United States District Court, Northern District of Illinois, E.D
October 11, 1983
UNITED STATES OF AMERICA, PLAINTIFF,
JOHN C. GREICHUNOS AND JOHN COULOPOULOS, A/K/A JOHN COULES, DEFENDANTS.
The opinion of the court was delivered by: Prentice H. Marshall, District Judge.
A two count indictment was returned on May 13, 1982. Count 1
charged John Greichunos ("Greichunos"), John Coulopoulos, also
known as John Coules ("Coules"), and Christ Christopoulos
("Christopoulos") with conspiring to enter the First National
Bank of Skokie, Illinois ("bank") with intent to commit larceny.
Count 2 charged Greichunos with burglary of the bank on May 15,
1977, aided and abetted by others. Christopoulos pleaded guilty
to count 1 and testified for the government at the trial of
Greichunos and Coules, who were convicted by a jury on count 1.
We entered a judgment of acquittal on count 2 at the close of the
government's case because the evidence failed to prove that
Greichunos, to the exclusion of others, burglarized the bank on
May 15, 1977. R. 386-87.
The government's case was based primarily on the testimony of
Christopoulos, who told the following bizarre story.
Christopoulos ran a business which provided after-hours
security services for the bank. In late 1976, in middle age, he
underwent a severe depression stemming in part from marital
difficulties which had included an extramarital affair with a
teenage girl, whom he ultimately married. He concocted a scheme
that he believed would redeem him in the eyes of his family and
in his own conscience and would permit him to make amends to his
family. In October 1976, Christopoulos purchased a life insurance
policy with a face amount of $135,000 and named his wife and
children as beneficiaries. He planned to recruit someone to
burglarize the bank and kill him (Christopoulos) during the
burglary, making it appear that he died in the line of duty while
attempting to thwart the burglary.
Owing to a long association with the bank, Christopoulos was a
trusted servant. He was provided with the second half of the
combination to the vault used at the drive-in window, which had
a separate vault because it opened earlier and closed later than
the rest of the bank. Part of Christopoulos' job was to oversee
the opening of the drive-in window in the morning; he was given
the second half of the combination in case the employee who
normally assisted with that part of the combination could not be
present on a given morning. Christopoulos had surreptitiously
obtained the first half of the combination from a notebook kept
by Daniel Casey, a bank vice president. He also had the keys to
the doors to the bank and the drive-in area, as well as to the
alarm system connected with the drive-in tellers' safe.
According to Christopoulos, in December 1976 he went to his
friend Coules, who owned a junkyard, to recruit him into the
scheme. He described the plan to Coules and gave him the
combination to the safe in order to prove his sincerity. Coules
listened, took the combination, and said that he would think
about the scheme. Two or three weeks later, Christopoulos
testified, Coules called him at home to set up another meeting.
A few days thereafter, the two met at a Chicago restaurant, and
Coules told Christopoulos that he wanted to introduce
Christopoulos to another man who would also participate in the
scheme. Seven to ten days later, a meeting took place in
Christopoulos' apartment; Christopoulos, Coules, and "another
gentleman that [Coules] brought by the name of John" were
present. R. 122. At trial, Christopoulos identified defendant
Greichunos as "John." The plan was discussed, and Christopoulos
gave Coules a key to the alarm. The three discussed how to
"disguise" the burglary so that the police could not tell that it
was an "inside job." Greichunos suggested that a lock pick be
planted on the premises after the burglary and that the
burglar(s) take the safe door with them, to eliminate all
evidence relating to the means of entry.
Another meeting was arranged, and three or four days later
Christopoulos and Greichunos met at a restaurant on the far north
side of Chicago. At this meeting, Greichunos told Christopoulos
that Coules was reluctant to go through with the plan to kill
Christopoulos as part of the scheme. Christopoulos responded that
he "hop[ed] the thing would go down the way it was supposed to."
The final meeting among the three conspirators began outside
another Chicago restaurant. Although Christopoulos' recollection
of the date of this meeting changed during the trial, it
occurred, at the latest, one week before May 15, 1977, and
perhaps as early as two and one-half weeks before that date. See
R. 126, 191, 213-14, 217, 218. The three drove to the bank to
perform a "dry run" of the burglary. Upon arriving, they entered
the bank, turned off the alarm, and opened the vault. They
discovered that some of the money was contained in a small locked
storage compartment inside the vault, and they decided to "jimmy"
that lock at the time of the actual burglary. According to
Christopoulos, after completing the dry run, either Coules or
Greichunos told Christopoulos that he would be called when a date
was set so that he could be there "so [he] could get shot." R.
Christopoulos had no further conversation, meetings or contact
with either Coules or Greichunos after the dry run. Indeed, he
thought that they had decided against carrying out the scheme.
See R. 131, 265-66, 268. However, the bank was burglarized on May
15, 1977. Christopoulos discovered the burglary while making his
morning rounds and called the police. The modus operandi of the
burglars conformed to Christopoulos' version of the alleged plan.
Approximately one and one-half months later, Christopoulos
visited Coules at his junkyard. Christopoulos accused Coules of
double crossing him by going through with the burglary behind his
back, and he demanded a one-third share of the $118,000 which had
been stolen from the bank. Coules responded that he "didn't have
any of the money," that he "didn't know anything about it," and
that Christopoulos was not right in insisting that Coules give
him money. R. 136. Christopoulos did not give up, however, and he
visited Coules again about one month later. This time,
Christopoulos testified, Coules said that he "figured that he did
owe [Christopoulos] some money." R. 136. He gave Christopoulos
$1,000.*fn1 Several months later, Christopoulos made yet another
visit to Coules' junkyard, accompanied by his new teenage wife,
Caroline Phillips. He again accused Coules of double crossing
him. He testified that Coules agreed to pay him $5,000; however,
Coules never kept that promise.*fn2
Two and one-half years later in early 1980, while residing in
Arizona, Christopoulos decided to purge himself of guilt. He
confessed his misdeeds to the FBI. In May 1980, he visited Coules
again, this time wired for sound. In response to Christopoulos'
continued accusation of a double cross, Coules accused
Christopoulos of dealing with "John" and denied having
participated in the burglary. Pressed by Christopoulos for the
identity of "John", Coules stated he was a man named Vincent
Rolarelli. See Government Exhibit ("G.Ex.") T-1, TR-1.
Christopoulos later identified Greichunos from a photo spread as
the man whom he had known only as "John." R. 146.
Caroline Phillips testified for the government that she was
present at one of the post-burglary meetings between
Christopoulos and Coules. She stated that during the meeting,
Christopoulos gave Coules a diagram of the bank, and that Coules
burned it, saying, "Well, now, all the proof is gone." R. 345.
In their post trial motions, defendants urge that their
prosecution for the alleged conspiracy was barred by the statute
limitations in that the government failed to prove beyond a
reasonable doubt that an overt act in furtherance of the
conspiracy was committed within five years of the return of the
indictment on May 13, 1982. Alternatively they argue that the
jury was not properly instructed on the statute of limitations
issue. In addition, they assert that they are entitled to a new
trial due to the government's failure to produce in a timely
fashion exculpatory evidence as required by Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Defendant
Greichunos argues that the photo spread from which Christopoulos
identified him was impermissibly suggestive and that the photo
identification and Christopoulos' in-court identification of him
were thereby tainted. Defendants also argue that the government's
eliciting of testimony from Christopoulos that he has been
accepted into the government's witness protection program was
highly prejudicial. The facts relevant to these arguments, as
well as the others raised in defendants' motions, are contained
in the body of this opinion.
Defendants argue first that the indictment and prosecution for
conspiracy are barred by the statute of limitations. Defendants
were charged under the general conspiracy statute, 18 U.S.C. § 371
(1976). A person may not be prosecuted under § 371 unless the
indictment is returned within five years of the commission of the
offense. 18 U.S.C. § 3282 (1976). Defendants argue that the
indictment fails to allege any overt acts in furtherance of the
conspiracy within the five year period ending May 13, 1982, the
date on which the indictment was returned, and that no such overt
acts were proved beyond a reasonable doubt at trial. Defendants
also complain of our refusal to give the jury instruction they
tendered on this issue.
The government responds that it need not allege any overt acts
within the limitations period and may rely upon unalleged acts to
meet its burden of proof. As to defendants' contention concerning
proof at trial, the government responds that the jury reasonably
could have found "that the agreement continued into the
limitations period and that an overt act — the burglary itself —
was committed in furtherance of the agreement within the
statutory period." Government's Consolidated Response to
Defendants' Post Trial Motions at 3-4.
It is clear in this circuit that the government may rely upon
overt acts not alleged in the indictment to prove that a criminal
conspiracy continued into the limitations period. United States
v. Read, 658 F.2d 1225, 1239 (7th Cir. 1981); United States v.
Harris, 542 F.2d 1283, 1300 (7th Cir. 1976). Thus, our earlier
denial of defendants' motion to dismiss the indictment on these
grounds was proper, and the motion in arrest of judgment renewing
the earlier motion to dismiss is denied.
The government's position on the second prong of defendants'
argument has two aspects. First, it has argued throughout the
course of this case that the burglary was an act in furtherance
of the conspiracy. See Government's Consolidated Response to
Defendants' Pretrial Motions at 1-2 (filed Aug. 13, 1982);
Government's Consolidated Response to Defendants' Post Trial
Motions at 4-5. See also R. 383 (argument on defendants' motion
for judgment of acquittal). Second, it takes the position that
unless defendants produced evidence that they withdrew from the
conspiracy prior to May 13, 1977 (five years prior to the return
of the indictment) or that the object of the conspiracy was
defeated or achieved before that date, the government was not
required to prove beyond a reasonable doubt that an overt act in
furtherance of the conspiracy occurred within the limitations
period. See Government's Consolidated Response to Defendants'
Pretrial Motions at 1-2. The government argued in its response to
the motion to dismiss the indictment that "[o]nce established, a
partnership in crime continues until fruition or until some act
is taken to disavow it or to defeat its purpose." Id. at 2.
During the trial, in its argument on defendants' motion for a
judgment of acquittal at the close of the government's
case, the government argued "that the conspiracy continued
because there was no withdrawal by any of the parties based on
the Government's evidence." R. 383. The government reaffirms this
contention in its response to the post trial motions:
"[d]efendants presented no evidence that they abandoned or
terminated the conspiracy after the `dry run' with Christopoulos
in early May, 1977. . . ." Government's Consolidated Response to
Defendants' Post Trial Motions at 4.
Defendants tendered the following instruction on the statute of
If you find that the government has failed to prove
beyond a reasonable doubt that the May 15, 1977
larceny of the First National Bank of Skokie was a
result of the conspiracy alleged in count one, or an
offshoot thereof, committed by defendant Greichunos
or defendant Coules, then you must find the defendant
[sic] not guilty.
Defendants' Instruction No. 11; see R. 505, 506. We expressed
confusion with the "offshoot" language contained in the proposed
instruction, and, in response, defendant Greichunos' attorney
offered to strike that language. R. 508. Nevertheless, we refused
the instruction, relying upon the government's argument that it
did not represent a correct statement of the law. The instruction
given on the statute of limitations issue was as follows:
If the government has failed to prove beyond a
reasonable doubt that the May 15, 1977 burglary of
the First National Bank of Skokie was not [sic] a
result of the conspiracy which is charged in the
indictment, then you may not consider the burglary as
an overt act committed pursuant to the alleged
If you find that the conspiracy as alleged in count
one, which is the only count before you — if you find
that this conspiracy terminated prior to May 13,
1977, then you must find both defendants not guilty.
This indictment was returned, ladies and gentlemen,
on May 13, 1982. And the law provides that criminal
prosecutions must be commenced within five years of
the commission of the offense.
So if this conspiracy as alleged by the
government — if you should find beyond a reasonable
doubt that it existed at some point, but then that it
terminated prior to May 13, 1977, then you must find
both defendants not guilty.
See R. 592-93. Although we charged the jury that one element of
the crime of conspiracy was the commission of an overt act in
furtherance of the conspiracy, R. 590, at no time did we instruct
the jury, as defendants requested, that the government must also
prove beyond a reasonable doubt that an overt act in furtherance
of the conspiracy took place within the limitations period. While
it is clear that if the burglary was in furtherance of the
conspiracy, the statute of limitations would be satisfied
(assuming that there was sufficient evidence to submit count one
to the jury on that theory), our instruction did not require the
jury to make that finding. Rather, it stated that if the jury did
not find that the burglary was in furtherance of the conspiracy,
it was not an "overt act" within the statute.
The government's response to this is that it need not prove an
overt act within the limitations period, that the jury was not
required to find that the burglary was in furtherance of the
conspiracy and thus that our refusal of defendants' instruction
was proper. In essence, it claims that defendants must offer some
evidence of withdrawal from the conspiracy or the fulfillment or
the defeating of the conspiracy's purpose, outside the
limitations period, as a prerequisite for requiring the
government to prove that the statute of limitations was
satisfied. It argues that once it has shown that the defendants
entered into a conspiracy, that conspiracy may be presumed to
continue until the conspirators have abandoned it or until its
objective is fulfilled or defeated.
To support its argument, the government relies primarily upon
United States v. Read, 658 F.2d 1225 (7th Cir. 1981), which in
turn relied upon Hyde v. United States, 225 U.S. 347, 32 S.Ct.
793, 56 L.Ed. 1114 (1912) and Pinkerton v. United States,
328 U.S. 640, 66 S.Ct. 1180,
90 L.Ed. 1489 (1946). Hyde and Read both involved conspiracies
which clearly had continued into the period of limitations; thus,
the only question presented in those cases was whether a
particular conspirator had withdrawn from the conspiracy and thus
could not be held responsible for subsequent acts committed by
the ongoing conspirators without his participation. Read simply
held that while withdrawal relieves the withdrawing defendant of
liability for the subsequent acts in furtherance of the
conspiracy, it is not a defense to his liability for initially
conspiring unlawfully unless he withdrew from the conspiracy
before the limitations period. Read, 658 F.2d at 1233. Read
further held that once the defendant raises the issue, the
government must prove beyond a reasonable doubt that the
defendant did not withdraw from the conspiracy before the
limitations period. Pinkerton v. United States, also cited by the
government, is of similar effect.
By contrast, in the present case the question is whether the
conspiracy continued to exist in the five year period preceding
the return of the indictment, not whether a particular defendant
should be held responsible for acts in furtherance of a
conspiracy that unquestionably continued into that period. The
government's attempt to rely upon Read in effect bypasses the
issue, squarely presented in this case, whether it is necessary
to show in the first instance that the conspiracy continued into
the period of limitations or rather whether the government may
simply rely upon the fact that the conspiracy began and was not
disavowed. The dicta the government has quoted from Read and
Pinkerton do not answer this question.
The government's argument confuses the question of withdrawal,
a defense not raised in the present case, with that of the
satisfaction of the statute of limitations. Its position would
require a defendant in any conspiracy prosecution to bring
forward evidence of withdrawal, defeated purpose, or
accomplishment of purpose before the limitations period in order
to avail himself of the defense that the prosecution is
time-barred. To the extent that Read actually deals with the
statute of limitations question, all it says is that withdrawal
is not a defense to conspiracy unless combined with the assertion
that the defendant withdrew more than five years before the
indictment was brought. It does not, however, stand for the
converse proposition — that the statute of limitations is not a
defense absent combination with the defense of withdrawal.
Proof that a conspiracy continued into the period of
limitations and that an overt act in furtherance of the
conspiracy was performed within that period constitutes an
element of the offense of conspiracy under 18 U.S.C. § 371. In
Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d
931 (1957), the Supreme Court stated:
. . where substantiation of a conspiracy charge
requires proof of an overt act [as is the case under
18 U.S.C. § 371], it must be shown both that the
conspiracy still subsisted within the three years
prior to the return of the indictment, and that at
least one overt act in furtherance of the
conspiratorial agreement was performed within that
Id. at 396-97, 77 S.Ct. at 970.*fn3 Read specifically refers to
proof of membership in the conspiracy during the period of
limitations as an "element" of the offense. Read, 658 F.2d at
1233; see also id. at 1232 ("to convict a defendant the
prosecution must prove that the conspiracy existed and that each
defendant was a member of the conspiracy at some point in the
five years preceding the date of the indictment"). Thus, in order
to convict a defendant under § 371 the government must prove
prima facie that the statute of limitations was satisfied, a
burden that will be met if the government proves prima facie that
an overt act in furtherance of the conspiracy was committed
within the limitations period. See Grunewald;
United States v. Hankin, 607 F.2d 611, 612-13 (3d Cir. 1979)
("[t]he Government has the burden of proof that the prosecution
was instituted within the applicable statute of limitations");
United States v. Wolf, 405 F. Supp. 731, 733 (E.D.Mo. 1975),
aff'd, 535 F.2d 476 (8th Cir. 1976), cert. denied, 429 U.S. 920,
97 S.Ct. 315, 50 L.Ed.2d 287 (1976).*fn4
Based upon the above discussion, defendants' tendered
instruction was an accurate statement of the law. It would have
informed the jury that proof of an overt act in furtherance of
the conspiracy within the five years preceding the indictment was
a necessary element of the government's burden. The charge we
gave the jury in no way informed it that such a requirement
existed. This alone warrants granting defendant's motion for new
Defendants have also renewed their motion for judgment of
acquittal under Fed.R.Crim.P. 29(c). In ruling on this motion, we
view the evidence in the light most favorable to the government
and inquire whether the jury reasonably could have found the
defendants guilty beyond a reasonable doubt. E.g., United States
v. Beck, 615 F.2d 441, 447-48 (7th Cir. 1980). We must bear in
mind, in deciding defendants' motion, that it is the exclusive
function of the jury to determine the credibility of witnesses,
resolve evidentiary conflicts, and draw reasonable inferences.
Id. (citing United States v. Blasco, 581 F.2d 681, 684 (7th Cir.
1978), cert. denied, 439 U.S. 966, 99 S.Ct. 456, 58 L.Ed.2d 425
Defendants argue that the proof that the burglary was committed
in furtherance of the conspiracy charged in the indictment was
fatally deficient. Because the burglary was the only overt act
which the government proved, within five years of the date of the
indictment, if it was not committed in furtherance of the
conspiracy, count 1 is time-barred.
The indictment charged a conspiracy among Christopoulos,
Coules, and Greichunos to enter the bank with intent to commit
larceny. In order to determine whether the burglary was in
furtherance of that conspiracy, we must first determine the scope
of the conspiratorial agreement. Grunewald v. United States,
353 U.S. 391, 397, 77 S.Ct. 963, 970, 1 L.Ed.2d 931 (1957) (scope of
conspiratorial agreement determines whether a particular overt
act may be relied upon as in furtherance of agreement). A
conspiracy is comprised of various people knowingly joined
together in pursuit of a common design or purpose. United States
v. Varelli, 407 F.2d 735, 742 (7th Cir. 1969). A single
conspiracy exists where there is one overall agreement among the
various parties to perform different functions in order to carry
out a common objective. Id.
The scope of [each defendant's] agreement must be
determined individually from what was proved as to
him. If, in Judge Learned Hand's well-known phrase,
in order for [one] to be held for joining others in a
conspiracy, he "must in some sense promote their
venture himself, make it his own," United States v.
Falcone, 109 F.2d 579, 581 (2d Cir. 1940), aff'd,
311 U.S. 205 [61 S.Ct. 204, 85 L.Ed. 128] (1940), it
becomes essential to determine just what he is
promoting and making "his own."
United States v. Borelli, 336 F.2d 376
, 385 (2d Cir. 1964),
quoted in United States v. Varelli, 407 F.2d 735
, 743 (7th Cir.
In the present case the evidence showed that Christopoulos
proposed a scheme that would permit him to die "a hero." He
recruited Coules to burglarize the bank and kill him
(Christopoulos) in the process. Coules later recruited Greichunos
into the plan. While the evidence is less than clear that Coules
and Greichunos ever agreed to Christopoulos' overall scheme,
there was evidence sufficient to persuade a reasonable trier of
fact that they made Christopoulos' scheme "their own."*fn6
Any claim that the burglary was not an act in furtherance of
the three-party conspiracy must be based on one of two arguments.
First, it could be argued that there was no evidence that the
burglary was done by any of the conspirators. This contention is
clearly without merit. If Christopoulos' testimony is believed,
the modus operandi of the burglary conformed to the plan
explained to Coules and Greichunos by Christopoulos.*fn7 That
evidence would be sufficient to permit a reasonable trier of fact
to find that the burglary was done in furtherance of the
conspiracy, assuming that the original conspiracy continued
through that date.
The second argument in support of the claim that the burglary
was not in furtherance of the conspiracy is the argument
forwarded by defendants here. Defendants assert that the burglary
was not in furtherance of the original conspiracy, the object of
which was, in defendants' words, "the death of Mr. Christopoulos
[to] assure the financial future of his family and attest to his
heroic devotion to duty." Memorandum of Law in Support of Motion
in Arrest of Judgment at 3. They urge that Christopoulos, if his
testimony is believed, had no interest in a scheme that involved
simply the burglary of the bank; the essential element, as far as
he was concerned, was his death. The others, in order to become
part of the burglary scheme (at least initially), had to adopt
Christopoulos'"higher goal" as well. However, it is argued, the
burglary was not committed in furtherance of the Christopoulos
proposal, for if Christopoulos is believed, he was not present at
the time of the burglary, and indeed it happened entirely without
his knowledge.*fn8 Thus, the argument goes, if the burglary was an
act in furtherance of any conspiracy involving Coules and
Greichunos, it had to be a second, separate conspiracy, one
between those two only, formed some time after the initial
agreement among Christopoulos, Coules, and Greichunos.
This argument is without merit. In determining whether a single
conspiracy existed, "[o]ur concern is whether these defendants
knowingly embraced a common criminal objective. . . ." United
States v. Ras, 713 F.2d 311 at 314 (7th Cir. 1983). The federally
unlawful objective of Christopoulos' proposal was the burglary of
the bank. The evidence, viewed in the light most favorable to the
government, supports the conclusion that Greichunos and Coules
adopted that objective. That they later may have gone ahead
without Christopoulos, the initiator of the scheme, does not make
the burglary an act in furtherance of a different conspiracy. The
motion for judgment of acquittal is therefore denied.
On June 21, 1982, the Assistant United States Attorney in
charge of this case sent Greichunos' attorney a letter containing
the following statement:
We recognize that both the government and the
defendant have a continuing obligation to disclose
matters when discovered which come within the scope
of the rules of discovery, or, in the case of the
government, the Brady doctrine.
See Defendant Greichunos' Brief in Reply to Government's Response
to Post-Trial Motions, Ex. A (emphasis supplied). Despite this
unambiguous undertaking, the government waited until the eve of
trial to disclose evidence within the scope of Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Other arguably
exculpatory evidence was not disclosed until after trial had
commenced. Defendants argue that this entitles them to a new
As enumerated by defendant Greichunos, the undisclosed Brady
material included the following items:
1. Reports of polygraph examinations which showed that
Christopoulos had repeatedly evidenced deception in response to
questions concerning the conspiracy and burglary. In one of these
examinations, the examiner opined that Christopoulos' affirmative
response to the question whether he had given the keys and
combination to Coules was "particularly" indicative of deception.
See Defendant's Exhibit ("D.Ex.")2. In another examination,
Christopoulos answered "yes" to the following questions, among
Did you plan that burglary of the First National Bank
Did you plan with John Coulos [sic] to steal money
from that bank?
Did you take [Coules] on a "dry run" at that bank?
Did you give [Coules] those keys and combination to
the bank safe?
Did you ask [Coules] to shoot you during the burglary
of that bank?
The opinion of the examiner was that Christopoulos' answers to
the relevant questions asked of him "were indicative of
deception," i.e. that Christopoulos was lying when he implicated
Coules in a conspiracy to burglarize the bank. See D.Ex. 3.
2. Reports of other polygraph examinations in which
Christopoulos made apparently truthful statements that exculpated
Coules and Greichunos. The FBI's report of a July 1980 polygraph
examination performed upon Christopoulos, a retest performed
after an earlier test in which he had indicated deception (see
D.Ex. 3), states that after the examination was completed,
Christopoulos was confronted with the fact that his responses
showed deception. Christopoulos responded that "he had planned
the burglary originally with one of his employees, Sherwin
Robins, but he does not believe that Robins was
involved. . . ." D.Ex. 6.
In addition, the report of the first polygraph test performed
upon Christopoulos (on May 16, 1977) states that he told the
examiner that he did not help or plan with anyone to steal the
money from the First National Bank and that he did not know who
had stolen it. The examiner's conclusion was that Christopoulos
was "telling the truth." D.Ex. 1.
3. A statement supplied to the FBI by Sherwin Robins was not
provided to defendants until after the start of the trial. In it,
Robins stated that Christopoulos told him, after taking a lie
detector test, that "[t]hey never did catch me, I really got away
with it." D.Ex. 8.
4. Caroline Phillips' statement to the FBI also contradicted
Christopoulos' version of the events in several respects. See
D.Ex. 9. For example, Phillips stated that Christopoulos told her
that the reason that he was not at the bank on the night of the
burglary was that he feared that the burglars "would actually
kill him, instead of merely hitting him on the head," as he had
told her the plan contemplated. Id. at 24.
5. The government also failed to produce a laboratory report
prepared by the Chicago Police Department which indicated that
the alarm lock actually had been picked rather than opened with
6. The government never produced two applications for life
insurance made by Christopoulos after the date of the conspiracy.
This was discovered only after one of the undisclosed
applications was mistakenly sent into the jury room for the
jury's consideration during its deliberations, instead of the
application about which Christopoulos testified at trial. When
the jury, showing the care and perspicacity which we have
experienced with juries, inquired about the date on the
application which it had before it, the multiple applications
were disclosed. The defendants argue that the fact that
Christopoulos made several applications for insurance casts doubt
upon his story that the earlier purchase of insurance was
connected with the scheme to burglarize the bank.
We are deeply troubled by the government's failure to produce
this evidence. Even more troubling is the justification made at
trial for the failure to produce the polygraph reports: "It's the
Government's position that it is not Brady. Because it's not
going to be admissible in a court of law." R. 10. See also R. 14
(THE COURT: Now, my understanding of the reason that you didn't
disclose it is because in your judgment it was inadmissible. Is
that right? [Government counsel:] That's right. THE COURT: That's
the only reason? Right? [Government counsel:] Yes, Your Honor.).
The fact that exculpatory evidence may be inadmissible at trial
is no justification for the government's failure to produce it to
the defense. See Sellers v. Estelle, 651 F.2d 1074, 1077 n. 6
(5th Cir. 1981), cert. denied, 455 U.S. 927, 102 S.Ct. 1292, 71
L.Ed.2d 472 (1982). Even were that not the case, however, the
government's judgment as to the admissibility of the evidence was
incorrect. District courts in this circuit have the discretion to
admit polygraph evidence in proper cases. See, e.g., United
States v. Black, 684 F.2d 481, 484 (7th Cir. 1982) (citing
cases). In addition, apart from the polygraphers' opinions as to
Christopoulos' credibility, the statements Christopoulos made
during the course of certain of the polygraph tests were
inconsistent with his testimony at trial and clearly were
admissible under Fed.R.Evid. 613 as his prior inconsistent
statements. The fact that the government erred in its
determination of the admissibility of the polygraph reports and
Christopoulos' statements recorded in those reports demonstrates
the wisdom of the rule that potential inadmissibility of
exculpatory evidence is no basis for the government's failure to
disclose such evidence to a defendant; to permit the government
to make such a determination in meeting its obligations under
Brady would undoubtedly result in more errors of this type being
Equally troubling is the fact that the government reneged on
its June 21, 1982 commitment to the defendants. Under United
States v. Allain, 671 F.2d 248, 255 (7th Cir. 1982), we know that
the Brady doctrine does not in itself require the government to
make the disclosures compelled by that case and its progeny prior
to trial. See also United States v. McPartlin, 595 F.2d 1321,
1346 (7th Cir. 1979), cert. denied, 444 U.S. 833, 100 S.Ct. 65,
62 L.Ed.2d 43 (1979). The standard that is applied when the
defendant claims that he did not receive Brady material in timely
fashion is "whether the delay prevented defendant from receiving
a fair trial." Id.; see also United States v. Allain, 671 F.2d at
255. We cannot help but believe, however, that where a defendant
has relied on the government's specific undertaking to disclose
exculpatory evidence "when discovered," disclosure on the eve of
trial of information which the government has had in its
possession for months is much more likely to prejudice the
defendant than where he had no expectation of receiving the
evidence at an earlier time. The government's promise of June 12
complied with the admonition of our former colleague, Judge John
Since preparation of the defense in a criminal case
requires many complex decisions in strategy and
preparation, particularly in preparation of
cross-examination, it is by far the better practice
require disclosure in advance of trial of those
matters to which the Defendant is entitled as a
matter of right.
United States v. Dillard, 419 F. Supp. 1000, 1001 (N.D.Ill. 1976).
Its failure to comply with that promise is at best grossly
negligent and at worst reprehensible.
The government's breach of its agreement, however, does not in
and of itself compel the granting of defendants' motion for new
trial. The proper inquiry is still whether the defendant was
prejudiced by the delay in receiving the exculpatory and
potentially exculpatory evidence. See United States v. Scanland,
495 F.2d 1104, 1106-08 (5th Cir. 1974). If the defendants were
able to make effective use of the exculpatory material when
tendered, then due process, which is the basis of Brady, is
satisfied. See United States v. Allain, 671 F.2d at 255; United
States v. Ziperstein, 601 F.2d 281, 291 (7th Cir. 1979), cert.
denied, 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 667 (1980).
Defendants' attorneys, particularly Greichunos' attorney, made
good use of Christopoulos' inconsistent statements made during
the polygraph examinations when he cross-examined Christopoulos
at trial. In addition, we permitted Greichunos to call as a
witness the polygraph examiner from one of the tests during which
Christopoulos appeared to have practiced deception, in order to
testify to his conclusions and opinion. And while the FBI agent
to whom Christopoulos had stated that he planned the burglary
with Sherwin Robins was unavailable to testify, the government
agreed to stipulate to his testimony, and the stipulation was
read to the jury.
In addition, defendants elicited from Caroline Phillips
testimony that confirmed what she had told the FBI concerning
Christopoulos' earlier versions of the conspiracy and the
burglary. As for the police report concerning whether the alarm
lock was picked rather than opened with a key, defendants
elicited from Arthur Paholke, the Chicago Police Department
investigator who had examined the lock, testimony that confirmed
the report. Thus, the report itself would have been cumulative
and, as to it, the dictates of due process were not violated. See
United States v. Goldberg, 582 F.2d 483, 490 (9th Cir. 1978),
cert. denied, 440 U.S. 973, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1979).
There remain the statement of Sherwin Robins and the additional
insurance policies. Defendants were utterly unable to make use of
the insurance policies, because they did not become aware of them
until after the jury had begun its deliberations. As for Robins'
statement, defendants received it from the government during
trial. See R. 98-100. Although defendants' attorneys could have
impeached Christopoulos with his statement about getting away
with the burglary, they indicated that they were reluctant to lay
the foundation for that impeachment without knowing whether
Robins was available to be called as a witness should
Christopoulos deny making the statement.*fn9 R. 99-100.
The government's callous disregard of its Brady obligations
bolsters our conclusion that defendants are entitled to a new
In September 1980, Christopoulos was shown nine photographs
from which he identified defendant Greichunos as the man whom he
had known only as "John." Eight of the photographs consisted of
two views: a full-face frontal view and a side or profile view of
the subject. The ninth, which was the photo of Greichunos, was
full-face view only. In addition, in that photograph Greichunos
had a moustache and a light beard; Christopoulos testified at
trial that at the time of the alleged conspiracy, the man named
John had no facial hair. R. 232-33. Nor did Greichunos have any
facial hair at
the time of trial. The defendant argues that the photographic
identification was unduly suggestive because of the difference
between Greichunos' photograph and the others.
Christopoulos identified Greichunos at trial as well. R.
124-25. On redirect examination he testified without objection
that in January 1980, before the allegedly suggestive
photographic spread was shown to him, he described the man named
John as being six feet, one inch in height, with good features,
glasses, a straight nose, and about 190 to 215 pounds. R. 287.
With the apparent exception of the description of Greichunos'
nose, R. 292, this description fit Greichunos fairly closely. R.
The Supreme Court has enunciated five factors to be considered
in determining the reliability of an identification even when the
procedures used were suggestive: the opportunity of the witness
to view the criminal at the time of the crime, the witness'
degree of attention, the accuracy of his prior description of the
criminal, the level of certainty exhibited by the witness at the
identification, and the length of time between the crime and the
identification. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct.
375, 382-383, 34 L.Ed.2d 401 (1972). The question we must address
is whether, under all the circumstances, there is a substantial
likelihood of misidentification. Id. at 198, 93 S.Ct. at 381; see
also United States v. Cord, 654 F.2d 490, 492-93 (7th Cir. 1981);
United States v. Phillips, 640 F.2d 87, 94 (7th Cir. 1981), cert.
denied, 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851 (1981).
Christopoulos' identification of Greichunos' photograph strikes
us as reliable, despite the suggestiveness in the procedure.
Christopoulos met with Greichunos on three occasions during the
course of the alleged conspiracy. One of these meetings was the
dry run of early May 1977, a meeting which lasted for a fairly
long period of time. Christopoulos testified on cross examination
that he was certain that he had correctly identified the right
man. R. 232. His January 1980 description of Greichunos was
substantially accurate. While it is true that over three years
had passed between the time of the dry run and the September 1980
photo identification, we do not believe that that alone indicates
that there was a "substantial likelihood" of misidentification.
Moreover, any error that might have occurred from the admission
of testimony concerning the photo identification was cured or
rendered harmless by Christopoulos' in-court identification of
Greichunos. It is settled that an in-court identification need
not be suppressed if the prosecution can show that it has a basis
independent of any suggestive pretrial identification. Manson v.
Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1976);
United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d
1149 (1966); Bruce v. Duckworth, 659 F.2d 776, 780 (7th Cir.
1981), cert. denied, 455 U.S. 955, 102 S.Ct. 1464, 71 L.Ed.2d 673
(1982). Christopoulos' meetings with Greichunos in early 1977 and
his January 1980 description of Greichunos gave sufficient
reliability to the in-court identification. Were the motion for
new trial based solely upon the admission of the photographic and
in-court identifications it would be denied. Our observations in
this regard are without prejudice to a pre-trial motion
challenging the identifications should Greichunos make such a
While disclosure of the fact that a government witness is
participating in the witness protection program is a matter that
must be handled delicately, it generally is not sufficient alone
to warrant a new trial unless the government has attempted to
exploit the disclosure. See United States v. Ciampaglia,
628 F.2d 632, 639-40 (1st Cir. 1980), cert. denied, 449 U.S. 956, 101
S.Ct. 365, 66 L.Ed.2d 221 (1980), United States v. DiFrancesco,
604 F.2d 769, 775 (2d Cir. 1979), rev'd on other grounds,
449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); United States v.
Partin, 552 F.2d 621, 644-45 (5th Cir. 1977), cert. denied,
434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Moreover,
defendant Greichunos relied upon Christopoulos'
participation in the program in his closing argument. R. 548-49.
In these circumstances, the disclosure did not taint the trial.
The motion for new trial on these grounds would be denied.
In summary, defendants' motion for a judgment of acquittal
under Fed.R.Crim.P. 29(c) is denied because, construing the
evidence most favorably to the government, the government proved
prima facie that this prosecution was commenced within the
statute of limitations. Defendants' motion for a new trial is
granted because of our failure to give their requested statute of
limitations instruction and the government's failure to discharge
its obligations under Brady v. Maryland. Cause set for trial
November 28, 1983 at 9:30 a.m.