The Informant

by Kurt Eichenwald

  Whitacre headed briskly into the lobby. A hall porter dressed in a topcoat stood nearby.

  “Guten Morgen,’’ Whitacre said to the porter. “Ich möchte Herr Briel finden, bitte.’’

  The porter pointed toward an elevator. “Herr Briel ist nach oben am vierten Stock,’’ he said.

  Whitacre nodded. “Danke schön.’’

  As instructed, Whitacre headed across the lobby to the elevators, then pushed the button for the fourth floor. There, he approached a receptionist.

  “Guten Tag,’’ he said. “Wie geht es Ihnen? Ich suche Herr Briel, bitte.’’ The receptionist gestured toward a chair. “Nehmen Sie Platz, bitte,’’ she said.

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  Whitacre eased into the rich leather chair in front of the receptionist’s desk. He watched as she walked back toward the bank offices. In a moment, she returned, followed by a young, clean-cut man with brown hair and a wide smile. Whitacre had never seen the man before but knew this must be Daniel Briel.

  “Mr. Whitacre,’’ the young man said enthusiastically as he extended a hand. Whitacre stood, flashing a smile as he clasped Briel’s hand.

  “Jawohl. Guten Morgen, Herr Briel. Wie geht es Ihnen?’’

  “Gut, gut,’’ Briel said, inwardly wincing at Whitacre’s pronunciation. “Wie geht’s? Gut da␤ wir uns eben getroffen haben.’’ Whitacre nodded, smiling.

  Together, the two men headed back to a private area, toward a windowless office. Whitacre walked in, taking a seat. Briel quietly closed the office’s heavy wooden door. No one outside the room could hear them. Their conversation wouldn’t take long.

  The news Whitacre brought back from Switzerland was incredible: The lysine conspirators wanted to meet again in the United States, this time in Atlanta.

  At a meeting in Springfield, Whitacre told Shepard and Herndon that the others had been spooked by news of a price-fixing investigation of European cement manufacturers. Jacques Chaudret was particularly worried, saying he would not meet again without the cover of an industry meeting. Everyone agreed. The next such meeting was a mid-January poultry convention in Atlanta. Most of the executives were already scheduled to attend and agreed that it would be safe to hold a price-fixing meeting there.

  The prospect of another American meeting set off an enormous debate among the antitrust team. Since they already had the evidence against the foreign nationals—but might not be able to extradite them later—should they all be arrested in Atlanta?

  Quick arrests presented big problems: Indictments would have to be handed up within weeks. The prosecutors would have little time to use the grand jury as an investigative tool. Making it worse, once the executives were indicted, they could insist on a speedy trial. That could leave the government hanging—a thousand pages of tape transcripts were yet to be typed. The prosecutors could be forced to go to trial without being fully prepared.

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  would be allowed to leave the United States. But the debate underscored the need to begin massive transcription efforts. Right away. Ginger Whitacre descended the staircase at her Moweaqua home, listening as rain drummed loudly on the roof. A fierce weekend thunderstorm had just blown in, and it sounded particularly vicious. Strolling through the living room, Ginger wondered where Mark was. Despite all their years together, Ginger found that she no longer understood her husband. Something in him had changed, something had been lost.

  It wasn’t just his frequent absences anymore, or his repeated failure to attend family events or to just come home for dinner. Those aspects of his behavior had almost become accepted in the household as a given. But now, even when he was home, he wasn’t completely there. Mark seemed to be drifting through his family, with the detachment of a commuter waiting for a train to take him away.

  But there was more. Ginger didn’t understand it, but Mark had just become weird. Over the summer, they had built horse stables across the street, and Ginger loved to relax with an occasional ride. But Mark would disappear to the stables for hours, often not returning until 2:00 in the morning. Usually he would come home saying that he had been brushing the horses. Brushing horses for three or four hours? Then, a few hours later, he would head for work. It just wasn’t normal. He seemed to be getting almost no sleep.

  Ginger was getting ready to call out Mark’s name when she heard a gas-powered engine turn on outside.

  “Oh, no!’’ she said, walking over to the window.

  Mark’s other obsession. He had been leaning on their gardener to keep every leaf off the driveway. It was no easy task—the leaves from a two-hundred-year-old walnut tree covered the property in the fall. But Mark couldn’t stand them there, ever.

  Ginger reached the window and looked outside.

  Wind and rain rustled the walnut tree, sending leaves cascading onto the driveway. Waiting there with a leaf blower in hand was Mark. The rain soaked him as he aimed the blower at the sopping-wet leaves. Puddles of water blew into droplets as clumps of leaves tumbled off the driveway. A flash of lightning lit the sky. Mark kept working, dripping wet. Ginger closed her eyes, feeling frightened and helpless. What in the world was wrong with him? What was happening to her husband? Eich_0767903277_5p_01_r1.qxd 10/11/01 3:56 PM Page 255

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  In October of 1994, the Antitrust Division was making plans for how to handle the criminal trial of ADM. Raids of the company were expected in a matter of months, but the lawyers needed for the case were still not in place. The Chicago antitrust office did not even have a permanent chief. On top of that, while Robin Mann was talented, she was not among the division’s most experienced litigators. At that time, a prosecutor named James Griffin was returning to his job as Deputy Chief of the Atlanta antitrust office, having just wrapped up a stint as an American advisor on legal issues to the Hungarian government. A quiet, open-faced man with a full head of white hair, Griffin was an unusual mix of refined and rowdy. Few in the office would have guessed that Griffin, with his soft-spoken manner, could often be found at home, cranking up the latest grunge-rock music on his stereo. He seemed an unlikely person to be one of the Antitrust Division’s top litigators. Griffin was settling back in at his eleventh-floor office in the Atlanta federal courthouse when a call came from Washington. A receptionist told him that it was Joseph Widmar, Deputy Assistant Attorney General in charge of all criminal prosecutions in the Antitrust Division. Griffin picked up the phone. After some idle conversation about the trip to Hungary, Widmar got to the point.

  “I want to talk to you about our chief opening in Chicago,’’ he said.

  “Yeah, I understand that’s open.’’

  “I want you to consider it.’’

  “Why?’’ Griffin asked. He was happy in Atlanta. Plus, he had once experienced a Chicago winter and wasn’t too eager to live through that again.

  Widmar spent some time describing the advantages of becoming an office chief. But, he stressed, the Chicago office offered some particularly appealing benefits. There were important cases going on there, Widmar said, and the division would want Griffin to play a hands-on role in those.

  Griffin listened, intrigued. He knew about the cases; the division was small enough that it was easy to hear about promising cases in the pipeline. He was particularly interested in the ADM investigation. The chance to play a role in a case of that magnitude was attractive. He was sorely tempted and told Widmar that he would think about the offer. It would not be long before he accepted.

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  About the sam
e day Widmar placed his call to Griffin, an aggressive young lawyer in the Chicago antitrust office was preparing to go to trial.

  Jim Mutchnik, who had just turned thirty a few weeks before, had been working for about two years on an investigation of potential bid rigging at a Kansas City shopping mall. It had been a blast. He had traveled to Kansas City, working side by side with an FBI agent. Together, they found witnesses and recorded conversations among the targets of the investigation. Some targets had cut deals. Now, the trial of the remaining defendant was scheduled to begin in a few weeks. Even though Mutchnik had to get ready, no one expected the case to go to a jury. The defendant, whose health was failing, was sure to plead it out. The evidence against him was too overwhelming. Mutchnik was typing on his computer, his back to the office door, when he heard a voice behind him.

  “Hey, do you have a minute?’’

  Mutchnik turned in his chair. Marvin Price, the acting chief of the office, walked in and took a seat.

  “Listen, Jim, it looks like your case might go away and you’re going to need something to do,’’ Price said. “I want to see about getting you involved in the Grains case.’’

  Mutchnik recognized Grains as the division’s odd internal code name—short for Grains and Field Beans—for the ADM case. He had heard bits and pieces about it from Robin Mann.

  “It’s a good case,’’ Price said. “And it needs your help. You’ve obviously done a lot of work with the FBI. It’s got tapes and you’ve done all that. Robin needs another person on the case.’’

  Mutchnik nodded. This was just the kind of assignment he wanted.

  “That sounds great, Marvin,’’ he said.

  Soon, Mann heard that Mutchnik had joined the case and came to see him. As she described the investigation, not a lot registered with Mutchnik. It was just a bunch of names and places. He was going to need to review the voluminous case records.

  But now, a full team of antitrust prosecutors was finally forming for Harvest King.

  At 3:45 on December 5 in Columbus, Ohio, Federal District Judge George Smith called a recess in the trial unfolding in his courtroom. He asked the lawyers for the government to come to his chambers. Eich_0767903277_5p_01_r1.qxd 10/11/01 3:56 PM Page 257

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  The trial was the country’s most prominent antitrust prosecution in more than a decade. The General Electric Company had been indicted, accused of fixing prices in the industrial diamond market. GE was fighting the charges, and just days before, the prosecution had rested its case.

  Once the lawyers arrived in his chambers, Judge Smith gave them shocking news. Before the case went to a jury—before GE even presented a complete defense—he was dismissing the charges. Judge Smith found that, based on the government’s evidence, no reasonable person could conclude that the company had committed a crime. GE had won, in the most embarrassing way possible for the government. News of the government’s crushing defeat crackled through the nation’s courtrooms and law firms. Everywhere, the questions began to be asked: How could the Antitrust Division have fumbled so badly at the prosecutorial equivalent of the Super Bowl? Was this a group that choked when the stakes were high?

  Those questions resounded in Springfield. For weeks, tensions had been building between the U.S. Attorney’s office and the Antitrust Division. Often, the agents received complaints from one set of lawyers that they didn’t know information the others had been told. The styles were starting to conflict—the antitrust lawyers were used to moving slowly, while the U.S. Attorney’s office was more familiar with fast-moving, politically charged cases. But in this situation, neither side was completely in control.

  In the weeks that followed the GE decision, articles critical of the Antitrust Division appeared in a variety of publications. The most damning, published in American Lawyer magazine, was faxed to the FBI’s Springfield office. Agents and supervisors read the article with a growing sense of anxiety. Devastating phrases jumped out: The Justice Department antitrust division has had a reputation in recent years for not taking cases to trial—and when they do take them to trial, losing them. . . .

  A lot of lawyers distinguish between prosecutors and antitrust division lawyers. By the time everyone had digested the article, the agents could not help but worry about what this meant for the ADM case. Was the Antitrust Division up to the job?

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  In Springfield, a train slowly pulled into the station. Rodger Heaton stood nearby, watching passengers step onto the platform. Finally, he saw them: Robin Mann, Susan Booker, and the new prosecutor on the team, Jim Mutchnik. The antitrust lawyers had arrived for their latest meeting with Whitacre.

  Heaton greeted them and escorted them to his car. Popping open the trunk, he shoved some tennis balls and a racquet aside to make room for their luggage. The lawyers traveled to an inexpensive restaurant for lunch before driving to the Decatur Resident Agency to find Shepard and Herndon.

  The meeting on this day was intended to help the lawyers write a search warrant in preparation for the raid of ADM. They needed descriptions of the office layout and details about the computer system. Whitacre had been preparing for days to answer their questions. When the group arrived at the FBI offices, Shepard and Herndon were waiting for them. Mutchnik introduced himself, and the agents welcomed him. The lawyers walked into Shepard’s office, and Mutchnik slid into the seat behind the desk. A spot in the center of the room was reserved for their star witness.

  Whitacre arrived shortly afterward. The lawyers wanted to meet with him alone this time; Shepard and Herndon took him to another room for a few minutes to make sure he was comfortable with the idea. Afterward, they escorted Whitacre back to the office where the lawyers were waiting.

  “Okay, Mark,’’ Shepard said. “Just talk to these guys, and we’ll be right next door if you need us.’’

  Shepard and Herndon left, closing the door behind them. Whitacre sat down, looking confident. The lawyers greeted him; Mutchnik introduced himself.

  The questioning began, with Heaton taking the lead. Whitacre was astonishingly prepared. He had even brought some ADM documents with him, spelling out internal details of the company. Mutchnik sat silently behind the desk, impressed with Whitacre. He seemed to be a top-notch executive, involved in an array of important areas at ADM. As Mutchnik listened, he thought about Whitacre’s salary—a few hundred thousand dollars a year, from what he understood. It seemed ridiculous, given the value Whitacre brought to ADM. As far as Mutchnik was concerned, Mark Whitacre was tremendously underpaid.

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  Herndon popped the latest tape into his TASCAM playback unit with a sense of anticipation. After weeks of being pressed by the agents, Whitacre had finally recorded a conversation with his friend Kuno Sommer from Hoffman-LaRoche. Herndon was eager to hear the man suspected of being at the center of the citric-acid conspiracy. The conversation began at counter 123. Herndon listened as Sommer talked about a recent trip to China. Sommer mentioned that Terry Wilson had given him a tour of ADM’s vitamin C plant and said that he wanted the two companies to talk about their situations with that business. Herndon listened, curious. What was Terry Wilson from the corn-products division doing involved in ADM’s vitamin business?

  The tape rambled on, with Sommer saying next to nothing about citric acid. Sommer also expressed concerns about talking on the phone—it was easier, he said, to speak in person.

  Herndon shut off the TASCAM. Sommer wasn’t going to trip up easily.

  It was becoming obvious that there wouldn’t be a simple way to crack open the citric conspiracy. There were still months of planning necessary before the lysine c
ase could go overt. Other attempts to pursue price-fixing in citric or any other product might risk the secrecy of the lysine case. And right now, secrecy was paramount; if anyone learned what the government was doing, the whole investigation could be endangered.

  Whitacre smiled as he walked into Howard Buffett’s office on the sixth floor of ADM headquarters. The office was unlike any other in the building. Corporate toys decorated the room, from trucks emblazoned with logos from Coca-Cola or ADM to a plastic Coca-Cola bottle that played music.

  “Hey, Howard,’’ Whitacre said, leaning against a credenza behind Buffet’s desk. “How’s it going?’’

  Buffett looked at Whitacre, clasping his hands behind his head.

  “Not so well, Mark,’’ he said. “I’m thinking of leaving the company.’’

  The news was a shock. Whitacre liked Buffett and considered him a good friend at ADM. They talked all the time.

  Whitacre pressed him, hoping to change his mind. But Buffett was fairly well decided. He had been talking about the idea with his father, Warren. He didn’t like handling investor relations or watching the Eich_0767903277_5p_01_r1.qxd 10/11/01 3:56 PM Page 260 260

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  way the company was run, Buffett said. The atmosphere at ADM

  made him uncomfortable.

  Beyond that, even though Buffett was an ADM director, Dwayne Andreas often dealt with him like a child. He handled work for ADM

  in Mexico, where his title “assistant to the Chairman,’’ had about the same prestige as “chief janitor.’’ To gain credibility, he had asked for a new title—one beneath his true role. But Dwayne had refused. Whitacre argued to no avail. Buffett’s frustrations with the company and the Andreases were running too deep. But Whitacre was certain that as soon as the investigation went public, the Andreases would be gone. It was only a matter of months.