Menashi Cohen, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Menashi Cohen appeals the trial court's denial of his motion to dismiss the charges against him. We affirm.

Issues

[2] Cohen raises three issues for our review:

1. Whether the trial court violated his Indiana Criminal Rule 4(C) right to be brought to trial within one year.

2. Whether the statutes of limitation had run on certain charges.

3. Whether the trial court violated his substantial rights.

Facts and Procedural History

[3] This is the second appeal related to charges filed against Cohen. This Court outlined the facts and procedural history in his prior appeal as follows:

At some point, the State began investigating Cohen and his former wife, Fran Cohen, and businesses including CD Land and Deal Zone. On February 8, 2022, the trial court entered an Order Granting Use Immunity which ordered Cohen to answer questions asked of him in a grand jury investigation and provided that, pursuant to Ind. Code § 35-34-2-8, “answers given to any questions asked of [him] during investigation of this cause, and any information derived therefrom, shall not be used against [him] in any criminal proceedings,” “however, said Grant of Immunity is not to extend to information volunteered by [Cohen] or which is not a response to a question, and does not extend to any presently uncharged collateral criminal activity, and does not apply to the use of the answers in a prosecution for Perjury under I.C. 35-44-2-1.”

During a grand jury hearing on January 27, 2022, the prosecutor stated that “our planning was to get Fran and [Cohen] as targets to testify ․”. On March 1 and April 14, 2022, Cohen testified during grand jury proceedings. During the April 14, 2022 hearing, while questioning Cohen, the prosecutor stated that Cohen appeared not to be “telling us the truth” and summarized Cohen's behavior as, “you come into this grand jury, you basically claim I don't remember, I don't know, I have no idea what my wife did, I have no idea how she is making half a million dollars a year I know nothing about her business yet you say you're still using the same shady characters to buy stuff from.”

On April 27, 2022, a grand jury indicted Cohen for corrupt business influence as a level 5 felony, four counts of money laundering as level 6 felonies, four counts of theft as level 6 felonies, five counts of tax evasion as level 6 felonies, failure to maintain records as a class A misdemeanor, failure to remit taxes as a level 6 felony, perjury as a level 6 felony, and two counts of conspiracy to commit theft as level 6 felonies.

On August 19, 2022, Cohen filed a motion to dismiss fourteen of the indictments and alleged misjoinder of offenses, failing to state offenses with sufficient certainty, failing to allege requisite elements, and defective grand jury process. On September 19, 2022, the State filed a response. On September 26, 2022, Cohen filed a reply.

On November 2, 2022, the court held a hearing on the motion to dismiss. Cohen's counsel indicated that he had not received any grand jury transcripts. The court took the matter under advisement. On November 2, 2022, the court entered an order indicating that it had conferred with the court reporter who had agreed to complete “preparation of the priority transcripts requested by the State within 30 days.” On December 7, 2022, the parties filed a Stipulation of Parties Regarding Grand Jury Transcripts which was signed by the trial court and which stated that grand jury proceedings are ordinarily confidential but the State agreed to disclose copies of certain portions of the transcripts.

On September 15, 2023, Cohen filed a “Second Motion to Dismiss & For Kastigar[1] Hearing” and a memorandum. Cohen argued that the appearance of impropriety had been raised because the same grand jury which heard his immunized testimony also issued the indictments against him. He asserted that the State could make no showing that the evidence considered by the grand jury in issuing its indictments was independent of the immunized testimony given by him twice in front of the same grand jury. He also argued that the trial court “should hold a hearing for the State to present evidence supporting any contention that the grand jury had an independent source of information upon which it issued the indictments.”

On September 25, 2023, Cohen filed a “First Motion to Compel Production of Full Grand Jury Transcripts” and requested that the trial court “order production of full transcripts for the December 16, 2021, and January 27, 2022, sittings of the grand jury.” On December 7, 2023, Cohen filed a “Supplement to First Motion to Compel Production of Full Grand Jury Transcripts” and requested that the court “order production of full transcripts for the December 16, 2021, January 27, 2022, December 1, 2021, and January 6, 2021, sittings of the grand jury transcripts.”

On January 5, 2024, the court held a hearing. Cohen's counsel argued that the immunity extended not only to the use of Cohen's statements but the derivative use of those statements and the prosecutor could not use his statements to indict him in front of the same grand jury. The prosecutor argued that the order granting use immunity did not apply “as far as perjury was concerned or answers that did not respond to a question” and that the questions posed to Cohen did not relate to his criminal involvement and were “mainly focused on questions regarding Fran Cohen's criminal activity ․” The parties discussed the transcripts of Cohen's testimony to the grand jury attached to Cohen's second motion to dismiss. The prosecutor asked the court to review the transcripts of Cohen's testimony. The court stated that it would carefully read the transcripts to determine whether there was any taint. The court asked the prosecutor if she was “done with [her] evidence on ․ the issue of the immunized testimony,” and the prosecutor answered affirmatively.

The court then asked the parties for argument “of the first Motion to Dismiss regarding the duplicity and the, all the other issues raised by Defense.” The prosecutor called West Lafayette Police Lieutenant Jonathan Eager to present evidence in support of the State's position on the issue “of the specificity of the indictments.” The court indicated that the testimony related to the most recent brief filed by Cohen on December 7. After Lieutenant Eager's testimony, the parties discussed the motion to compel, and the court indicated that it would review transcripts to determine whether they should be disclosed. On January 11, 2024, the court entered an order on Cohen's Supplement to First Motion to Compel which found that certain portions of the transcripts should be disclosed.

On February 1, 2024, the court entered a fourteen-page order denying Cohen's motions to dismiss. On February 9, 2024, Cohen filed a Motion to Reconsider Order on Defendant's Second Motion to Dismiss and for Kastigar Hearing. Cohen alleged that the State provided certain grand jury transcripts to his counsel on February 7, 2024, and that one of those transcripts provided “crucial information that [he] would have used to support his Second Motion to Dismiss & For Kastigar Hearing.” He pointed out that the prosecutor told the grand jury on January 27, 2022, that “his plan was to get Dr. Cohen as a ‘target’ to testify and that the grand jury should ‘keep in mind’ that Dr. Cohen was going to be there so that the grand jury can ‘ask them all these questions.’ ” The trial court did not rule on the motion, and it was accordingly deemed denied pursuant to Ind. Trial Rule 53.4(B).

Cohen v. State, 249 N.E.3d 1087, 1088-90 (Ind. Ct. App. 2024) (alterations in original, footnotes and citations to the record omitted).

[4] Cohen filed an interlocutory appeal and argued that the indictments against him were “tainted with impropriety” because the same grand jury had twice heard his immunized testimony and that the State could not present independent evidence to support the indictment. Id. at 1091. This Court noted the “caution against the practice of securing an indictment of a witness from the same grand jury which heard the witness's immunized testimony” and that the State had failed to “point to evidence presented to the grand jury indicating that the indictment rested upon evidence independent of Cohen's testimony.” Id. at 1095. The Court then concluded that the indictments, except the indictment for perjury, should be dismissed. Id. This Court issued its opinion on December 23, 2024, and it was certified on February 19, 2025.

[5] Two days later, on February 21, the State filed a motion to add by information the same eighteen counts that had been dismissed: corrupt business influence, as a Level 5 felony; four counts of money laundering, as Level 6 felonies; four counts of theft, as Level 6 felonies; five counts of tax evasion, as Level 6 felonies; failure to maintain business records, as a Class A misdemeanor; failure to remit taxes, as a Level 6 felony; and two counts of conspiracy to commit theft, as Level 6 felonies. The court allowed the State to add the charges over Cohen's objection.

[6] On June 4, Cohen filed a motion to dismiss or, in the alternative, to certify the court's order for interlocutory appeal. Cohen argued that the State had failed to bring him to trial within one year, in violation of Indiana Criminal Rule 4(C); that the continued prosecution of him violated his substantial rights; that the statutes of limitation had run for “[m]any of the crimes charged” in the information; and that the charges are “tainted” because the probable cause affidavit in support of the information was signed by the same case agent who heard his immunized testimony and filed by the same prosecutor who elicited the immunized testimony. Appellant's App. Vol. 4 at 204, 207. The trial court denied Cohen's motion to dismiss but certified its order for interlocutory appeal. This appeal ensued.

Discussion and Decision

Issue One: Indiana Criminal Rule 4(C)

[7] Cohen first contends that the court erred when it denied his motion to dismiss because the State had failed to bring him to trial within one year in violation of Indiana Criminal Rule 4(C). Where, as here, the relevant facts are undisputed and the issue presents a question of law, our review is de novo. State v. Larkin, 100 N.E.3d 700, 703 (Ind. 2018).

[8] As our Supreme Court has reiterated, “ ‘[t]he State bears the burden of bringing the defendant to trial within one year.’ ” Battering v. State, 150 N.E.3d 597, 601 (Ind. 2020) (quoting Larkin, 100 N.E.3d at 703). To enforce this burden, Criminal Rule 4(C)² provides, in relevant part:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate exceeding one year from the date the criminal charge against such defendant is filed, or from the date of the arrest on such charge, whichever is later. Delays caused by a defendant, congestion of the court calendar, or an emergency are excluded from the time period.

[9] As the rule suggests, criminal defendants extend the one-year period “ ‘by seeking or acquiescing in delay resulting in a later trial date.’ ” Battering, 150 N.E.3d at 601 (quoting Pelley v. State, 901 N.E.2d 494, 498 (Ind. 2009)). Further, “when a defendant takes action which delays the proceeding, that time is chargeable to the defendant and extends the one-year time limit, regardless of whether a trial date has been set at the time or not.” Cook v. State, 810 N.E.2d 1064, 1066-67 (Ind. 2004). “And any action that postpones the proceeding of the case will likely cause a delay in the trial date.” Id. at 1067. Indeed, “[w]hen a party delays a task which must be completed before a trial can take place, that party can and often does delay the setting of the case for trial, and through that, the trial itself.” Id. (quotation marks omitted).

[10] Here, the parties agree that the one-year time limit began on May 2, 2022, which is the date on which Cohen was arrested. Thus, the State had until May 2, 2023, to bring Cohen to trial unless the delays were caused by him. There is no dispute that Cohen has yet to have a trial. And Cohen asserts that the entire delay in bringing him to trial should apply toward the time limit and that more than one year has passed since he was arrested.³ However, we need not address any of Cohen's arguments because we agree with the State that he waived his right to be brought to trial within one year.

[11] As this Court has explained: “a defendant waives the right to be brought to trial within one year by failing to raise a timely objection if the trial court, acting during the one-year period, schedules the trial beyond the limit.” Wood v. State, 999 N.E.2d 1054, 1061 (Ind. Ct. App. 2013), trans. denied, cert. denied. Here, as the State notes, the court initially scheduled Cohen's trial for September 27, 2022, which was well within the time limit. However, on July 29, Cohen moved to continue the jury trial, stating that he needed time to review the discovery he had received and that he was awaiting more discovery. The court granted Cohen's request and continued the trial to May 15, 2023. Cohen did not object, even though that new date was outside the Criminal Rule 4(C) deadline. Because he did not assert a timely objection, he waived his right to be brought to trial within the deadline set by the rule. See id. at 1063 (holding that the defendant waived his right to be brought to trial within the deadline set by Criminal Rule 4(C) after he filed a motion to continue but then failed to object when the court rescheduled the trial for a date outside the Rule 4(C) deadline).

[12] Still, Cohen asserts that he did not need to object to the new trial date because he had filed a motion to dismiss the indictments against him “and therefore had no reason to believe that a trial would actually occur in May of 2023.” Reply Br. at 13. However, the reason we require a defendant to object to a trial date outside the one-year time limit is “to permit the trial court to set the trial for a new date within the proper period.” Johnson v. State, 708 N.E.2d 912, 915 (Ind. Ct. App. 1999). Here, there was no guarantee that the court would grant Cohen's motion to dismiss. Until such time that the motion was ruled upon, it was Cohen's responsibility to assume that the trial would take place, alert the court that it had scheduled his trial outside the one-year period, and give the court the chance to set it for a new date within that period. He did not do so. While he may have filed with the court a different motion related to his charges, he stayed silent as to the Rule 4(C) issue. And when it comes to Rule 4(C) issues, “[s]ilence is not the same thing as an objection.” Ferman v. State, 232 N.E.3d 133, 140 n.8 (Ind. Ct. App. 2024). Because he failed to object to the trial setting, he waived his right to be tried within one year as provided in Criminal Rule 4(C). Accordingly, the court did not err when it denied his motion to dismiss his charges on that ground.

Statutes of Limitation

[13] Cohen next contends that the court erred when it denied his motion to dismiss because the statutes of limitation had run on all but four of the refiled charges against him.⁴ When reviewing a motion to dismiss based on a statute of limitation, we have explained that:

A statute of limitation is designed to insure against prejudice and injustice to a defendant which is occasioned by a delay in prosecution. The limitation period seeks to strike a balance between a defendant's interest in being placed on notice so as to be able to formulate a defense for a crime charged and the State's interest in having sufficient time to investigate and develop a case.

State v. Lindsay, 862 N.E.2d 314, 317 (Ind. Ct. App. 2007), trans. denied, (internal citations omitted). Generally, the State is required to allege facts in the information sufficient to bring the charge within the statutory limitation period. Reeves v. State, 938 N.E.2d 10, 16 (Ind. Ct. App. 2010).

[14] Here, the State charged Cohen with one Level 5 felony, numerous Level 6 felonies, and one Class A misdemeanor. The prosecution for the felony offenses was required to be commenced within five years, while the prosecution for the misdemeanor offense was required to be commenced within two years “after the commission of the offense.” Ind. Code § 35-41-4-2(a). For the felony charges, the State alleged that the earliest offense occurred on May 1, 2017, and, as such, the statutes of limitation would run on May 1, 2022. For the misdemeanor offense, the State alleged that Cohen had committed it on May 1, 2020; thus, the statute of limitation for that charge would also run on May 1, 2022.

[15] Cohen was originally indicted on April 26, 2022, before the statutes of limitation had passed. And those charges remained in effect until this Court dismissed them. While this Court's opinion was dated December 23, 2024, neither party could act on that decision until it was certified on February 19, 2025. See Ind. Appellate Rule 65(E) (stating that the “parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.”).

[16] Further, Indiana Code Section 35-41-4-2(g) provides that, if a complaint, indictment, or information is dismissed “because of an error, defect, insufficiency, or irregularity,” a new prosecution may be commenced “within ninety (90) days after the dismissal even if the period of limitation has expired at the time of dismissal[.]” Here, following the dismissal of the indictments, the State refiled the charges by way of an information on February 21, just two days after this Court's opinion dismissing the indictments was certified. As such, the State refiled the charges well within the ninety days contemplated by Indiana Code Section 35-41-4-2(g). As a result, the State was able to file the charges even though the period of limitation had expired for most of the charges.

[17] Still, Cohen contends that that statute does not apply to this scenario because it applies only to “typographical or clerical error[s]” and “authorizes refiling when cases are dismissed for minor procedural errors only.” Appellant's Br. at 23. However, Cohen cites no authority for that proposition, and we are aware of none. Further, the language of Indiana Code Section 35-41-4-2 is clear. If an indictment is dismissed because of an “error, defect, insufficiency, or irregularity,” a new prosecution may be commenced within ninety days even if the statute of limitation has run. I.C. § 35-41-4-2(g). There is nothing in that statute that limits any error to typographical or procedural ones. And “[w]e may not add new words to a statute which are not the expressed intent of the legislature.” Ind. Alcohol & Tobacco Comm'n v. Spirited Sales, 79 N.E.3d 371, 376 (Ind. 2017).

[18] Here, this Court dismissed the indictments because of an error: that there was no evidence outside of Cohen's immunized testimony to support the charges. The State refiled the charges just two days after this Court's opinion was certified. Because the State filed the charges well within the ninety-day deadline provided by statute, the State was able to refile them even though the statutes of limitation on some of the charges had run. We therefore affirm the trial court's denial of Cohen's motion to dismiss on this ground.

Issue Three: Substantial Rights

[19] Finally, Cohen contends that the court erred when it denied his motion to dismiss the charges against him because the continued prosecution of him violates his substantial rights.⁵ To support his assertion, Cohen relies on our Supreme Court's opinion in Johnson v. State, 740 N.E.2d 118 (Ind. 2001). In that case, the prosecutor missed a deadline for notifying the defendant of the State's intent to use Indiana Evidence Rule 404(b) evidence. After the trial court excluded the evidence, it dismissed the charge at the State's request. Nine days later, the prosecutor filed the original charge along with ten others. On appeal, our Supreme Court held that the trial court had abused its discretion when it allowed the prosecutor to refile the charges. In reaching that decision, the Court noted that, by refiling the charges, “the State attempted not only to evade the court's ruling and get a second shot at offering 404(b) evidence, but also to subject [the defendant] to ten additional charges.” Id. at 121. Accordingly, this Court held that the prosecutor “impermissibly impinged the defendant's exercise of his substantial procedural rights[.]” Id.

[20] Here, Cohen contends that the holding in Johnson “warrants dismissal” of his charges. Appellant's Br. at 25. We do not agree. The Court in Johnson specifically noted that the State's refiling of the charges had not only been done in order to avoid an adverse evidentiary ruling but also to “punish” the defendant by “piling on additional charges.” Johnson, 740 N.E.2d at 121. Further, the Court discussed previous cases where the State had taken action “that would require the defendant to revise his defense strategy at the eleventh hour.” Id. None of those factors are present in this case. The State here did not seek dismissal of the charges to avoid an adverse evidentiary ruling, nor did it “punish” Cohen by adding new counts. In addition, the State filed the same charges, so Cohen was not required to change his defense strategy. The holding in Johnson does not mandate that we dismiss the charges against Cohen, and the State has not violated his substantial rights by refiling the charges.

[21] Still, Cohen also contends that his continued prosecution violates his Fifth Amendment right against self-incrimination. Specifically, he asserts that the charges against him are “tainted” because they were filed by the same prosecutor who elicited his immunized testimony. Appellant's Br. at 26. “The State has the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.’ ” Brown v. State, 725 N.E.2d 823, 826 (Ind. 2000) (quoting Kastigar v. United States, 406 U.S. 441, 461-62 (1972)).

[22] Here, when the State refiled the charges, it included a probable cause affidavit that provides that the officer who was investigating Cohen and his businesses had “obtained and reviewed numerous documents,” which indicated that Cohen's businesses “are involved in an ongoing pattern of criminal activity.” Appellant's App. Vol. 4 at 167. The officer also affirmed that he had spoken with “multiple subjects who said they were advised to shoplift” from large stores and take the stolen items to Cohen's businesses for payment. Id. And the officer affirmed that he had reviewed records from the Indiana Department of Revenue, the Indiana Secretary of State, the Indiana Bureau of Motor Vehicles, and the City of Lafayette.

[23] Thus, as the trial court found, the probable cause affidavit “refers to evidence, statements, and police investigations that occurred or were collected prior to” Cohen's grand jury testimony, including “witness interviews, controlled recorded purchase[s], surveillance video footage, eBay accounts and discovery of stolen items[.]” Id. at 191. As a result, like the trial court, we are “satisfied that the additional charges are based upon evidence that was collected independent of” Cohen's immunized testimony. Id.

[24] The fact that the same prosecutor who filed the charges also heard Cohen's immunized testimony is of no moment. The indictments were dismissed because the same grand jury who heard Cohen's immunized testimony issued the indictments against him. By refiling the charges, the State will be able to present evidence against Cohen to an impartial jury that has not previously heard any of Cohen's statements. It will be the duty of the prosecutor to ensure that, should the case proceed to trial, none of the immunized testimony is heard by the jury.

[25] The refiling of the charges did not violate Cohen's substantial rights or his Fifth Amendment rights. The court therefore did not err when it denied Cohen's motion to dismiss on those grounds.

Conclusion

[26] Cohen has waived his right to be tried within one-year by failing to object to a trial court date outside the one-year period. And even though the statutes of limitation had passed when the State refiled the charges, it was permitted to file the charges because it did so within ninety days of the indictments being dismissed. And the new charges do not violate Cohen's rights. As such, the court did not err when it denied Cohen's motion to dismiss the charges against him. We therefore affirm the trial court.

[27] Affirmed.

FOOTNOTES

1.   Kastigar v. United States, 406 U.S. 441 (1972).

2.   The rule was amended effective January 1, 2024. Because Cohen filed his motion after that date, we rely on the version that is currently in effect.

3.   Throughout his brief, Cohen contends that various time periods should be charged against the State. Our Supreme Court has clarified that Criminal Rule 4(C) “does not call for any attribution of delay to the State but only for delay attributable to the defendant or insufficient time due to court congestion or emergency” and, thus, that “the phrase ‘chargeable to the State’ is an unfortunate misnomer, inexact, and potentially misleading.” Carr v. State, 934 N.E.2d 1096, 1100 (Ind. 2010).

4.   He concedes that the statutes of limitation had not run on three counts of tax evasion and the charge for failing to remit taxes.

5.   Cohen briefly asserts that the trial court violated his constitutional right to a speedy trial. However, other than citing the state and federal constitutions and baldly asserting that that is “an independent basis upon which this Court should dismiss the charges” against him, he has not provided any analysis or cogent argument to support that proposition. Appellant's Br. at 26. Accordingly, it is waived. See Martin v. Hunt, 130 N.E.3d 135, 137 (Ind. Ct. App. 2019).

Bailey, Judge.

Vaidik, J., and Scheele, J., concur.