                Case: 11-15268       Date Filed: 05/15/2013       Page: 1 of 19


                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-15268
                               ________________________

                         D.C. Docket No. 3:10-cr-00030-MCR-1



UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                             versus



ROBERT E. BOURLIER,

                                                                        Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                            ________________________

                                       (May 15, 2013)

Before MARTIN and ANDERSON, Circuit Judges, and VINSON, ∗ District Judge.


∗
  Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida,
sitting by designation.
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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)(1)–(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.



1
  Count 151 charged Mr. Bourlier’s wife, Victoria Bourlier, with obstruction of justice. Mrs.
Bourlier is not a party to this appeal. Even so, because two Bourliers were prosecuted, we will
refer to Mr. Bourlier as Robert.
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      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 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.


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      “[A]lthough [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


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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 example, 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


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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 (4th Cir. 1994), which Robert suggests is analogous, Dr. Parran specifically

discussed the medical file of each patient charged in the indictment, including

those who did not testify, commented on the prescriptions they received, and made

individual assessments about their treatment. See id. at 1141. “Further, the fact

the jury acquitted [Robert] of several counts . . . sufficiently minimizes the risk

identified in Cuong that [Robert’s] jury merely convicted him based only upon

‘guilt by association.’” Ignasiak, 667 F.3d at 1229 (quoting Cuong, 18 F.3d at

1142). Certainly the case would have been stronger if Dr. Parran had examined

2
  In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding
all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at 1209.
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more of the charged patients or more of the charged patients testified, but we easily

conclude there was sufficient evidence to support the jury’s guilty verdicts. See id.

at 1228–29.

      Finally, despite Robert’s protests to the contrary, there was also sufficient

evidence regarding the appropriate standard of care. For example, Dr. Parran

testified generally about the usual course of professional practice. Also, and

significantly, the 2002–2011 executive director for the Florida Board of Medicine

told the jury about the Florida Statutes that authorized physicians to prescribe

controlled substances and set out the standard of care. He testified as well as to the

Florida Board of Medicine’s rules regarding the prescription of controlled

substances. On cross-examination, he read into evidence parts of Florida

Administrative Code Rule 64B8-9.013, which address the use of controlled

substances for pain management. From this testimony together with the evidence

of Robert’s prescribing practices, the jury could have fairly concluded that Robert

“prescribed controlled substances not in the usual course of his medical practice

and was acting other than for a legitimate medical purpose.” Joseph, 709 F.3d at

1103 (quotation marks omitted).

                  II.   EVIDENCE OF UNCHARGED DEATHS

      Robert’s second argument on appeal is that the district court erred by

allowing the government to admit evidence of uncharged patient deaths,


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specifically death certificates for patients Lewis Hassell and Keaan Amaker, a

letter from a medical examiner regarding patient Sara McCormick, and related

testimony from family members and experts. Some of the charged unlawful

dispersal counts related to Robert’s prescriptions for Hassell, Amaker, and

McCormick.3 Robert objected to the admission of any evidence of uncharged

deaths in a Motion in Limine prior to trial, and also during the trial. The district

court overruled each of these objections, but constrained the jury’s reliance on this

evidence through several limiting instructions. Robert argues that the admission of

the death certificates and medical examiner letter violated his constitutional rights

under the Confrontation Clause. He also asserts violations of the Rules of

Evidence. He says the uncharged deaths were irrelevant under Federal Rule of

Evidence 401, unduly prejudicial under Federal Rule of Evidence 403, and

improper propensity evidence under Federal Rule of Evidence 404(b).

                            A. CONFRONTATION CLAUSE

       Under the Confrontation Clause, the government “may not introduce

‘testimonial’ hearsay against a criminal defendant, regardless of whether such

statements are deemed reliable, unless the defendant has an opportunity to cross-

examine the declarant, or unless the declarant is unavailable and the defendant had


3
 The government also introduced, as 404(b) evidence, evidence regarding the death of one
patient—Ms. Frady—who was not part of any charge in the indictment. Mr. Bourlier does not
appear to challenge the introduction of this evidence.
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prior opportunity for cross-examination.” Ignasiak, 667 F.3d at 1230 (citing

Crawford v. Washington, 541 U.S. 36, 53–54, 68, 124 S. Ct. 1354, 1365–66, 1374

(2004)).

       Generally, we review constitutional claims de novo. United States v.

Williams, 527 F.3d 1235, 1239 (11th Cir. 2008). However, if a defendant did not

“lodge a timely Confrontation Clause objection” we review only for plain error.

United States v. Arbolaez, 450 F.3d 1283, 1291 (11th Cir. 2006). “[A]n objection

properly characterized as . . . an evidentiary objection . . . does not constitute a

constitutional objection for purposes of appellate review.” United States v. Baker,

432 F.3d 1189, 1206 n.12 (11th Cir. 2005). Thus, for example, “[a] hearsay

objection to testimony at trial, standing alone, does not preserve a constitutional

challenge under the Confrontation Clause for appeal.” Arbolaez, 450 F.3d at 1291

n.8.

                                  1. Death Certificates

       At the point during the trial that Lewis Hassell’s and Keaan Amaker’s death

certificates were admitted into evidence, Robert made no Confrontation Clause

objection on the record. The Motion in Limine Robert filed before trial did argue

that evidence of uncharged deaths should be excluded, but based the argument

solely on the Rules of Evidence, as opposed to asserting a constitutional claim.

Similarly, no mention was made of the Confrontation Clause when this evidence


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was discussed during a bench conference before the death certificates were

admitted. Then, no new objections were made when the death certificates were

actually admitted into evidence. Indeed, the only place in the record Robert points

to as raising a Confrontation Clause issue was after the death certificates had

already been admitted. Therefore, Robert did not “lodge a timely Confrontation

Clause objection” to the admission of the death certificates and we can only review

for plain error. See Arbolaez, 450 F.3d at 1291.

      To prevail under plain error review, Robert must show “(1) error, (2) that is

plain, and (3) that affects substantial rights.” United States v. Rodriguez, 398 F.3d

1291, 1298 (11th Cir. 2005) (quotation marks omitted). “If all three conditions are

met, an appellate court may then exercise its discretion to notice a forfeited error,

but only if (4) the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id. (quotation marks omitted).

      Even if we assume that Robert satisfies the first two requirements of the

plain error test, he has not shown that the admission of the death certificates

“affect[ed] his substantial rights.” See id. To satisfy this requirement, Robert must

show “a reasonable probability that the result would have been different but for the

error” or a “probability sufficient to undermine confidence in the outcome.” Id. at

1299, 1301 (quotation marks omitted). Robert has failed in this regard, because

even independent of the challenged testimony there was “overwhelming evidence”


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in support of Robert’s convictions. See United States v. Turner, 474 F.3d 1265,

1278 (11th Cir. 2007). We note that there was otherwise admissible evidence in

the record to show that Lewis Hassell and Keaan Amaker died during the time they

were Robert’s patients; the death certificates showed, and it is not disputed, that

both Hassell’s and Amaker’s deaths were not caused entirely by drugs Robert

prescribed; and after these certificates were admitted, the district court gave a

limiting instruction to the jury, approved by Robert’s counsel, explaining that

“there [was] no basis upon which [the jury] could find in this case Dr. Bourlier

guilty of anything in connection with their deaths.”

                              2. Medical Examiner Letter

      In contrast to the death certificates, the Sarah McCormick medical examiner

letter was admitted after Robert objected to this type of evidence on the grounds

that he could not “cross-examine it.” Assuming that this was sufficient to preserve

the Confrontation Clause claim, and reviewing the issue de novo, we conclude

there was no violation of the Confrontation Clause.

      The Confrontation Clause applies to “testimonial statements.” Davis v.

Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 2273 (2006). We have explained

that a statement is testimonial if, for example, considering the statement’s “primary

purpose” it was “made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later trial.”


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United States v. Caraballo, 595 F.3d 1214, 1228–29 (11th Cir. 2010) (quotation

marks omitted). Indeed, in every “post-Crawford case in which the [Supreme]

Court has found a violation of the confrontation right, the statement at issue had

the primary purpose of accusing a targeted individual.” Williams v. Illinois, ___

U.S. ___, ___, 132 S. Ct. 2221, 2243 (2012).

      The letter at issue here was from the medical examiner’s office and was sent

to Robert to request that he provide the examiner with Sara McCormick’s medical

records as part of the examiner’s investigation into her death. It was simply a

request for a patient’s records without any accusations. Because the letter was not

“made under circumstances which would lead an objective witness reasonably to

believe that [it] would be available for use at a later trial,” Caraballo, 595 F.3d at

1228 (quotation marks omitted), and it did not have “the primary purpose of

accusing a targeted individual,” Williams, 132 S. Ct. at 2243, we find that it was

not testimonial. Thus, the admission of the letter did not violate the Confrontation

Clause.

            B. FEDERAL RULES OF EVIDENCE 401–403 AND 404(b)

      Robert challenges the admission of all evidence related to the uncharged

deaths, including the death certificates and family members’ testimony, stating that

it was irrelevant under Rule 401; that the “probative value [was] substantially

outweighed by . . . unfair prejudice” under Rule 403; and that it was improper


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propensity evidence under Rule 404(b). We review evidentiary rulings for a clear

abuse of discretion. United States v. Merrill, 513 F.3d 1293, 1301 (11th Cir.

2008).

      First addressing Robert’s Rule 404(b) argument, we note that “[e]vidence of

a crime, wrong, or other act is not admissible to prove a person’s character in order

to show that on a particular occasion the person acted in accordance with the

character.” Fed. R. Evid. 404(b). At the same time, evidence of activity is “not

extrinsic under Rule 404(b) if it is . . . necessary to complete the story of the

crime, or . . . inextricably intertwined with the evidence regarding the charged

offense.” United States v. Ramsdale, 61 F.3d 825, 829 (11th Cir. 1995) (quotation

marks omitted).

      The district court did not abuse its discretion by determining that the

evidence of the uncharged deaths was not 404(b) evidence because it was

“inextricably intertwined with the offenses charged.” Again, the evidence of death

was admitted about patients whose care was the subject of the unlawful prescribing

counts. These patients were receiving controlled substance prescriptions from

Robert and died during the time period alleged in these counts of the indictment.

      We next consider Robert’s arguments that Rules 401and 402 were violated.

Rules 401 and 402 provide that only relevant evidence, defined as evidence that

“has any tendency to make a fact [of consequence to the action] more or less


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probable,” is admissible. Fed. R. Evid. 401–02. These rules reflect a general

policy of “liberal admission of evidence.” Allison v. McGhan Med. Corp., 184

F.3d 1300, 1310 (11th Cir. 1999).

      The district court did not abuse its discretion by finding this evidence to be

relevant. For example, evidence that Hassell, Amaker, and McCormick had died,

foreclosed any idea that the patients stopped receiving prescriptions from Robert

because Robert had stopped treating them. Similarly, evidence of these patients’

deaths would have put to rest any idea that they were not called by the government

to testify at trial because they only had good things to say about Robert. Finally,

the evidence of these patients’ deaths could be considered by the jury when

determining whether Robert knew that his patients were misusing his prescriptions.

As we have said, this is one factor that may suggest that Robert distributed

controlled substances without a legitimate medical purpose and outside the usual

course of professional practice. See Joseph 709 F.3d at 1104.

      Finally, we consider Robert’s argument that the probative value of this

evidence was “substantially outweighed by . . . unfair prejudice” in violation of

Rule 403. Fed. R. Evid. 403. Rule 403 is an “extraordinary remedy.” Merrill, 513

F.3d at 1301 (quotation marks omitted). When reviewing a district court’s Rule

403 determination “we look at the evidence in the light most favorable to its




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admission, maximizing its probative value and minimizing its undue prejudicial

impact.” Id. (quotation marks omitted).

      The district court did not abuse its discretion by finding that any unfair

prejudice did not substantially outweigh the probative value of this evidence. See

id. We recognize that the evidence of these patient deaths was highly probative.

At the same time, we acknowledge that it was prejudicial as well. Our concerns

about the prejudice are mitigated, however, by the three jury instructions the

district court gave to the jury, see United States v. Mateos, 623 F.3d 1350, 1365

(11th Cir. 2010), as well as the undisputed testimony that other factors besides the

drugs prescribed by Robert contributed to each death. Even if we were to accept

that the district court did abuse its discretion by admitting this evidence, we can

say with “fair assurance, after pondering all that happened without stripping the

erroneous action from the whole, that the judgment was not substantially swayed

by the error” and that the error was therefore harmless. United States v. Gamory,

635 F.3d 480, 492 (11th Cir. 2011) (quotation marks omitted).

                            III.     JURY INSTRUCTIONS

      Robert’s third argument for us is that the district court erred by refusing to

give the theory-of-defense instructions he proposed. The proposed instructions

purportedly clarified the relevant state standards of care and good faith defense.

For example, Robert’s proposed instruction nine explained that state standards of


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care are determined by state statutes, regulations, and medical boards. Robert’s

primary argument was that the instructions were necessary to ensure that any

conviction was based on state standards of care as opposed to a nonexistent

national standard.

      “We review a district court’s refusal to give a requested jury instruction for

abuse of discretion.” United States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir.

2004). “A district court’s refusal to give a requested instruction is reversible error

if (1) the requested instruction was a correct statement of the law, (2) its subject

matter was not substantially covered by other instructions, and (3) its subject

matter dealt with an issue in the trial court that was so important that failure to give

it seriously impaired the defendant’s ability to defend himself.” Id. (quotation

marks omitted).

      The district court’s refusal to give the requested instructions was not an

abuse of discretion because the subject matter of several of the rejected instructions

was substantially covered by other instructions. For example, proposed instruction

ten explained that reasonable care is based on the standard that was acceptable at

the time the physician acted. The given instruction told the jury that the

government must prove beyond a reasonable doubt “[t]hat at the time of the

distribution or dispensing,” Robert knew that the distribution was “not for a




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legitimate medical purpose in the usual course of professional practice.” (emphasis

added).

      As for the remaining instructions, Robert has not shown that the “failure to

give [them] seriously impaired [his] ability to defend himself.” Carrasco, 381 F.3d

at 1242. First, the district court gave several instructions relating to the standard of

care that have been specifically approved by this Court. For example, the district

court repeatedly instructed the jury that Robert was “not charged with medical

malpractice or negligence,” but was instead charged with “knowingly and

intentionally prescribing controlled substances to his patients outside the usual

course of professional medical practice.” The jury was instructed therefore, that

the government had to prove, beyond a reasonable doubt, that Robert knew that he

was distributing controlled substances “not for a legitimate medical purpose in the

usual course of professional practice.” This instruction was in keeping with our

guidance in United States v. Williams, 445 F.3d 1302 (11th Cir. 2006) abrogated

on other grounds by United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007), that

an instruction explaining that the government must prove the doctor dispensed

controlled substances “outside the usual course of professional practice . . .

properly state[d] the standard by which a [doctor’s] conduct must be judged.” Id.

at 1307–08.




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      The district court also instructed the jury that a prescription is lawful if it

was written “in accordance with the standards . . . generally recognized and

accepted in the United States.” This court approved this precise instruction in

Joseph. Joseph, 709 F.3d at 1095. Therefore, the instructions given were not

misleading or improper and “did not suggest that the jury must evaluate the

conduct of the defendants against a single national standard of practice.” Id.

Instead, they required the government to prove that Robert’s actions “were

inconsistent with any accepted standard of professional practice.” Id.

      Second, a number of witnesses testified about the usual course of

professional practice and at least one expert testified about Florida standards of

care. Thus, the jury was able to consider these standards in determining, for

example, whether Robert had prescribed the controlled substances in good faith,

which the jury was instructed was a complete defense to the unlawful dispersal

counts. See Joseph, 709 F.3d at 1097 (highlighting the fact that “[e]xperts for both

the prosecution and the defense testified about the accepted standard of medical

practice”). Third, Robert made no showing that the state standards were materially

different than the standards on which the jury were charged. See id. at 1096

(discussing how, “[e]ven if the district court should have instructed the jury to

evaluate the conduct of the defendants against only a Georgia standard of medical

practice, the defendants failed to offer any proof that the Georgia standard differs


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at all from any national standard that the jury purportedly considered”). For these

reasons, we find that Robert’s ability to present his defense was not “seriously

impaired” by the court’s failure to give the proposed instructions.


                                IV.    CONCLUSION

      We AFFIRM the rulings of the district court as well as Robert’s

convictions.

               AFFIRMED.




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