Michael Amos v. State of Indiana ( 2017 )


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  •                                                                           FILED
    Aug 30 2017, 5:39 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Thomas W. Farlow                                           Curtis T. Hill, Jr.
    Darren A. Craig                                            Attorney General
    Emily K. Cremeans
    Frost Brown Todd, LLC                                      George P. Sherman
    Indianapolis, Indiana                                      Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Michael Amos,                                              August 30, 2017
    Appellant-Defendant,                                       Court of Appeals Case No.
    49A04-1610-CR-2429
    v.                                                 Appeal from the Marion Superior
    Court
    State of Indiana,                                          The Honorable Lisa F. Borges,
    Appellee-Plaintiff.                                        Judge
    Trial Court Cause No.
    49G04-1606-FC-21338
    Brown, Judge.
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017                    Page 1 of 23
    [1]   Michael Amos appeals the trial court’s denial of his motion to dismiss the
    charges against him. Amos raises one issue which we revise and restate as
    whether the court erred or abused its discretion in denying his motion to
    dismiss based on the statute of limitations. We affirm.
    Facts and Procedural History
    [2]   On June 3, 2016, the State filed an affidavit of probable cause and an
    information charging Amos with sixteen counts of securities fraud, sixteen
    counts of offer or sale of an unregistered security, and one count of acting as an
    unregistered broker-dealer, all as class C felonies. The counts for securities
    fraud and offer or sale of unregistered securities alleged that Amos committed
    the crimes on or about dates from August 4, 2006, to February 23, 2009. These
    counts allege that Amos concealed the evidence of his offenses such that
    evidence sufficient to charge him was not available to the State until no earlier
    than June 2011, that Amos began in or about March 2009 sending updates to
    the investors to provide a reason why he was temporarily unable to make
    promised payments and describe the steps he was taking to fulfill his promises,
    and the email updates continued approximately monthly and were ongoing as
    recently as September 6, 2012. The State also alleged that Amos acted as an
    unregistered broker-dealer from August 6, 2008, to the present.
    [3]   The State filed an affidavit for probable cause prepared by an investigator for
    the Indiana Secretary of State, Securities Division, which states the investigator
    identified two separate schemes involving thirteen investors in Indiana, a
    promissory note scheme and a real estate investment contract scheme. The
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 2 of 23
    affidavit states that the promissory notes were for a period of time between
    twelve and one hundred twenty months, each note indicated a specific interest
    applied to the investor money, most of the notes purport to return thirty-six to
    forty-eight percent interest annually, the investors viewed the promissory notes
    as investments, and many of the investors purchased the notes using their
    individual retirement accounts. The affidavit states that the real estate
    investment contracts consisted of a sale agreement in which Amos sold
    property to an investor, a lease agreement in which he would lease the property
    from the investor immediately after the sale, and a second sale agreement in
    which Amos would purchase the property back from the investor at the original
    purchase price at the end of either five or ten years. The lease payments
    equaled either thirty-six or forty-eight percent of the purchase price per year.
    The affidavit further states that, from January 2007 until March 2011, Amos
    received over $13 million from investors nationwide and over $6 million from
    Indiana investors, that over $2.8 million was spent on personal expenses such
    as car payments, school fees, student loans, mortgage payments, medical bills,
    credit card bills, and church donations, and that he returned approximately $1.9
    million to Indiana investors. The affidavit states that the promissory notes and
    real estate investment contract operated as a Ponzi scheme, that Amos would
    collect substantial upfront principal payments from investors and return a
    fraction of that money each month, investors were led to believe an actual
    business existed from which profits were derived, and in reality the enterprise
    did not have the assets or profits to sustain the scheme.
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 3 of 23
    [4]   Additionally, the affidavit of probable cause states that the State of Indiana first
    became aware of Amos when a Consumer Complaint Form was submitted to
    the Office of the Indiana Attorney General in June 2011. The affidavit states
    that Amos concealed his actions from the investors in the manner in which he
    structured the securities, structured the promissory notes so the principal was
    not due to be returned to the investor for twelve to one hundred twenty months,
    and structured the real estate investment contracts so that the investors would
    not take actual possession of the properties and the investors did not expect to
    see their principal returned for ten years. The affidavit states that, once Amos
    failed to pay interest payments and lease payments, “he began, in or about
    March 2009, sending ‘updates,’ approximately monthly, to the investors,” and
    “[i]n these ‘updates’ Amos apologized for missing payments, blamed the missed
    payment on something beyond his control, and explained his plan for
    recovery.” Appellant’s Appendix Volume II at 70. The affidavit states “Amos
    repeatedly informed investors in these ‘updates’ that he expected to close a deal
    soon and then he could send payments” and “[i]nvariably, something beyond
    Amos’ control intervened, the deal could not be closed, and investors were not
    repaid.” Id. The affidavit further states that Amos also concealed his actions
    from the State of Indiana by offering and selling the securities without
    registering the securities or himself with the Indiana Secretary of State’s Office.
    [5]   On July 12, 2016, Amos filed a motion to dismiss and a supporting brief
    arguing that the charges again him are barred by the applicable statute of
    limitations and that the securities fraud charges are deficiently pled. He
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 4 of 23
    maintained that he did not positively act to conceal his actions, the nature of
    the promissory notes and real estate investment contracts and their maturity or
    termination dates are clear from the faces of the documents, it was easily
    ascertainable at the time the documents were signed that he was not a registered
    agent or broker, and that, if his actions constitute an offense, that offense could
    have been determined by authorities or the alleged victims on the date the notes
    and contracts were signed.
    [6]   On August 1, 2016, the State filed a response to Amos’s motion to dismiss and
    an affidavit in support. It argued that the structure of the securities prevented
    the discovery of crimes, and that, “all the way through 2015, [Amos] was
    sending regular emails to the investors preaching optimism about the prospects
    of the investments while making no mention of the fact that he had expended
    vast sums of the invested money for his own personal benefit” and “[t]hese
    emails fulfilled their intended purpose and delayed investors’ discovery of the
    crime committed until years had passed.” Id. at 91-92. It also argued that the
    securities fraud allegations were more than sufficient to place Amos on notice
    of the nature of the charges against him.
    [7]   The affidavit in support of the State’s response included several attached
    investment documents and email messages. On December 1, 2014, Amos sent
    an email message with the subject “November Update” stating “I hope
    everyone had a happy thanksgiving, and I am very thankful for all of you,” “I
    am also thankful to be able to report that we are writing up our contract on our
    commercial transaction, and will be sending it out by the end of the week,”
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 5 of 23
    “[w]e assume the contract will be signed in the next three weeks, which will
    allow us to begin the due diligence tests required by our money partner,” and
    “[o]nce the contract is signed, we will be able to lock down the timing of the
    due diligence tests and I will know a more exact date and impact it will have on
    our recovery.” Id. at 116. The message stated “[b]elow is our recover outline, I
    have removed the pending transactions list as I will begin providing close dates
    by project as we are informed by the lenders,” “[i]n this financial environment it
    is impossible to anticipate when and if a lender or buyer will follow through on
    previous commitments,” and “I hope that this letter will provide you the
    cautious optimism that I have at this point in regards to our full recovery.” Id.
    The message also stated:
    As a reminder our 5 step plan is listed below.
    [] Step 1 – Stabilization
    a. We need to close an initial transaction to provide a
    stable base of income and opportunity to recover.
    b. Once an initial transaction is closed it will act as a
    catalyst to other transactions which will accelerate our
    recovery.
    [] Step 2 – Partial Payments . . . As soon as cash flow allows will
    begin making partial payments to all.
    [] Step 3 – Full payments . . . As soon as possible we will resume
    make full payments
    [] Step 4 – Repayment of missed payments . . . Once cash flows
    allow we will begin repaying any missed payments
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017    Page 6 of 23
    [] Step 5 – Buyouts . . . Once cash flows allow, for anyone who
    wishes, we will accelerate the repurchase of real estate allowing
    individuals to once again be in a cash position.
    Id.
    [8]   On January 3, 2015, Amos sent an email message with the subject “December
    Update” stating that “[w]e continue to go back and follow on the contract and
    hoping that we can settle the contract in the next couple of weeks,” “[o]nce we
    got into the holidays things slowed down quite a bit,” “[w]e assume the
    contract will be signed in the next three weeks, which will allow us to begin the
    due diligence tests required by our money partner,” and that he was planning
    on sending the next update on January 30th. Id. at 102. The message also
    stated “[i]n this financial environment it is impossible to anticipate when and if
    a lender or buyer will follow through on previous commitments,” and “I hope
    that this letter will provide you the cautious optimism that I have at this point in
    regards to our full recovery.” Id. The January 2015 message also included the
    five-step recovery plan.
    [9]   On April 8, 2015, Amos sent an email message with the subject “March
    Update” stating “I was not able to meet with my partner and the money partner
    in March as they spent most of the month of March in Florida working on
    other transactions,” “[t]hey are scheduled to come back next week and have
    stated they will meet with me to see if we can come to terms and close the
    commercial transaction we have been working,” “[t]he good news is that I have
    met with two new money partners and we are in discussions on new
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 7 of 23
    commercial property projects,” “I have provided them each several
    opportunities to review and will be meeting with them this week and next to
    discuss the next steps,” “[t]here is definitely all lot [sic] of activity happening in
    the last month and my hope is that it leads to a closing very quickly,” and that
    he planned to send the next update on April 30th. Id. at 132. The message also
    stated “[i]n this financial environment it is impossible to anticipate when and if
    a lender or buyer will follow through on previous commitments,” and “I hope
    that this letter will provide you the cautious optimism that I have at this point in
    regards to our full recovery.” Id. The April 2015 message also included the
    five-step recovery plan.
    [10]   Amos sent an email message dated September 9, 2015, with a subject line of
    “September Update,” stating “[w]e received some bad, but not completely
    unexpected news,” “[o]ur buyer informed us that Wells Fargo underwriting will
    not give any value to the signed lease and thus the property will not appraise for
    the amount the buyer needs in order to qualify for the loan,” “[s]ome potential
    good news is that I have a broker that I am referring to our buyer to that has
    access to non-bank loans and might still allow us to close the transaction, but
    will delay our closing,” that “[m]y partner also informed me that we have a
    potential new cash buyer that is showing some interest,” and that he would
    provide an additional update by October 1st. Id. at 160. The message again
    stated “I will begin providing closing dates by project as we are informed by the
    lenders,” “[i]n this financial environment it is impossible to anticipate when and
    if a lender or buyer will follow through on previous commitments,” and “I hope
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 8 of 23
    that this letter will provide you the cautious optimism that I have at this point in
    regards to our full recovery.” Id. Also, like the other email messages, the
    September 2015 message included the five-step recovery plan.
    [11]   On August 24, 2016, the trial court issued Findings of Fact and Conclusions of
    Law. The court found in part that, “[a]s recently as September 9, 2015, Amos
    sent an email to some investors updating them on various problems with a
    particular investment and stressing ‘cautious optimism’ in a five-step recovery
    plan” and that other investors received similar emails. Id. at 11. The court
    concluded that “the State has alleged facts sufficient to justify the tolling of the
    statute of limitations to, at the earliest, June 10, 2011, the date on which the
    first complaint against [Amos] was forwarded to the state.” Id. at 12. The
    court also concluded the State did not insufficiently plead the securities fraud
    counts and denied Amos’s motion to dismiss. Amos now brings this
    interlocutory appeal.
    Discussion
    [12]   The issue is whether the trial court erred or abused its discretion in denying
    Amos’s motion to dismiss the charges against him based upon the statute of
    limitations. A trial court’s denial of a motion to dismiss is reviewed for an
    abuse of discretion. Study v. State, 
    24 N.E.3d 947
    , 950 (Ind. 2015), cert. denied,
    
    136 S. Ct. 412
     (2015). We review a matter of statutory interpretation de novo
    because it presents a question of law. 
    Id.
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 9 of 23
    [13]   Amos argues that the statute of limitation expired before the State filed the
    information against him and that the tolling provision based on concealment is
    inapplicable because neither the information nor the probable cause affidavit
    alleges any actions by him to conceal the commission of a crime. He argues
    that charging documents do not allege that he threatened the alleged victims to
    prevent them from reporting the offenses to the Indiana Secretary of State or
    that he manipulated financial records or other documents related to the notes
    and contracts. He asserts the nature of the notes and contracts and their
    maturity and termination dates are clear from the faces of the documents, that it
    was easily ascertainable at the times the documents were signed that he was not
    a registered agent or broker, and that he did nothing to keep the authorities
    from learning of the alleged offenses or to prevent them from investigating it.
    He also argues that the “alleged ‘updates’ were not provided to authorities and
    would not have affected the ability of investigating authorities to discovery [sic]
    any of the alleged offenses, as required for the concealment-tolling provision.”
    Appellant’s Brief at 11.
    [14]   The State maintains that Amos sold unregistered securities that he structured to
    mature years later, an investor would have had no reason to believe that a crime
    occurred until the securities matured and the investor was not paid, the State
    could not know a crime had occurred because Amos was not registered and did
    not register the securities and the unregistered transactions occurred between
    two private parties, and, “[i]n other words, by structuring the securities in the
    manner that he did and by failing to register, Amos took positive steps to
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 10 of 23
    conceal the fact that criminal activity was occurring.” Appellee’s Brief at 11.
    The State asserts that the charging documents and accompanying probable
    cause affidavit alleged that Amos was engaged in a Ponzi scheme, that he
    concealed this fact by informing investors that he was temporarily unable to
    make promised payments but was taking steps to fulfill his promises, that
    “[t]hrough his communications with investors, Amos sought to lull investors
    into complacency by sending regular updates in which [he] expressed his
    ‘cautious optimism’ about the viability of the investments” and “claimed that
    ‘he expected to close a deal soon[,]’ which would allow him to continue
    sending payments,” and that “[t]hese emails fulfilled their intended purpose of
    allaying potential concerns of investors and delaying the discovery of the crimes
    committed until years had passed.” Id. at 11-12.
    [15]   With respect to Amos’s assertion that the charging documents fail to allege
    concealment because they do not allege he threatened the alleged victims, the
    State’s position is that “in this context, threatening an investor would be
    counterproductive and more likely to cause the investor to become suspicious
    and report the person making the threats to authorities,” “[a] more effective
    concealment strategy, as evidenced by the allegations here, is to attempt to
    alleviate investors’ potential concerns by falsely reassuring them that there has
    only been a temporary setback and payments will resume again in the not too
    distant future,” and “[t]his strategy is much more likely to lull investors into a
    false sense of security and delay discovery that criminal activity is taking place.”
    Id. at 13-14. The State also argues that, “[s]ince Amos’s investors were
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 11 of 23
    dependent on him for information regarding their investments, [his]
    communications served to conceal the criminal nature of the investments from
    the investors” and “Amos’s acts of concealment were so effective that most of
    the investors never realized that they might be victims of a crime until
    approached by authorities.” Id. at 14.
    [16]   Indiana Code § 35-41-4-2(a) provides that a prosecution for an offense is barred
    unless it is commenced “within five (5) years after the commission of the
    offense, in the case of a . . . Class C . . . felony (for a crime committed before
    July 1, 2014) . . . .” Indiana Code § 35-41-4-2(h) provides in part:
    The period within which a prosecution must be commenced does
    not include any period in which:
    *****
    (2) the accused person conceals evidence of the offense,
    and evidence sufficient to charge the person with that
    offense is unknown to the prosecuting authority and could
    not have been discovered by that authority by exercise of
    due diligence . . . .
    [17]   The primary purpose of statutes of limitations is to protect defendants from the
    prejudice that a delay in prosecution could bring, such as fading memories and
    stale evidence. Study, 24 N.E.3d at 953. Statutes of limitations are also
    intended to strike a balance between an individual’s interest in repose and the
    State’s interest in having sufficient time to investigate and build its case. Id.
    Any exception to the limitation period must be construed narrowly and in a
    light most favorable to the accused. Id.
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 12 of 23
    [18]   The State filed the charging information and the affidavit of probable cause on
    June 3, 2016. The counts for securities fraud and offer or sale of unregistered
    securities alleged that Amos committed the crimes on or about dates from
    August 4, 2006, to February 23, 2009, and the count for acting as an
    unregistered broker-dealer alleged Amos committed the crime between August
    6, 2008, and the present, and all of the charged counts constitute class C
    felonies.
    [19]   The Indiana Supreme Court has held: “The application of the concealment-
    tolling provision under Indiana Code § 35-41-4-2(h)(2) requires a positive act by
    the defendant that is calculated to conceal the fact that a crime has been
    committed.” Id. at 957. The Court has also observed: “Obviously, proof of
    ‘concealment’ . . . is a fact-intensive issue.” Willner v. State, 
    602 N.E.2d 507
    ,
    509 (Ind. 1992). The parties cite Study, 
    24 N.E.3d 947
    , Kifer v. State, 
    740 N.E.2d 586
     (Ind. Ct. App. 2000), State v. Chrzan, 
    693 N.E.2d 566
     (Ind. Ct. App.
    1998), and Dvorak v. State, 
    78 N.E.3d 25
     (Ind. Ct. App. 2017), trans. pending.1
    [20]   In Study, the State charged John Study with several counts of robbery, and
    Study moved to dismiss one of the counts on the grounds it was barred by the
    statute of limitations. 24 N.E.3d at 948-949. The charging information alleged
    that “concealment occurred when Study concealed his identity by wearing a
    mask, and concealed the getaway car, clothes worn during the crime, items
    1
    Amos filed a notice of additional authority citing Dvorak as the opinion was published following the filing of
    the parties’ briefs.
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017                        Page 13 of 23
    taken from a victim, the weapon used, and evidence linking the robbery to other
    robberies.” 24 N.E.3d at 954. The Court observed that “[n]one of these actions
    would serve to prevent law enforcement from discovering that a bank had been
    robbed,” “[t]he State’s ability to investigate the crime and develop a case was
    not thwarted,” “[l]aw enforcement officials discovered the robbery and were
    able to begin investigating immediately,” and “[t]herefore, the State’s interest
    was sufficiently served as there was nothing delaying their ability to
    investigate.” Id. The Court also stated:
    If concealment of guilt is all that is required to toll the statute of
    limitations, it is hard to imagine when the concealment-tolling
    provision would not apply. In almost every criminal case, the
    offender is going to attempt to conceal that they have committed
    the offense. Under that reading, in order to avoid tolling the
    statute of limitations, a criminal defendant would have to leave
    incriminating evidence at the crime scene or deliver it to police.
    Should the statute be read to require that Study turn over the
    getaway car or return items stolen from a victim in order to avoid
    tolling? As Judge Mathias stated, allowing any concealment of
    guilt to toll the statute of limitations would “vitiate[ ] this public
    policy in all but very few crimes, leaving us with an effectively
    meaningless statute of limitations.” Study, No. 06A04-1308-CR-
    391, Slip Op. at *16. We agree that the exception cannot be read
    to swallow the rule.
    This is not to suggest that the concealment-tolling provision
    would never be applicable in the instance of a robbery. For
    example, an individual may rob a jewelry store and threaten the
    employee into forging sales receipts and altering accounting
    documents to make it appear as if no robbery had occurred.
    After the robbery, the offender may continue sending threatening
    mail or messages to the employee to not report the robbery. In
    this instance, the criminal would have taken positive actions to
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 14 of 23
    conceal that a robbery had occurred, which would inevitably
    result in some delay before law enforcement could commence an
    investigation. Allowing the statute of limitations to run in this
    scenario would function as a windfall to the defendant and
    unduly burden the State’s ability to build a case and bring
    charges. As such, the application of a tolling provision is
    warranted.
    However, here, there is no dispute that the police were aware
    that the bank robbery on March 21, 2006 had occurred. The
    police immediately began investigating and even discovered the
    connections between the March 21, 2006 robbery and subsequent
    robberies for which Study was eventually charged. Thus, even
    Study’s attempts to conceal his guilt were not thwarting the
    progress of the police investigation.
    Id. at 956-957. The Court noted that “the concealment, to avoid the running of
    the statute, must be of the crime itself,” id. at 957 (citing State v. Hoke, 
    84 Ind. 137
    , 138 (1882)), and that Indiana courts have continued to hold that
    concealment tolls the statute of limitations only when there is a positive act
    performed by the defendant that is calculated to prevent the discovery that a
    crime has been committed. 
    Id.
     (citations omitted). The Court concluded that
    “Study did not engage in any positive act calculated to conceal the fact that a
    robbery occurred on March 21, 2006” and that therefore the statute of
    limitations as to that offense was not tolled and the charge should have been
    dismissed. 
    Id. at 957-958
    .
    [21]   In Kifer, in October of 1987 David Kifer left the scene of an accident in which
    he struck and killed a jogger and later removed his license plates and headlight
    rings from his car and sold it to a salvage yard. 
    740 N.E.2d at 586-587
    . In
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 15 of 23
    September 1997, police received a tip that Kifer had been the driver, and after
    investigation the State charged Kifer in September 1999. 
    Id. at 587
    . Kifer
    moved to dismiss the charge based on the statute of limitations, and the trial
    court denied the motion. 
    Id.
     On appeal, this Court found that Kifer concealed
    evidence of his guilt by altering and disposing of the car involved in the accident
    but did not conceal the fact that a crime had been committed, it was undisputed
    that the police were aware in October 1987 that a fatal hit and run accident had
    occurred, and therefore the commission of the offense was fully known in 1987
    and the State’s prosecution of Kifer twelve years later was barred by the statute
    of limitations. 
    Id. at 588
    .
    [22]   In Chrzan, Chester Chrzan resigned as manager of a grain elevator effective
    January 13, 1994, and on January 18, 1994 contacted Martin, his replacement
    as the elevator manager. 693 N.E.2d at 567. Chrzan wrote two checks totaling
    $16,000 and gave them to Martin, told Martin the checks were payment for
    beans that he bought, and later Martin thought that something was amiss in
    that there may have been double payment for the beans and there was a
    shortage of beans stored at the elevator. Id. Martin did not advise anyone
    about his thoughts and started an investigation. Id. The corporate directors of
    the elevator met with Chrzan in May of 1994 and again in September as a part
    of an audit, and it developed that Chrzan had secreted $12,000 to $15,000 for
    use in the event he was fired as manager. Id. A settlement negotiation between
    the directors and Chrzan failed. Id. The directors approached the prosecutor
    about the matter in the spring of 1995, and the prosecutor filed charges of
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 16 of 23
    misappropriation of funds and the knowing use of a false measure as
    misdemeanors against Chrzan on January 16, 1996, which was three days after
    two years had passed since Chrzan resigned as manager. Id. at 566-567. The
    trial court granted a motion to dismiss the charges, holding that the two-year
    statute of limitations barred prosecution. Id. at 566. On appeal, this Court
    noted that the concealment of facts that an offense has been committed must be
    the result of the defendant’s positive acts and that positive acts of concealment
    include the threat of bodily harm and the existence of a coercive relationship.
    Id. at 567. We further noted the State’s argument that Chrzan’s manipulation
    of financial records during the two years prior to his resignation as manager,
    and the writing of the two checks on January 18, 1994, were positive acts of
    concealment as contemplated by the statute, and held “[w]e agree that these
    acts were positive acts on the part of the perpetrator to conceal the fact that a
    crime had been committed,” and reversed the court’s ruling on the motion to
    dismiss. Id.
    [23]   In Dvorak, the State charged Dvorak in June 2015 with offer or sale of an
    unregistered security and acting as an unregistered agent as class C felonies, and
    the information alleged that Dvorak committed the illegal acts on or about July
    9, 2007. Dvorak, 78 N.E.3d at 26-27. Dvorak filed a motion to dismiss arguing
    the charges were barred by the statute of limitations and that the statute of
    limitations was not tolled, and in response the State argued that Dvorak
    concealed the offenses by structuring the securities to mature three years later
    resulting in the alleged victim having no reason to believe that a crime occurred
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 17 of 23
    until those securities matured. Id. at 27. The trial court denied Dvorak’s
    motion to dismiss. Id.
    [24]   On appeal, Dvorak argued that there were no allegations of any positive act
    that he committed to conceal the fact that an offense had been committed, and
    the State argued that “Dvorak’s structuring of the unregistered security included
    the selection of a maturity date that would cause his illegal activity to fly under
    the radar for three years after the illegal sale.” Id. at 29. This Court held that
    “Dvorak points out, however, that whether he was registered to offer or sell
    securities and whether the security was registered were matters of public records
    on the date of the alleged offenses,” the alleged victim “could have determined
    those facts at the time he entered into the agreements,” and “[t]he maturity date
    of the agreements did not prevent [the alleged victim] from determining that
    Dvorak and the securities were unregistered.” Id. The Court also observed that
    the State had noted that failing to disclose that a security is not registered and
    that a seller is not registered as a broker-dealer has been found to be a material
    omission on the part of the seller. Id. (citing Manns v. Skolnik, 
    666 N.E.2d 1236
    ,
    1249 (Ind. Ct. App. 1996), trans. denied). The Court observed that “Manns dealt
    with fraud allegations against the defendant in the context of an administrative
    complaint, and the omission was relevant to the fraud determination,” that
    “[i]n the context of concealment tolling the statute of limitations in a criminal
    case, our courts have held that a ‘positive act’ to conceal the fact that an offense
    has been committed is required,” 
    id.
     at 30 (citing Study, 24 N.E.3d at 952), and
    that “[t]he omission discussed in Manns is not, however, a ‘positive act,’ which
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 18 of 23
    is necessary to toll the statute of limitations.” Id. We concluded that Dvorak
    did not engage in any positive act calculated to conceal the fact that he was not
    registered and the security was not registered with the Secretary of State and
    that the trial court erred in denying Dvorak’s motion to dismiss. Id.
    [25]   In addition, we are mindful that Amos has brought this interlocutory appeal
    from the denial of his motion to dismiss based on the statute of limitations and
    that, in Woods v. State, this Court held: “The State must only make sufficient
    allegations in the charging information that the alleged crimes fall within the
    statute of limitations; whether the State has actually met its burden of proving
    that the alleged crimes fall within the statute of limitations is a question for
    trial.” 
    980 N.E.2d 439
    , 442 (Ind. Ct. App. 2012) (citing Reeves v. State, 
    938 N.E.2d 10
    , 15-16 (Ind. Ct. App. 2010), reh’g denied, trans. denied). We further
    said that the State must plead the circumstances of the concealment exception
    in the charging information, that pleading must contain sufficient facts so that
    the defendant is apprised of the facts upon which the State intends to rely and
    may be prepared to meet that proof at trial, and the information must also state
    the date of the offense with sufficient particularity to show that the offense was
    committed within the period of limitations applicable to that offense. 
    Id.
     at 442-
    443 (citing Reeves, 
    938 N.E.2d at 15-16
     (“Indeed, the State has the burden at
    trial of establishing that the crime charged was committed within the statute of
    limitation. However, as this is an interlocutory appeal from a motion to
    dismiss, we deem that the more appropriate issue at hand is whether the State
    has met its initial burden of making sufficient allegations in the charging
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 19 of 23
    information that the offenses were committed within the applicable statute of
    limitation.”) (citation omitted); Willner, 602 N.E.2d at 509; 
    Ind. Code § 35-34-1
    -
    2(a)(5)2).
    [26]   In this case, the counts charging Amos with securities fraud and offer or sale of
    unregistered securities alleged that he concealed the evidence of his offenses
    such that evidence sufficient to charge him was not available to the State until
    no earlier than June 2011, and that Amos began in or about March 2009
    sending updates to the investors to provide a reason why he was temporarily
    unable to make promised payments and describing the steps he was taking to
    fulfill his promises. In addition, the affidavit of probable cause says that the
    State first became aware of Amos when a complaint was submitted to the
    Indiana Attorney General in June 2011. The affidavit further states that Amos
    began sending email updates to investors “approximately monthly,” “[i]n these
    ‘updates’ Amos apologized for missing payments, blamed the missed payment
    on something beyond his control, and explained his plan for recovery,” “Amos
    repeatedly informed investors in these ‘updates’ that he expected to close a deal
    soon and then he could send payments,” and “[i]nvariably, something beyond
    Amos’ control intervened, the deal could not be closed, and investors were not
    repaid.” Appellant’s Appendix Volume II at 70.
    2
    Indiana Code § 35-34-1-2(a) provides that “[t]he indictment or information shall be in writing and allege the
    commission of an offense by: . . . (5) stating the date of the offense with sufficient particularity to show that
    the offense was committed within the period of limitations applicable to that offense . . . .”
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017                         Page 20 of 23
    [27]   With respect to the counts of securities fraud and offer or sale of an unregistered
    security, we conclude that the State has pled the circumstances of the
    concealment exception in the charging information and the information
    contains sufficient facts, namely, that Amos began sending updates to the
    investors in or about March 2009 to provide a reason why he was temporarily
    unable to make promised payments and describe the steps he was taking to
    fulfill his promises, such that Amos was apprised of the facts upon which the
    State intends to rely and may be prepared to meet that proof at trial. See Woods,
    980 N.E.2d at 442. Even assuming that Amos’s structuring of the notes and
    contracts to mature after the statute of limitations had run does not toll the
    statute of limitations, we observe that Amos sent regular email messages to the
    investors as set forth in the charging information and the affidavit of probable
    cause and that these messages essentially assured investors that he had a plan to
    recover their investments and was working with additional brokers, partners,
    lenders, and investors to do so. These regular communications, in light of their
    content, assurances, and requests for patience, may be determined to have been
    Amos’s attempt to delay or prevent the discovery of his commission of the
    alleged crimes of securities fraud and offer or sale of an unregistered security
    and thus constituted positive acts of concealment for purposes of tolling the
    statute of limitations. See Chrzan, 693 N.E.2d at 567 (finding in part that
    Chrzan’s actions of writing two checks and telling a manager they were
    payment for beans he had bought constituted a positive act to conceal the fact a
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 21 of 23
    crime had been committed).3 At a minimum, the State has pled sufficient facts
    in its information that the alleged crimes fall within the statute of limitations,
    and the trier of fact may ultimately determine at trial whether the State has
    actually met its burden of proving that the alleged crimes fall within the statute
    of limitations. See Woods, 980 N.E.2d at 442 (“The State must only make
    sufficient allegations in the charging information that the alleged crimes fall
    within the statute of limitations; whether the State has actually met its burden
    of proving that the alleged crimes fall within the statute of limitations is a
    question for trial.”). As for the count of acting as an unregistered broker-dealer,
    the charging information alleges that, “[o]n or about and between August 6,
    2008 and the present,” Amos transacted business as a broker-dealer with certain
    individuals without being registered with the Indiana Secretary of State as
    required, Appellant’s Appendix Volume II at 52 (emphasis added). Thus,
    prosecution for the alleged crime, to the extent the crime occurred after the date
    five years prior to the filing of the charging information, is not barred by
    Indiana Code § 35-41-4-2(a).4 Based upon the record, we conclude the trial
    court did not err in denying Amos’s motion to dismiss.
    3
    Unlike in Study and Kifer, where police were fully aware a crime had occurred soon after the crimes were
    committed, in this case the State claims it first learned of Amos’s actions when a complaint was submitted to
    the Office of the Indiana Attorney General in June 2011.
    4
    Also, Amos does not argue that the charging information for the count of acting as an unregistered broker-
    dealer is deficiently pled. This count does not allege that Amos engaged in any positive act calculated to
    conceal the fact he was not registered with the Indiana Secretary of State.
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017                      Page 22 of 23
    Conclusion
    [28]   For the foregoing reasons, we affirm the trial court’s denial of Amos’s motion
    to dismiss.
    [29]   Affirmed.
    May, J., and Pyle, J., concur.
    Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 23 of 23
    

Document Info

Docket Number: Court of Appeals Case 49A04-1610-CR-2429

Judges: Brown, Pyle

Filed Date: 8/30/2017

Precedential Status: Precedential

Modified Date: 9/27/2023