July 21st 2019 Newsletter
Witch Hunt on the Prairie
One prediction needs to be kept in mind on this story. If the investigation into Epic Charter Schools lasts more than ten days without criminal charges filed then you can be certain that the goal is not to file criminal charges but to scare students away from Epic till after the October 1st enrollment deadline. The goal is to harm Epic and other charter schools financially, not prosecute crimes, otherwise the alleged charges would not be full of gaping holes.
Charges filed against Epic Charter school last week are just the last in a long line of attacks against the school. Since the beginning the public school unions and their supporting politicians have gone after Epic simply because Epic does the education with a fraction of the resources that public schools devour each year and have better results. Few other charter schools are bothered, even when allegations are handed to the government on a silver platter.
The latest charges are no different than when Prater went after the Tea Party on blackmail charges, or when Prater went after the Pardon and Parole Board, or when he went after TW Shannon, all of which cases eventually were overturned or dismissed. October 1st is the enrollment date for public and charter schools. If a student enrolls after October 1rs, the school gets both the state aid and the local tax dollars for that kid for the entire year. If a student tries to enroll with a charter school past the October 1st deadline they will be told they cannot enroll. Except for Epic, they take all kids, even the late ones that cost them a lot of money but they get zero money for educating the kid. If Prater can cause enough doubt in both parents and student's minds, he can seriously harm Epic's finances for the coming year.
Both David Prater and the OSBI's Tommy Johnson were behind the Sooner Tea Party blackmail charges. No real investigation was done, the elements of the actual crime weren't there, but that didn't stop both men from fraudulently and criminally charging an innocent man. Both men can roll the dice, laugh while doing so, secure in the knowledge that they can file false charges with impunity.
The charges against Epic Charter Schools are:
Now, any credible prosecutor is not going to damage his case by filing false charges that are easily disproved. The point being is that David Prater will not pursue these charges and after reading what the law actually requires to prove each charge you will agree.
#1 charge:
First we will look at the embezzlement charges. Embezzlement is quite simple, you take something that doesn't belong to you even though you might have control of the item. When reading the actual statute below don't lose track of that key point; the money is in your control but not your money.
The law is quite precise once you get past the reading of an actual statute and indeed the statute is only one part of what a law actually means. Once a law is passed the courts wind up interpreting the law and giving out decisions from which jury instructions are made. At that point you have “elements”, specific things that must be present in a case or there is no crime. In this case the money would have had to be fraudulently taken by Epic and used for a purpose not intended by the owner of the money (the state) or hiding the same property to appropriate it later.
Examples would be:
Property entrusted to someone for a specific purpose, money held in trust such as a rental deposit or a down payment on a remodeling job.
Money obtained by power of attorney for the sale or transfer of property.
Property or money held in trust for the use of another person, as in someone handling the money of an elderly or incompetent person.
Property held for a benevolent, charitable, or public purpose
Property diverted from the lawful and intended use of lawfully appropriated money
Tax money gathered by a business under state law and not paid over to the state but converted or used for other purposes.
Property entrusted to a transportation services even if the packages have been broken or damaged.
Crops removed from leased or rented land when the owner or landlord has an interest or the rent money owed by the tenant for the use of that land.
Rental property such as tools or a vehicle that was leased or rented and not returned within ten days of the expiration of the rental agreement.
No where in this list of possible embezzlement possibilities is a crime for distributing profits from lawful business transactions with the state or a school system. If you do business with the state and are paid for your services or the products you deliver the money your receive is lawfully your money to be disposed of as you see fit.
Here is the actual statute:
Every public officer of the state or any county, city, town, or member or officer of the Legislature, and every deputy or clerk of any such officer and every other person receiving any money or other thing of value on behalf of or for account of this state or any department of the government of this state or any bureau or fund created by law and in which this state or the people thereof, are directly or indirectly interested, who either:First: Receives, directly or indirectly, any interest, profit or perquisites, arising from the use or loan of public funds in the officer’s or person’s hands or money to be raised through an agency for state, city, town, district, or county purposes; orSecond: Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to any moneys so received by him, on behalf of the state, city, town, district or county, or the people thereof, or in which they are interested; orThird: Fraudulently alters, falsifies, cancels, destroys or obliterates any such account, shall, upon conviction, thereof, be deemed guilty of a felony and shall be punished by a fine of not to exceed Five Hundred Dollars ($500.00), and by imprisonment in the State Penitentiary for a term of not less than one (1) year nor more than twenty (20) years and, in addition thereto, the person shall be disqualified to hold office in this state, and the court shall issue an order of such forfeiture, and should appeal be taken from the judgment of the court, the defendant may, in the discretion of the court, stand suspended from such office until such cause is finally determined.Here are the elements of embezzlement by a public officer:No person may be convicted of embezzlement unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:First, the defendant is a [deputy/employee of a] county/state officer; andSecond, the defendant diverted;Third, any money appropriated by law;Fourth, from the purpose and object of the appropriation;
Looking at the elements we can be sure that the first element was not met, Epic received money from public funds as did every other vendor that does business with the state. Yet Epic's owners are not public officials. The second element was likewise not met, how is money lawfully paid out over years diverted? Are state vendors supposed to pay for the overhead, labor, and supplies for a state purpose and then not cash the check from the state that paid for all of that? The third element is there of course, it was appropriated money but the fourth element is lacking as the money was used to educate students using a state approved curriculum and the form of business that charter schools operate under.
One can also charge David Prater and Tommy Johnson with the same crimes. Both have taken state money for a public purpose and both have spent or diverted that money to other purposes like rent and food or clothing. Both have filed numerous false charges in their careers, starting with the Tea Party Blackmail case which was proven not to be a crime. In this Epic case they are playing politics with public tax dollars.
#2 charge:
Next is the Conspiracy to commit embezzlement charge, which is actually called just “Conspiracy”.
For conspiracy charges to stick you need two or more people commit a crime, or falsely and maliciously indict another for a crime or compel or entice other officials to falsely charge others for a crime, or to file a false lawsuit or other action, or to defraud others using criminal means to obtain money or other property, or to perform acts which are against the common good of the state or its people or to obstruct justice or prevent the carrying out of state law.
Conspiracy charges mean there has to be an underlying crime of some sort. Not that you took money from a school system or government for performing services or providing products.
Here is the actual statute on Conspiracy:
A. If two or more persons conspire, either:
As you look through the statute it becomes clear that like the first charge, conspiracy is aimed at public officials for the most part. Being paid as a state vendor under a state sanctioned Charter School system isn't a crime. Once again these same charges easily fit both David Prater and Tommy Johnson with the OSBI and the statute is aimed precisely at public officials, not state vendors.
#3 charge:
Now the third charge, Obtaining Money Under False Pretenses, which is actually called Securing Credit Fraudulently. This charge is actually an alternative way of charging people for embezzlement. There are three forms of theft, larceny which is just a simple taking as in a porch pirate stealing a delivered box off your porch, embezzlement which is where a person has control of the money or property yet not the ownership, and False Pretenses which is where a fraudulent scheme is devised to trick others out of property including money. You cannot charge someone with both embezzlement and obtaining money through false pretenses, that is double jeopardy.
Here is the actual statute:
Any person who shall:
Now here are the elements that must be proven in order to convict:
No person may be convicted of the felony of false pretense unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
If any element is missing the jury isn't allowed to convict the defendant and nor is a prosecutor allowed to file a charge knowing that elements are missing. Where is the trick or deception, or the false representation, false check or written instrument or fake coin? Where could a jury find an intent to cheat or defraud being the charter schools are legally entitled to provide the service to the state?
#4 charge, the violation of Oklahoma Racketeer Influenced and Corrupt Practices Act O.S. Title 22, Section 1403:
And what is racketeering? We have all seen it in the movies, a thug visits the local store or business each week for the protection money. Racketeering involves coercion or threats to force someone to pay the criminal. Other examples are organized kidnapping, organized fencing operations that encourage thieves to steal and sell the property at low but dependable prices, or illegal gambling where the gambler has zero protection from being defrauded. I have yet to find an example involving a charter school.
Oklahoma modeled its RICO laws off the federal government and was encouraged by the courts to follow the federal law closely as it dealt with organized crime, not individual theft cases. In 2001 the case of State Vs. Glenn court case set the standard for what is considered an organized crime activity and what is considered plain old theft. The Eight Circuit federal court agreed, saying that RICO laws were not intended for ordinary businesses but were to “prevent organized crime from infiltrating legitimate economic entities”.
Here is the racketeering statute:
A. No person employed by or associated with any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of racketeering activity or the collection of an unlawful debt.
B. No person, through a pattern of racketeering activity or through the collection of an unlawful debt, shall acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property.
C. No person who has received any proceeds derived, directly or indirectly, from a pattern of racketeering activity, or through the collection of any unlawful debt, in which the person participated as a principal, shall use or invest, directly or indirectly, any part of the proceeds or any proceeds derived from the investment or use of any of those proceeds in the acquisition of any right, title, or interest in real property or in the establishment or operation of any enterprise.
A purchase of securities on the open market with intent to make an investment, and without the intent of controlling or participating in the control of the issuer or of assisting another to do so, shall not be unlawful pursuant to the provisions of this section if the securities of the issuer held by the purchaser, the members of the immediate family of the purchaser, and accomplices of the purchaser or immediate family of the purchaser in any pattern of racketeering activity, or the collection of an unlawful debt after the purchase, do not amount in the aggregate to one percent (1%) of the outstanding securities of any one class and do not confer the power to elect one or more directors of the issuer.
D. No person shall attempt to violate or conspire with others to violate the provisions of subsection A, B or C of this section.
E. Venue for a civil or criminal action to enforce the provisions of the Oklahoma Racketeer-Influenced and Corrupt Organizations Act shall be in any county in which at least one act of racketeering activity is alleged to have occurred in the petition or information or indictment, it being the intent of this act, that one district court have jurisdiction over all the conduct, persons and property subject to this act.
Here are the elements required to be present in an Oklahoma RICO case:
RACKETEERING - ELEMENTS (CONDUCTING OR PARTICIPATING)
The defendant(s) may not be convicted of conducting or participating in the affairs of an enterprise through (a pattern of racketeering activity)/(the collection of an unlawful debt) unless the State has proved beyond a reasonable doubt each and every element of the crime.
These elements are:
Now you and I, the average citizen, are not expected to know case law and be able to interpret both statutes and the defining elements/case law that define what criminal charges are legal and not legal. That is David Prater's job and that is Tommy Johnson's job. If the elements are not there there is no crime, both men know this. Both men are actually in danger of being charged with the very same charges as they have thrown at others.
Epic for its part answered some of the allegations on Friday through Channel 9 News. Epic denies that it embezzled anything, that the details in the Tommy Johnson OSBI affidavit were false. Their attorneys found that despite the claim that both of Epic's partners are public officers neither is a public officer but merely a vendor to the state.
The claims in the latest charges are also old ground already plowed by previous Epic investigations that were found unfounded or simply dropped. There were no “ghost students”. The only new allegation was one “jane doe” case where an Epic student moved to another state in October of 2017. The News 9 story claims that Epic provided documents on the case that showed the student withdrawn.
|
Sunday, July 21, 2019
The Witch Hunt For Epic Education Crimes
