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.
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.
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 ...