Well, I could think of a thousand reasons not to impose any sentence on me at all. But I’d already pled guilty, and unless my brother Doug suddenly jumped up and yelled that I wasn’t really Bradley Birkenfeld at all, but some nutty impostor, there were no “legal” reasons not to impose a sentence.
“No, Your Honor,” I said.
Zloch nodded. “No legal reason having been shown as to why sentence should not now be imposed, the Court will receive whatever information or evidence may be offered in extenuation or mitigation of punishment.”
Meier got up again. This was his shot. I wanted to cross my fingers but I didn’t dare move a muscle.
“Respectfully,” Meier said, “I am asking the Court in recognition of these unique and extraordinary circumstances to depart downward some eighty percent, so that Mr. Birkenfeld’s advisory guideline range falls with Zone B of the sentencing guidelines, and to thereafter, in the Court’s discretion, to fashion what I suggest most respectfully is a fair and reasonable sentence, which would require Mr. Birkenfeld to be on probation for a period of five years and to serve an appropriate period as a condition of that in home detention, perhaps six months or nine months.”
That’s what I’m talking about! No jail time, five years’ probation, and just locked up in Doug’s condo, living on Chinese takeout.
“I suggest to the Court,” Meier continued, “that this is indeed an extraordinary case. Two days ago, the Commissioner of the Internal Revenue Service announced that there has been an historic agreement with the Swiss government by which the IRS would be able to gain access to thousands of UBS accounts of American taxpayers. In that announcement the Commissioner stated that the world of international taxes has changed drastically.”
That’s it, David, now tell them why.
“I submit most respectfully to the Court that the individual who in essence sounded the alarm, who in essence provided the road map to the IRS, to the Department of Justice, to the Securities and Exchange Commission, to Senator Levin’s Subcommittee to enable the United States Government to drastically change the world of international taxes, stands before the Court to be sentenced today.”
Meier carried on, once again laying out for the Court everything I’d done for the US government. He recounted for Judge Zloch how I’d risked my career and life to come forward, had scores of meetings with and presented my evidence to multiple government agencies, and how even right after being arrested I’d kept it up as if I hadn’t been screwed. He told Zloch that the only reason the DOJ hadn’t gotten everything they wanted from me was because they’d refused to protect me. But he said it all in very polite terms. He was no Johnnie Cochran, the Shakespearean lawyer who’d gotten O. J. Simpson off. And unfortunately, I was no celebrity murderer. I was just a scapegoated banker and none of this was being televised.
Meier ended his progression of facts with his plea, once again, that I be given nothing more than probation and home confinement. Then the Judge asked me to state my case.
“Mr. Birkenfeld, what would you like to say, sir?”
I took a deep breath and gave it my best shot.
“Thank you, Your Honor, for giving me the opportunity to speak this morning. I would like to express my regret for my actions as it brings me here today.”
I figured if you admit you’re guilty, you’d better say you’re sorry if you’re looking for a break.
“UBS recruited me and trained me, as well as my colleagues, and pressured and incentivized us financially to do this business without advising us of the consequences. When I put my concerns in writing to the UBS Legal and Compliance departments in Switzerland, they refused to address any of my concerns. Soon after this, I realized there was a cover-up of the corporation, and I was determined to contact the US authorities to expose this scandal, which I did. I want to thank you, Your Honor, for taking these circumstances into consideration and I’m happy to answer any questions you have.”
“I have no questions, Mr. Birkenfeld,” said Zloch.
Really? I was stunned. You’ve got me right in front of you, and you don’t have a single question? You don’t want to hear from me why I gave everything to everyone, except the DOJ?
“Is there anything else you would like to bring to the Court’s attention?” Zloch asked.
He clearly wasn’t going to ask me anything that might lead to revealing the DOJ’s gross incompetence. All I could do was stand up for myself.
“Yes, Your Honor, there is something else I would like to add. That is when I sensed that this was wrong, this conduct. I wanted to make sure that I came forward fully to cooperate with the US authorities and the US agencies. The problem I had was that I was under Swiss law as a resident of Switzerland, and if I divulged any names without a subpoena, I would go to jail in Switzerland where I lived at the time and had been for the previous fifteen years. So that was my problem in that regard. But I wanted to try and start this process and give as much information as I could without breaking that bank secrecy and finding myself in jeopardy in Switzerland, where I lived.”
There. Get it? Now ask Kevin Downing why they hell he wouldn’t grant me immunity or a subpoena!
But all Zloch said was “All right. Thank you.” He wasn’t going to pin Downing to the wall and watch him twitch like a butterfly. He turned to Downing.
“All right, what say the United States?”
Downing puffed up, just the way I’d seen him whenever we were face-to-face at the DOJ. Now he was going to get his pound of flesh.
“Well, briefly, Your Honor. I think you get a sense of the dilemma that Mr. Birkenfeld intentionally put himself in.”
Then he went on to list all the reasons why I should be thrown in prison.
“Number One: Birkenfeld knew what he was doing when he went to Switzerland to work in Swiss banking.” Of course I did. I didn’t go there to become a ski instructor. “Number Two: When Birkenfeld decided to be a whistle-blower, he had transferred all the funds of Mr. Olenicoff from UBS to other banks so that he and Mr. Staggl could continue aiding and assisting Mr. Olenicoff committing tax evasion.” I didn’t choose to move Igor’s money out of UBS. He did! “Number Three: The whistle-blower letter appears to me to be a setup to find a way to get compensation from UBS after he decided to take his scheme with Mr. Olenicoff elsewhere.” What the fuck? That’s bullshit and pure speculation. Isn’t my attorney going to yell, “I object!”?
“Finally, when he came to the United States government he came in to be a whistle-blower. He wanted to earn money by disclosing the wrongdoing of others. He refused to disclose his own wrong-doing.” That’s a lie! Did you forget I walked into a DOJ conference room in Washington, DC, and told you exactly what I was doing as a private banker at UBS in Geneva, Switzerland? “That is why the government charged Mr. Birkenfeld. That’s why he was indicted. That’s why we are seeking jail time.” Bullshit. You want me in jail so you can show that you actually did something and got one lousy conviction, even if it’s the wrong conviction!
“As to his bank secrecy claim? We made it clear to Mr. Birkenfeld and his lawyers that we would seek a court order that would give him the necessary legal compulsion that would show the Swiss government that he was compelled.” Jesus Christ! You could have gotten a court order in one flat hour! You denied me a subpoena every time we met! “But finally, I must say to you, Mr. Olenicoff would be in jail had Mr. Birkenfeld come in, in 2007, and disclosed that information. We did not have the evidence that Mr. Birkenfeld provided after Mr. Olenicoff pled.” So, I have to go to prison because you incompetent fools weren’t even aware of Olenicoff until I turned him in? “That is why we are here today, and that is why the US government seeks jail time for Mr. Birkenfeld. That’s all, Your Honor.”
I was seething. I turned and looked at David Meier, but he didn’t say a word, and he obviously wasn’t going to. I mentally smacked myself on the forehead. You’re real good at picking lawyers, Brad. You’re a fine fucking judge of that profession. I barely h
eard Downing’s final wrap-up.
“Your Honor, might I add one more point?”
“Sure.” Zloch nodded.
“I wanted to end on also a positive note. We do intend on continuing to utilize Mr. Birkenfeld in conducting investigations and bringing cases against other UBS clients and other clients of Mr. Birkenfeld, and we do anticipate that we may be back to this Court.”
“For a motion for a reduction of sentence?”
“That is correct, Your Honor.”
I had to admit, Downing had a lot of fucking nerve. He was blatantly saying he wanted to squeeze every last drop out of me, and in return he might come back to court someday and get me some mercy. To me that was blatant extortion, but apparently to Judge Zloch it sounded oh-so-generous.
“All right, Mr. Birkenfeld,” said Zloch. “Step up to the podium, please.”
Here we go …
“The Court, being fully informed of the facts and circumstances surrounding the crime, and no legal reason having been shown as to why sentence should not now be imposed … It is the judgment of the Court and the sentence of the law that Bradley Birkenfeld is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of forty months as to the one-count indictment.”
Three years and four months … Holy shit.
“It is further ordered that Mr. Birkenfeld shall pay to the United States a total fine of $30,000.”
Thirty thousand bucks? I’ve already spent twice that amount just dragging my ass back and forth for the US government. I should be getting a rebate!
“Upon release from imprisonment, Mr. Birkenfeld shall be placed on supervised release for a term of three years.”
Three years in the slammer, and three more on probation? Jesus.
“It is further ordered that Mr. Birkenfeld shall pay immediately to the United States a special assessment of $100.”
What’s that for? Lunch?
“Does the Defense have any objection to the manner or procedure in which sentence has been imposed, or that this hearing has been conducted, Mr. Meier?”
“No, Your Honor,” Meier said.
“Mr. Birkenfeld?”
I hesitated for a moment. But then I said, “No, Your Honor.”
I had objections exploding out of my ears, but I knew I was on very thin ice with a handpicked judge who was a real ornery prick. Zloch could still increase my jail time with the stroke of a pen.
He turned to Downing. “Any from the Government?”
“No, Your Honor,” said Downing. He was barely concealing his victory grin.
“Mr. Birkenfeld, you are to surrender yourself at the federal facility designated by the Bureau of Prisons no later than noon on January 8, 2010. Is there anything else from the Defense?”
“No, Your Honor,” said Meier.
“From the Government?”
“No, Your Honor,” said Downing.
“All right, counsel, thank you very much. The Court appreciates your efforts.”
Zloch raised his gavel and smacked his wooden podium. It sounded like a gunshot. Then he actually smiled.
“Everyone have a great weekend. The Court is in recess.”
A great weekend. I couldn’t believe he’d actually said that. I felt like Alice in fucking Wonderland. I don’t remember much of what happened after that, except that we had a bunch of papers to sign and I forked over a hundred bucks in cash, which I guess was supposed to cover the copy-machine expenses. Downing said something to Meier about making me available for further cooperation until my date of incarceration. The two of them stayed in the courtroom and chatted. When opposing lawyers discuss your fate, it’s never about anything good and I didn’t want to hear it.
In a side room in the courthouse that day, Downing made a rather blunt comment to David Meier about my prior lawyers whom I had fired a year earlier, Hector and Moran. “This is what happens when you’ve got lawyers who don’t know what they’re doing.” Thanks for that great referral, Bob Bennett!
I walked out with Doug into the steaming heat of noon. He was so furious he wasn’t able to talk. We slipped into the car, ripped off our ties, cranked the air conditioner, and headed for our hotel. I turned and looked at his square-set jaw and his eyes blazing out at nothing ahead.
“Well, look on the bright side, Brother,” I sighed. “At least I’ll be able to get this fucking ankle jewelry off.”
CHAPTER 14
CAMP CUPCAKE
“Colonel Hogan, if you ever escape … be a good
fellow and take me with you.”
—SERGEANT SCHULTZ,
HOGAN’S HEROES
SCHUYLKILL FEDERAL CORRECTIONAL FACILITY—2012 Lopez made his break for freedom one sunny Sunday morning.
It wasn’t exactly The Great Escape, but it sure as hell was dramatic. He came barreling down the barracks aisle, doing a flat-out five-minute mile in his prison work boots, and he slammed through the fire door at the end of the block and sprinted for the woods. Right after that came a fat guard we called Waddles, pounding along and wheezing lung steam, his keys and baton slapping his belt. There was no way Waddles was going to catch Lopez. That kid was fast.
From my perch on my bunk I raised an eyebrow, then turned back to my copy of Prison Legal News, finding my place again in an article about appeals for sentence reductions. One of my buddies in “Camp One” had a hearing coming up and had to prepare a good argument for getting some time dropped from his “bid.” For a white-collar criminal, Normy was fairly illiterate and needed my help. I enjoyed doing that for lots of the guys, and by now I had scores of “clients” in the block. I’d research their cases, write their briefs, track down pro bono attorneys, and find cracks in the government’s stupid reasons for keeping them locked up. For me, it was a satisfying way to buck the system. For them, I was an in-house Clarence Darrow, the closest thing to a public defender they had.
A prisoner named Anwar strolled by my cubicle. He was a sweet, elderly black dude from Philly who’d gotten twenty years for possessing half a snack-bag of crack. We enjoyed singing Motown together after lights-out. I’d start from my bunk with “Who’s that ladeee … ?” And he’d croon back from the darkness in his salty baritone, “That lovely ladeee … ” I glanced up as he passed.
“Hey, Anwar. What’s up with Lopez?”
“Man, the dude finally lost his shit and pushed Waddles.”
“Oh, no. That stupid kid!”
“Yep, it’s bad news, baby.”
At Schuylkill you could get away with almost anything except putting your hands on a guard. Guys got caught with smuggled-in cell phones, drugs, booze, porn, all sorts of contraband, and they’d wind up in solitary down in Medium Security, or get denied some visiting privileges. But put your hands on a Bureau of Prisons staff member? You could get years tacked on your time for that, and Lopez knew it.
“He’s gone for sure,” I said.
“Damn shame,” said Anwar. “He was gettin’ short. Maybe thirty months.”
We never talked about our sentences in years; it was always months. “I’m down to twenty-two.” “Ralph just broke sixty.” Years were a bitch, but months were easier to take. You could watch them tick away. The guys doing big time had to start off in either High or Medium Security: regular jail cells, exercise periods, lockdowns, shakedowns, and solitary. But if you did that time clean, once your bid fell below 120 months (ten years), they’d move you up to where I was—the Camp. Lopez was in for thirteen years and had less than three left when he lost it.
We called our Minimum wing “Camp Cupcake,” a moniker probably bestowed by some wise guy who thought it was easy as pie. And it was. There were three hundred men in two barracks, Camps One and Two, about a mile up a long road from the Medium wing and sprawled over a grassy pitch the size of a soccer field. There were no razor-wire fences or guard towers with shotgun-toting goons, but the camp was surrounded by miles of thick forests. Sometimes guys would just go for a walk in the woods
, or occasionally rendezvous with drug mules or girlfriends who happened to be good with a map. One dude managed to get Chinese takeout delivered and hung from a tree. But everyone always came back. If you didn’t, and got caught, your last few months of easy time would get longer and harder, real fast.
Our Camp One barracks had a long four-foot-high concrete wall down the middle separating two rows of cubicles. Inside each was a pair of bunks, two armoires, a writing desk, shelves, and a chair. We rose every day, took the long walk down to the commissary for breakfast, hit our work assignments, took the walk again for lunch, spent the afternoons at the gym or basketball court, walked the walk for dinner, and chilled for the evening. On Tuesdays we had movie night. On weekends the lucky guys had visitors down at Medium. Every night we fell asleep to a chorus of snores that sounded like some jungle symphony. Compared to my experience as a student at Norwich, it was Club Med.
That Sunday when Lopez bolted was a beautiful summer day. I took a walk outside to see if I could spot him. Maybe he was just jogging the perimeter, trying to cool down and hoping for some leniency from Waddles. But Waddles was a fat, ornery prick and I knew Lopez was screwed. He was nowhere to be seen.
The sun gleaming off the dew-soaked grass made me think of another Sunday, the one just after my sentencing in Florida. On that very Sunday at the Farm Neck Golf Club in Martha’s Vineyard, President Barack Obama had strolled out onto the links. His golfing partner that day was Robert Wolf, Chairman of UBS Americas. I’m sure it was a fine day of patter and play, guarded by a throng of Secret Service agents, and I wondered if Obama and Wolf had high-fived over my downfall, or maybe sent a “good job” text to Judge Zloch. But I’d never know, because much like Swiss bankers, Secret Service agents don’t talk.
That brought me back to another Sunday, the one just after my incarceration, deep in the heart of winter when they finally released me from solitary. My partner that day was a prison guard who looked like Roseanne Barr and smelled like bacon. She took me outside to a Bureau of Prisons van and we drove the long mile from Medium up to the Camp.
Lucifer's Banker Page 27