“His story sounds believable,’’ Dahle said.
Herndon pulled his coat closed, bracing against a bitter chill that had descended on Washington, D.C., in the first week of February. He was walking down Pennsylvania Avenue alongside Don Stukey and Kate Killham, his new squad leader. The day had arrived for the presentation to headquarters on Harvest King.
At a security checkpoint, the agents flashed their creds and signed in. After receiving visitor’s identification cards, they were escorted to a conference room where a television and VCR were already set up. Herndon opened his briefcase, pulling out a videotape containing portions of several price-fixing meetings—the “greatest hits,’’ as the agents liked to call them. He put the tape inside the VCR.
The room was soon filled with supervisors from the Bureau’s Financial Crimes Section, including its chief, Thomas Kubic. Joining him was Alix Suggs, who had recently been assigned as the new Washington supervisor on Harvest King.
Once everyone was seated, Herndon took to the floor with a memorized speech.
“Hi, my name is Bob Herndon. I am one of the co–case agents working the Harvest King investigation.’’
He held up a small stick. “As you can see, I drew the short straw,’’ he said to laughter.
Herndon outlined the case, telling the group it involved price-fixing of lysine.
“Lysine is fed to chickens, making them fat, dumb, and happy,’’ he explained. “However, as consumers, you and I are not necessarily fat, dumb, and happy because each time we go to McDonald’s and order Chicken McNuggets, we’re paying slightly more than we would have.’’
After finishing his overview, Herndon hit the Play button on the VCR. The supervisors watched portions from Irvine, Hawaii, and Atlanta. As the scenes unfolded, a sense of delight was in the air.
When the video finished, Herndon took the floor again. Despite the quality of the evidence, there were still two issues of concern, he said.
“First, we need to see if we have enough prosecutors on the team,’’ he said. There was no clear leader among the various prosecutors in the case. And the Chicago antitrust office was in transition, having just been assigned a new chief, Jim Griffin.
“It has become particularly confusing to brief everybody,’’ Herndon said. “We don’t always know which ones to go to.’’
Was the confusion about leadership causing any big problems? the supervisors asked.
“It’s not really a big issue now,’’ Herndon said. “But we can see a complication once this goes overt.’’
Stukey took over from Herndon, making a short presentation about the need to prepare a financial package for Whitacre in the event he lost his job. As Stukey spoke, Herndon handed out a package of materials that Whitacre had provided about his finances. The supervisors were awestruck as they glanced through it. Whitacre’s expenses totaled $17,680 a month. It was hard to imagine that anyone could afford to spend so much.
Herndon flipped open his notebook case. Reaching inside the inner pocket, he removed a slender piece of paper and held it up for everyone to see. It was a Christmas card from the Whitacres, complete with a photograph of the whole family.
“I wanted everyone to see this,’’ Herndon said. “This is our CW, Mark Whitacre, along with his family. I carry this picture with me all the time as a constant reminder that he is a real person with a real family dependent on him. He has taken some serious risks with his career to help us. The only reason we have the kinds of tapes that you’ve just seen is because of this man. We want to make sure that, if necessary, the Bureau is ready to stand behind him.’’
Tom Kubic held up a hand. “If he loses his job because of his cooperation, we’ll be in line before you are, Bob,’’ he said. “Don’t worry about that.’’
Later that day, Alix Suggs, the Washington supervisor in charge of Harvest King, called around headquarters looking for Herndon and Kate Killham. She found them speaking with some Bureau computer experts.
“Bob, I’ve been looking all over for you,’’ she said. Esposito, the Assistant Director, had just been told about the tape. “He wants to see it right now.’’
The Assistant Director? This had escalated to the seventh floor. Herndon’s heart was in his throat.
Killham was all gung-ho when he told her. “Come on, Bob, let’s go up there,’’ she buzzed.
“You go up there,’’ he said.
“No, Bob,’’ she said, grabbing him by the arm. “You’re coming, too.’’
About that moment, Esposito was settling into a chair in the seating area of his office. On one side of the room, Tom Kubic and Don Stukey were opening a wooden cabinet, revealing a television and video player. Stukey loaded the “greatest-hits’’ tape, while Kubic pulled over a chair for a better view.
Grainy black-and-white images filled the screen. Stukey tried describing the action but didn’t have a case agent’s familiarity with the players. To his relief, Herndon and Killham arrived soon afterward. Herndon immediately took over narrating the video.
At the end of the tape, Esposito stood up, a grin on his face.
“Listen, I’m no expert on antitrust matters,’’ he said as he shook Herndon’s hand. “But based on what I just saw, I think we’ve got a pretty good case here.’’
The agents thanked Esposito for his time and headed out the door. Esposito asked Stukey to stay behind for a minute. Both men sat.
“Jesus, is anybody else aware of this?’’ Esposito said. From what he had seen, this was one of the FBI’s biggest white-collar cases—and nobody at headquarters knew a thing about it. Using just two agents was crazy; a dozen would have been reasonable.
“Your agents have done a good job,’’ Esposito continued. “But knowing what’s going to happen and the size of this company, you’re going to have to put in for a lot of people. You need to think long-range. Figure out what resources you’re going to need, and give me a game plan I can start supporting here.’’
Stukey promised to come back with a proposal.
“One more thing,” Esposito said. “If you need help with DOJ, let me know. If necessary, I’ll go across the street and try to take care of it.’’
Stukey thanked him. Across the street, he knew, were the main offices of the Department of Justice. Finally, FBI headquarters was ready to go to bat for Springfield and Harvest King.
Louis Freeh, the Director of the FBI, walked toward the conference table in his office. A group of assistant directors were taking their seats, ready for the 8:00 morning briefing. Freeh, in shirtsleeves, slid into a chair at the head of the table.
“Anybody have any news?’’ Freeh asked, glancing around the room. He mentioned an item he had read in the Washington Post that morning, and the group discussed the article for a moment. The meeting moved at a fast clip. Freeh liked to get things done.
He turned to an assistant director. “What have you got for me?’’ he asked.
This was a chance to update Freeh on events of the last twenty-four hours and to let him know what to expect for the next twenty-four. The assistant director described his division’s recent activities, and Freeh followed up with a few questions.
He looked at Esposito. “All right, Billy,’’ he said. “What have you got?’’
Esposito looked down at his notes and described a handful of cases. He flipped a page.
“Also, I just had a briefing on the ADM case, out of Springfield,’’ he said. “It’s a significant case, and it’s going to involve a lot of resources.’’
Esposito glanced up. Several of his colleagues were wearing baffled expressions. One leaned forward.
“What,’’ he asked, “is ADM?’’
“The Archer Daniels Midland Company.’’
More blank stares. “What’s that?’’
“It’s a Fortune 500 company, one of the world’s biggest grain producers.’’
Esposito glanced at Freeh, whose eyes were gleaming with recognition. The Director knew the name.
“How strong a case is it?’’ Freeh asked. “If it’s ADM, it had better be good.’’
Esposito nodded. A company as powerful as ADM had the legal firepower to blow apart any weak case.
“It’s got tapes, and I’ve actually seen some of them,’’ he said. “They’re excellent.’’
Esposito described the videos. Freeh peppered him with questions, the kind of reaction that signaled that this case had caught his attention.
“All right, that sounds good,’’ Freeh finally said. “Let’s stay on top of it.’’
He turned to another assistant director.
“What have you got?’’ he asked.
The tensions among the Harvest King prosecutors seemed to be escalating. As long as the case was in the investigative stage, their differences could be buried. But now, with the case moving toward going public, there was no more papering over the conflicts.
The antitrust lawyers wanted to move slowly and to participate directly in the interviews on the night of the raid. Their division often played a hands-on role during investigations, sometimes to the dismay of FBI agents unfamiliar with their approach. But the prosecutors with the Springfield U.S. Attorney’s Office usually took the opposite tack. They wanted to leave the FBI alone and let the agents conduct the raids on their own—so long as they struck soon and struck hard.
In early February, the prosecutors and the agents were on a conference call, discussing plans for the raids. The group agreed that lawyers would be needed in a command center to field questions. Mann mentioned that she wanted to participate in some of the drop-in interviews with potential defendants. In particular, she wanted to take part in the meeting with Wilson.
The Springfield prosecutors had never heard of such an idea. Investigation was for the agents; prosecution was for lawyers. Joe Hartzler, on the phone in Springfield, spoke up.
“Look, Robin, Bob and Brian can do this themselves,’’ he said. “They’re much better at confrontational interviews, much better at going to someone’s house and handling the unexpected.’’
“I still think it’s important to have a lawyer along who understands the antitrust law,’’ Mann said. “It would help.’’
Hartzler couldn’t believe what he was hearing.
“How many confrontational interviews have you done?’’ he snapped. “How many doors have you kicked in? How many arrests have you made?’’
Shepard and Herndon listened in, silently siding with Hartzler. They weren’t familiar with the practices at the Antitrust Division and weren’t comfortable with the idea of Mann tagging along. But Mann stuck to her position.
“Well, Joe, I’ve been on confrontational interviews,’’ she said. “And I think it’s smart for us to be on those interviews.’’
Hartzler did a slow burn. This was so far outside standard practice for a U.S. Attorney’s office that he couldn’t believe it. He thought Mann was snowing him.
“Robin,’’ he said sharply, “we need people handling this who know what they’re doing.’’
“Would that be you?’’ Mann shot back.
Everyone was uncomfortable, and one of the prosecutors changed the subject. A few minutes later, Mann raised a technical issue on another matter.
“Do you agree with that, Joe?’’ she asked Hartzler.
Pause.
Nothing.
Hartzler had left the conference call.
Frances Hulin, the Springfield U.S. Attorney, worried about the conflicts with Antitrust. Clearly, somebody needed to take charge. Bickering among prosecutors would only help the potential defendants.
Hulin was planning to travel to Washington and decided to use the opportunity to meet with Anne Bingaman, the Assistant Attorney General in charge of the Antitrust Division. Between them, she hoped, they would work out this problem. Hulin made the arrangements and then called a few of her assistants to her third-floor office to announce her decision.
“I’m going to meet with Anne Bingaman,’’ she said. “I want to make a pitch to take over the case.’’
Hulin looked at her assistants and asked what they thought of the idea.
“Institutionally,’’ Hartzler said, “the Antitrust Division would have to resist. If U.S. Attorney’s offices around the country start picking up criminal antitrust cases, there would be very little reason for the Antitrust Division to handle them.’’
Well, Hulin said, such changes had happened before. The Tax Division used to prosecute all criminal tax cases; now many were filed by U.S. Attorneys. She turned to Rick Cox, her First Assistant.
“I’ve got to side with Joe,’’ he said. “I don’t think this is likely to happen.’’
But Hulin was determined to try. On Friday, February 24, she showed up in Washington at the Antitrust Division’s offices at the Department of Justice. At first, Anne Bingaman was busy, and Hulin had to return a couple of times. When they finally got together, Bingaman was friendly and gracious, quickly whisking Hulin into her office. Both women sat down. After some initial chatting, Hulin got to the point.
“As you know, my office has been working for some time on the ADM investigation,’’ she began.
That night, Herndon was eating out with his family at a local Applebee’s restaurant. His parents were visiting from Kansas City to see their new granddaughter and for once, Harvest King was not in the forefront of his mind.
Herndon was sitting at the table when his pager went off. He checked the number; it was Rodger Heaton.
“I’ll be right back,’’ he told his family.
He headed to the restaurant’s pay phone and had Heaton on the line in a few minutes.
“I just talked to Frances,’’ Heaton said. “She says that Anne Bingaman just gave her the case. She told Frances ‘You’re in charge.’ ”
Herndon was stunned. “Are you sure, Rodger?’’
“That’s what Frances says. She said that Anne thinks Frances’s plan to go to the grand jury in March and then go public soon after sounded great.’’
Herndon glanced around the restaurant, trying to collect his thoughts. This was too much, too fast.
“Does Antitrust know this?’’ Herndon asked. “I mean Antitrust in Chicago.’’
“There’s going to be a meeting on Monday. Your bosses are all going to come over, and we’re going to talk about this. But yeah, we’re going forward.’’
The two men wrapped up the call. Herndon was astonished; after all this time, the tenor of the entire case had changed. Now, there was only one group of prosecutors in charge, and the raids were finally going to take place—quickly. Shepard needed to know right away. Herndon dropped more change in the pay phone and called his partner at home.
“Brian, you’re not going to believe this,’’ he said. “I just spoke with Rodger Heaton. Frances Hulin has the case now, and they’re talking about grand jury next month and going public next month.’’
“You’re kidding!’’ Shepard said. “No way. They didn’t give up this case.’’
“How can there be a miscommunication? You would think something like this would be clear as day.’’
Shepard paused. “What are we going to say to Robin and Jim?’’ he asked.
At 1:00 on Monday, Shepard and Herndon showed up in Hulin’s office along with Stukey, John Hoyt, and Kate Killham. Heaton and Hartzler were already there.
Hulin described her meeting with Bingaman, saying there was no doubt about the outcome. “We’re in charge of the case.”
Quickly, Hulin issued marching orders. She wanted the case presented to a grand jury for indictment in two weeks. The raids would take place April 3.
“Let’s hit ’em fast,’’ Hulin said. “The case is not complicated if we keep it to lysine. A jury will convict off the tapes. We won’t need many witnesses.’’
Everyone headed out, ready to put the plan into action. But almost no one believed that the Chicago antitrust lawyers would accept such a crushing defeat without putting up a fight.
In Washington, Bingaman was at her computer, typing an e-mail to her deputy and the Chicago office.
“Frances Hulin came to see me,’’ Bingaman typed. “She’s concerned that we coordinate this case appropriately, although it doesn’t sound as if we have not. She just wanted to touch base with me to tell me her plans to take her cooperating witness before the grand jury on March 6.’’
Bingaman explained how, in their meeting, Hulin had stressed the importance of speed.
“It was a cordial visit, and she seemed genuinely interested in working closely together with us,’’ she typed. “I was somewhat surprised that the March 6 date was coming so soon, because I had not previously been aware of that date.’’
Bingaman finished and hit the Send button.
News of Hulin’s maneuver hit Chicago like a bomb. The prosecutors raged at what they saw as her high-handedness. Some even suspected that Herndon and Shepard had been behind the effort. The FBI had made no secret about its impatience with the division’s slower pace. But this was an antitrust case. How could Bingaman not see what was happening?
Together, the prosecutors—led by the new office chief, Jim Griffin—composed their own e-mail to Bingaman’s deputy, Gary Spratling.
“It was our understanding that we would not be presenting the witness in March,’’ they wrote. “Ms. Hulin’s proposal is precipitous.’’
They explained several reasons why the cooperating witness should not be put in front of the grand jury quickly, adding one note at the end.
“The important issue here is not when the CW testifies, but whether the Antitrust Division or Ms. Hulin makes this and other future litigation decisions.’’
• • •
By that afternoon, the turf battle between the Antitrust Division and the Springfield U.S. Attorney had spun out of control. No one—except perhaps Hulin—was sure who was running the case anymore. A conference call was scheduled among Hulin, the Antitrust Division, and the FBI supervisors in Springfield. Stukey and Hoyt went to Hulin’s office, gathering at a table around a speakerphone.
For the first twenty minutes of the call, nobody raised the main issue. The call descended into chitchat, as everyone pledged cooperation. Bingaman eventually launched into a discussion of the Antitrust Division’s accomplishments.
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