“Okay, Don,’’ Esposito said. “Draft your case agent, bring your charts, bring your tapes, and I’ll block out whatever time is needed.’’
Whitacre walked past the charcoal-gray legions of ADM commodities traders, oblivious to the punctuated rhythm of their barked orders. He headed toward his office, first bidding hello to his secretary. Eich_0767903277_5p_01_r1.qxd 10/11/01 3:56 PM Page 269
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It was the morning of January 31. Whitacre had returned from Atlanta more than a week before, but had yet to speak with the FBI or the prosecutors. Instead, he had fallen back into the flow of work, forgetting about price-fixing and law enforcement. After all, he still had a business to run.
At his desk, Whitacre picked up the telephone to check his voice messages. There were several, including one from Louisiana that sounded urgent. He called there first. A secretary answered.
“Dr. Jones’s office.’’
“Chris Jones, please. It’s Mark Whitacre returning his call.’’
“Just a moment.’’
Whitacre leaned back in his chair. He had known Jones at Degussa and had hired him as a consultant a couple of years before on ADM’s methionine project.
“Mark,’’ Jones said when he came on the line.
“Hey,’’ Whitacre said. “How you doing?’’
“Pretty well. How about you?”
“Fine, fine. What’s so urgent?’’
“We’re having some problems,’’ Jones said, sounding agitated.
“What do you mean?’’
“Mark,’’ Jones said, “are you aware of what the FBI is doing down here?’’
Minutes later, the “hello’’ line rang in the Decatur R.A. The line was standard in most FBI offices, often for the use of cooperating witnesses. It was never answered by identifying the location; instead, agents simply picked up and said hello. That way, if any potential defendants checked phone records, the identity of the witness working with the Bureau would still be safe. Shepard answered the phone.
“Hey, Brian, it’s Mark.’’
“What’s going on?’’
“Listen, I just got a telephone call from Dr. Chris Jones,’’ Whitacre said. “He’s a guy I knew back from Degussa. ADM had him on retainer back when we were considering building a methionine plant.’’
This was interesting. “What did he want?’’
“Well, he told me he was contacted by an associate, a guy named Tim Hall. Hall said that he’d been interviewed by an FBI agent named Craig Dahle.’’
“Okay.’’
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“Jones told me that the interview was all about possible theft of technical information from Degussa, stuff about methionine-plant construction.’’
For several minutes, Whitacre reviewed the history of ADM’s involvement in methionine. Jones, he said, had accompanied him on trips to evaluate possible sites for a plant. But ultimately, the idea was shelved, and ADM had done the Rhone-Poulenc deal.
“Well, Mark, tell me this,’’ said Shepard, “are you aware if Jones provided you with any protected or proprietary information? Do we have a case on him?’’
“No, definitely not. Definitely not.’’
“ ‘No, he didn’t do it,’ or ‘No, you don’t know’?”
“Well, I don’t know that he did anything. I mean, back when he met with Randall and me, we asked if any of the information he had was protected or copyrighted. He told us it wasn’t and that the patents had expired. That’s what he told us.’’
Shepard tried a few more questions, but Whitacre insisted there was not a problem, adding that Jones had assured ADM that the methionine technology used by Degussa had been the same since 1949. Shepard decided to push. “Mark, did you direct Jones to obtain any information that you knew to be proprietary or protected in nature?’’
“Definitely not. Definitely not.’’
Jones had told him the investigation seemed to be spreading, Whitacre said. The FBI was planning to interview Jones, other ADM
employees, and Whitacre himself. A grand jury was likely to be convened soon. The call ended, and Shepard looked up the number for Craig Dahle. He wanted to let him know that there was no reason to keep his investigation a secret from Whitacre anymore.
Dahle flew immediately from Mobile to Decatur. Now that Whitacre knew all about the case, the agent wanted to interview him right away. Shepard and Herndon met Dahle and drove him to a Forsyth hotel. Whitacre arrived soon after, seeming eager and nervous. Shepard handled the introductions, telling Whitacre that Dahle would be asking all of the questions today.
Whitacre nodded. “Okay,’’ he said.
He sat across the table from Dahle, who began by asking about the call from the previous day. Whitacre repeated the story he had told Shepard.
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“Now, I haven’t spoken to Chris Jones in something like a year and a half,’’ Whitacre said, “so I was really surprised to hear from him.’’
“What did you think about what he had to say?’’
“I didn’t know what he was talking about. I was surprised to hear about all this.’’
Jones, Whitacre said, was incensed, arguing that the investigation was caused by a Degussa executive who was angry with him for leaving the company.
Whitacre said that he had ended the phone call by promising to get back to Jones in a couple of days. But already, Jones had left two more messages on Whitacre’s voice mail.
Dahle flipped through his notes. “All right, why don’t we back up a little bit,’’ he said. “Tell me the chronology of ADM’s efforts to build a methionine plant and how Jones and Hall relate to that.’’
Whitacre laid out the story again. He had decided to add methionine to ADM’s product line and took steps toward that in 1992. Jones, he said, was a renowned methionine expert and the logical person to call.
“I asked Jones what it would take to get him involved. He told me he needed a ten-thousand-dollar-a-month retainer. That seemed acceptable, and it was the kind of arrangement that was very common for ADM.’’
They worked together for six months, looking for plant sites. At one point, Whitacre said, he became aware that he would need more of Jones’s time and increased the retainer to $20,000 a month. At that time, Jones had suggested Tim Hall as a plant manager. Whitacre didn’t know Hall but interviewed him and was impressed. Later, Whitacre said, Jones suggested putting Hall on retainer. He told the agents that he had agreed, and ADM had begun paying Hall $10,000 a month.
“Did you have reason to suspect that any of the information you were receiving was from Degussa?”
“Never,’’ Whitacre said. “At my initial meeting, I asked Jones about infringement problems. He told me there were patents, but said if we built a methionine plant, we wouldn’t want to use Degussa’s procedure.’’
Whitacre wrapped up by describing how ADM had junked the project and instead bought into Rhone-Poulenc’s methionine plant. Dahle had one question left: Would Whitacre be willing to tape a call with Jones right now? Whitacre shrugged. Sure.
The agents decided to place the call from Whitacre’s car phone. Shepard and Dahle followed Whitacre out to the parking lot and Eich_0767903277_5p_01_r1.qxd 10/11/01 3:56 PM Page 272 272
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hooked up the recording equipment. Afterward, they listened as Whitacre spoke with Jones. Nothing jumped out.
When they were done, Whitacre shook the hand of each agent and headed home. Once he was gone, the agents got back together. What did Dahle think?
“His story sounds believable,’’ Dahle said.
Herndon pulled his coat closed, bracing against a bitter chill that had descended on Washington, D.C., in the first week of February. He was walk
ing down Pennsylvania Avenue alongside Don Stukey and Kate Killham, his new squad leader. The day had arrived for the presentation to headquarters on Harvest King. At a security checkpoint, the agents flashed their creds and signed in. After receiving visitor’s identification cards, they were escorted to a conference room where a television and VCR were already set up. Herndon opened his briefcase, pulling out a videotape containing portions of several price-fixing meetings—the “greatest hits,’’ as the agents liked to call them. He put the tape inside the VCR.
The room was soon filled with supervisors from the Bureau’s Financial Crimes Section, including its chief, Thomas Kubic. Joining him was Alix Suggs, who had recently been assigned as the new Washington supervisor on Harvest King.
Once everyone was seated, Herndon took to the floor with a memorized speech.
“Hi, my name is Bob Herndon. I am one of the co–case agents working the Harvest King investigation.’’
He held up a small stick. “As you can see, I drew the short straw,’’
he said to laughter.
Herndon outlined the case, telling the group it involved pricefixing of lysine.
“Lysine is fed to chickens, making them fat, dumb, and happy,’’ he explained. “However, as consumers, you and I are not necessarily fat, dumb, and happy because each time we go to McDonald’s and order Chicken McNuggets, we’re paying slightly more than we would have.’’
After finishing his overview, Herndon hit the Play button on the VCR. The supervisors watched portions from Irvine, Hawaii, and Atlanta. As the scenes unfolded, a sense of delight was in the air. When the video finished, Herndon took the floor again. Despite the quality of the evidence, there were still two issues of concern, he said.
“First, we need to see if we have enough prosecutors on the team,’’
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he said. There was no clear leader among the various prosecutors in the case. And the Chicago antitrust office was in transition, having just been assigned a new chief, Jim Griffin.
“It has become particularly confusing to brief everybody,’’ Herndon said. “We don’t always know which ones to go to.’’
Was the confusion about leadership causing any big problems? the supervisors asked.
“It’s not really a big issue now,’’ Herndon said. “But we can see a complication once this goes overt.’’
Stukey took over from Herndon, making a short presentation about the need to prepare a financial package for Whitacre in the event he lost his job. As Stukey spoke, Herndon handed out a package of materials that Whitacre had provided about his finances. The supervisors were awestruck as they glanced through it. Whitacre’s expenses totaled $17,680 a month. It was hard to imagine that anyone could afford to spend so much. Herndon flipped open his notebook case. Reaching inside the inner pocket, he removed a slender piece of paper and held it up for everyone to see. It was a Christmas card from the Whitacres, complete with a photograph of the whole family.
“I wanted everyone to see this,’’ Herndon said. “This is our CW, Mark Whitacre, along with his family. I carry this picture with me all the time as a constant reminder that he is a real person with a real family dependent on him. He has taken some serious risks with his career to help us. The only reason we have the kinds of tapes that you’ve just seen is because of this man. We want to make sure that, if necessary, the Bureau is ready to stand behind him.’’
Tom Kubic held up a hand. “If he loses his job because of his cooperation, we’ll be in line before you are, Bob,’’ he said. “Don’t worry about that.’’
Later that day, Alix Suggs, the Washington supervisor in charge of Harvest King, called around headquarters looking for Herndon and Kate Killham. She found them speaking with some Bureau computer experts.
“Bob, I’ve been looking all over for you,’’ she said. Esposito, the Assistant Director, had just been told about the tape. “He wants to see it right now.’’
The Assistant Director? This had escalated to the seventh floor. Herndon’s heart was in his throat.
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Killham was all gung-ho when he told her. “Come on, Bob, let’s go up there,’’ she buzzed.
“You go up there,’’ he said.
“No, Bob,’’ she said, grabbing him by the arm. “You’re coming, too.’’
About that moment, Esposito was settling into a chair in the seating area of his office. On one side of the room, Tom Kubic and Don Stukey were opening a wooden cabinet, revealing a television and video player. Stukey loaded the “greatest-hits’’ tape, while Kubic pulled over a chair for a better view.
Grainy black-and-white images filled the screen. Stukey tried describing the action but didn’t have a case agent’s familiarity with the players. To his relief, Herndon and Killham arrived soon afterward. Herndon immediately took over narrating the video.
At the end of the tape, Esposito stood up, a grin on his face.
“Listen, I’m no expert on antitrust matters,’’ he said as he shook Herndon’s hand. “But based on what I just saw, I think we’ve got a pretty good case here.’’
The agents thanked Esposito for his time and headed out the door. Esposito asked Stukey to stay behind for a minute. Both men sat.
“Jesus, is anybody else aware of this?’’ Esposito said. From what he had seen, this was one of the FBI’s biggest white-collar cases—and nobody at headquarters knew a thing about it. Using just two agents was crazy; a dozen would have been reasonable.
“Your agents have done a good job,’’ Esposito continued. “But knowing what’s going to happen and the size of this company, you’re going to have to put in for a lot of people. You need to think long-range. Figure out what resources you’re going to need, and give me a game plan I can start supporting here.’’
Stukey promised to come back with a proposal.
“One more thing,” Esposito said. “If you need help with DOJ, let me know. If necessary, I’ll go across the street and try to take care of it.’’
Stukey thanked him. Across the street, he knew, were the main offices of the Department of Justice. Finally, FBI headquarters was ready to go to bat for Springfield and Harvest King.
Louis Freeh, the Director of the FBI, walked toward the conference table in his office. A group of assistant directors were taking their seats, ready for the 8:00 morning briefing. Freeh, in shirtsleeves, slid into a chair at the head of the table.
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“Anybody have any news?’’ Freeh asked, glancing around the room. He mentioned an item he had read in the Washington Post that morning, and the group discussed the article for a moment. The meeting moved at a fast clip. Freeh liked to get things done. He turned to an assistant director. “What have you got for me?’’ he asked.
This was a chance to update Freeh on events of the last twentyfour hours and to let him know what to expect for the next twenty-four. The assistant director described his division’s recent activities, and Freeh followed up with a few questions.
He looked at Esposito. “All right, Billy,’’ he said. “What have you got?’’
Esposito looked down at his notes and described a handful of cases. He flipped a page.
“Also, I just had a briefing on the ADM case, out of Springfield,’’ he said. “It’s a significant case, and it’s going to involve a lot of resources.’’
Esposito glanced up. Several of his colleagues were wearing baffled expressions. One leaned forward.
“What,’’ he asked, “is ADM?’’
“The Archer Daniels Midland Company.’’
More blank stares. “What’s that?’’
“It’s a Fortune 500 company, one of the world’s biggest grain produ
cers.’’
Esposito glanced at Freeh, whose eyes were gleaming with recognition. The Director knew the name.
“How strong a case is it?’’ Freeh asked. “If it’s ADM, it had better be good.’’
Esposito nodded. A company as powerful as ADM had the legal firepower to blow apart any weak case.
“It’s got tapes, and I’ve actually seen some of them,’’ he said.
“They’re excellent.’’
Esposito described the videos. Freeh peppered him with questions, the kind of reaction that signaled that this case had caught his attention.
“All right, that sounds good,’’ Freeh finally said. “Let’s stay on top of it.’’
He turned to another assistant director.
“What have you got?’’ he asked.
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differences could be buried. But now, with the case moving toward going public, there was no more papering over the conflicts. The antitrust lawyers wanted to move slowly and to participate directly in the interviews on the night of the raid. Their division often played a hands-on role during investigations, sometimes to the dismay of FBI agents unfamiliar with their approach. But the prosecutors with the Springfield U.S. Attorney’s Office usually took the opposite tack. They wanted to leave the FBI alone and let the agents conduct the raids on their own—so long as they struck soon and struck hard. In early February, the prosecutors and the agents were on a conference call, discussing plans for the raids. The group agreed that lawyers would be needed in a command center to field questions. Mann mentioned that she wanted to participate in some of the drop-in interviews with potential defendants. In particular, she wanted to take part in the meeting with Wilson.
The Springfield prosecutors had never heard of such an idea. Investigation was for the agents; prosecution was for lawyers. Joe Hartzler, on the phone in Springfield, spoke up.
“Look, Robin, Bob and Brian can do this themselves,’’ he said.
The Informant Page 35
