Sitting on the bed, Weatherall watched Whitacre. He didn’t believe a word. It was all too neat, too contradictory with his other statements. Suddenly, now that Whitacre was consulting an attorney, everything he said exonerated him from wrongdoing.
Weatherall had little doubt what was going on.
This guy, he thought, has been coached.
At home, Whitacre was up late, pondering his problems with the FBI. His family had noticed something was wrong; he had been more distracted and inattentive than usual. But he couldn’t talk to Ginger about this. She had already made it clear that she wanted him to leave ADM or work with the FBI. Neither option seemed acceptable. But now, finally, Whitacre had come up with a plan, a way out.
Whitacre smiled to himself. Outsmarting Shepard wouldn’t be so tough. In a short time, he wouldn’t have to worry about the FBI anymore.
Best of all, he felt sure that no one would ever figure out his role in the events about to occur.
The next day, Whitacre was at his desk when he reached for the phone to call Sid Hulse.
“We’ve got volume building up in the plant,’’ he said. “So we’re going to stop worrying about getting prices up. In fact, I want you to drop ’em.’’
Hulse sounded uncertain. Not long ago, Whitacre was telling him about the illegal efforts to drive prices up, now he wanted to push them down. But Whitacre implied that the change of strategy was being ordered by ADM’s top management. Hulse asked a few specifics about where the prices should be.
“Do whatever you have to do,’’ Whitacre said. “Just sell as much volume as you can.’’
Hulse cautioned Whitacre that the new strategy could lead to a collapse in prices.
“I know that,’’ Whitacre said. “But our warehouses are filling up, and our production costs will be lower if we sell more.’’
“Okay,’’ Hulse replied.
Whitacre replaced the receiver and smiled. The FBI thought that they were in control, that they could decide what Whitacre would do. They were wrong.
I’ve got control of this whole thing.
In Decatur, no one but Whitacre understood the marketing of lysine. If anyone wanted a price, they asked Whitacre. If anyone wanted to know what the Japanese were doing, they asked Whitacre. He could decide what others knew, and what they didn’t.
And he wouldn’t tell them anything about what was happening now: He was seizing control of the world lysine market; he was ordering prices into a free fall. To flood the market with volume, ADM would have to drop its price every time the Japanese or Koreans tried to match it. The competitors would respond in kind, and a race to the bottom would ensue. Since the Asian competitors always called Whitacre, he could blame the move on his bosses. When his bosses asked, he could blame the Asians. This would take the wind out of the recent trend of price increases. After that, it might take a few weeks, but Whitacre felt confident he could push everyone toward a price war.
It was the first stage of his plan, and it was perfect. With a price war, there couldn’t be price-fixing. And without price-fixing, the FBI wouldn’t need a witness.
Whitacre felt gleeful. Now, all he had to do was keep up appearances for a few weeks.
He was almost free.
About a week later, the Whitacres were in the family room when the phone rang. Ginger answered; it was for Mark. He walked to the living room, sat on the couch, and picked up a cordless phone.
“Mark Whitacre.’’
“Ah, yes, Mr. Whitacre? This is Mr. Mimoto.’’
Whitacre shifted in his seat. He hadn’t been expecting his counterpart from Ajinomoto to call.
Mimoto continued before Whitacre could respond. “I wanted to speak to you about lysine sales in Japan,’’ he said.
“Excuse me, Mr. Mimoto, I’m sorry,’’ Whitacre said. “We have a bunch of people over at the house tonight, we’re having a party here. I was wondering if maybe we could talk about this another time?’’
“Oh, yes,’’ Mimoto said. “Sorry. We can speak another time.’’
Whitacre said he would call on a more convenient day and hung up. He headed back to the family room. Ginger was on the couch, reading a book. The kids were watching television.
There were no guests. There was no party.
But if the FBI was listening in on his calls, he had just made sure that they would have nothing to hear.
Byron Cudmore parked his light-blue Chevy Silverado pickup truck a short distance from the lobby of the Holiday Inn in Decatur. It was about six o’clock on the evening of November 30. Picking up his briefcase from the passenger seat, the prosecutor hustled across the lot to the hotel’s entrance. Inside, Cudmore saw Shepard waiting in a lobby chair. The two men greeted each other, and Shepard said that everything was set. Cudmore nodded.
Without another word, Shepard led the way past the glass-paneled Greenhouse Restaurant, toward the elevators. After almost a month of talking about Shepard’s cooperating witness, Cudmore would finally be meeting him.
Shepard had called Cudmore earlier that week to request the meeting. Things with Whitacre were falling apart; the agent didn’t know what to believe. Whitacre kept talking about some lawyer he was consulting, and at first, the agents had feared he was being coached on his answers. But now Shepard wondered whether the lawyer even existed. What lawyer would allow his client to keep meeting, alone, with the FBI?
To help get Whitacre under control, Shepard wanted him to sign a cooperation agreement with the U.S. Attorney’s office. Most cooperating witnesses work without such agreements. But often—particularly when a witness is being difficult—the terms of cooperation are put in writing. That way, one document describes the witness’s obligations to the government and the legal consequences if those terms are not met. In the call to Cudmore, Shepard said that he had mentioned the idea to Whitacre, who had agreed to meet with the prosecutor to discuss signing an agreement.
Cudmore followed Shepard to a guest room, where Weatherall was already waiting.
“When is Whitacre supposed to get here?’’ Cudmore asked, setting his briefcase on the hotel room table.
“He should be on his way,’’ Shepard said.
The knock came a few minutes later. Shepard let Whitacre in and introduced him to the prosecutor. Whitacre struck Cudmore as awfully young; he looked more like a scientist than a top-level executive. Cudmore asked Whitacre to take a chair at the table.
“What we’re trying to do today is get a chance to eyeball one another, and see what makes each other tick,’’ Cudmore said. “That will give us a chance to develop some level of trust, and for you to ask me any questions to flesh out a cooperation agreement.’’
Cudmore asked if Whitacre had any worries.
“Well, I’m concerned about myself and my family and my new home,’’ Whitacre said. “I mean, we just bought our house not too long ago, and it’s the house that Dwayne Andreas used to live in. And I’m worried about the expenses because I have to pay for it.’’
Just days before, Whitacre said, he had been granted a one-hundred-thousand dollar raise and forty thousand additional shares of stock options. His job was lucrative, and he didn’t want to risk it.
Cudmore listened, incredulous. Clearly, Whitacre did not fully understand his situation. Regardless of the risks, he didn’t have many options.
“You know, there are no guarantees,’’ Cudmore said. “But you’ve basically put yourself in a situation where cooperation is the logical way for you to proceed. You can’t take yourself out of this situation; you can’t make it go away.’’
Whitacre sat erect and didn’t speak.
“If you’re not cooperating, you could end up being a defendant,’’ Cudmore cautioned.
“No, that’s not right,’’ Whitacre argued. “I’ve told Brian, there hasn’t been any price-fixing yet.’’
“That’s not the only issue that could lead to a criminal prosecution,’’ Cudmore said gently. “You’ve told us a lot of things. I
n fact, you’ve told us so many things that there have to be some lies somewhere. Lying to a federal agent can be the basis for a prosecution. That’s a felony, and I think the penalty is five years in prison and a big chunk of money.’’
Cudmore let that sink in for a second.
“You have to understand,’’ he said. “I don’t care if you’re the defendant, or the price-fixers are the defendants. It doesn’t matter to me.’’
The prosecutor leaned in.
“But I can assure you, somebody is going to be a defendant. If the case is against you, it’ll be a good strong case. If the case is against them, it’ll be a good strong case. I don’t try bad cases.’’
Whitacre blinked through his glasses.
“Okay,’’ he said.
Cudmore glanced at his briefcase on the table. He had a copy of the cooperation agreement with him but decided that the time was not right to bring it out. Better to let Whitacre absorb what was happening.
“Now, I’m going to tell you about the cooperation agreement,’’ he said. “It’s an agreement that I drafted and I’ve been using for years. It’s the only cooperation agreement that we offer.’’
“Would it guarantee that I won’t be prosecuted for anything?’’ Whitacre asked.
“It doesn’t make any promises. And we’ve never struck a cooperation agreement with anyone that promised anything. Because someday you’re going to have to be on the stand and testify that the government hasn’t promised you anything. It’s basically a ‘trust me’ situation.’’
Whitacre continued asking questions. Cudmore answered but felt increasingly uncomfortable. Whitacre showed little emotion; it was almost as if the man wasn’t connected to what was happening.
“The bottom line here is, cooperate or be a target,’’ Cudmore said. “Get yourself a lawyer and talk to him. Verify what I’m saying, and do the right thing for yourself.’’
Cudmore stood. He wanted to get home.
“You tell the agents when you want to meet and review an actual cooperation agreement,’’ he said.
Again, Cudmore and Whitacre shook hands. Shepard escorted the prosecutor to the door. There, Cudmore turned to the agent.
“Keep me posted,’’ he said softly.
Shepard switched on the tape recorder at his desk as soon as he heard that Richard Reising was on the phone. He had called Reising that morning, December 1, but only now, hours later, had the ADM general counsel called back.
Shepard asked if ADM’s position was still that it was unwilling to cooperate with the Fujiwara investigation. The FBI was turning up the heat on the obstruction investigation and wanted to see if Reising would lock himself in. But ADM had decided to back down and pretend nothing had ever happened.
“I don’t think we ever said we wouldn’t cooperate,’’ Reising said, having no idea he had been taped saying exactly that a few weeks earlier, in a conversation with Kevin Corr. “We have cooperated with the FBI numerous times in the past, and we want to cooperate in this matter.’’
Reising listed his conditions. Whitacre could not be involved. Cheviron was the only person who would respond to FBI requests. ADM had a business to run, Reising said, and that came first.
“Andreas doesn’t want to put his executives at risk, nor their families. That is the only reason we want to get Whitacre out of this. That is not his job. You have your job; we have our job. Your job is law enforcement; ours is not law enforcement.’’
Shepard replied that Whitacre was already involved since he had spoken many times to Fujiwara.
“As far as I know, there have been no further telephone calls from Fujiwara,’’ Reising said. “It’s certainly our intention to let you know if there is a telephone call. Hell, you’ll know.’’
The call ended in a few minutes. After almost a month of blocking the investigation, ADM was professing itself willing to cooperate. But only under terms that kept the FBI away from Whitacre.
Later that day, at an airport security checkpoint, Whitacre dropped his keys into a bucket and lifted his carry-on luggage onto a conveyor belt. The bag rumbled into an X-ray machine as Whitacre walked through a metal detector. He glanced at his watch before retrieving his belongings. He had close to an hour until his flight. Walking through the terminal, he searched for a phone.
Minutes later, he was dialing the number for the Decatur Resident Agency. Shepard answered.
Whitacre got right to the point. Nobody at ADM was talking to him, he said. And now he had proof.
About an hour before he left for the airport, Whitacre said, he had seen a phone message on Reising’s desk, saying that an FBI agent had called. But Reising had told him nothing about it.
“I mentioned the note to Randall, and he just changed the subject. They won’t talk to me about it. It’s just more examples of me being cut out of the loop. I mean, I’m willing to cooperate with the FBI. Definitely. But they don’t trust me.’’
Whitacre mentioned that he was traveling to Europe and would be out of town at least a week. Shepard wished him a good trip, and the call ended.
Hefting his bag off the ground, Whitacre headed to his gate. His plan, he thought, was working perfectly. Soon, the FBI would have to give up on him.
After all, what good is a witness if none of the potential targets will talk to him?
At that same moment, Shepard phoned Weatherall in Champaign to brief him on Whitacre’s call. The news worried Weatherall; problems were piling up.
After hanging up, Weatherall sat down to write a teletype to Bureau headquarters. It would not be a hopeful message.
With ADM’s top officers apparently distrustful of Whitacre, Weatherall wrote, his usefulness as a cooperating witness might be limited.
The next morning, in Germany, Whitacre stepped bleary-eyed into a steaming shower in his suite at the Sheraton Frankfurt Hotel, across from the airport. Usually he traveled well, but this morning he felt the effects of the seven-hour time difference.
After his shower and a shave, Whitacre wandered out into the suite, one of thirty at the hotel. He glanced at the bedside alarm clock and saw that the local time was almost eight A.M. Making some mental calculations, he figured out the time in Tokyo.
Whitacre sat at a desk in his room. The hotel offered international direct dialing, and Whitacre took advantage of it. Probably no one would be checking his hotel bills for calls.
Minutes later, in Tokyo, Kanji Mimoto was at his desk when one of the young men who answered his department’s line let him know that Mr. Whitacre was holding. Mimoto reached for the telephone. He was anxious to talk to Whitacre, to find out why ADM was forcing prices down around the world.
“Hello?’’ he said.
“Mr. Mimoto?”
“Yes, good afternoon. Or is it good evening?’’
“Ah, actually it’s good morning,’’ Whitacre said. “I’m calling from Frankfurt.’’
“Frankfurt, ah. You have business in Frankfurt.’’
“Just some meetings with our European staff.’’
The men exchanged a few more pleasantries.
“Listen, I wanted to apologize about the other night,’’ Whitacre finally said.
“Oh, no apology necessary.’’
“No, I wanted to apologize. Because I didn’t have people over that night. We weren’t having a party.’’
“No?’’ Mimoto was confused.
“No, but that’s why I’m calling you from my hotel,’’ Whitacre said. “I didn’t want to talk to you because I was afraid my telephone might be tapped.’’
“Tapped?’’
“By the FBI. They’re conducting an investigation into our pricing in the CO2 business.’’
FBI? This made no sense. Carbon dioxide—CO2—is the ingredient that gives soda its fizz. Mimoto said he had no idea Whitacre worked in that business.
“Oh, I don’t,’’ Whitacre said. “But I was called into the FBI office.’’
“Why?’’
“All
high-level executives were interviewed by the FBI. And they talked to us about the possibility of recording our telephone calls.’’
This made Mimoto uncomfortable. He knew that his pricing discussions with Whitacre had been illegal; the last thing he wanted was federal agents snooping around, planting wiretaps. This could be a disaster.
“Then it is good we did not speak that night.’’
“Yes, that’s why I’m calling. I don’t think you should call my home anymore. It’s just too dangerous.”
“Yes, yes.’’
Whitacre offered an alternative. Mimoto could call his office voice mail and leave a message.
“I don’t like that,’’ Mimoto said. “I don’t want to leave my name. I want to use another name.’’
Whitacre thought for a second. “How about Mr. Tani?” he asked. “Tani is an ADM sales representative for ADM in New York. No one but me would recognize his voice, and a message from him wouldn’t raise suspicions.’’
“Good,’’ Mimoto replied. “That’s good.’’
The conversation continued for hours. At the end, the executives reviewed their new system for contacting each other. Mimoto would leave messages; Whitacre would call back from a safe phone. Mimoto thanked Whitacre for his caution and said good-bye.
Placing the phone in its cradle, Whitacre felt a sense of power. Mimoto had been his main contact in the price-fixing, the one who called with every update and question. Now, Whitacre had all but guaranteed that the man would never call him directly again. From now on, they would use pay phones.
Whitacre smiled. The FBI could tap any phones they wanted. There was nothing left for them to hear.
“Let’s review the background on the Fujiwara calls,’’ Shepard said. “How many did you receive?’’
Whitacre glanced at the hotel room ceiling as if in thought. “It was like half a dozen,’’ he said.
“Six?’’
“From five to eight.’’
Shepard nodded. The Fujiwara investigation had been under way for more than a month, but Whitacre still had not recorded a single call from the Japanese executive. Shepard wanted to use this meeting to review the details of the extortion case again.
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