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UNITED STATES v. GREICHUNOS

October 11, 1983

UNITED STATES OF AMERICA, PLAINTIFF,
v.
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.

MEMORANDUM OPINION

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." R. 126.

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. 131.

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 of 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.

A

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 limitations issue:

    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
  conspiracy.
    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 ...

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