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
Michael Amos v. State of Indiana
Combined Opinion