Schuylkill was still swaddled in piles of snow from the storm of the Friday before, and the cinder-block walls and guard towers looked frozen and brittle. I noticed a pair of black prisoners, also just released from “the hole,” trudging through the muck beside the road. I asked Roseanne why she didn’t pick them up, but she just smirked and slurped from her Dunkin’ Donuts mug. It was my first hard lesson about prison life. White prisoners were eligible to ride; black prisoners were only eligible to walk. It was right then and there that I’d decided to fuck with the system at every available turn.
So, that’s the way it is here, huh? Well, Colonel Hogan has just arrived. You’re going to rue the day you met me, and pray for my early release.
Anyway, Waddles was too fat to catch Lopez, so five more guards came barreling through the block and burst through the door to search the woods. Then they called a lockdown, hauled everyone back from their work duties, had a roll call, and restricted us to barracks. It was after lights-out, about ten o’clock at night, when I heard the fire door open, then squishy footsteps. I sat up in my rack. It was Lopez!
“Dude!” I whispered. “What the fuck?”
“I got hungry.” He grinned at me and I saw he was slathered in sweat and pine needles. “And I need a shower.”
So while I sat up on my elbows and blinked, Lopez grabbed a shower, changed into fresh clothes, calmly ate some chow mein he’d stashed in his locker, and headed back out for the woods.
“Now I’m really gone.” He shot me a Boy Scout salute and disappeared.
“See ya, amigo,” I called after him. “Good luck!”
That was Camp Cupcake.
The place was a fucking joke; a total waste of taxpayer money. The guards would sweep through the barracks, tossing bunks and searching for drugs and cell phones, while at the same time guys were smoking weed in the bathrooms. There were no genuine efforts at rehabilitation; just the occasional course in the Training Room or some silly lecture that everyone laughed at. I’d become a pretty good cook in Geneva, and at one point I’d offered to give a class in French cuisine, figuring some of the guys might use it on the outside. But the staff refused to let me order cookbooks. “No books from outside allowed!” I soon realized that the system wasn’t designed to rehab a soul. The Bureau of Prisons’ massive budget could only be justified if the cells were chock full. Fewer prisoners would mean less money. “Keep ’em comin’, boys!”
I had entered Schuylkill with an attitude; chin up, eyes bright, ears open, and a permanent grin, ready to learn something and also impart what I knew. Being my usual boisterous friendly self, I talked to everybody and got to know their stories. Of the 150 guys in my block, only a handful were a danger to public safety. Most of them were in there on ridiculous drug charges, and the rest were political prisoners like me.
Joe Nacchio had been the President and CEO of Qwest, a huge telephone company. He was close to the Bush people, even visiting the White House on occasion. Shortly after 9/11, the Bush administration had gone to all the phone companies and demanded their customer records and email. AT&T and Verizon had caved right away, but Joe told the Feds to fuck off.
“We’re a private company. I can’t do that!”
“Yes, you can,” said the Bushies. “Matter of national security.”
“It’s unconstitutional,” Joe protested. “Without warrants from a judge, on a case-by-case basis, I won’t do it.”
“Oh, really?”
So the Bushies charged him with insider trading and put him away for seven years. Joe’s replacement at Qwest got the message, and the Feds got the records.
Then there was Bill Hillard, a very bright, soft-spoken, well-built guy in his late sixties. Bill had been an Army Delta Force operator with a distinguished career and a list of medals as long as your arm. After the fall of Saigon in 1973, he’d been assigned to guard opium shipments coming out of the Golden Triangle: Laos, Cambodia, and Vietnam. That’s right. The US government had kept on funding its secret wars by selling smack to American junkies. And Bill had a second assignment; if he ran across any of the American POWs still languishing in bamboo cages, he was to kill them, because most of them had been captured while working “The Program” in Laos and Cambodia. If you don’t believe me, read a book called Kiss the Boys Goodbye. I’ve read it twice, and Bill’s story checks out. Thankfully, he never found any American POWs.
Long after he retired, Bill made the mistake of accepting an invitation to lecture about his particular skill set at an FBI off-site in Colorado. Believing his story was “old news” at the point, he told it. Six months later, the Feds showed up at his home in Maryland, charged him with revealing state secrets, and put him away for the rest of his golden years. I know; it sounds like something out of a Robert Ludlum conspiracy novel, but it’s true. Bill was a career patriot, and Schuylkill was his reward.
Lots of the guys had similar ugly stories. Having nothing better to do with my stint in stir, I did a lot of research and checked them out. It was rare that I discovered a guy had lied about his circumstances. Of course we did have a couple of hard-core types here and there. One Italian-American dude named Joe slept catty-corner to my bunk. He was quiet and friendly, until the night I went around rousting everyone up for the Tuesday night movie.
“I don’t give a shit about it!” Joe snapped at me.
“Whoa,” I said. “Take it easy. Just tellin’ you the movie’s on! Don’t fuckin’ bark at me.”
Then I tracked down Anwar.
“What’s up with Joe? I just told him the movie’s about to start and he almost took my head off.”
“Well, what’s the movie?” Anwar asked.
“Goodfellas.”
Anwar nearly died laughing. “Don’t you know who that is, man? That’s Pittsburgh Joe, the guy Henry Hill fingered for cocaine! He got twenty years for that!”
“No shit?” I laughed too. “Guess that explains his lack of enthusiasm.”
But for the most part, the average prisoner was a regular guy who’d been in the wrong place at the wrong time. One of my best prison buddies, Cliff Falla, was a simple blue-collar guy from New Hampshire. Down on his luck and out of work, Cliff, who happened to own a pistol, had agreed to do a job for some local toughs. All he had to do was show up at a seedy motel and guard a couple of bricks of cocaine for the night. Well, the Feds showed up too, and Cliff got five years for the gun and another five for the coke. At an average annual cost of $40,000 per prisoner, our taxpayers wasted $400,000 keeping a well-mannered country boy locked up for a decade. Cliff and I hung out together, worked out together, and made each other laugh.
Laughing it up was the best palliative for doing time, and I encouraged it at every opportunity. I’d march through the barracks clapping my hands. “What’s going on here? Why all the glum faces? You guys look like you’re in fucking prison or something!” That usually stirred things up, and then we’d come up with a new plan to screw with the guards, most of whom should have been behind bars themselves.
Those Bureau of Prisons goons stole food from the kitchens and clothing from the laundry. The prison got thirty brand-new snow-blowers delivered; half of them disappeared and wound up in the guards’ home driveways. Same thing happened with a shipment of lawnmowers. Our payback was subtle. They’d snap at us to wash their coffeepots, so we’d sneak the glass pots to the latrine and scrub them in the toilets. “There ya go! Clean as a whistle!” They’d roust us for a roll call, and we’d sing “God Bless America.” I’d stride into the lunchroom waving a copy of the Wall Street Journal. “Hey, guards, I just read that the BOP is cutting your pension benefits. What an insult!” In my particular case, if a guard fucked with me too much, I’d lean down and squint at his name tag. “Hodges, Francis. Just want to make sure I spell that right for my attorneys. Has to be correct on the lawsuit.”
They couldn’t do much to you for being a smart-ass. However, you also had to know when to pull back, otherwise you might suffer “diesel therapy.”
They’d arrange for your transfer to another facility, let’s say in a neighboring state like New York. But instead of traveling point-to-point, they’d put you on a rattling, fume-choked prison bus for a week-long haul to a pen in Colorado, and then another week back to Elmira. By the time guys finished those torture trips, their spines were ground up and they’d lost twenty pounds. It was a regular practice, like waterboarding using carbon dioxide. And guess who paid for it? You did.
I never really feared such treatment, because after my first day and my press conference outside, the staff knew who they were dealing with. “Fuck with Birkenfeld too much and he’ll have you on the national news.” I was generally upbeat and unflappable, although my time at Schuylkill wasn’t all laughs. The roughest period was early on in my stint, when Igor Olenicoff read all the newspaper articles about my whistle-blowing status, and realized that in fact I might wind up getting a reward from the IRS. So he sued me and UBS, along with twenty other people, for a “modest” amount: $500 million, which was considerably more than the $53 million he’d been forced to pay the government in back taxes and fines (Exhibit 19). He knew I was in a federal penitentiary and wouldn’t be able to defend myself. He also knew that my current attorney had just dropped me because I could no longer pay him. But he didn’t count on my brother Doug, who happens to be another Birkenfeld pit bull.
The California judge presiding over Olenicoff’s suit had given me a flat three weeks to respond. Right away, Doug filed a motion to extend the deadline by ninety days, and got it. Then he tackled the case himself as a highly trained lawyer. He burned the midnight oil, working around the clock, preparing his answer to Olenicoff’s spurious claims and countering with cold hard facts; Olenicoff had not only defrauded the US government, but had himself initiated each step he’d taken to screw the IRS. Doug’s answer was complex and powerful, forty-five pages long. Adding more pressure to the deadline, Doug had to prepare and print thirty copies of his comprehensive answer to Olenicoff’s bogus complaint; one copy for each party involved in the suit. And every copy had to have my signature on it.
Doug shipped them off to Schuylkill in seven FedEx packages. I’d been saving up all my prison postage allowance, so I signed all the copies, licked and stamped and shipped, making the deadline with one day to spare. Doug’s answer thunderstruck the California court, resulting in further legal wranglings and a window during which my family could hunt for another legal gunslinger out there. They found him in John Cline, a brilliant attorney with a sterling reputation who quickly joined forces against Olenicoff with … none other than UBS! Strange bedfellows, right? But as that old Middle East adage goes, “The enemy of my enemy is my friend.” Apparently that adage applied to the other side too. Igor Olenicoff had found a “coach,” none other than Kevin Downing! I’d only find out much later that Downing had reviewed every one of Igor’s crazy claims and, I am confident, offered his advice on how to skin me alive. Just a faithful civil servant of The People, right?
At any rate, then we waited some more, with me pacing the floors in the block and Doug staring out the window of his Weymouth condo. On the afternoon of the hearing, April 10, 2012, the goons summoned me down to take a call in the visitors’ room. It was Doug. Boom! The judge had ruled in my favor, declaring what a complete bald-faced liar Olenicoff was, and stating it was patently absurd for a convicted tax fraud like Olenicoff to sue the man who had served him justice!
“Olenicoff and his witnesses repeatedly lied,” the judge stated in his twenty-eight-page written ruling. “Although it is not this Court’s job to make credibility determinations on summary judgment, this coordinated blatant lying does not go unnoticed.” He’d thrown the case out of court.
I digress for a moment to explain this secret Downing/Olenicoff alliance.
In subsequent litigation, through sworn deposition testimony, the true depths of the Downing/Olenicoff collaboration were exposed. In March 2008 there was a meeting in the office of Edward Robbins, Olenicoff’s criminal defense attorney. Kevin Downing flew out to California on the taxpayers’ dime to have this meeting. But this was no ordinary meeting.
It was not confrontational. It was rather cordial. Attorney Robbins even left the room for extended periods of time, leaving Downing and Olenicoff alone to engage in private conversations. During this meeting, Downing claimed that I would never get a whistle-blower award. How and why would my potential whistle-blower award even come up in conversation between these two people? The whistle-blower award program is an IRS program, having absolutely nothing to do with the DOJ. There’s as close to an admission as you’ll get that Downing’s actions against me were driven by an almost maniacal desire to deny me a whistle-blower award.
It is critical to understand that Downing had absolutely no involvement whatsoever in Olenicoff’s prosecution or his guilty plea the year before. But here they were, face-to-face, enjoying each other’s company. Following these meetings, a dual plan of attack emerged.
Downing planned to obtain an indictment of me, and Olenicoff planned to file a frivolous civil lawsuit against me and many other people, trying to shift blame for his own criminal misconduct on to others with blatantly false allegations. But Downing stepped far afield from his official duties as a prosecutor and his fingerprints were all over the pleadings in this groundless civil lawsuit.
Olenicoff had his absurd lawsuit filed in federal court in California in September 2008. The initial complaint had been amended three times, with each amended complaint being filed with the federal court. Subsequent testimony years later revealed that Olenicoff and his advisors shared copies of each of these complaints with Downing for his personal review. He was free to review and comment on them before they were filed. Here you had a federal prosecutor in Washington, DC, working with a private person in the preparation and prosecution of a baseless lawsuit in federal court.
Each one of these four complaints contained blatantly false statements regarding the DOJ which, if believed, would have painted the DOJ as the leader in the UBS investigation and would have denied me an IRS whistle-blower award. “By 2005, the IRS and DOJ approached the UBS AG Defendants about their scheme,” read the first complaint. False. Neither the IRS nor the DOJ approached UBS in 2005. I approached both the IRS and DOJ in 2007 about UBS. Hell, Downing didn’t even know how to spell UBS before I walked into the DOJ in 2007 and told them all what was going on.
The first amended complaint stated that “in or around 2004, Birkenfeld was approached by the US Department of Justice which inquired into UBS AG’s conduct …” No, they didn’t. This blatant lie was repeated in both the second and third amended complaints. The DOJ had no clue about any of this until 2007, when I voluntarily approached them and handed them the keys to the kingdom. The third amended complaint was filed by Olenicoff’s attorneys the very next business day after my sentencing hearing.
Downing reviewed these complaints before they were filed, and each one of these allegations regarding the DOJ was false. Whether Downing played a material role in inserting these falsehoods into these bogus complaints or failed to have them corrected before they were filed with the federal court, we don’t know. Furthermore, there is no record of Downing ever alerting the federal court to the false nature of these allegations.
Different witnesses gave conflicting and nonsensical reasons as to why Kevin Downing was reviewing these bogus complaints before they were filed. One of Olenicoff’s attorneys, Marisa Poulos, testified that the civil complaints had been sent to Downing to make sure they weren’t violating the terms of Olenicoff’s plea agreement. However, Downing was not Olenicoff’s probation officer, nor was he even one of the prosecutors involved in Olenicoff’s case! Nice try, Marisa.
Another one of Olenicoff’s longtime in-house lawyers, Julie Ault, gave a very different answer to the same question. She testified that the civil complaints were sent to Downing to be sure he was “happy with it.” Poulos and Ault were even reprimanded by the federal court for misconduct in that c
ase.
In my opinion, there was no legitimate reason for Downing to be reviewing the pleadings in this baseless lawsuit; and, in what can only be described as a remarkable coincidence, just one month after this lawsuit was eventually thrown out of court by the judge in California, Downing resigned his position as a prosecutor and slithered out the back door of the DOJ and into a private law firm in DC. His work here was now over. Time to move on.
Furthermore, in 2014 one of Downing’s law partners in private practice openly acknowledged, “He [Downing] really hates him [Birkenfeld].” I knew that all along. Nice to have that confirmed by one of Downing’s bigmouthed partners. So for those few people who actually believe that Downing and the DOJ were motivated by justice, think again. I now have the evidence that proves otherwise.
I’d always loved my brother, but his help in this case went over the top. Just between you and me, I shed a tear of joy in the prison latrine, and went back to cleaning floors.
That was my primary prison job, by the way—cleaning floors. I’ve since become a linoleum expert. I cleaned the floors in Medium, I cleaned them in Minimum, and I even cleaned the warden’s office. He actually wasn’t a bad guy, but he was dumb as a post. Half the time he wasn’t there, so I’d empty his garbage can, take the contents back to the janitor’s closet, and read all his discarded email and correspondence. The guys in my block always wondered how the hell I knew what was going to happen each week. I’d just smile and say, “Instincts, boys!” They had no idea they had their own secret agent.
I was determined to have fun at the expense of the government, and I did. My first gig was cleaning the floor of the prison’s main entrance down at Medium, where I’d taken my perp-walk on my very first day. As new prisoners arrived, often escorted by weeping families, the meathead BOP staff tried to make them feel like slaves being dumped at a Southern plantation. I, on the other hand, made it my business to ease their stress.
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