Informant

by Kurt Eichenwald

  Mutchnik said nothing. To him, it sounded like Whitacre had bungled production and come up with this wacky idea to buy time. It had been a dangerous gambit, he figured, one that Whitacre had overplayed.

  As the meeting broke, Mutchnik glanced out the window and saw it was drizzling. His softball team was scheduled to play that night, and he was planning to be there, rain or shine. He hurried down the hallway, changed into his sweats, and left. As he walked outside through the lobby door, he froze in his tracks.

  Whitacre was beneath an overhang of the office building, staring across the street at a bank. Mutchnik walked up beside him.

  “Share a cab?’’ he asked.

  Whitacre, standing straight, continued staring at the bank.

  “No, I’m meeting somebody.’’

  The rain picked up.

  “You sure?’’ Mutchnik asked. “I’m heading north; we can share a cab.’’

  Whitacre’s stare didn’t break.

  “No, I’m okay,’’ he said, sounding detached. “I’ll see you soon. It’s nice getting to know you, Jim. I think you’re a smart guy.’’

  Whitacre continued to stand motionless as Mutchnik hailed a cab.

  “Okay, Mark,’’ Mutchnik said. “I’ll see you.’’

  As the cab pulled away, Mutchnik looked out the back. He watched as Whitacre moved from his sheltered spot and walked up the street, getting soaked in the rain.

  The sight chilled Mutchnik. With the raids coming, he knew Whitacre’s guts must be churning—about what he had done, about what he faced. That night, Mark Whitacre had to be the most conflicted person on the planet.

  What a confused, mixed-up guy, Mutchnik thought.

  Mark Cheviron felt proud. The ADM security chief was to be honored at a special meeting on June 29 at the Waldorf Astoria Hotel in New York. Not only that, but Dwayne Andreas would receive a tribute, too. Cheviron wanted to be sure everything went right. After all, it wasn’t every company that received accolades from the Federal Bureau of Investigation.

  At the meeting, Cheviron would be named chairman to an advisory board of the FBI National Academy, a Bureau program for local law enforcement. Dwayne Andreas was to be named honorary chairman.

  On May 31, Cheviron dictated a memo to Claudia Manning, Andreas’s secretary, spelling out details of the Waldorf celebration. He listed the expected attendees, including executives from Merrill Lynch & Co., Johnson & Johnson, and IBM.

  “Thanks for all your help in getting this off the ground,’’ Cheviron dictated. The memo was typed and sent to Manning.

  Cheviron didn’t know it, but he had just inadvertently created the only document that might obstruct the tidal wave bearing down on his company.

  “Bob? I’ve got something you’ll want to see.’’

  Special Agent Alec Wade approached Herndon’s desk in Springfield. Wade was involved with the National Academy and had seen some paperwork for the upcoming celebration at the Waldorf. He had just received a fax from ADM’s security department, saying that Andreas and Cheviron would be attending. The date—June 29—jumped out; the raids were scheduled two days before.

  Herndon scanned the fax and decided that Washington needed to know about this. Already, he had sent several memos about “raid day” to Alix Suggs, the Washington supervisor overseeing the case. He decided to include the fax from Cheviron. Suggs, he knew, would get the information into the right hands.

  After his infant son went down for his morning nap, Mutchnik headed to his car. Dressed casually in an open-neck shirt, he drove his black Honda Accord through morning traffic to Interstate 90, getting off at the Cumberland Avenue exit. He pulled into the parking lot of a small office complex.

  Mutchnik felt nervous as he approached the third building in the complex. He was about to conduct surveillance of the Chicago office for Heartland Lysine, Ajinomoto’s American subsidiary. The office was on the raid list, and prosecutors needed details of its appearance for the search warrant.

  In the lobby, he checked a building index. Heartland Lysine, Suite 650.

  “Who are you here for?’’ a security guard asked.

  “A friend on the sixth floor,’’ Mutchnik replied. The guard nodded.

  Mutchnik rode the elevator up. He walked past the Heartland Lysine office, paying no attention. Down the hall, he stopped by another office near the bathroom and memorized the name on the door before walking back. He wandered past Heartland Lysine again, glancing inside. Finally, he strolled in.

  No one was in the reception area. Mutchnik looked around. Desks, offices, filing cabinets, nothing special. He memorized the setup; this was the kind of bland information they needed for the warrant. Suddenly, a young Japanese woman appeared.

  “Can I help you?’’ she asked.

  “Yes,’’ Mutchnik said. He was looking for a friend. He mentioned the name of the company located down the hall, next to the bathroom.

  The woman struggled to explain the location of the company; her English was poor. Mutchnik thanked her, walked to the elevator, and headed back to his car. Inside, he picked up a pen and small notepad off the seat and sketched the office he had just seen.

  When he finished, he put away the pad and pen, started the car, and pulled out of the lot. He wanted to get back home before his son woke up.

  Dwayne Andreas was in his sixth-floor office when Jim Randall came in. Randall had recently undergone open-heart surgery but was now back at work full-time. The two men sat, talking business.

  Suddenly, Randall’s eyes clouded over. “Dwayne, I just wanted you to know, I owe everything I have to you,’’ he said. “And I am loyal to you.’’

  Surprised, Andreas thanked Randall and a few minutes later ushered him out. He returned to his desk, feeling odd. Despite their years together, he and Randall didn’t have an emotional relationship. The display left Andreas feeling uncertain.

  What was that all about? he wondered.

  • • •

  Who should they try to flip?

  That question was debated ferociously among the antitrust team for weeks. There would be only one chance to turn a potential defendant into a witness. If it worked, the government could pursue price-fixing cases in other products. If it failed, there would be no choice but to proceed with the raids. It was an all-or-nothing gamble.

  The investigators considered Barrie Cox, head of ADM’s citric-acid business, but ruled him out. Their leverage with Cox was poor; he had never been caught saying anything particularly incriminating. Plus, beyond citric, he was unlikely to know much.

  Wilson was the dark-horse candidate, but the arguments against him were compelling. He was dedicated to the Andreas family; it was hard to imagine he would turn on them. Plus, to use their leverage against Wilson, the agents would have to play a tape. But Whitacre was on all of them. If Whitacre’s role in the case was going to be kept secret as long as possible, Wilson couldn’t hear his own tapes.

  That left one option.

  On June 22, days before the raid was to take place, Herndon sent a teletype to headquarters, spelling out the plan.

  “On Tuesday, June 27th in the early evening, co–case agents will interview subject Michael D. Andreas,’’ he wrote. “The purpose of the interview is to flip Andreas in order to gather other evidence.’’

  The following Monday, Bill Esposito, head of the FBI’s Criminal Investigative Division, heard about some news in the Springfield information packet: Just two days after the scheduled raid on ADM, top Bureau officials would be attending a ceremony honoring Dwayne Andreas. Esposito called a deputy director at Quantico who was scheduled to go to the event.

  “I’m not allowing you to attend,’’ he said. “I mean, what the hell’s going on here? We’re getting ready to hit this guy’s place.’’

  Esposito headed down the hall to tell Freeh about the development. As Freeh sat at his desk, Esposito described the ceremony.

  “What are they doing that for?’’ Freeh asked.

  The las
t-minute notification by his senior staff irritated Freeh. For major takedowns, he usually received a full briefing first. He knew about Harvest King but had no idea until now that the raid was coming. ADM was not a company to be trifled with; Freeh wanted to know more.

  The orders went out. Before the raids received a green light, somebody from Springfield had to personally brief Louis Freeh.

  • • •

  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?’’

  “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.’’

  “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 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 scheduled 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?’’

  Whitacre laughed and rubbed the back of Mutchnik’s close-cropped 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.