The Informant

by Kurt Eichenwald

  T H E I N F O R M A N T

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  That same afternoon, John Hoyt hung up his phone, irritated. In about thirty hours, Springfield’s biggest operation ever was scheduled to start. But now Stukey was ordering him and Kate Killham, the squad leader in charge of the case, to brief the Bureau Director. Hoyt called Killham to let her know.

  “Get packed,’’ he said. “Everything’s on hold for tomorrow. We have to be in Washington by nine a.m. to brief Louis Freeh on the operation.’’

  “What do you mean?’’ Killham asked. “Freeh doesn’t know about it? What happened to all the material we’ve been sending to them?’’

  “I don’t know,’’ Hoyt said. “But apparently he doesn’t know a thing about it. And nothing’s going to happen until we brief him and he okays it.’’

  Killham was thunderstruck. “What have they been doing back there?’’

  Thirty minutes later, the parking lot of the Hampton Inn in Forsyth was swarming with lawyers and agents. Three Chicago prosecutors—

  Mann, Mutchnik, and Price—were there for a final Whitacre briefing. But the lawyers agreed to give Shepard and Herndon a chance to first speak with their witness alone.

  The agents, shaken, mentioned to the lawyers that Freeh had put the raid on hold. They would know tomorrow, they said, whether they could proceed.

  Mann’s face hardened. “I can’t believe this,’’ she said. “Do we need to send someone to Washington?’’

  “I don’t think so,’’ Shepard said.

  “Damn, it’s got to happen now,’’ Mann said.

  All the pieces were in place. A federal magistrate had signed the search warrant. Whitacre had testified before the grand jury. Shepard and Herndon had rehearsed their planned interviews with Mick Andreas and Terry Wilson. All of the ADM executives were in town. But now, everything hung on Freeh.

  The agents headed upstairs, leaving the lawyers in the parking lot. Soon after, Whitacre arrived, bubbly and excited. Shepard met him at the door.

  “Hey, Mark,’’ Shepard said as Whitacre came in. “How are you feeling?’’

  “Good, I’m good,’’ Whitacre said. “Guess we’re ready to go ahead, huh?’’

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  “Looks like,’’ Shepard said. “How’s your family doing?’’

  “They’re good. They’re going to be gone tomorrow, at an amusement park. We thought that would be best.’’

  Whitacre sat, talking fast and using his hands. They had been bracing him for weeks, walking him through what was about to happen. The agents had cautioned that if there was anything in his background that could be used against him, ADM would find it. Whitacre said he understood, but there was nothing to find. Now, all that was left to do was review the plans.

  “Okay, Mark,’’ Shepard said. “There are some things we need to talk to you about.’’

  Whitacre nodded. “Okay.’’

  “First of all,’’ Shepard said, “once this starts, ADM is going to be trying everything to find out about this investigation. How it started, who’s involved, everything like that. So you need to be careful, be alert to their efforts to gather information about the investigation and your involvement in it.’’

  “Sure. I understand that.’’

  “It’s going to be very intense, Mark. They’re going to be looking around everywhere. They’re going to know that somebody said something. They’re going to do almost anything to find out who it is. So you need to lay low and pay attention to what’s happening.’’

  Whitacre nodded. “I understand. I understand.’’

  The agents didn’t let go of the point. Whitacre had been talking a lot about his fears of being discovered, but he needed to be careful if his role was to remain a secret as long as possible. He couldn’t talk about things he knew only from being involved in the case. Whitacre insisted that he understood.

  “Okay, Mark,’’ Shepard said. “A few other important things. One of them is, we’ve been talking to our antitrust attorneys. As soon as possible, once we do the search, you need to make it clear to everybody that you have your own attorney.’’

  Whitacre looked at the agents, confused. “Well, uh, do you want me to go and hire an attorney now?’’

  Herndon jumped in.

  “No, no, not now. But you have to understand the law, Mark. You’re viewed as twofold. You’re part of the corporation, but you’re also an individual. Once we go public, you can’t tell us any of the legal strategy at ADM. If you have your own attorney, you’re less likely to be exposed to ADM’s strategies.’’

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  “That’s right, Mark,’’ Shepard said. “So just tell them you have your own attorney and that you’re going to cooperate with the government.’’

  “Wouldn’t it be odd?’’ Whitacre protested. “I mean, why would I be telling them that? Won’t they know right off that something’s wrong?’’

  “It won’t be odd, Mark,’’ Herndon said. “It’s perfectly reasonable for you to cooperate. It happens all the time. And you’re a high-level executive. It’s not unusual for you to have prior contacts, to know a white-collar attorney. They’ll understand that.’’

  Whitacre looked at them thoughtfully. “Well, I think I know a guy in Decatur I can hire.’’

  Shepard stiffened. “No, Mark,’’ he said. “The town’s too small. You shouldn’t hire somebody local.’’

  Whitacre looked lost. The agents had discussed this with the prosecutors, and no one felt comfortable recommending a lawyer. It would give them too much control. Whitacre needed to make his own choice.

  “Now, there’s another thing, Mark,’’ Herndon said. “We’ve been talking with the antitrust attorneys. They say the first thing that’s going to happen is the company lawyers are going to come to all the executives with a list of attorneys to pick from, attorneys the company is paying for.’’

  Herndon leaned in.

  “Now, understand something, Mark,’’ he said. “These attorneys don’t represent you. They are being paid by ADM. They do not represent you. Do not take one of these attorneys that they offer you. That’s when you say you have your own attorney.’’

  An expression of discomfort swept over Whitacre’s face. “That will seem weird,’’ he said sharply.

  “Mark, it’s not weird,’’ Herndon said. “You have a right to your own attorney. You can say it’s somebody you’ve known a while. As far as they’re concerned, you’re in the same position they are. Just tell them you want somebody you trust.’’

  The back and forth continued, but eventually, Whitacre’s resistance fell.

  “Yeah, okay,’’ he said. “I guess it would work.’’

  Down in the parking lot, the antitrust lawyers were getting restless. They had not expected to be hanging around so long, and now hotel guests were eyeing them suspiciously. Making it worse, Mutchnik had shown up with a new burr haircut. Mann thought he looked like Eich_0767903277_5p_02_r1.qxd 10/11/01 3:57 PM Page 296 296

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  something out of the movie Natural Born Killers. Anyone who saw them lurking around probably had reason to be nervous. Finally, Shepard appeared. They would be a little longer, he said. The lawyers didn’t want to hang around, so they walked to the nearby Hickory Point Mall and found a candy store. Marvin Price grabbed a bag and filled it with several pounds of jellybeans. The next two days were going to involve plenty of waiting, he figured. They might as well have something to snack on.

  Back in the hotel room, Shepard and Herndon were describing the plans for the following day. They told Whitacre about their strategy of visiting Mick Andreas first. If Andreas didn’t flip, Herndon said, they would proceed with the interview of Wilson, who was schedu
led to be at dinner with Whitacre and Steven Yu, an executive with ADM in China.

  “Mark, here’s what’s going to happen at the country club,’’

  Herndon said. “There’s going to be three of us. Brian and I will take Terry, and the other agent will take you. He’ll tell you where to go, and make it look like you’re being interviewed. And I’ll say up front that I need to speak to both of you.’’

  Whitacre smiled. “That’s good. I like that.’’

  A short time later, the agents finished up.

  “Now,’’ Shepard said, “the antitrust attorneys still want to talk to you. They’re in a better position to explain the law, and they’ll be up here after we leave.’’

  Before taking off, Herndon said, they wanted to review. “Remember,’’ he said, “when they give you a list of attorneys to pick from, don’t take one. It’s the company’s attorney, not yours. Tell them you have your own attorney; tell them you’re going to cooperate with the investigation. And tonight, think about who you’re going to hire as your attorney.’’

  “Okay, guys,’’ Whitacre said. “I understand.’’

  The three men shook hands. The agents wished Whitacre good luck and left.

  The antitrust lawyers showed up a few minutes later. Whitacre smiled as soon as he saw Mutchnik.

  “Hey,’’ Whitacre said, “you got a haircut.’’

  “Yeah,’’ Mutchnik said. He walked toward Whitacre and leaned down. “You want to touch it?’’

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  Whitacre laughed and rubbed the back of Mutchnik’s closecropped hair.

  “This is for luck, Mark,’’ Mutchnik said.

  Mann took a seat across from Whitacre. Price sat in a nearby chair; Mutchnik flopped down on the bed.

  Mann took the floor. “Mark, whatever happens tomorrow, here’s our legal issue. We’re concerned that if you’re directly represented by ADM’s counsel, you should know there may be a conflict. ADM’s counsel is representing ADM, not just you. We want you to think about whether it’s in your best interest to get an attorney who represents your interests alone.’’

  It was the same message again: Get a lawyer.

  “I understand,’’ Whitacre said.

  He scanned their faces. “Do you think everything will work out okay for me at the company?’’ he asked. “Do you think I’ll be okay?’’

  “Mark, we couldn’t know, and we’re not here to talk about that,’’

  Mann said. “All you can do is do what’s best for you. One of those things is, we think you should tell the company that you’re going to cooperate with the government’s investigation.’’

  Whitacre had already heard this. He agreed with an airy wave of a hand.

  As the prosecutors continued speaking, Whitacre began to seem downhearted. Reality was settling in.

  “I really don’t know whether I’ll be around, whether I’ll be okay at the company,’’ he suddenly said. “You know, it’s gone pretty far. Maybe, maybe they’ll be okay, though. There are a lot of good people there. I don’t know.’’

  Whitacre paused. “I guess it really is coming to an end, isn’t it?’’ he asked.

  Mann nodded. “Yes, it is,’’ she replied.

  “Do you think I’ll have to testify?’’

  “I don’t know, Mark,’’ Mann said. “It’s too early to tell. Just keep doing your job. We don’t know what the future’s going to hold.’’

  After almost fifteen minutes, Mutchnik reviewed their points. Whitacre needed to think about what was in his interest and who best could represent him.

  “I understand,’’ Whitacre replied. “I think I know somebody I’ll call.’’

  As they wrapped up, Whitacre smiled.

  “You know, Jim, with that haircut, are you getting ready for the military or something?’’

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  About eight-thirty the next morning, the captain on United Airlines flight 602 turned off the seat-belt light. John Hoyt removed a credit card from his wallet and popped the airplane telephone out of its holding case. He followed the instructions on the phone’s tiny screen and swiped his card through.

  The trip to Washington for the Freeh briefing had become a mad dash. With so little warning, there had been trouble finding a flight. The first available had been early that morning, with a connection through Chicago. There had been worries in Springfield that the two supervisors would miss the connection.

  Hoyt put the phone to his ear. The SAC’s secretary answered.

  “Hey, Dot. It’s John Hoyt. Is he there?’’

  “Just a minute.’’

  Stukey came on the line. “John, how’s it going?’’

  “We made the flight, Don. We’re on our way.’’

  “Okay. Keep me informed.’’

  Hoyt replaced the phone and checked his watch.

  This was no good, no good at all. He had been told that Washington wanted them to brief Freeh by nine, but they would never make it. They wouldn’t even be landing until about eleven. Hoyt made some mental calculations. By the time they arrived, they would have a little more than six hours before the raids were scheduled to begin. He breathed deep. They were cutting this close.

  In Springfield, Herndon and Shepard couldn’t stop checking the time. They had held a series of smaller briefings for some agents during the day. But the final briefing for all personnel involved in the raids was scheduled for 2:00. Agents had already arrived from all over, ready to help. Even the weather was perfect. If there was a delay, it might take months to put the pieces back in place.

  It had to go today.

  As soon as they reached the gate at Washington National Airport, Hoyt and Killham popped their seat belts open. They were not weighed down with luggage; they stood and waited for the crowds to move. They both glanced at their watches. Just after eleven. Inside, the two hurried to the front and waited in line for a cab. Eventually, it was their turn.

  “We’re going to the FBI building in Washington,’’ Hoyt said. The cab pulled out.

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  Still no word.

  Herndon and Shepard were in Stukey’s office, pacing. They were getting close to the time for the final briefing, with no idea if the raids were going forward. They decided to start the briefing as planned, but with a warning that the operation was not yet approved. There was no time for any other option.

  At the Hoover Building, Hoyt and Killham were cooling their heels. Since they missed the 9:00 slot, they were told to wait until Freeh’s schedule had another opening. Just a couple of hours, they were assured. Two o’clock in Springfield. Time was up.

  Scores of agents crowded the SAC’s conference room, waiting for their final briefing. Stukey stepped behind the podium.

  “We need to say up front, this may or may not go on,’’ Stukey said.

  “As we speak, John Hoyt and Kate Killham should be speaking to the Director. But we don’t have final approval yet.’’

  Herndon checked his watch again. What was taking so long?

  “Well, I just want to open up by thanking everyone for your efforts today,’’ Stukey said. “This is truly going to be a great moment for Springfield.’’

  Stukey turned over the floor to Herndon and Shepard, who led the agents through the case.

  Hoyt and Killham walked into the Director’s conference room. Freeh and a number of his deputies were already there, waiting for them. The two Springfield supervisors took seats at the far end of the table. Freeh lifted a hand.

  “No, no,’’ he said. “John, both of you come on up here.’’

>   Hoyt and Killham stood and walked to the other side, sitting near Freeh.

  “First of all,’’ Freeh said, “I want to thank you both for coming here on such short notice. I apologize for the inconvenience this has caused you. I’m sure you both would rather be in Springfield, helping in this operation. You have a really good case, an important case here. And I’d like a briefing.’’

  Freeh eyed the Washington officials in the room.

  “That’s something I should have had before now,’’ he said pointedly. “But I’ll deal with that later.’’

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  The room was silent in discomfort. Killham could almost hear the others sweating.

  “All right, John,’’ Freeh said, turning back to Hoyt. “Go ahead.’’

  Hoyt looked down at some notes.

  “This case concerns price-fixing by ADM. I know you’re aware of it and you’ve seen our notes. We’re ready to take this overt. This evening, we’re planning to serve search warrants.’’

  Hoyt described the broad outlines of the case, then Killham handled the particulars. Freeh asked a few pithy questions, but nothing much. Both agents were impressed with his knowledge of the case details.

  “That sounds like an excellent plan,’’ Freeh said. “Expect a lot of attention from the media.’’

  The Director looked at the two supervisors. “So why are you still here?’’ he asked. “Wouldn’t you rather be in Decatur, where the action is?’’

  Hoyt and Killham smiled. “Yes,’’ they said in unison.

  “Well, good luck with it,’’ Freeh said.

  Hoyt and Killham hurried for the door. They needed to find a telephone and get back to the airport.

  “Bob and Brian, please come to the front.’’

  Shepard and Herndon stood as soon as they heard the voice on the intercom. They hurried down the hallway, walking through Stukey’s door without knocking. Stukey was at his desk.

  “I just heard,’’ Stukey said. “It’s a go.’’

  The agents felt a wave of excitement. Yes!

  “So get going,’’ Stukey said.