“Hey, this one’s from Switzerland,’’ he laughed to his wife. “I wonder if it’s money or something.’’
The distress from the Harvest King team about the imminent indictment of Mark Whitacre set off a series of meetings and phone calls to Washington and Mobile.
Despite Whitacre’s apparent deceptions, he was still potentially a key witness in the price-fixing case. Indicting him now, just as the Fraud Section was starting its investigation, made no sense. Once indicted, Whitacre would have the right to go to trial quickly, making him the government’s unquestioned adversary—ending whatever limited use he still might have in the lysine case. Plus, a prosecution at this point opened up the slight chance that evidence from Harvest King might come public in his trial, even before any charges were brought in the price-fixing case.
Then there was the embarrassment factor. If there’s anything that federal law enforcement hates, it’s looking stupid. How would it be explained that the government had simultaneously relied upon and investigated Whitacre? No one argued that Whitacre shouldn’t be indicted, just that it Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 407
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should be managed properly. If he had arranged to steal information from Degussa, he could be charged later as part of a broad indictment involving all of his crimes.
With so many arguments against immediate indictment—and so few for it—the decision was easy. Peter Clark, the Washington prosecutor who had locked horns the summer before with the Antitrust Division, ruled against presenting a Whitacre indictment to the grand jury that day. Senior Justice Department officials would review the rest of the Degussa case to determine how to proceed.
The Harvest King team heaved a sigh of relief. Only a few hours before Whitacre’s scheduled indictment, the bullet had been dodged. Two FBI agents arrived that same day on Twelfth Street at Metro Center in Washington, ready to surprise the lawyers at Williams & Connolly. Originally, just one agent, Charles Stuber Jr., had been expected to handle this assignment, but Ed Herbst had decided to tag along. After all, it wasn’t every day that the Bureau subpoenaed Washington’s most politically powerful law firm. The promised cooperation from Williams & Connolly had slowed to a trickle. D’Angelo and Bassett were already objecting that selective presentation of evidence could easily skew facts—in ways, of course, most favorable to ADM. Even now, more than two weeks after Aubrey Daniel had raised allegations of agent wrongdoing, the government had not seen the anonymous letters that sparked the suspicions. The time had come to remind Williams & Connolly that the government had the power to force answers.
The agents walked into the twelve-story Edward Bennett Williams Building. On one side of the lobby, they saw the entrance to the Williams & Connolly reception area. The place was austere; unlike many Washington law firms, no cut marble or slate adorned the offices. Identifying themselves to a receptionist, the agents said that they needed to serve a subpoena to Aubrey Daniel. The receptionist placed a call, and in a few minutes, a young lawyer named John Schmidtlein appeared. The agents presented the lawyer with two subpoenas.
“Mr. Daniel isn’t here right now,’’ Schmidtlein said.
“Well,’’ Herbst replied, “is there anyone here who can accept these on behalf of the firm?’’
Schmidtlein seemed uncertain. “Well, we’re trying to get Mr. Daniel on the phone, but he’s not here.’’
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Herbst again pushed for anyone else who could accept the subpoenas. Finally, William McDaniels, another lawyer at the firm, showed up at the reception area. After reviewing the subpoenas, he accepted them without comment. Their job done, the two agents left the office.
The crowds at the Illinois State Fair surged forward, with many extending hands toward Bob Dole, the Senate majority leader. Dole had arrived at the fair in Springfield, ostensibly to give a speech promoting the use of ethanol, the government-subsidized fuel additive that had brought ADM so many millions of dollars. But everyone knew that the senator was also there to advance his candidacy for the 1996 Republican presidential nomination. During the day, a crowd of reporters approached Dole with questions. One asked if Dole believed the price-fixing case against ADM
would hurt his old friend Dwayne Andreas.
“It’s only an investigation,’’ Dole said. “We have to wait and see what happens.’’
Paul Myer’s complaints about his unsold Tennessee home were heard by official Washington within days.
A call placed to the staff of Tennessee congressman Bob Clement resulted in inquiries from Capitol Hill to the Justice Department, eventually reaching the office of Gary Spratling, a deputy chief of the Antitrust Division. Brenda Carlton, the division’s congressional liaison, followed up with a phone call to Myer. With little questioning, Myer detailed his dealings with Whitacre. He mentioned the claim from Joseph Caiazzo that Whitacre was in witness protection.
“The next day, that same lawyer called to say Whitacre was not competent to enter into a contract,’’ Myer said. “I hired a lawyer, and he called Caiazzo. But all Caiazzo would say was that he no longer represented Whitacre.’’
There was no financial reason that prevented them from proceeding, Myer said. The Whitacres had obtained a mortgage. He had seen papers proving it.
“What was the name of the lender?’’ Carlton asked.
“I don’t know,’’ Myer said. “But we were satisfied the papers were valid.’’
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forwarded the information to the fraud prosecutors. Probably, he figured, the FBI would want to know about a Whitacre transaction of almost $1 million. Since his suicide attempt, Whitacre seemed to have all but disappeared—at least, as far as the government was concerned. The fraud prosecutors were beginning to worry that things were becoming too quiet; Whitacre, they feared, might be planning to flee. Bassett and D’Angelo were instructed to contact Whitacre’s lawyers for an update. The agents placed a conference call on August 17. Epstein was out of town, so his partner Bob Zaideman took the call. He had few answers. On Dr. Miller’s recommendation, the lawyers had not spoken much with Whitacre. Still, Zaideman assured the agents that Whitacre was not a flight risk. Just in case, he said, the lawyers had already taken Whitacre’s passport from him. The next day, Bassett telephoned Dr. Miller for an update. While Miller described nothing about Whitacre’s condition or his treatment, by that point the doctor had placed him on lithium, a medication to treat manic depression. He explained to Bassett that Whitacre had been released from the hospital earlier that day and was no longer considered a risk to himself.
“Do you think he is any sort of a flight risk?”
“I am virtually certain that he’s not,’’ Miller replied. “He’s not going anywhere.’’
“We still need to conduct further interviews,’’ Bassett said. “Is he up to that?’’
“Not yet,’’ Miller replied. “It’s too early.’’
Miller cleared his throat. “At this point, I believe any contact by the government could have a negative impact on Mr. Whitacre’s health.’’
In Steffisburg, Beat Schweizer walked to the table where his wife and children were eating breakfast and kissed them good-bye. Rushing to make a seven o’clock doctor’s appointment, the money manager walked out the front door and headed down the steps to his garage. Partway down, Schweizer stopped. Two men in suits were waiting at the bottom of the steps. They approached him.
“Excuse me, who are you, please?’’ one of the men asked in German.
“Beat Schweizer. Who are you?’’
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The men brought out bad
ges. They were police detectives, a special team that had driven the two hours from Zurich that morning. They had come to take Schweizer to Zurich for an interview with prosecutors. He knew that he would probably not be jailed, just released after the interview. But Schweizer was frightened nonetheless. The detectives escorted Schweizer back to his home office. He stood by in shock as they collected his files and floppy disks and then downloaded data from his personal computer. Once they’d seized the evidence, they brought the material and Schweizer out to their car. They placed him in the backseat and drove away.
Two hours later, an anxious Schweizer was escorted to the prosecutor’s office. People were everywhere; a group of men in suits sat at a long table. Schweizer was shown a seat. A man who had been working behind a desk stood and approached him.
“Herr Schweizer,’’ the man said in German, “my name is Fridolin Triet. I am with the Special Crimes Unit.’’
Triet stepped closer.
“I want to ask you about Mark Whitacre.’’
For Shepard and Herndon, most days presented another reason to be miserable. Stories of Whitacre’s lies were washing in so fast that it was hard to take them seriously anymore. The Washington Post had revealed the fictitious adoption, and now the agents were hearing rumors that Whitacre had told some story about being in witness protection just to get out of a house closing.
And it seemed that as Whitacre sank, so did the case. Nobody in Washington mentioned the tapes anymore, or seemed to recognize the potential of Harvest King. As far as the agents were concerned, splitting off citric and high-fructose corn syrup was the ultimate indignity. No one had consulted them before making such a huge strategic decision. Springfield was becoming a third-class citizen. Herndon decided to put his anger into words. He banged out a teletype, criticizing many of the decisions that had been made at the Department of Justice.
“It appears,’’ Herndon wrote, “that the actions of DOJ are unduly influenced by the headlines of the day and/or the statements of defense counsel.’’
To the casual reader, the words might have seemed restrained. But by the standard of the gray, bureaucratic language of Bureau communications, Herndon’s statements bordered on a jeremiad. In most cases, such strong words would be reworked—or even Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 411
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spiked—by supervisors. But everyone in Springfield agreed with Herndon. On Monday, August 21, the teletype was sent to headquarters almost unchanged. That same morning, Mike Bassett picked up a copy of the Wall Street Journal from a table at his squad’s office. On page two, the headline on an article stopped him cold.
ADM asserts ex-official diverted over $9 million.
Bassett read the article quickly. There weren’t a lot of details, although it said that the $9 million had been sent to a Swiss bank account in the name of ABP Trading. Among the more telling parts of the article was a quote from Jim Epstein, given when he was called for comment.
“I’m not going to have anything to say for a long time.’’
To Bassett, the statement strongly suggested that Epstein had been just as surprised by the news as the FBI was.
D’Angelo was in a hotel room on Route 7 in Leesburg, Virginia. It was his first day of an “in-service,’’ the term for an FBI training session used to teach agents new skills—in this case, for a possible future assignment teaching in Eastern Europe. As D’Angelo prepared to leave, the telephone rang. It was his new partner.
“You won’t believe this,’’ Bassett said. “It just came out in the Jour- nal. ADM says Whitacre stole nine million dollars.’’
D’Angelo shook his head. “Holy . . . ,’’ he started. “Unbelievable.”
“No kidding.’’
“This case is getting stranger and stranger. This is just really, really weird.’’
The agents griped for a minute. Williams & Connolly hadn’t let them know anything about this money. In some ways, they feared the firm might be sending a warning by taking the information to the press first.
“We’re being set up,’’ Bassett said. “If they’re going public with nine million dollars, they probably know a lot more.’’
“Probably.’’
“Yeah,’’ Bassett sighed. “They’re going to hold back just to make us look bad.’’
That same day, Ed Herbst left the Hoover Building, headed to Twelfth Street for another visit to Williams & Connolly. The first response to the subpoena served days before was ready to be picked up. Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 412 412
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He walked into the reception area and identified himself. A small sealed envelope—addressed to Mary Spearing—was waiting. Herbst took it to his office and unsealed it. He needed to record the arrival of each item.
There was a cover letter to Spearing from Aubrey Daniel. One copy of the anonymous note from Tennessee that had been mailed to Dwayne Andreas, alleging wrongdoing by the agents. One copy of the same note to Randall. A copy of each envelope used to send the anonymous notes. That was it.
On a day that ADM was boasting to the world about finding
$9 million in Whitacre thefts, the only records its lawyers were willing to show the government were a couple of anonymous notes that proved nothing.
On the morning of Friday, August 25, Tony D’Angelo pulled up at the curb in front of a house in Reston, Virginia. From his rental car, he double-checked the address. No question; this was the Virginia home of Paul Myer, the man who had sold his house to Whitacre. D’Angelo walked up the path to the house. It was a nice neighborhood, but this was no million-dollar residence. Obviously, the Tennessee house had been Myer’s big home. He reached the front door and rang the bell.
A man answered, dressed in khakis and a white shirt. He glared at D’Angelo.
“Mr. Myer?’’ D’Angelo said. “I’m Special Agent Tony D’Angelo. We spoke earlier.’’
Myer hesitated, seeming to size up D’Angelo.
“Is Whitacre in witness protection?’’ he growled. “That’s what he told me.’’
From that moment, every look, every sound communicated Myer’s anger—at Whitacre, at the government, at D’Angelo, for that matter. He bitterly said Washington was responsible for his problems in selling his house. Somebody, he said, was going to compensate him.
“Wait, let’s take this back a step,’’ D’Angelo said. “I came here to get all the facts.’’
“Listen, I know how Washington works,’’ Myer said. “I’ve worked at the White House. I know how the FBI works, and if I have to go public to embarrass you, then I will.’’
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dissuade you, I’m here to get the facts and get your story to my superiors who have decision-making authority. But we still don’t know what happened yet.’’
“Is Whitacre in witness protection?’’ Myer repeated.
“I really can’t talk to you about the case,’’ D’Angelo responded.
“But you know, I wouldn’t be surprised if some of the things Mr. Whitacre told you weren’t true.’’
Myer nodded. He understood what D’Angelo was saying. He showed the agent to the kitchen and served coffee. Then, as they sat at the table, Myer told of his experiences with Whitacre. The mysterious mortgage lender, the expectation of financial help from the government, the story about witness protection. D’Angelo took it all down. Near the end of the interview, Myer spoke again of his anger, repeating that someone needed to compensate him.
“And if I don’t get satisfaction,’’ he said, “I’m taking my case to the media.’’
One at a time, the lawyers for the potential defendants in the Harvest King case had been visiting the prosecutors at the Antitrust Division. The tactics of each were mark
edly different. John Bray, the cerebral and aggressive Washington lawyer hired for Mick Andreas, had already demanded a target letter for his client and the right to interview Whitacre. Reid Weingarten, representing Terry Wilson, seemed to be making noises about possibly cooperating—but, of course, only after being allowed to review the tapes.
In late August, lawyers from the firm of Cleary, Gottlieb, Steen & Hamilton, which represented Ajinomoto, came to visit the prosecutors. Hoping to persuade the defense team to cut a deal, the government lawyers allowed them to view some videotapes. But even afterward, the defense lawyers played hard to get. Ajinomoto was unwilling to consider guilty pleas for individual executives—even Mimoto was off the table.
Besides, they cautioned, the prosecutors shouldn’t push too hard. After all, there were those allegations about wrongdoing by the FBI agents who ran Harvest King.
The two ADM corporate lawyers stared down at the secretary. They wanted answers.
The secretary, Liz Taylor, glanced anxiously at her hands. The situation at ADM had grown uncomfortable for her ever since the Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 414 414
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company learned that her former boss, Mark Whitacre, had worked with the FBI. Some executives treated her with suspicion, perhaps for good reason. While Taylor said nothing, she had known about Whitacre’s role in the case for about two years. He had told her how, once the investigation went public, he was going to clean up ADM. But now he was gone, and she was left behind, an unfortunate standin for the object of the company’s paranoia. Until today, no one had questioned Taylor. She had watched in silence as two in-house company lawyers, Scott Roberts and David Smith, had searched Whitacre’s office, digging through drawers and cabinets in search of— what?
But apparently, they had found something. Whitacre had maintained an off-site voice-mail account through a private vendor. The lawyers figured out that Taylor probably knew the access code. Now, they wanted it.
The Informant Page 52
