Kahn v. State
| Decision Date | 29 May 1986 |
| Docket Number | No. 4-1183,4-1183 |
| Citation | 493 N.E.2d 790 |
| Parties | Blue Sky L. Rep. P 72,418, RICO Bus.Disp.Guide 6275 Emanuel KAHN and Ideas Unlimited, Inc., Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below). A 372. |
| Court | Indiana Appellate Court |
James H. Voyles, Ober, Symmes, Cardwell, Voyles & Zahn, Indianapolis, for appellants.
Linley E. Pearson, Atty. Gen. of Indiana, Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
Emanuel Kahn was convicted of securities fraud, corrupt business influence, 15 counts of sale of unregistered securities and 15 counts of sale of securities by an unregistered agent. Ideas Unlimited, a corporation created by Kahn, was also convicted of corrupt business influence. Kahn and Ideas Unlimited appeal, alleging the trial court erred by:
1) overruling defendants' motion to dismiss;
2) ordering the Indiana Department of Revenue to disclose tax records of Ideas Unlimited;
3) refusing defendants' motions for change of venue;
4) allowing the state to amend the information by adding a count of securities fraud against Kahn;
5) overruling defendants' motion to quash the search warrant and to suppress evidence;
6) overruling defendant Kahn's motion in limine;
7) overruling defendants' request for additional voir dire challenges;
8) giving certain final instructions;
9) basing a verdict of guilty on evidence that was insufficient to prove guilt beyond a reasonable doubt; and
10) imposing an excessive sentence.
We affirm.
The record reveals that in June of 1979, Kahn formed Ideas Unlimited, Incorporated, to produce and market various novelty items. He also formed Unlimited Marketing and Unlimited Promotions, which companies were registered with the Secretary of State of Indiana as assumed business names of Ideas Unlimited. Kahn capitalized these enterprises by selling shares of stock in Ideas Unlimited, Unlimited Marketing, and Unlimited Promotions to more than 35 people, but he failed to register these stocks or himself as an agent as required by law. Kahn also failed to disclose information to his investors concerning administrative and judicial proceedings against him for securities violations in Illinois.
From the period of June 1979 through June 1982, stockholders invested $1,465,200 in Ideas Unlimited, Inc., yet total gross sales of its products amounted to a mere $2,429. Nevertheless, Kahn paid himself $489,545 for his services during that same period of time. In February 1982, the County Prosecutor's office began to investigate Ideas Unlimited after receiving several complaints from investors. On June 18, 1982, Kahn was taken into custody. Following a jury trial, Kahn and Ideas Unlimited were found guilty as charged.
Kahn and Ideas Unlimited first claim the trial court erred in overruling their motions to dismiss the charges against them. The motions alleged the informations filed against them failed to state the offenses with sufficient certainty, the facts stated did not constitute an offense, and venue was improper in Marion County. 1
Appellants's claim of improper venue is without merit. At the time of the instant offenses, IND.CODE 35-1.1-2-1(d) (Supp.1981), recodified at IC 35-32-2-1 (1982), provided:
If the commission of an offense is commenced in one county and is consummated in another county, trial may be had in either of the counties.
Although sales of Ideas Unlimited securities were made in various counties throughout Indiana, venue was proper in Marion County. Both Ideas Unlimited and Kahn committed the crime of corrupt business influence 2 in Marion County. Ideas Unlimited was charged with receiving proceeds to operate an enterprise, under subsection (a)(1) of the statute; Kahn was charged with associating with an enterprise and participating in its activities through a pattern of racketeering, under subsection (a)(3). Ideas Unlimited received proceeds from the unlawful security transactions and operated its business from its corporate offices in Marion County. Kahn maintained offices and conducted business at the corporate offices of Ideas Unlimited. The enterprise, Ideas Unlimited, was located in Marion County. Thus, he committed the crime of corrupt business influence in Marion County. Kahn was also charged with securities fraud, selling unregistered securities, and selling securities without a securities license. The stock certificates were mailed to investors from the corporate offices in Marion County and money was received there. Fraudulent representations were made to investors through newsletters sent from the offices of Ideas Unlimited. Furthermore, if the crime charged is an omission to act, venue of the offense is the county where the act should have been performed. Gilmour v. State (1952), 230 Ind. 454, 104 N.E.2d 127. Kahn should have registered the securities and himself with the office of the Secretary of State located in Marion County. The failure to register occurred in Marion County; venue was properly brought there.
Appellants also claim the information charging them with the crime of corrupt business influence failed to allege with sufficient certainty the crimes which constituted a "pattern of racketeering activity". The information merely alleged Kahn committed "at least two violations of IC 23-2-1-1 through 23-2-1-25 by the sale of unregistered securities and the sale of securities while not being registered as an agent or broker-dealer." Similarly, the information charging the corporation alleged: "at least two violations of IC 23-2-1-1 through IC 23-2-1-25 by the sale of unregistered securities." Appellants claim these informations are defective since they failed to specify the date and nature of each alleged securities violation.
Pursuant to IC 35-34-1-2 the state must set forth in the information the nature and elements of the offense charged in plain and concise language and state the date of the offense with sufficient particularity to show the offense was committed within the period of limitations applicable to that offense. Moreover, an information must be sufficiently specific to apprise the defendant of the crime with which he is charged and to enable him to prepare a defense. Jones v. State (1984), Ind.App., 467 N.E.2d 1236.
In this case, the informations charging appellants with the crime of corrupt business influence listed the inclusive dates of the charged crimes and were filed contemporaneously with the informations alleging the underlying securities crimes which informations set forth specific dates and names of the buyers involved in each transaction. Read in conjunction, the informations sufficiently apprised appellants of the crimes charged so that they might prepare a defense. To require the state to repeat each underlying securities count on the corrupt business influence information would be redundant and unnecessary.
Finally, appellants claim the informations were defective in that they failed to include the specific dates of each securities violation but merely alleged violations of the securities code "on or about the 3rd day of July, 1979, to on or about the 17th day of June, 1982." Once again, the state was not required to repeat every count listed in the accompanying informations in order to properly allege the crime of corrupt business influence.
As appellants correctly note, the dates of the alleged crimes are vital in a charge of corrupt business influence due to the structure of the statute. The statute prohibits engaging in a "pattern of racketeering activity," defined thusly:
'Pattern of racketeering activity' means engaging in at least two (2) incidents of racketeering activity that have the same or similar intent, result, accomplice, victim, or method of commission, or that are otherwise interrelated by distinguishing characteristics that are not isolated incidents; however, the incidents are a pattern of racketeering activity only if at least one (1) of the incidents occurred after August 31, 1980, and if the last of the incidents occurred within five (5) years after a prior incident of racketeering activity.
(emphasis added) IC 35-45-6-1. An essential element of the crime of corrupt business influence is the commission of any two enumerated crimes 3 within a five year period and that one of the two must have been committed after August 31, 1980.
In this instance, the information alleged securities crimes occurring from July 3, 1979, to June 17, 1982, well within the five year span required by statute. Of the 15 counts of sale of unregistered securities and 15 counts of sale by an unregistered agent, only four counts occurred after August 31, 1980. As Kahn was convicted of all thirty counts, including four that occurred after August 31, 1980, the time requirement that at least one crime be committed after August 31, 1980 was fulfilled.
Appellants next challenge the trial court's order requiring the Indiana Department of Revenue to disclose all tax records of Ideas Unlimited. The state seized several documents during their search of the corporation's office, including a registered retail merchants certificate from the Indiana Department of State Revenue, which authorized Ideas Unlimited to collect Indiana retail sales tax. The state petitioned the court to require the Indiana Department of Revenue to disclose all Indiana tax records of the corporation. The trial court granted the petition and ordered production of the requested records.
IND.CODE 6-8.1-7-1(a) allows the Department of Revenue to produce tax records pursuant to a judicial order. In this case, the information sought was relevant and material to show the true financial condition of the corporation, as it was charged with a crime. There was no error in the court's allowance of the petition.
Appellants then argue the trial court erred in refusing to grant a change of venue under Trial Rule 12. They claimed that a...
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