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Corporate Fraud

From the Courtroom to the Classroom: How a Former Prosecutor Views White-Collar Crime

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When Bernie Madoff received his 150-year prison sentence for a massive Ponzi scheme, it seemed like justice had been served. Yet after the 2008 financial crisis, which devastated millions of Americans, virtually no high-level Wall Street executives faced criminal charges. Why not?

In this episode of the “Oh My Fraud” podcast, Miriam Baer—a former prosecutor with the prestigious Southern District of New York, corporate compliance professional, and former Vice Dean at Brooklyn Law School and currently Dean and President of California Western School of Law—shares insights from her unique career journey that help explain this paradox.

From Princeton to the Prosecutor’s Office

Baer’s journey through the world of white-collar crime began far from where she expected. After attending Princeton (where, yes, she knew Ted Cruz) and Harvard Law School, she initially had no intention of becoming a prosecutor.

Her path changed after working at a law firm on securities fraud cases, which gave her a crash course in understanding how companies manipulate their books. From there, she joined the prestigious U.S. Attorney’s Office for the Southern District of New York under then-U.S. Attorney Mary Jo White.

At the prosecutor’s office, Baer handled everything from mail and wire fraud to bank fraud and money laundering, learning the intricacies of federal criminal prosecution. This experience gave her first-hand knowledge of how prosecutors decide which cases to pursue—knowledge that helps explain why some financial criminals face justice while others seem to escape it.

Why Some Cases Get Prosecuted While Others Don’t

When massive financial scandals don’t result in criminal charges, public frustration often follows. “Why aren’t these people in jail?” becomes a common refrain. But Baer identifies a more nuanced reality than simple theories about wealthy people being above the law.

“There’s a tendency to look at the scope of the harm,” Baer explains. “Someone says, ‘Well, he caused all that horrible harm. Why aren’t you prosecuting him?’ The answer is, well, I’m bound by the statute.”

Baer identifies two distinct thresholds prosecutors consider:

  1. The “threshold of liability” – Whether a crime technically occurred under statute
  2. The “threshold of viability” – Whether prosecutors believe they can win the case

This second threshold is crucial but often overlooked in public discussions. Based on past wins, prosecutors develop mental “prototypes” of successful cases that shape how they evaluate new evidence.

“When someone says, ‘Is this a fraud case? Is it a viable fraud case?’ [prosecutors] think in their minds about what most recently was viable,” Baer notes.

During the 2008 financial crisis, prosecutors’ mental prototype of fraud was based on early 2000s accounting scandals that featured whistleblowers, clear paper trails, and cooperating witnesses—elements largely absent in the financial crisis cases.

“My whole theory is that especially what happened with the financial crisis is, yeah, there were folks who had passed the threshold of liability, but the prosecutors weren’t sure they were over the threshold of viability,” Baer explains.

This framework helps explain why more recent cases like Elizabeth Holmes and Sam Bankman-Fried resulted in prosecution. Both featured the crucial elements prosecutors recognize from successful cases: cooperating witnesses and defendants who “constantly talk all the time” and eventually contradict themselves.

The Problems with White-Collar Criminal Statutes

Beyond prosecutorial decision-making, Baer identifies fundamental flaws in the design of white-collar criminal statutes. Her book, “Myths and Misunderstandings in White Collar Crime,” explores these issues in depth.

“The statutes themselves are confusing us,” Baer explains. She identifies three primary problems:

1. “Flat” statutes that lack gradation

Unlike homicide laws that distinguish between first-degree murder, second-degree murder, and manslaughter, fraud statutes don’t meaningfully differentiate between degrees of severity.

“If I look up fraud, it’s just all falling under the fraud umbrella of mail fraud or wire fraud. And it really doesn’t matter that you were charged with mail fraud and I was charged with wire fraud from a moral valence,” Baer notes. “It just means you use the mails and I use the wires.”

2. “Bundled” statutes that combine vastly different crimes

Baer points to the Hobbs Act as a prime example—a single statute that criminalizes both robbery affecting interstate commerce and bribery by public officials.

“That’s very different from robbery…it’s all under the same statute,” she explains.

3. Statutes that fail to generate useful information

Perhaps most importantly, these flaws create a system that doesn’t effectively track patterns or provide clear information about white-collar crime.

“The system itself should produce information because we are the ones in charge,” Baer argues. “We can’t do that job if the system doesn’t give us information or information that we could get at.”

These structural issues create an “insider/outsider” divide in criminal justice. Those working within the system understand its peculiarities, while the public is left confused and suspicious.

“It leads to this level of people feeling estranged from the system and feeling like this system is rigged,” Baer says.

Case Studies: Timing, Complexity, and Expertise Gaps

Several practical challenges further complicate white-collar crime prosecution. One is simple timing—evidence of sophisticated fraud often emerges years after the fact, sometimes through academic research long after the statute of limitations has expired.

Baer references a paper published in 2015 that uncovered significant misrepresentations in mortgage-backed securities markets from the 2008 crisis. “Little late,” she observes wryly.

Another challenge involves proving intent at the highest corporate levels, where decisions flow through layers of management.

“The public hungers for the very top person to fall,” Baer explains. “They don’t want to hear that you got Mister mid-level dude.” Yet proving that a CEO directed fraudulent activities is often nearly impossible without direct evidence.

A third challenge stems from expertise gaps. As Baer candidly acknowledges: “I think people don’t realize the degree to which lawyers in particular are generalists… after three years of law school, I absolutely did not have forensic accounting skills.”

This knowledge gap means prosecutors must learn sophisticated financial concepts while simultaneously building cases against defendants represented by specialists in these areas.

To illustrate how criminal law sometimes misses the mark, Baer points to the “Varsity Blues” college admissions scandal. While the fraudulent behavior was clear, she questions whether criminal prosecution addressed the deeper issues.

“Whatever way you should deal with this type of behavior, which of course is terrible…it wasn’t clear to me that criminal law was doing anything to really fix it,” Baer reflects.

Implications for Accounting Professionals

For accounting professionals, Baer’s insights offer a valuable perspective. Understanding the gap between technical violations and “viable” criminal cases is crucial for effective compliance work.

“Being a world-class jerk is not the same thing as violating the mail fraud statute,” Baer points out, highlighting the gap between unethical behavior and criminal conduct.

The expertise gap between legal and financial professionals creates both challenges and opportunities. Accounting professionals who can effectively translate complex transactions for non-specialists provide immense value in both preventing and addressing potential misconduct.

Baer’s solutions include creating gradations within fraud statutes, unbundling combined statutes, and designing systems that generate better information about financial misconduct patterns. These changes would not only improve enforcement but potentially rebuild public trust.

Moving Beyond Simple Narratives

The paradox of white-collar crime enforcement shapes how our financial system operates and who faces consequences when it fails. As Baer’s analysis reveals, the seemingly contradictory patterns of prosecution stem not primarily from corruption, but from structural challenges built into our legal framework.

“If you want to have a better understanding of where the problems are and how you fix them, you need better information,” Baer emphasizes.

Baer’s book “Myths and Misunderstandings in White Collar Crime” explores these themes in greater depth. For those interested in hearing more of her insights, the whole conversation on the Oh My Fraud podcast offers a fascinating look into the world of financial crime prosecution from someone who’s seen it from multiple perspectives.

From Mob Graves to Corporate Fraud: A Prosecutor’s Journey Through America’s Most Notorious Cases

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When former federal prosecutor Sam Buell received an unexpected phone call asking if he wanted to join the Enron Task Force, he had zero background in accounting or corporate finance. “I just got the Enron case. Do you want to come work with me?” asked his former supervisor Leslie Caldwell. Just like that, Buell found himself thrust into what would become one of the most significant corporate fraud cases in American history.

In a fascinating episode of “Oh My Fraud” podcast, Caleb Newquist and Greg Kyte interview Buell about his remarkable journey from prosecuting mob bosses to untangling Enron’s complex accounting schemes. Now the Bernard M. Fishman Distinguished Professor of Law at Duke University, Buell offers rare insider perspective on how major fraud cases are built and why corporate criminals are so difficult to prosecute.

From Organized Crime to Corporate Fraud

Before tackling Enron’s financial mysteries, Buell cut his teeth on cases straight out of a crime drama. After graduating from NYU Law School, he clerked for a federal judge in Brooklyn’s Eastern District of New York during the early 1990s.

“That courthouse was the most interesting place I had ever been in my life,” Buell explains. “At that time, in the early 90s, there was more crime than anybody knew what to do with. The murder rate in New York City was around 2,000 murders a year at its peak.”

The district was a hotbed of criminal organizations – not just the Italian Mafia, but diverse groups organized around various ethnic communities. These enterprises ran everything from drug trafficking to extortion, illegal gambling, and even human smuggling operations.

“These guys aren’t doing fraud,” Buell notes. “What they’re doing is real… it’s black markets. The question is simply what’s getting detected and caught and what isn’t. It’s a pure cat and mouse game.”

After moving to Boston, Buell joined the infamous Whitey Bulger investigation. Though Bulger himself was a fugitive, his lieutenant, Kevin Weeks eventually cooperated with authorities.

“Weeks took us to some locations where we recovered a total of five bodies,” Buell recounts. “The bodies were exactly where he said they were going to be. After 20 years, vegetation changes, everything changes. But I don’t think you forget that.”

Working on these cases taught Buell to “follow the money” – a skill that would prove invaluable when he later tackled corporate crime.

The Call That Changed Everything

In late 2001, while still working on the Bulger case, Buell received the call that would redirect his career. Leslie Caldwell, his former supervisor from New York who was now heading the Enron Task Force, invited him to join the investigation of America’s most spectacular corporate collapse.

Despite having a young child and a new house, Buell’s wife encouraged him to take the opportunity. “This is the one shot to do something,” she told him.

The learning curve was steep. “I needed a high-speed education,” Buell admits. “I didn’t even know what LIBOR was. People would say ‘LIBOR plus basis points,’ and I’d be like, ‘what is LIBOR?'”

Fortunately, prosecutors worked closely with SEC experts who could explain the complex accounting issues. “You’re talking to a lot of people who are experts, including lots of the witnesses who were CPAs. You’re like, ‘explain it to me like I’m your mother.'”

Despite the technical complexity, Buell found the fundamental challenge familiar: follow the money and identify the deception. “The people you’re dealing with speak a different language, but that doesn’t mean they’re smarter than you or capable of understanding things you’re not capable of understanding.”

The Slippery Slope of Corporate Fraud

Unlike TV crime dramas where villains set out to commit fraud from day one, Buell explains that most corporate fraud cases follow a pattern of gradual escalation.

“Once you tell the first lie, once you mess with the first number, it’s like… you read about what happened in Worldcom,” he says. What eventually became a billion-dollar accounting scandal often begins with small manipulations that executives might consider minor stretches of the rules.

Buell calls this “the creep effect” – a series of increasingly problematic decisions driven by pressure to maintain appearances and stock prices.

“These companies are being lauded as great success stories. And no CEO wants to say, ‘actually, we’re not succeeding,'” Buell explains. This reluctance creates enormous pressure, especially when executive compensation is tied directly to stock performance.

At Enron, “the tail was wagging the dog,” as Buell puts it. “Everything was designed not to have the stock price be a reflection of fundamental value, but a reflection of excitement about all the things they were going to do.”

Personal financial entanglements made this pressure even more intense. Many executives had borrowed against their company stock to finance lavish lifestyles.

“Ken Lay at Enron was being told to buy things like yachts and horses and cars and real estate—not very liquid stuff,” Buell explains. “So when the stock price starts coming down, there’s margin calls coming from the personal bankers, and they can’t be satisfied with selling other assets because you’ve put all your money into illiquid things.”

This creates a powerful motivation to keep the stock price up at all costs.

The Arthur Andersen Controversy

One of the most controversial aspects of the Enron case was the prosecution of Arthur Andersen, Enron’s accounting firm, for obstruction of justice. When Andersen employees shredded Enron-related documents as the SEC investigation began, prosecutors saw a clear case of obstruction.

“To have a big five accounting firm that was already in trouble with the SEC…suddenly have the relationship partner and somebody in the in-house counsel’s office telling all the junior people in Houston to shred everything other than the official working papers…because the SEC is looking at Enron – this was shocking,” Buell explains.

The Justice Department offered Andersen a settlement, but the firm refused to admit wrongdoing, fearing this would destroy them in civil litigation. When prosecutors proceeded with an indictment, Andersen launched a massive PR campaign with “full page ads in the Wall Street Journal about how the Justice Department is trying to put 10,000 people out of work.”

Though a jury convicted Andersen, the Supreme Court later overturned the conviction on a technical point regarding jury instructions. By then, however, Andersen had already collapsed.

The case had lasting repercussions for corporate prosecutions. “It explains a lot about why the settlement market in corporate criminal prosecutions has boomed over the last 20 years,” Buell notes. Defense attorneys now routinely argue, “You don’t want to have another Arthur Andersen,” to secure deferred prosecution agreements for corporate clients.

“Boeing got a deferred prosecution agreement and hundreds of people died,” Buell points out. “General Motors got a deferred prosecution agreement. The argument was being made, ‘Hey, you can’t slam GM. You know, you want to win Michigan.'”

Proving Criminal Intent in Corporate Settings

The central challenge in prosecuting corporate fraud isn’t just finding misleading statements – it’s establishing criminal intent in environments where some level of deception is normalized.

“When we say someone has the intent to defraud, what we really mean is that they have the intent to engage in a kind of deceit that is wrongful in the context. And they know it,” explains Buell.

He illustrates this through a comparison: “Think about the difference between poker and golf. In poker, it’s part of the game that everyone is trying to deceive each other… In golf, you’re supposed to apply the rules very strictly to yourself.”

This distinction extends to financial markets, where different sectors have different norms about acceptable negotiation versus fraudulent misrepresentation.

Applying this framework to Enron reveals why the case was so complex. “It wasn’t like there was no there there,” Buell explains. Unlike a pure Ponzi scheme, Enron had legitimate business operations. “The criminal case was a collection of pieces of the business and incidents over time where they stepped over the lines and told lies. That doesn’t mean that the whole company was a fraud.”

Buell describes Enron as “a Rube Goldberg device…cantilevered off of itself constantly.” This complexity made it challenging not only to identify fraud but also to explain it to juries.

Why Corporate Fraud Persists

Despite landmark prosecutions and regulatory reforms like Sarbanes-Oxley, corporate fraud continues to plague our financial system. When asked what continues to surprise him, Buell answers simply: “That the scandals never stop.”

He points to ineffective regulation as a key factor. “Every single one of these cases almost…you can see directly the story of taking advantage of ineffective regulators.” From Boeing’s relationship with the FAA to Volkswagen’s emissions cheating, companies exploit weak oversight.

Sarbanes-Oxley, passed after Enron, had limited impact on criminal enforcement. More troublingly, it “never took up the question of what kind of products are being traded, by whom, and what is the danger of that…the shadow banking problem.”

Buell sees Enron as “a canary in the coal mine” that foreshadowed the 2008 financial crisis. “Enron, even though it was an energy company, was basically trying to run itself like an investment bank, trading products that were not regulated by the banking system in ways that ended up being much riskier than people realized.”

Most disappointing is how little we seem to learn from these cases. “Every time one of these things blows up, there’s all this talk about lessons learned. But the lessons don’t actually seem to get learned.”

For a fascinating first-hand account of how major corporate fraud cases are built from the prosecutor’s perspective, listen to the full conversation with Sam Buell on the Oh My Fraud podcast. His experiences provide essential context for understanding why corporate fraud remains so persistent despite our best efforts to prevent it. 

You can also earn free CPE for listening with Earmark.

From Sponsorships to Fake Consultants—Inside the Airbus Bribery Scheme

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Modern corporate bribery rarely looks like someone handing over a briefcase of cash. It often masquerades as something legitimate: a sports sponsorship, an inflated “consulting” contract, or a generous commission payment. 

As discussed in an episode of Oh My Fraud, one of the most striking examples is the Airbus bribery scandal, which resulted in the largest bribery fine in world history—€3.6 billion.

From Watergate to the FCPA

Corporate bribery isn’t new, but its legal and ethical landscape changed significantly in the 1970s after the Watergate scandal revealed a web of illicit corporate payments. In response, Congress passed the Foreign Corrupt Practices Act (FCPA) in 1977, prohibiting bribery of foreign officials and requiring accurate financial records. The FCPA doesn’t just apply to U.S. companies; it also covers foreign companies listed on U.S. stock exchanges or operating within the United States. This means that industry giants like Airbus can face American prosecution if they’re caught bribing, no matter where they are located.

Airbus Takes Flight—and Then Self-Reports

Founded in 1970 by French, German, and British aerospace firms (Spain joined later), Airbus’s mission was to compete with American manufacturers like Boeing. By 2003, Airbus surpassed Boeing and became the world’s largest commercial aircraft maker. 

Yet in 2016, an internal Airbus audit discovered a systemic bribery operation: “secret agents” were allegedly bribing officials to secure plane sales worldwide. Faced with French laws that would revoke operating licenses for bribery convictions—and an even steeper potential fine of €8 billion—Airbus surprised everyone by self-reporting to the Parquet National Financier (PNF), France’s financial crimes investigative body.

Inside the Massive Bribery Scheme

The Airbus bribery setup was surprisingly elaborate:

Secret Agents and Shell Companies
Airbus hired intermediaries—sometimes called “secret agents”—to close deals. These agents requested large “commissions” Airbus paid to shell companies with opaque ownership. A portion of that money went to officials in Ghana, Sri Lanka, Malaysia, Taiwan, Indonesia, China, and elsewhere.

Sports Sponsorships as Kickbacks
In one example, Airbus paid $50 million to sponsor a sports team owned by an airline executive. In return, the airline ordered 180 planes. Even if each plane were the least expensive model (over $70 million apiece), Airbus captured a staggering deal in exchange for a $50 million bribe concealed as “sponsorship.”

Consulting Contracts for Spouses
Another scheme involved hiring an airline executive’s spouse as a highly paid consultant. The spouse had zero aviation experience, making it clear the contract’s real purpose was to influence purchasing decisions.

These arrangements gave Airbus “plausible deniability”: officially, they were paying for legitimate-sounding services.

The Record-Breaking Settlement

By cooperating fully after their self-disclosure, Airbus negotiated a Deferred Prosecution Agreement (DPA) rather than face trial. Under the DPA:

Historic Fine
Airbus agreed to pay €3.6 billion—the largest bribery fine ever imposed. If they hadn’t turned themselves in, estimates suggest it could have topped €8 billion.

Three-Way Split
The French PNF, the UK’s Serious Fraud Office (SFO), and the U.S. Department of Justice (DOJ) shared the settlement. The DOJ alone collected roughly half a billion euros.

Leadership Shakeup
Although he wasn’t forced out, CEO Tom Enders resigned, expressing genuine remorse and a desire for Airbus to reform. An ongoing class action lawsuit from Airbus shareholders claims the company misled investors about its business practices.

Is It Marketing or a Bribe?

One reason corporate bribery is so insidious is that it can closely resemble legitimate business development. From event tickets to lavish client dinners, there is often no bright line defining when hospitality veers into bribery. Private-sector organizations don’t always have a rigid gift limit—like the $20 rule, the U.S. military has—making it even harder to police.

According to the 2024 ACFE Report to the Nations, the median loss to corruption is $200,000. Yet tracking actual losses is complicated. In Airbus’s case, officials needed new aircraft either way, so the “loss” might be seen as switching from one vendor to another for questionable reasons. It underscores how intangible “costs” can be when bribes drive commercial decisions.

Lessons for Finance Professionals

The Airbus scandal highlights a rapidly evolving corruption landscape:

Structural Sophistication
Bribes are concealed through sponsorships, commissions, and consulting contracts rather than suitcases of cash.

Gray Areas vs. Bright Lines
Understanding intent is crucial. Based on purpose and scale, the same “thank you” gift can be innocent or corrupt.

Robust Compliance Measures
Basic compliance and traditional red flags may fail to uncover cleverly disguised bribery. Periodic internal audits, detailed transaction analysis, and cultural shifts emphasizing ethics are vital.

Global Enforcement
In an interconnected world, bribery probes are often multinational. Being listed or doing business in certain countries (like the U.S.) exposes companies to multiple layers of enforcement.

In the end, Airbus’s self-reporting likely saved the company from greater financial and operational damage, yet the scandal still cost billions and tarnished its reputation. To hear a more in-depth discussion of how Airbus got “AirBusted,” check out the full Oh My Fraud podcast episode.