir. 1992); United States v. Hernandez, No. 07-60027, 2007 WL 2915854,

at *5 (S.D. Fla. 2007). For purposes of this analysis, the allegations of the indictment must

be taken as true. United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 33 n.2 (1952); see

also Hernandez, 2007 WL 2915854, at *5. 

The charges against Bourlier under the Controlled Substances Act ("CSA")

sufficiently present the essential elements of the crime charged. The CSA makes it

unlawful to knowingly or intentionally dispense a controlled substance, "[e]xcept as

authorized by this subchapter." 21 U.S.C. § 841(a)(1). Settled precedent indicates that

a physician may be prosecuted pursuant to 21 U.S.C. § 841(a)(1). See Moore v. United

States, 423 U.S. 122 (1975); see generally United States v. Harrison, 628 F.2d 929, 930

(5th Cir. 1980). An authorized exception provides that persons registered by the Attorney 2

General to dispense controlled substances may do so to the extent authorized by their

registration, 21 U.S.C. § 822(b), and pursuant to this exception, a physician may lawfully

prescribe a controlled substance "for a legitimate medical purpose" if acting in the "usual

course of his professional practice." 21 C.F.R. § 1306.04(a). A purported prescription, not

issued in the usual course of professional treatment or in legitimate and authorized

research, is not a valid prescription within the meaning and intent of the CSA, and a person

knowingly issuing or filling a purported prescription shall be subject to the penalties

provided with regard to controlled substances. Id. An indictment, however, need not

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit

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adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of

business on September 30, 1981.

Case No. 3:10cr30/MCR
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negate this exemption. See 21 U.S.C. § 885(a)(1) ("It shall not be necessary for the

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United States to negative any exemption or exception set forth in this subchapter in any

complaint, information, indictment"); see also Steele, 147 F.3d at 1317 (stating that for

pleading purposes, whether the action was taken in the course of professional practice is

a defense and not an element of the offense). The indictment here sufficiently alleges the

language of the statute – i.e., that Bourlier knowingly and intentionally dispensed controlled

substances in violation of § 841(a)(1). It also satisfies the requirement that the indictment

provide "a plain, concise, and definite written statement of the essential facts constituting

the offense charged," Fed. R. Crim. P. 7(c)(1), and adequate notice of the crimes charged.

The indictment adds additional detail as well, asserting that Bourlier's scheme involved

using his medical practice to distribute specific controlled substances on certain specified

dates through prescriptions without determining whether there was a sufficient medical

necessity for the prescription, and the prescriptions were made "outside the usual course

of professional practice" and "in quantities and dosages that would cause patients to

abuse, misuse or become addicted to the controlled substance." (Doc. 3.) Because the

essential facts, charges, and elements of the offenses charged are plainly stated in the

indictment, Bourlier could rely on a judgment under this indictment as a bar to any

subsequent prosecution for the same offense.

Bourlier argues that the Government cannot make a case against him under the

Supreme Court's interpretation of the CSA unless the prescription was "an outright sham." 

(Doc. 80.) This argument, however, reveals no defect in the indictment; it is effectively a

challenge to the sufficiency of the evidence, which must await trial. Determining what

conduct lies beyond the bounds of professional medical practice is a task for the jury and

therefore is not a proper subject of a motion to dismiss. See United States v. Quinones,

536 F. Supp.2d 267, 272 (E.D.N.Y. 2008); Hernandez, 2007 WL 2915854, at *6 (citing

Moore, 423 U.S. at 142).

 This order deals only with the pleading standard for determining the sufficiency of the indictment.

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Once Bourlier goes forward with evidence that he acted in the course of professional practice, the court will

ensure that the burden of proof remains with the Government. See United States v. Merrill, 513 F.3d 1293,

1306 (11th Cir. 2008); United States v. Williams, 445 F.3d 1302, 1309 (11th Cir. 2006), abrogated on other

grounds, United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007) (en banc).

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Bourlier also argues that the CSA is unconstitutionally vague as applied to him

because of the lack of a national medical standard. This argument is foreclosed by United

States v. Collier, 478 F.2d 268, 271-72 (5th Cir. 1973), in which the former Fifth Circuit, in

an opinion that is binding on this court, held that the CSA is not vague, though it

necessarily reserves "a certain latitude of available options" for the medical treatment to

the judgment of a physician. The court stated in Collier that a physician may not, "under

the guise of treatment," sell to a drug dealer or distribute drugs "intended to cater to

cravings of an addict," but noted that statutes "need not delineate the precise

circumstances constituting the bounds of permissible [medical] practice" because a

physician must be permitted to make a professional judgment about treatment based on

the circumstances. Id. at 272; see United States v. Ignasiak, 3:08cr27, 2008 WL 3852325,

at *1 (N.D. Fla. 2008). "'[W]hat constitutes bona fide medical practice must be determined

upon consideration of evidence and attending circumstances.'" Collier, 478 F.2d at 272

(quoting Linder v. United States, 268 U.S. 5, 18 (1925)); see also United States v.

Birbragher, 603 F.3d 478, 488-89 (8th Cir. 2010) (citing Collier and holding the CSA is not

unconstitutionally vague); Quinones, 536 F. Supp.2d at 274 (holding § 841(a)(1) is not

unconstitutionally vague). The CSA includes a sufficiently objective meaning that prevents

arbitrary prosecution and conviction – "Neither the government nor the jury is free to

impose its own subjective views about what is and is not appropriate; rather, the

government is obliged to prove, and the jury constrained to determine, what the medical

profession would generally do in the circumstances." Quinones, 536 F. Supp.2d at 274. 

The CSA is not unconstitutionally vague as applied to Bourlier.

In a related argument, Bourlier asserts that the Supreme Court's more recent

interpretation of the CSA indicates that the Attorney General lacks the authority to decide

what constitutes a legitimate medical purpose for a prescription and has not set a national

medical standard to guide physicians' conduct, citing Gonzales v. Oregon, 546 U.S. 243

(2006); therefore the prosecution amounts to an impermissible criminal prosecution for

malpractice. In Gonzales, the Attorney General had declared by rule that assisted suicide

was not a legitimate medical purpose within the meaning of the CSA, despite state law

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specifically authorizing the practice, and the Court held that a rule declaring physicianassisted suicide a crime went well beyond the Attorney General's statutory rulemaking

power. Id. at 258-61. The Court expressly acknowledged that the CSA presumes and

relies on a functioning medical profession regulated under the police powers of the states. 

Id. at 270. The Court noted that Congress has not manifested any intent to regulate

medicine to the exclusion of state law standards and that, although the federal government

can set federal standards, the CSA has done so only with regard to the treatment of

addicts. Id. at 270-71. Nevertheless, the Attorney General retains authority to evaluate

compliance with the federal law (which requires consideration of state and federal medical

standards) in deciding whether to prosecute. Id. at 264. That is all that has occurred in

this case: the Government has exercised its power to evaluate Bourlier's compliance with

the CSA and decide whether to prosecute. This indictment does not attempt to define

medical standards nor does it present a criminal prosecution for "malpractice," as Bourlier

asserts; the Government will be required to prove the essential elements that Bourlier

intentionally and knowingly dispensed controlled substances and that his "actions were not

for legitimate medical purposes in the usual course of professional medical practice or

were beyond the bounds of professional medical practice," as set forth under the CSA. 

United States v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008); see also United States v.

Williams, 445 F.3d 1302, 1308 (11th Cir. 2006) (stating "[t]here is no authority in this circuit

or in any other circuit holding that evidence of noncompliance with the civil standard of care

is inadmissible to prove that the action at issue was also outside the course of professional

medical practice), abrogated on other grounds, United States v. Lewis, 492 F.3d 1219

(11th Cir. 2007) (en banc).

Accordingly, it is hereby ORDERED that Defendant Robert Bourlier's motion to

dismiss the indictment (doc. 80) is DENIED.

DONE and ORDERED this 4th day of January, 2011.

 s/ M. Casey Rodgers 

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

Case No. 3:10cr30/MCR