Informant (33 page)

Whitacre fished out a copy of the standard request form for a check distribution. At the top, he wrote that the check should be made payable to ABP International, a supplier that had sold ADM the microbes needed for a feed additive called threonine. This payment, he wrote on the form, was for an improved microbe that ADM had agreed to purchase for $2.5 million—a fairly standard amount. Whitacre stapled the contract for the purchase to the form.

Before sending the records to accounting, he wrote a short note, explaining that he was leaving for Europe and wanted to personally hand the payment to the ABP executives during his visit.

Whitacre knew that Kirk Schmidt, the controller for the Bioproducts Division, would handle the request. Schmidt was a friend; just the other day, the two had enjoyed lunch together at the Country Club of Decatur. Even though the request was unusual, Whitacre felt confident he would have his check in no time. Schmidt wouldn’t give him any trouble.

Heaton was running out of patience. More than a year had passed since he had begun working on the lysine case for the Springfield U.S. Attorney’s office. He had reviewed the files and listened to the tapes. But he had yet to meet the chief witness. How would Whitacre appear to a jury? How would he work with the prosecutors? Heaton had no idea; the agents were still telling the lawyers to wait for a meeting.

The deadlock had been a large topic of conversation between Heaton and Robin Mann. Both had pushed the agents, but they got nowhere.

Heaton got up from his desk on the second floor of the Springfield federal building and headed to the office of Joseph Hartzler, one of the district’s most respected prosecutors. Frances Hulin, the recently appointed U.S. Attorney for Springfield, had asked Hartzler to keep on top of the ADM case. Hartzler was a prized litigator. He had honed his skills with the Chicago U.S. Attorney’s office before moving to Springfield in search of a slower pace that would allow him more time with his family. While no one had asked him to take the job of trying the case, Hartzler would be an asset if the ADM case ever went to court.

Hartzler was at his desk. Heaton scarcely noticed the motorized scooter that his vigorous colleague used to get around, the only outward sign of Hartzler’s multiple sclerosis. Heaton asked if Hartzler had a minute to talk about the ADM case.

“Do you think it’s odd that the agents appear not to want us to meet this guy?’’ Heaton asked.

Hartzler asked what the agents’ explanation had been. Heaton described their concerns about Whitacre going south. Hartzler didn’t like what he heard.

“They can’t do this,’’ Hartzler said. “You’ve gotta meet the guy, find out if he’s for real.’’

Prosecutors, Hartzler knew, needed to look a witness in the eye, to figure out if he was trustworthy. But in this case, there was a question that made the meeting even more important. Whitacre was a top executive at ADM, had a big salary and a lot of responsibilities. That raised a question that gnawed at Hartzler, a question he thought a prosecutor needed to probe before this case went much further.

Why in the world was Whitacre doing this?

The agents and staff of the Springfield FBI devoured cake and coffee as they watched Joe Weatherall step to the front of the SAC’s conference room. There was a smattering of applause.

“You know, in Spanish,
jubilarse
means ‘to retire,’ ” Weatherall said. “When you think about it, the word kind of looks like
jubilee
. And that’s kind of the way I feel about retirement.’’

It was June 3, 1994. After twenty-three years with the FBI, Weatherall had decided to take his pension. If there was ever a time, it was now. Lysine was done. Dean Paisley, the squad leader who had supervised the case since its inception, had retired himself just after the Hawaii meeting. A new squad leader would be taking over in a few months, handling a case that was set to go in new directions. This was the best opportunity to move on.

Weatherall had broken the news to Shepard and Herndon some time before and had hoped to keep everything low-key. He had turned aside efforts to put together a retirement party but had agreed to the small office reception. His colleagues presented him with a plaque, and soon the reception came to an end. Weatherall returned to Champaign, where he cleaned out his desk. At 5:00, he dropped off his keys with a colleague. After a few final good-byes, Weatherall walked out of the office for the last time.

The moment felt good. Weatherall was confident that Shepard and Herndon had the investigation firmly in hand. With the lysine competitors all on tape, the surprises and challenges had been resolved. The case would almost certainly be smooth sailing from now on.

In Mobile, Alabama, Special Agent Craig Dahle reviewed the notes of his interview with an executive from the Degussa Corporation. Dahle was investigating possible corporate espionage by former employees of the giant German agricultural company. The company suspected that two former executives, Chris Jones and Tim Hall, had improperly taken proprietary information about Degussa’s process for making an amino acid called methionine. Degussa had taken the allegations to the Justice Department, which referred the case to Mobile, where Degussa maintained offices.

An executive from Degussa had presented the company’s information to Agent Dahle during a June 24 meeting at the Justice Department in Washington, D.C. The executive, Andrew Burke, had no direct evidence of any crimes, but had been contacted by a man who claimed to know a lot. The whistle-blower, Kyle Rountree, had told Burke that he had seen evidence suggesting that Hall had obtained confidential Degussa information about methionine; Rountree had also procured letters between Jones and an executive at the Archer Daniels Midland Company. Rountree believed that the Degussa information had been sold to ADM by Jones and Hall—he had even seen several ADM checks to Jones in the amount of $10,000 each. If a crime was taking place—and of that, Dahle was not yet sure—then ADM may have attempted to use stolen secrets from Degussa when it was planning a methionine plant of its own.

The ADM executive was possibly the key to the investigation. Was he knowingly trafficking in stolen information? Was he persuading the others to commit a crime? Dahle flipped a page of his notes and glanced at the executive’s name.

Mark Whitacre.

Dahle had never heard of Mark Whitacre but felt confident that the name would soon be very familiar. After all, by the time his investigation was over, this Whitacre fellow could end up under indictment.

C
HAPTER
10

W
ord of the Mobile investigation trickled back to the Springfield FBI office in little more than two weeks. The first heads-up came July 12, in a call from the FBI’s fraud unit in Washington. Afterward, a supervisor in the unit faxed a copy of a memo detailing the allegations raised by Degussa against its former employees, Jones and Hall.

By that afternoon, copies of the three-page memo found their way to Shepard and Herndon. Both knew Whitacre’s division was responsible for methionine—there were several tapes of discussions about the product. Herndon remembered an early tape of Randall and Whitacre, recorded when the two were on the corporate plane scouting sites for a methionine plant. Chris Jones had even been along for part of that flight, although Whitacre hadn’t turned on the tape until he and Randall were alone.

The two agents spoke by phone early the next morning. By then, both had covered their copies of the fax with questions. Whitacre was not mentioned anywhere in it. Perhaps, the agents hoped, if a crime was taking place, Whitacre knew nothing about it. Maybe he could even cooperate on
this
case, too.

At the bottom of the memo, Herndon noticed that Tim Fuhrman, a squad leader with the FBI in Mobile, was listed as the case contact.

“Brian,’’ Herndon said, “why don’t we call this Fuhrman guy and see what’s going on?’’

Shepard agreed. Herndon pushed a button on his console for a conference call and dialed the number. Fuhrman answered, and the agents introduced themselves.

“How’re you doing?’’ Shepard asked. “How’s everything in Mobile?’’

Fuhrman was not the type for chitchat, so Shepard got down to business. He described how he and Herndon were working a case involving ADM. Shepard began a long story describing the background of Harvest King.

“I’m familiar with the highlights of your case,’’ Fuhrman interrupted.

The Springfield agents needed to speak with Dahle, Fuhrman said, since he was running the investigation. But he said Dahle wasn’t in the office.

“But you both need to know,’’ Fuhrman continued, “the latest information we have is that your guy Whitacre may be involved in this.’’

Shepard and Herndon were silent for a second.

“I think we need to talk with Craig Dahle as soon as possible,’’ Herndon said.

“I think that’s a good game plan,’’ Fuhrman agreed.

Later that night, Robin Mann glanced around a large hotel room at the Holiday Inn in Decatur. It was dim and gloomy, the curtains pulled for secrecy. A light fixture hung over a circular table, casting shadows across the floor. With her briefcase in hand, Mann pulled out a chair and sat. Rodger Heaton took the chair beside her, while Shepard and Herndon stood.

After more than a year of prodding, the prosecutors were finally about to meet Whitacre. With the lysine investigation essentially complete, the case could go to a grand jury anytime in the next twelve months. That meant the prosecutors would need time with Whitacre to prepare his testimony. The get-acquainted sessions could no longer be delayed.

As they waited, the group reviewed the plans for the meeting. The agents had briefed Mann and Heaton on the developments from Mobile, although not a hint could be given to Whitacre yet. Shepard and Herndon first needed to coordinate their effort with Dahle.

Beyond that, the group agreed, the meeting would follow a script. Shepard would handle introductions; Mann would ask most of the questions. The agents urged the lawyers to be gentle. This wasn’t cross-examination; it was establishing relationships.

Everyone stood when Whitacre arrived. He was his old self, gregarious with the perpetual enthusiasm of a teenager. Everything about him was pressed and tailored. The lawyers came from a world of dark suits and white shirts; Whitacre was wearing a light, double-breasted suit and a funky tie with geometric shapes. He struck Heaton as looking like something of a high roller. The prosecutor made a mental note to work on Whitacre’s appearance. He didn’t want him coming across to a jury as arrogant or flippant just because he was a flashy dresser.

“Mark, this is Robin Mann,’’ Shepard said. “She’s a prosecutor with the Antitrust Division in Chicago.’’

Mann smiled. “At last we meet.’’

Whitacre stuck out a hand and returned the smile. “Hey,’’ he said, “good to meet you.’’

After introductions, everyone found a seat. Mann reached into her briefcase; she had prepared two sets of questions—one thirteen pages long and the other an abridged, seven-page version. She decided to take it easy the first time. She brought out the seven-page list.

“All right, Mr. Whitacre,’’ she said. “Tell me about your professional background.’’

Hours later, the meeting wrapped up. The lawyers were impressed. As a witness, Whitacre came across as accomplished and articulate; he was intelligent and good with details. He was far different from the usual cooperating witness in a criminal case.

Whitacre shook hands all around and headed out the door. The lawyers and agents stayed behind to discuss how the meeting had gone. Everyone was happy with the results. Whitacre, Shepard said, seemed comfortable with the prosecutors.

“Don’t you guys have enough yet?’’ Whitacre asked. “Why do you really need to keep involving me?’’

It was two weeks later, the night of August 1, a Monday. Whitacre was back at a Forsyth hotel room, sitting across from Shepard and Herndon. He could not understand why the FBI still wanted his help. He had given them the lysine case. He had done his job.

“Can’t you find another guy?’’ he asked. “Go to Barrie, he can help you out on citric. I can’t do citric. It’s not my product line.’’

“Mark, you’re the only guy in the position to help us right now,’’ Herndon said.

Whitacre threw up his hands. “Can’t you just bug the office? If you did it for thirty days, you’d get all the evidence you’d need. You’d hear it yourself from Terry and Barrie. You wouldn’t need me.’’

“Stop, Mark,’’ Shepard said. “You need to understand something. There’s things we can do as the FBI, but there’s a lot of things we can’t do.’’

Methodically, Shepard explained that the Bureau needed to file an application with a judge under the federal wiretapping statute before they put listening devices on the phones. They were working on such an application now, but it took time and effort. And there was no guarantee a judge would approve it. Plus, the FBI couldn’t just float into ADM, install the devices, and disappear. It was a complex operation.

“Come on,’’ Whitacre said, “you guys can do anything you want to do. You can get in there.’’

“Maybe we could,’’ Shepard said, “but we don’t want to compromise the case. It would take a lot of surveillance and a lot of practice.’’

Herndon leaned in. “Our goal, Mark, is to get you out of this. If we could flip somebody else, we’d do it in a heartbeat. It would make our case stronger if we had a second person for the next product lines. But to do that, we need to concentrate on the other products. Talk to Barrie more about citric. Talk to Terry about it. Talk to Mick about fructose.’’

“You know Mick’s not gonna want to hear this from me,’’ Whitacre protested. “He’s going to tell me, ‘Look at your business card, does it say anything about citric, Mark? Or fructose?’ Guys, this could blow your whole case.’’

Herndon started to speak.

“I think Mick could harm me if I start testifying against him,’’ Whitacre blurted out.

This had come out of nowhere. Herndon shifted to a technique he had learned from Shepard: When Whitacre barrels off the track, ask questions to slow him down.

“Well, Mark, what did Mick say to you that gives you the fear that he might harm you?’’ Herndon asked.

“I don’t know. I just have that fear. He’s just that type of guy. I just have that fear.’’

“What has he said to give you that fear?’’

Whitacre tugged at his glasses. “I just know he’s going to. He’s powerful. I wouldn’t put it past him.’’

Pressed, Whitacre admitted that he couldn’t recall specific threats. Herndon started to respond.

“You have to find somebody else,’’ Whitacre interrupted. “I don’t have time for this. I’ve got a lot more responsibilities now. I’m responsible for acquisitions and joint ventures at ADM. We’re gonna spend like six hundred or seven hundred million dollars this year investing in other companies. That’s a big responsibility.’’

Herndon was struck with an idea. Was there any possibility that ADM would enter into a deal with another company in the citric or fructose business? Maybe the FBI could set up a relationship with a joint-venture partner to gather evidence.

“It would never happen, guys,’’ Whitacre said. The government would never approve a merger giving ADM a bigger share of those markets.

“I’m doing all sorts of acquisitions, in other products,’’ Whitacre said. “I’m the one bringing them before the board of directors. Like I handled a joint venture on methionine with Rhone-Poulenc.’’

Methionine.

Shepard and Herndon didn’t look at each other, didn’t breathe. They had never mentioned the Mobile case to Whitacre, but now they had the chance to hear his version. It had to be handled delicately; the agents couldn’t seem too interested.

“Well, Mark,’’ Herndon said casually, “what did that project involve?’’

Whitacre smiled, launching into a monologue about methionine. He had been interested in the business, he said, because it would give ADM the widest selection of bioproducts for customers.

“I particularly had a real desire to develop a methionine plant because of my past experience with Degussa,’’ he said. His former employer was a top producer of methionine.

Whitacre explained how he had hunted for plant sites and had also contacted suppliers that sold the raw materials ADM would need for the project.

“I found out which suppliers to call from some consultants I hired,” Whitacre said. “They were these two ex-Degussa employees, Chris Jones and Tim Hall.’’

But the efforts proved unnecessary, Whitacre continued. ADM scrapped plans for the plant, instead investing in one owned by Rhone-Poulenc.

“Did Dwayne or Mick play any role in studying the idea?’’ Herndon asked.

“No, that was my project,’’ Whitacre said.

Herndon nodded. “Okay, let’s get back to our case.’’

About twenty minutes later, Whitacre headed home. Following their usual procedure, the agents waited a few minutes in the room. They had a lot to talk about.

If Whitacre had been involved in some wrongdoing in methionine, it seemed odd that he would bring the project up. Maybe that was a sign there was nothing to these Degussa allegations. Maybe Jones and Hall had simply shared their expertise in methionine, without divulging Degussa’s secret process.

But as they talked it through, the agents began to wonder. Maybe that’s just what Whitacre wanted them to think. Maybe he offered his side of the methionine story because, somehow, he had figured out that the government was on his tail.

Joe Hartzler sat in the grand jury room of the Springfield federal courthouse, eating his lunch. The prosecutor was filling in for Heaton at a meeting scheduled for shortly after one o’clock. For the first time, prosecutors in both the methionine and lysine cases would be in the same room, laying out their positions. Because Whitacre was a cooperating witness in one investigation and a potential defendant in the other, the two cases were hopelessly intertwined. The expectation was that by the end of this meeting, the two sets of prosecutors would be cooperating.

Shepard, Herndon, and John Hoyt were the next to arrive, accompanied by Robin Mann and two other antitrust lawyers, Marvin Price and Susan Booker. The six had just returned from lunch. The group greeted Hartzler, joining him around the conference table.

The agents had been pleased to learn a few weeks before that Hartzler was taking a role in the lysine case. Hoyt had worked with Hartzler fleetingly in the 1980s, when the prosecutor was bringing criminal cases in Chicago against Puerto Rican terrorists. Hoyt had been impressed with Hartzler’s aggressive style.

As the group waited, they discussed strategies. They had plenty of time; Peter Clark and Jim Baker, prosecutors from the Justice Department’s Fraud Section who were involved in the methionine case, had been delayed in their flight from Washington.

Hoyt was appointed to make the opening presentation. The group would have to be savvy; they had heard that Clark had a strong, aggressive personality and was not likely to bend if confronted.

The fraud prosecutors finally arrived and quickly took their seats. Hoyt smiled, asking about their flight and trying to set an amiable mood.

“Now, we’ve all kind of got an embarrassment of riches,’’ Hoyt said as he segued into the main topic. “We’ve got two cases that both seem pretty important. But each one could cause the other trouble.’’

Hoyt began summarizing portions of Harvest King, stressing that it involved important allegations against a Fortune 500 company. Clark broke in.

“I’ve heard about your case,’’ Clark said in a booming voice. “But our case is important, too. It involves the same Fortune 500 company. And the agent is finding the witnesses to be very credible.’’

With that, Clark seized control of the conversation. Shepard and Herndon were surprised; they had never seen anyone from the Justice Department so forcefully shove aside an FBI supervisor.

Over time, the two sides thrashed out their positions. They agreed that Shepard and Herndon needed to meet the cooperating witness in the Mobile case so that they could examine his story in light of other information they knew. They also resolved to include the Mobile allegations in Springfield’s wiretap application. Springfield would also issue grand jury subpoenas in the Mobile case for bank records of individuals in their district—including Whitacre.

Robin Mann spoke up. Mobile had no looming statute-of-limitations problem that required filing charges anytime soon, she said.

“So can you give us assurances that you won’t take any action in your matter until the completion of our investigation?’’ she said.

Clark stiffened. He had the look of someone who had been hit in the face with sand.