stated he would be able to sell Shader another 1,000 Tylenol tablets and 100 tablets of Valium in eight to ten days. Id. at 2-3. Most revealing, Dr. Perez invited Shader to come over to his office in the interim and get the Tylenol that Dr. Perez had on hand. Id. at 4. This recorded conversation is remarkably inconsistent with Dr. Perez' testimony that on April 3, 1990, he told Shader he did not want to see him again for at least a year.
45. In a follow-up telephone conversation recorded on April 11, 1990, Dr. Perez informed Shader that his drug shipment arrived; the Tylenol he received was "stronger than the other ones" (presumably Tylenol #3, which contains more codeine than Tylenol #4). Government Exhibit Perez 2-A. Dr. Perez also informed Shader he had five bottles of Valium tablets for him, and the total price for all these drugs was $ 4,000. Id. at 3. Dr. Perez specified that he wanted payment in $ 100 bills. Id.
46. The foregoing conversations establish that Dr. Perez conducted himself as a willing and eager drug seller, setting a profitable price for his sales to Shader. Dr. Perez testified that at this time, Shader was pushing him the hardest and Perez was attempting to resist Shader's pressure. This testimony was thoroughly impeached by the taped conversation. Accordingly, the court finds Dr. Perez' testimony about Shader's strong-arm tactics and his own passive role not worthy of belief.
47. Dr. Perez offered witnesses who testified to his reputation for honesty and truthfulness. These witnesses were well-intentioned persons who think highly of Dr. Perez. Nevertheless, this testimony was unpersuasive in light of all the other evidence.
48. Dr. Perez offered testimony by Shader's superiors at the Illinois Department of Professional Registration to establish that Shader's performance ratings and recommendations for salary increases were affected to some extent by the number of prosecutable cases he made. This unremarkable evidence does not support a conclusion that Shader was given an incentive to pressure an unwilling doctor to engage in fraudulent activity.
49. The court finds from the state of the record that Shader altered two of Dr. Perez' prescriptions by increasing the designated number of refills.
CONCLUSIONS OF LAW
1. The stipulation of facts establishes the requisite elements of the mail fraud offenses charged in Counts Twelve and Thirteen.
2. To successfully establish an entrapment defense, Dr. Perez must show that Shader, the government's undercover agent, induced him to participate in a scheme to defraud The Travelers Insurance Company and that he was not predisposed to do so. United States v. Franco, 909 F.2d 1042, 1044 (7th Cir. 1990).
3. Dr. Perez has failed to offer credible evidence that Shader offered him anything more than a profitable opportunity to participate in a fraudulent insurance claim.
4. Dr. Perez has failed to offer any credible evidence that he was not predisposed to make a fraudulent claim involving nonexistent medical services for financial gain.
5. Lack of predisposition is not shown by Dr. Perez' initial reluctance to accept Shader's solicitation to prepare a fraudulent insurance claim. United States v. Perez-Leon, 757 F.2d 866, 872 (7th Cir.), cert. denied, Gonzalez v. United States, 474 U.S. 831, 88 L. Ed. 2d 80, 106 S. Ct. 99 (1985); United States v. Thoma, 726 F.2d 1191, 1197 (7th Cir.), cert. denied, 467 U.S. 1228, 81 L. Ed. 2d 878, 104 S. Ct. 2683 (1984) citing United States v. Steinberg, 551 F.2d 510, 514 (2d Cir. 1977) (defendant's reluctance may merely indicate an attempt to protect himself against prosecution).
6. The objective evidence demonstrates that within a short time after Shader's initial solicitation, Dr. Perez embraced the fraudulent scheme and contributed his own expertise and ingenuity in fabricating medical records and in formulating a diagnosis, treatment and a phony billing statement to effectuate the scheme.
7. Even had Dr. Perez offered credible evidence that Shader incited the fraudulent scheme and that Dr. Perez lacked predisposition, the government satisfied its corresponding burden of establishing beyond a reasonable doubt Dr. Perez' predisposition to make false claims involving nonexistent medical services for personal gain. Franco, 909 F.2d at 1044. Dr. Perez has engaged in similar fraudulent conduct in the past and he profited from the scheme charged here. These are among the five factors relevant in determining whether Dr. Perez was predisposed to commit the offenses charged. United States v. Rivera-Espinoza, 905 F.2d 156, 158 (7th Cir. 1990).
8. Because the government has established Dr. Perez' predisposition beyond a reasonable doubt, the entrapment defense fails. United States v. Hinkle, 637 F.2d 1154, 1158 (7th Cir. 1981).
9. Dr. Perez may not base his entrapment defense on Shader's purported misconduct, in view of his own predisposition to commit the crimes Shader importuned. Id., citing Hampton v. United States, 425 U.S. 484, 489, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976); United States v. Kaminski, 703 F.2d 1004, 1006-08 (7th Cir. 1983).
10. Because Dr. Perez clearly was inclined to commit the fraud charged, the government was free to use substantial and repeated inducement in order to establish a prosecutable case. Kaminski, 703 F.2d at 1008.
11. The court finds beyond a reasonable doubt that Dr. Perez is guilty as charged in Counts Twelve and Thirteen of the superseding indictment. Judgment shall be entered accordingly.