Informant (77 page)

He checked his watch. The hearing was scheduled to begin any moment, and Brian Shepard, as usual, was running late. Herndon kept his eye on the door until Shepard walked in. He waved; he had saved his partner a seat.

Minutes later, the lawyers arrived, along with Whitacre, who was escorted by federal marshals. His appearance shocked the agents. His cocky self-confidence was gone. He seemed frightened and small.

Herndon leaned toward Shepard. “He doesn’t look very good,’’ he whispered.

“No,’’ Shepard replied, “he doesn’t.’’

The hearing began, with the lawyers arguing about Whitacre’s pre-sentence report. Walker objected to the report’s conclusion that Whitacre had failed to accept responsibility for his crimes by insisting on the existence of an illegal bonus scheme. Walker said there was even a tape from Harvest King that proved Whitacre’s story.

“The government has possession of that tape,’’ he said. “They know that tape exists.’’

Back in the gallery, Herndon leaned over to Shepard.

“What tape is he talking about?’’ he whispered.

“I have no idea,’’ Shepard said.

Mackay responded by denying the existence of not only the tape, but of
any
evidence of Whitacre’s claims. Once the legal jousting finished, Baker looked to Whitacre.

“Do you want to come stand before the court?’’ he asked. “You have a right to make a statement if you wish.’’

Whitacre stood. “I would like to, your honor.’’

Taking his place at a podium, Whitacre glanced down at his prepared statement. “I appreciate the opportunity to say a few words,’’ he said. “It’s been a long five years.’’

He wanted to be clear that he accepted responsibility for his actions, he said. For a moment, he seemed to glance around the courtroom.

“I apologize to a lot of people in this room,’’ he said. “And to a lot of them who are not in this room for my actions. I apologize greatly.’’

Whitacre looked back at Judge Baker.

“Your honor, I am here to accept my punishment. That’s all.’’

Judge Baker told Whitacre to remain standing, asking Walker to join his client. Once they were in place, the judge spoke in somber tones.

“This is a task that I approach with sorrow. To observe that Mr. Whitacre is not the usual felon who comes before this court is, of course, a gross understatement.’’

Most of the defendants he saw, Judge Baker said, were poorly educated, with few opportunities. Yet here was Whitacre, well educated with a supportive family. He had built ADM’s Bioproducts Division; his success was meteoric.

“It is not inconceivable that in due course he might have become the CEO of ADM. But interlaced with his success is a tale of mendacity, deceit, coercion, and theft.’’

Whitacre had manipulated friends and associates, Judge Baker continued. “His motivation was just garden-variety venality and greed.’’

Whitacre showed no reaction.

“The court can find no clear connection between Mr. Whitacre’s bipolar disorder and his criminal conduct. At times, he displays what could easily be characterized as sociopathic behavior. It is difficult to know when Mr. Whitacre is lying and when he is telling the truth.’’

Throughout the case, Judge Baker said, Whitacre had changed his story; most recently, he had contradicted his earlier statements regarding Sid Hulse.

“What his motivations may be for these contradictory statements to the government is unclear. The result has been greatly to his detriment. He had bargained for a seventy-eight-month recommended sentence, and now faces a possible sentence of double that period of time.’’

Judge Baker looked at Whitacre.

“It’s the judgment of this court that the defendant be committed to the custody of the Attorney General of the United States or her authorized representative for the term of one hundred and eight months,’’ Judge Baker said. “That’s the minimum guidelines sentence in this case, and the court feels that under all of the circumstances, that’s adequate.’’

One hundred and eight months.
Nine years in prison. The rest of the sentence seemed insignificant; Whitacre was ordered to make restitution to ADM. With interest, the total came to more than $11 million.

Still, Whitacre showed no reaction. Judge Baker recessed the hearing and left the courtroom. The marshals approached Whitacre to take him back to jail. Shepard and Herndon watched as their former cooperating witness was escorted through the courtroom’s back door. For years, they had anguished over this man. But now, their emotions were a jumble. Their feelings were torn between the friend they had known and the liar they had come to know.

The agents left the courtroom. Reporters surrounded Mackay, as Shepard and Herndon passed largely unnoticed. In the lobby, they donned sunglasses and headed outside. An alert television cameraman saw them, and began filming as they walked to their cars parked at a neighboring shopping mall. Eventually, the cameraman went on his way.

In the dimming light of the late afternoon, the agents and Raelene stood by Herndon’s minivan and talked. About Whitacre, how he looked, how he seemed, what he said.

“Hey,’’ Herndon said. “What did you think about it when Mark said he had hurt people in the courtroom?’’

Shepard shook his head. “Mark doesn’t realize how many people he’s hurt,’’ he said softly.

About the same time, Whitacre ducked his head as marshals placed him handcuffed in the backseat of the car that would return him to the Decatur County Jail, where he was being held. As the car pulled away, Whitacre glanced out the window and saw a television camera. He waved.

At the jail, the marshals checked Whitacre back in. As they waited, another prisoner noticed them. The sentencing had already been all over the television news. The prisoner recognized Whitacre’s face.

“Hey,’’ the prisoner said. “That’s you! Ain’t you the guy I just saw on TV?’’

Whitacre turned to the man, a smile on his face.

“Yes,’’ he replied happily. “I am.’’

*For privacy reasons, the names of every woman mentioned only in passing on the tapes has been changed.

*Dowd has acknowledged telling ADM that Whitacre
would
cooperate with the FBI, but denies ever disclosing that Whitacre
had
cooperated with the government. Additional reporting confirms his account.

* There is no evidence that Randall knew anything about the investigation before it went public.

*The degree was actually in nutritional biochemistry.

*A pseudonym.

*While ADM lawyers were in the room for Schweizer’s interview, Swiss officials said that Aubrey Daniel was not among them.

*Whitacre’s story is not true. Expense records show that the only time the executives mentioned by Whitacre stayed at the Waldorf together was in early 1992, before he met Shepard.

*None of the allegations were deemed worthy of pursuit.

*
In a ruling issued June 26, 2000, the Seventh Circuit Court of Appeals declared Manning in error in this decision, and ordered her to resentence Andreas and Wilson to longer prison terms.

E
PILOGUE

O
pening arguments in the criminal price-fixing trial of Mick Andreas, Terry Wilson, and Mark Whitacre were heard on July 15, 1998, in courtroom 2125 of Chicago’s Dirksen Federal Building. Scores of spectators attended, seated in rows of curved benches separated from the well of the courtroom. Television monitors were scattered around the space, allowing for easy viewing of the many videotapes that prosecutors promised would be featured during the trial.

Jim Griffin walked to the front of the jury box, facing the twelve jurors and six alternates. Behind him, many of the major participants in the case sat at four crowded counsel tables. Mick Andreas, dressed in a blue suit with a multicolored tie, brought his hand to his chin as Griffin prepared to speak. Nearby, a haggard Terry Wilson listened as he sat beside his lawyers, sucking on a tic tac. But Yamada of Ajinomoto was nowhere to be seen; although he remained under indictment, he had not returned to America to face the charges.

Another person was also conspicuous in his absence. Against the advice of his lawyer and the trial judge, Blanche Manning, Mark Whitacre had chosen not to attend. During the many weeks of trial, Whitacre, who was only a few months into his sentence for fraud, would have been housed in a maximum-security prison near the courtroom. The day before, he had told Judge Manning that he wanted to return to his minimum-security facility in North Carolina, where he felt safer and the food was better.

At the prosecution table, Herndon and Shepard sat beside each other, ready to assist with any last-minute questions. This was the moment both agents had lived for during the past three years—the chance for vindication. The flood of accusations against them—by ADM, by Whitacre, by the government itself—had taken a toll. Even Judge Manning, ruling against a defense motion to throw out the tapes, had condemned the agents for failing to better control Whitacre. But now, just being in the courtroom was the personal testament that they had survived the attacks on their professionalism and character. They were on the government’s team; they were the experts. As they listened to Griffin detail the prosecution’s case to the jury, the agents felt a growing sense of redemption. This trial would be the living affirmation of their work.

“Michael Andreas and Terrance Wilson were caught red-handed on audio- and videotape, committing the crime that they’re charged with,’’ Griffin said to the jury. “Because Mark Whitacre cooperated, we have several different types of evidence, of taped evidence.’’

But, Griffin told the jurors, Whitacre had committed his own crimes by stealing money from ADM, and so he, too, had been charged with price-fixing. The defendants would be talking a lot about Whitacre, he said, and attacking the investigation. But the jurors could trust the case.

“As so often happens when there’s a mountain of evidence against you, you better attack something, and that’s what you’re going to hear,’’ Griffin said. “We’re going to put these agents on the stand so they can tell you how they conducted this investigation. They followed the rules, and they collected this mountain of evidence.’’

Griffin finished shortly before two o’clock, and Judge Manning called a lunch recess. The lawyers then met in the judge’s chambers, to debate a motion submitted by the defendants. Shepard and Herndon were not invited to attend.

The trial resumed at 3:00 sharp. Before the jury arrived, lawyers sparred for a few minutes about a new defense objection. Judge Manning dispatched the matter quickly, overruling the defense. She turned to a marshal.

“Get the jury, please,’’ she said.

Mark Hulkower, one of Wilson’s lawyers, stood. The defense wanted to renew its motion to preclude Shepard and Herndon from attending the trial, he said. They were both scheduled to be government witnesses. Their reliability and credibility would be a central part of the defense. Neither should be allowed the benefit of hearing other testimony, Hulkower argued—implying that the agents might change their statements to match those of other witnesses.

Judge Manning, standing behind her chair in a blue robe, looked to the prosecutors.

“At this time what I’m going to do is I will abide by the ruling that I made in chambers,’’ she began. “The government can elect one of these two.’’

For a second, there was silence. The courtroom’s overhead fluorescent lights flickered.

Mutchnik stood. The prosecutors had considered this a possibility, but he knew that neither agent had been properly prepared for it.

“Your honor,’’ he began, “could the government propose that during the opening statements, since it’s not evidence, it’s not likely to affect either of their testimony—”

“No, counsel,’’ Manning interrupted. “I have ruled. Make your selection.’’

Mutchnik stood in the center of the courtroom. He was out of options.

“We’ll elect Agent Herndon,’’ he said.

“To remain?’’ Judge Manning asked.

“To remain.’’

“Okay.’’

Mutchnik began to ask whether the ruling might be reconsidered, when Judge Manning interrupted him.

“Agent Shepard?’’ she said simply. “You may leave the courtroom.’’

Shepard blinked. The courtroom was silent. Herndon shook his head. It took every ounce of Shepard’s strength to stay silent, to contain his outrage at Judge Manning’s ruling. He gathered his belongings and stood.

“I’m sorry,’’ Judge Manning said.

As he walked through the gallery, Shepard could feel hundreds of eyes on him, the eyes of strangers and of friends. All searching his character, looking for the flaw that led to his ejection from the courtroom. It seemed like a public branding, a statement to the world that somehow, Brian Shepard had done something improper.

After all he had sacrificed to this case—his family time, his career opportunities, even his reputation—Shepard’s chance for redemption had been turned on its head. He felt humiliated and betrayed before the entire world. Only this time, he thought, it was the people he counted as friends who had abandoned him.

That afternoon, Shepard was on a couch in his hotel room, reading
The Partner
, a Grisham thriller. He was doing his best to control his emotions. But he was failing.

A knock came at the door. It was Herndon and Mutchnik, the two people who had grown closest to Shepard during the turbulent years of Harvest King. Both felt devastated. It was as if they had gone to war and left a man behind. Mutchnik, as the prosecutor responsible for handling the issue, in particular felt that he had let down his friend. The choice had not been meant to condemn Shepard; Herndon, who had spent so many long hours summarizing the tapes, had an almost encyclopedic recall of their contents. It was a critical skill that the prosecutors needed for trial.

Their dismay about Shepard only worsened when he came to the door. His eyes were red; he appeared to have been crying. Worse, since he was now a sequestered witness, Shepard could not be told about the day’s testimony. It was as if he was not a member of the team at all.

In the hotel room, Shepard raged about the ruling.

“How could she make this decision?’’ he asked. “What’s wrong with having two agents, if you can have one?’’

Mutchnik tried explaining the legal issues, but his words rang hollow. “Listen,’’ he finally said, “why don’t we take you out? Maybe grab some pizza and beer.’’

Shepard agreed, and the three headed behind the hotel to Giordano’s, a well-known Chicago pizza maker. But any hopes that dinner would improve things rapidly collapsed. Shepard could not get past his pain. Watching their friend suffer, both Herndon and Mutchnik started to cry.

“Brian, I’m so sorry,’’ Mutchnik said tearfully. “This was my job. I feel like I failed you.’’

Herndon wiped his eyes. “I didn’t just lose a partner in there. I feel like I’ve lost my best friend.’’

The emotional dinner ended, and Mutchnik headed off to catch a train home. Shepard and Herndon walked back to the hotel, taking the elevator to their rooms.

The doors opened on Shepard’s floor. Herndon swallowed, and patted his friend on the back.

“Have a good night’s sleep,’’ he said. “I’ll see you tomorrow morning. We’ll walk over to Antitrust together.’’

Shepard nodded, and walked away.

In the morning, as Herndon was getting ready to leave his room, Shepard called. He would not be coming with him.

“I’ve been up all night,’’ Shepard said. “I really didn’t get much sleep.’’

“Okay,’’ Herndon said. “So what do you want to do?’’

“I want to get packed,’’ he replied. “I just want to go home.’’

•   •   •

With his return to Decatur, Shepard’s anger worsened. He came to suspect—wrongly—that Herndon had played some role in the outcome, to ensure he stayed at the trial. After all the damage done to Shepard by this investigation, he was unable to deal with the disappointments anymore.

He cut off communications. He refused to answer telephone calls from the antitrust team to the Decatur R.A.; if they left a message requesting material, he would fax it to them without comment. Calls to his home were answered by his wife, Diana, who refused to put Shepard on the line.

Herndon sought out Jim Griffin and told the prosecutor that he wanted to trade places with Shepard. He wanted to look out for his friend; after seeing Shepard so devastated, he was willing to give up his spot at the prosecution table, no matter how gut-wrenching the decision. But Griffin turned aside the request. The decision, he said, had been made in the best interest of the case.

Distraught, Herndon sat down at a computer during a trial break and typed out a letter to his friend.

“Brian,’’ he wrote, “Jim tells me we are now communicating with you via fax. What is up with that? I don’t know what happened to you since you left, but obviously you (and Diana) now harbor a belief that I and maybe others conspired behind your back to keep you out of the trial. Nothing could be further from the truth.’’

Before it happened, he had no idea that only one agent would be allowed to stay in the courtroom, Herndon wrote.

“This non-communication is killing me,’’ he typed. “We are friends. I did not do whatever you think I did. I have been sick over this decision from the moment it was made. I hope that you can work through your emotions.’’

Herndon faxed the note to Decatur. He returned from trial, hoping to find a message from Shepard in response.

It did not come that day. Or the next.

Early on September 14, Fritz Dujour, a sixty-eight-year-old native of Haiti, slipped on his familiar brown suit and walked from his home on Chicago’s southeast side to a nearby bus stop. Later, as the Number 6 rumbled downtown, Dujour wondered if he might have dressed too formally. But he had worn a suit every day during his thirty-five years as a city engineer; he could certainly do the same this morning, when he was expected to vote on the guilt or innocence of three ADM executives charged with crimes.

The price-fixing trial had finally gone to the jury, almost two months after opening arguments. For all the cautions issued by the lawyers about the case’s complexity, for the most part the issues seemed pretty simple. Hard to believe at times, but simple.

At the federal building, Dujour took the elevator to the twenty-first floor, walking the familiar path to the jury room. The smell of freshly brewed coffee greeted him in the hallway; someone had obviously put to use the Kitchen Gourmet coffeemaker that he had brought in weeks before. Opening the door, Dujour bid good morning to two jurors who had arrived earlier in the sterile jury room. He poured some coffee into a Styrofoam cup, and slid into a leather chair at the head of the table.

Within a few minutes, all twelve jurors had arrived. Janet Hale, a bubbly, exuberant woman who had been elected foreperson, brought the deliberations to order. For days, they reviewed tapes, debated, and cajoled. The first vote they took was on Whitacre; for some reason, the jurors agreed that his role was the easiest to address. The discussion about him lasted about an hour.

“We’re all satisfied,’’ Hale said. “We might as well vote.’’

In alphabetical order, she called on each juror one at a time. The first vote was unanimous.

Two more times, the jurors repeated the procedure. Review, debate, and vote. By Wednesday afternoon, they had reached verdicts on all three defendants. They chose to sleep on their decision for one day. The next morning, they returned to the jury room and reviewed what they had done. Everyone remained satisfied. Hale summoned the marshal who was seated outside the jury room.

“We’ve reached a unanimous verdict,’’ she said.

In the antitrust office, prosecutors and agents were in the middle of a game of Nerf basketball. Shepard was there; a series of meetings had finally been held with him, where he had been assured that Herndon had played no role in excluding him from the trial. Shepard still felt deeply wounded by the slight, but had ended his self-imposed exile. He did not want to miss the verdict.

Overhead, the group heard a page for Jim Griffin and then Marvin Price, his deputy. Instantly, they understood. There was a verdict. The Nerf ball was tossed aside, and the players grabbed their suit jackets.

The lawyers, agents, and defendants found their seats in the packed courtroom. Forty-five minutes passed, until finally the marshal brought in the jury. Several jurors felt intimidated by the size of the crowd. They stared at the ground as they found their seats.

Herndon studied the faces, looking for a sign, a clue.

Nothing.

“Good afternoon, ladies and gentlemen,’’ Judge Manning said to the jurors. “I received your note indicating that you have reached verdicts. Who speaks as foreperson?’’

Hale identified herself.

“Ms. Hale, has the jury reached unanimous verdicts as to all three defendants?’’

“Yes, we have.’’

“All right,’’ Judge Manning said. “Would you please hand the verdict forms to the court security officer?’’

The papers were passed from Hale to the officer, who handed them up to Judge Manning. She glanced over them. A look of apparent surprise registered on her face.