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UNITED STATES v. PEREZ-REYES

January 10, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS PEREZ-REYES, Defendant


Suzanne B. Conlon, United States District Judge.


The opinion of the court was delivered by: CONLON

SUZANNE B. CONLON, UNITED STATES DISTRICT JUDGE

 Defendant Luis Perez-Reyes (Dr. Perez) was indicted on eleven counts of illegal distribution of controlled substances and two counts of mail fraud. On August 2, 1990, Dr. Perez pleaded guilty to one count of illegal distribution of a controlled substance (Count Eleven) before Judge Nicholas Bua. On October 10, 1990, Dr. Perez moved to withdraw his guilty plea, on the ground that the government undercover agent altered several of Dr. Perez' prescriptions by increasing the number of refills. On October 29, 1990, Judge Bua permitted Dr. Perez to withdraw his guilty plea. Judge Bua also recused himself. The case was then reassigned to this court.

 The government voluntarily dismissed the eleven counts charging illegal distribution of controlled substances (Counts One through Eleven) that were based on the prescriptions Dr. Perez provided the undercover agent. The remaining mail fraud charges (Counts Twelve and Thirteen) are based upon a false claim Dr. Perez submitted to The Travelers Insurance Company ("Travelers") for nonexistent surgery on the undercover agent and the resulting check issued by Travelers. Dr. Perez moved to dismiss Counts Twelve and Thirteen on two legal theories: (1) false testimony presented to the grand jury, and (2) misconduct of the undercover agent. The court found these contentions without merit and denied the motion to dismiss on December 11, 1990. See United States v. Perez-Reyes, 753 F. Supp. 723 (N.D. Ill. 1990).

 Dr. Perez waived his right to a jury trial. The parties stipulated to the factual allegations set forth in Counts Twelve and Thirteen. A bench trial was conducted on December 28, 1990 and January 4, 1991. The court's findings under Fed. R. Crim. P. 23(c) follow.

 FINDINGS OF FACT

 The Stipulated Facts

 1. During 1989 and January 1990, Dr. Perez was a licensed physician practicing in Chicago.

 2. In December 1989, Dr. Perez participated in preparing and submitting an insurance claim form to Travelers. The insurance claim falsely represented that Dr. Perez surgically excised three benign lesions from a patient named "Thomas Conroy" *fn1" on November 18, 1989. Dr. Perez signed the claim form (Government Exhibit 1), which sought reimbursement from Travelers in the amount of $ 1090.

 3. Dr. Perez knew that he had not performed the surgical and medical procedures described on the claim form initially submitted to Travelers in December 1989.

 4. On January 4, 1990, Dr. Perez resubmitted to Travelers the false claim form concerning the November 18, 1989 surgery and related medical procedures purportedly performed on "Thomas Conroy." Government Exhibit 2. The duplicate claim form was mailed to Travelers by certified mail. Government Exhibit 2-A. *fn2"

 5. The receipt for the certified mailing was found in Dr. Perez' office during a search conducted pursuant to a warrant on April 12, 1990. Government Exhibit 2-B.

 6. On January 18, 1990, Travelers mailed Dr. Perez a check for $ 792, in payment for the November 18, 1989 surgery purportedly performed on "Thomas Conroy." Government Exhibit 3. *fn3" Dr. Perez personally received approximately $ 392 of the proceeds from the Travelers check.

 The Entrapment Defense

 8. The entrapment defense turns on Dr. Perez' testimony. The government relies on its cross-examination of Dr. Perez and the objective circumstances of the offenses to negate entrapment. The court accepts some of Dr. Perez' uncontradicted testimony at face value, while rejecting other portions of his testimony as implausible for the reasons noted.

 9. In 1989, Dr. Perez was only seeing three or four patients a day and had no employees. It is reasonable to conclude that Dr. Perez' practice was not doing well financially.

 10. Shader first appeared at Dr. Perez' office on October 4, 1989, complaining of headaches, coughing and nasal congestion. Dr. Perez examined Shader, diagnosed his condition as an upper respiratory infection, mild hypertension, obesity, and traumatic fibrosinovitis of the lumbosacral spine, and prescribed an antibiotic, cough medicine, Tylenol No. 3, and Darvon Compound 65. No refills were authorized. Dr. Perez charged Shader $ 50 and instructed him to return in five days.

 11. Shader did not contact Dr. Perez again until November 16, 1989. Shader first telephoned Dr. Perez and reported that his cough was better, but that he wanted to see Dr. Perez about his chronic backache and headaches. Shader visited Dr. Perez' office later that day. Dr. Perez examined Shader and gave him prescriptions for Tylenol No. 3 and Darvon Compound 65. No refills were authorized.

 12. After Dr. Perez gave Shader the prescriptions, Shader requested prescriptions for "Monica Suarez." Shader identified Suarez as his girlfriend. Shader described Suarez' purported medical problems, a ...


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