When the Whistles Don’t Blow
By David Glenn Cox

Every day we see the signs of massive systemic corruption in our society. It makes the day hard to take and sometimes, it makes it easy to see why millions of Americans focus on entertainment, news or sports; it’s just so much easier on the mind. Just take the blue pill and zone out, and damn it, sometimes I wish that I could.

As time goes by we see layer upon layer of laws restricting our rights while at the same time the courts, that last bastion of our freedom, peel away our constitutional protections until we are left with a naked justice system that will provide you only with as much justice as you can afford to purchase. The Supreme Court last year sided with former Enron CEO Jeffrey Skilling, leading to a possible invalidating of Skilling’s 24-year prison sentence. Mark my words, Skilling will walk; he has a bank of high-powered attorneys working on his case round the clock. They’ve even argued that Skilling couldn’t get a fair trial because a Houston newspaper once wrote a disparaging editorial about him. His case went from conviction to the Supreme Court in three years; now, Buddy, that’s service!

In Louisiana, we see Judge Feldman, a Federalist Society judge who doesn’t believe in legislating from the bench, overruling the President of the United States and the health and environmental concerns of the people. Judge Feldman’s holdings in oil company stock give the perception of impropriety and that is enough. Seven of sixteen federal judges in Louisiana had recused themselves because of their relationship with the state’s oil companies. It’s a private club, judges that own oil companies and oil companies that own judges.

Harry Truman once said, “Whenever you put a man on the Supreme Court he ceases to be your friend.” Dick Cheney never heard of that and neither did Anton Scalia. The truth is that a justice can still be your friend and you can still go hunting together but only after you leave office. On the foundation of a fair and unbiased judiciary rests the base of representative government. Without it, all else shifts and erodes, tilts and leans.

The rot is systemic and moves from root to branch. It’s wise to always remember that when you blow the whistle on a nest of rats, you had best know who those rats really are.

In 2001 Bradley Birkenfeld went to work for UBS Bank in Geneva, Switzerland, and Bradley Birkenfeld is no angel by any stretch of the imagination. He is everything that you would expect a corporate international banker to be. The son of a neurosurgeon, Birkenfeld earned a master’s degree in business administration and worked for State Street Bank in Boston before joining UBS. Birkenfeld knew the way the game was played and was gladly playing along.

He was working for the rich and powerful; he managed one account for a billionaire worth $200 million. He carried with him at all times an encrypted laptop computer to prevent prying eyes having a look, he lied to customs officials about the reasons for his international travels. He would call his trips entertainment when he was actually delivering checks from Europe to the Virgin Islands, Panama and Hong Kong or setting up sham corporations and tax shelters. He once delivered profits back to a customer by putting diamonds in a toothpaste tube.

He was living the good life, as UBS sent him to hop scotching the globe to art shows and yachting regattas looking for the rich, who were looking to dodge the tax man. It really didn’t matter that Bradley Birkenfeld held no Securities and Exchange Commission license. Birkenfeld was like a Mafia Don worried about a traffic ticket, it was a matter too small to be concerned with.

In 2005, Birkenfeld claimed that he learned that UBS policies had violated an agreement with the IRS. I find that story just a little hard to swallow, that a jet-setting international banker dealing with the super rich looks down at his dog one morning and says, “Oh garsh, Sandy, what have we gotten ourselves into?”

Birkenfeld resigned from UBS in October 2005 and provided written whistle blower complaints to the Head Counsel for UBS, and other UBS senior executives, regarding the illegal practices of U.S. international business. I’m feel certain that his complaint read something like this: “After four and a half years of smuggling diamonds, laundering money and setting up illegal overseas tax shelters, it has suddenly come to my attention that we might be violating the law here. My master’s degree in business administration tells me something is amiss and just isn’t quite right around here. So I’m quitting and not only do I quit, but I’m gonna tell on you, too! So just give me my bonus check and I’m out of here, never to return!”

Yes, Mister Birkenfeld and UBS finally reached an out of court settlement on his bonus check. UBS did their own private investigation into Birkenfeld’s accusations and the company determined that there was no evidence of wrongdoing. “We don’t know what that guy is talking about?”

Being true to his word Bradley Birkenfeld showed up on the front steps of the Justice Department, with a brown paper sack lunch under his arm, and told his dog Sandy, “Now you wait here for me Sandy while I go tell these nice people the truth.” Sandy said, “Arf!” which is pretty much all that Sandy ever says.

Sandy waited and waited for almost two years as Mr. Birkenfeld told the government everything that he knew about everybody that he knew. And every time Bradley Birkenfeld would ask for immunity the government would answer, “Tell us more.” Mr. Birkenfeld wanted immunity from prosecution, but he also wanted the whistle blower award of 15 to 30 percent of all the taxes collected, and with the people Bradley Birkenfeld was singing about, that was a lot of cheese. So much money in fact; that some people feared for his safety. In August 2007, Birkenfeld’s attorney e-mailed prosecutors to say, UBS suspected Birkenfeld was talking to investigators, putting him “truly at risk” because the case was “threatening some very powerful people.”

“They told me they wouldn’t prosecute me,” Birkenfeld said. “Kevin Downing (IRS lead prosecutor) told me that in the first meeting. They refused to give me a subpoena or immunity until they saw that I was the real deal, as they said. They kept changing the rules of the game and finally said ‘We won’t give you immunity.’”

You see, this is America; and when you start stepping on the toes of billionaires and you might get kicked in the head. Billionaires own all sorts of things in America, like congressmen and senators. So as a prosecutor you have to move very carefully. This could be the biggest case of your career or it could be the last big case of your career.

The IRS wrote Birkenfeld’s attorney on Sept. 6, 2007, to say that Birkenfeld had “terminated his proffer with the Tax Division in regards to alleged criminal conduct at UBS.” They also stated that they declined to grant immunity and could continue the proffer if Birkenfeld chose to do so. Or Birkenfeld could continue to talk, but immunity was now off the table, and Sandy said, “Arf.”

Birkenfeld was now a man alone, a man with many powerful enemies and few friends. All Bradley Birkenfeld ever wanted was to tell the truth, that and to collect the estimated $125 million reward for turning everyone in. That was the minimum, the reward could go as high as $200 million or even higher!

Birkenfeld’s next stop was at the office of Senator Carl Levin of Michigan, head of the Senate’s Permanent Subcommittee on Investigations. From there the chips began to fall as the things that Birkenfeld was saying were apparently true.

It was Birkenfeld’s testimony which was behind the UBS decision to pay the IRS $780 million and admitting that the company was actively engaging in tax evasion. UBS also agreed to turn over all information on two hundred and fifty other secret accounts. One hundred and fifty people are being investigated and sixteen were charged by prosecutors. Two UBS bankers and three others bankers were accused of hiding assets overseas. All together, more than $852 million has been collected by the IRS. Oh wait, did I say sixteen people were criminally charged?

That’s incorrect, it wasn’t sixteen, it was seventeen as prosecutors charged one Bradley Birkenfeld with fraud for not being truthful about his dealings with California billionaire real estate developer Igor Olenicoff. Olenicoff was given two years probation for his crime and had to pay $52 million in back taxes but Bradley Birkenfeld was given a sentence of forty months in federal prison.

In fact, Bradley Birkenfeld was the only person to go to prison for these crimes. He is no angel and certainly no saint; he is a rat caught in a trap. He was placed in prison to discourage his attempts to claim the IRS reward, but more than just money, Bradley Birkenfeld was sent to jail as a warning to the other rats. A direct warning to any other potential whistle blowers, to anyone on the inside with the dirt on the ringleaders, the deep throats or the Joe Wilsons.

It would be hard to watch someone like Bradley Birkenfeld to walk away with $200 million, but it is even harder to see him sit in a jail cell. He has asked Barack Obama for a pardon but that will only happen when pigs fly. They say that crime doesn’t pay, but you can’t prove that by Birkenfeld. He was doing great with crime until he tried telling the truth and all Sandy could say was “Arf!”