Informant (29 page)

In November, Whitacre taped several arguments with Ikeda about the Irvine agreement but got nowhere. On December 1, he went to Mick’s office to update him on a call from the night before.

“We talked for like half an hour,’’ Whitacre said, sounding livid. “We’re at sixty-seven for ninety-four as far as they understand. I said, ‘God, I can’t believe you were at the same freakin’ meeting.’ I mean, these guys, it’s goddamn
Rising Sun
.’’

Andreas nodded. He had discussed the Michael Crichton best-seller with Whitacre before.

In a matter of days, Wilson and Whitacre were scheduled to fly to Tokyo for the next price-fixing meeting. Whitacre was so angry that he was asking whether the meeting should be canceled.

Andreas was calm. The two sides were only five thousand tons apart. Maybe it wasn’t worth the effort.

“I don’t think we should argue with ’em, do you?’’ Andreas said.

Whitacre raised his hands. “I don’t know. What do you think? I think they’re tricky sons of bitches.’’

Maybe just tell them that ADM expected some growth in ’94 and leave it at that, Andreas said. Alpha had to mean something more than zero.

The White House nomination for the new Springfield U.S. Attorney sailed through the Senate in weeks. Byron Cudmore, the first prosecutor to meet Whitacre, had been in the job in an acting capacity for more than six months. Now he would be replaced by Frances Hulin, a longtime Illinois prosecutor.

In the first days after her confirmation in early January, Hulin was briefed by Cudmore about Harvest King. He had passed much of the day-to-day responsibility for the case to another assistant in the office, Rodger Heaton, but had kept his eye on developments. The prosecutors had been working closely with the antitrust office in Chicago, he told her, and the relationship had been good. The potential significance of the case was obvious, and Hulin sought an immediate briefing from the FBI.

The meeting took place at 2:00 one afternoon, in the SAC’s conference room at the Springfield office. Shepard made a presentation covering the investigation’s background, while Herndon discussed the apparent effects of each price-fixing meeting on the lysine market. With a chart, he showed a graph that generally tracked the changing price of lysine over time, as well as when each meeting occurred.

Hulin was impressed. By the end of the meeting, she was telling the agents how much she was looking forward to working this case to completion.

The news was bad from the American legal attaché in Japan. Whitacre had taped an earlier price-fixing meeting in Tokyo for the FBI, and for an upcoming gathering, the agents had requested permission for him to use more sophisticated equipment. But the Japanese national police had become uncomfortable with the whole idea. This time, they would not authorize Whitacre to use
any
FBI recording devices in Tokyo.

Still, there was a loophole. The Japanese authorities said the restriction did not apply to a “businessman’s recorder.’’ If Whitacre wanted to tape on his own in Tokyo, no one would stop him. Theoretically, it would be a crime, and Whitacre could be arrested. But the Japanese almost seemed to be saying that they would look the other way.

The agents discussed the dilemma among themselves. They would have to talk to Whitacre about what was happening. The decision would have to be his.

Shepard’s expression was grim as he looked across the hotel room table.

“Mark, we’ve got a problem,’’ he said. “You can’t take our equipment to Japan. We have no jurisdiction and the Japanese government won’t authorize it.’’

Whitacre listened, nodding. Well, they had faced the same problem before.

“Okay,’’ he said, “so I guess you want me to take notes like I did in Vancouver?’’

“Well, sure, you can take notes. But there’s something else I want you to think about. Like I said, we can’t give you recording equipment. But if you tape on your own, and you just happen to give us those tapes, we can’t stop you from doing that.’’

Huh?
Whitacre looked at Shepard, puzzled.

“So, that means you want me to make a tape in Japan, right?’’

“I’m not allowed to say that,’’ Shepard shrugged.

Whitacre sat back. Shepard was essentially telling him to tape without saying it. What was this?

“Well,’’ Whitacre said, sounding eager, “I’ll go ahead and tape. I’ve decided to tape the meeting.’’

Shepard pulled a piece of paper out of his pocket. That day, Tom Gibbons, the Springfield technical expert, had told Shepard that some of the best commercial recording devices were made by Radio Shack. Shepard had written down the information.

“If you’re going to tape, you might want this equipment,’’ Shepard said, handing over the paper. “They have them over at the Hickory Point Mall.’’

Whitacre eyed the paper suspiciously. He started to speak, but stopped.

“Now, we can’t buy any of the equipment,’’ Shepard said. “If we did, it would belong to the Bureau. Then it couldn’t be used legally in Japan.’’

“What happens if I get caught taping there?’’

“I don’t know anything about Japanese laws, but you could be in trouble. And if you’re arrested, it’s possible that we may not be able to provide much help in resolving the situation.’’

Whitacre contemplated that a few seconds. When he answered, he kept his voice level, his tone calm.

“Okay.’’

On December 2, Whitacre made his way through the Christmas crowds at the Hickory Point Mall and headed into Radio Shack. He waited a few minutes until a salesman was free.

“I’d like a tape recorder,’’ Whitacre said, looking down at the sheet of paper in his hand. “It’s the Radio Shack Micro-26.’’

The salesman disappeared, returning with the recording device. Whitacre ordered some triple-A batteries and three ninety-minute microcassettes. The total cost, with tax, was $149.82.

Whitacre headed to his car. He didn’t mind spending the money but was uncomfortable with the risk that the FBI was asking him to take. Still, he figured that by taping in Japan, he would help end the investigation faster. Nothing mattered to him more.

He climbed into his car, tossing the bag with his new recorder onto the seat. As he drove out, he thought through his discussion with Shepard. He wished he had known about it ahead of time. Then he would have been sure to tape it. If he got into trouble in Japan and the FBI tried to cut him off, at least he would have something he could use to protect himself.

No matter. Probably he would just talk to Shepard later and re-create the conversation. The FBI had trained him on how to get people to repeat themselves. He was getting good at it.

The Imperial Palace sits in the center of Tokyo, built on the site of the Edo Castle where the Shoguns ruled until the dying days of the nineteenth century. To the southeast lies the spacious Kokyo Gaien, or “outer garden,” a spot where the remaining Fushimi Turret, a watchtower of the old castle, can be seen over the double-arched stone bridge that crosses a moat.

The gardens were visible to Whitacre and Terry Wilson on December 7 as the car they hired at Narita Airport approached the hotel entryway of the Palace Hotel. Whitacre paid the driver in yen before he and Wilson headed into the hotel lobby. Wilson was looking tired and angry. The long plane trip on Japan Airlines had worsened the pain in his troubled back. These trips were getting to be too much for him.

Tensions were rising among the lysine producers, even before the Tokyo meeting began. Several of the companies were dissatisfied with the results from Irvine. The Korean companies—Miwon and Cheil—both believed that they were being cheated in the volume allocation. Executives from Cheil were so angry that they refused to come to Tokyo. The tussle between ADM and Ajinomoto had been only partly resolved, and both were wary of the other’s honesty. Only Kyowa Hakko had not voiced a direct objection to the allocation.

Still, a stilted friendliness permeated the room as the executives arrived. The last to appear were Ikeda and Mimoto, on behalf of Ajinomoto. They arrived five minutes late, at 9:35, Tokyo time.

“Good morning,’’ Ikeda said as he opened the door. “We are late.’’

“No problem, no problem,’’ Whitacre said good-naturedly. “You lost twenty thousand tons, but . . ”

Everyone laughed.

For about forty minutes, the men discussed specifics of the lysine market, region by region and at times, customer by customer. It was tedious, but the tensions lowered. They were making progress.

Whitacre checked his watch. It was time to flip the tape.

“Excuse me,’’ he said.

Whitacre headed to the rest room, walked into a stall, and shut the door. Out of sight, he reached into his jacket and removed the Radio Shack tape recorder. Popping it open, he flipped over the tape and pushed the Record button before dropping it back into his pocket. He flushed the toilet and came out of the stall. Jacques Chaudret, the executive from one of Ajinomoto’s European affiliates, was there. He had come into the bathroom just seconds after Whitacre.

Whitacre smiled. “Same idea, a break, huh?’’

The two headed back. Whitacre had missed only about a minute of the discussions.

Despite the initial friction, the major lysine producers were finally beginning to read off the same page. Finally, they were settling on volume allocations. A few points were left unresolved, particularly defining what was meant by ADM’s “alpha.’’ But, overall, the executives had reached their strongest agreement yet. Even without Cheil, production could be controlled. The price of lysine could well stay fixed for years.

Wilson saw his chance to impose structure on the disorganized scheme. Now was the time, he said, for the lysine producers to finally begin sharing production numbers. The figures could be collected every month by the trade association. Lots of industries did that to legally learn the size of their markets. But, while the trade associa-tion could tell them the total, it would have to keep the individual production numbers for each company a secret. Sharing those numbers would almost certainly be illegal.

That’s where the scheme came in. No one would question why each company had collected monthly sales data if it was turned over to the association. Then secretly, the companies could swap the numbers among themselves to enforce the volume agreement. If one company sold more than it was allotted, it would be forced to purchase lysine from companies lagging behind. That would keep everyone on target, he said.

“Report every month,’’ Wilson said. “Feedback every month.’’

Wilson suggested that the companies phone their numbers to Mimoto at Ajinomoto. He would then compile them and alert everyone to the results.

“So officially by association,’’ Whitacre said, “and unofficially to Mimoto by phone.’’

Several of the executives were still confused. Whitacre and Wilson tried again.

“The association will give you one number, which is the total market, but not by company,’’ Whitacre said.

“That’s a legal number?’’ Mimoto asked.

Whitacre nodded. “That’s a legal number, that’s right.’’

“You want it illegally,’’ Mimoto said.

Whitacre looked at the group. “Mimoto is illegal, and the association is legal.’’

Everyone laughed again. The idea sounded perfect.

Wilson reminded the group that there was reason to be cautious when phoning the production numbers in to Mimoto. Wiretaps were possible.

“We have to watch our telephones,’’ Wilson said. “It can be done, but it must be very careful.’’

Inside Whitacre’s pocket, the Radio Shack recorder picked up every word.

The evidence in the price-fixing case was getting better, but the prosecutors couldn’t shake a sense of discomfort. Outside the FBI, the only person in law enforcement who had ever sat down with Whitacre was Cudmore—and he was expected to leave the prosecutor’s office in months. Robin Mann discussed the problem with Rodger Heaton, who had taken over day-to-day responsibility for the case from Cudmore. They both decided to push the agents for a meeting with Whitacre.

Days later, in a conference call with the agents, Mann was asking questions about a recent tape. The agents’ explanations were not helping much.

“Well, you know,’’ she sighed, “if I could talk to Mark it would help things. You guys need to think about that. It’s better sooner than later.’’

Mann had made the request before. Weatherall and Herndon fell silent.

“That’s a valid point,’’ Shepard said. “But as you know, we have some concerns about that, and we’re kind of working through those. I’m sure it’s going to happen soon; I just can’t make any promises.’’

“What are your concerns?’’ Mann asked quickly. After sliding into the topic, she was ready to confront the agents on the issue.

For a second, no one spoke. The truth was that the agents didn’t trust the prosecutors with Whitacre. Weatherall in particular feared that the lawyers would mess with his head, upsetting his delicate emotional balance. Whitacre needed kid-glove treatment, and the agents had seen how direct Mann could be. But diplomatically, another explanation was needed.

Shepard said that the agents had been using the prosecutors as scapegoats for months. Whenever Whitacre had a question about the future of the case—Would he be a witness in court? What would happen to the Andreas family?—the agents had simply replied that those decisions would be made by the prosecutors.

“We’d hate to have you all of a sudden be forced to answer questions from him that you’re not ready to answer yet,’’ Shepard said. “It’s better for us to lay the blame on you, and that keeps him satisfied.’’

Mann remained adamant, but the agents would not bend. They would consider a meeting, Shepard said, sometime later. When the time was right.

Ginger Whitacre almost didn’t recognize her husband anymore. Throughout their marriage, he had made his family a priority. He always had made time to raise rabbits with their youngest son for 4-H Club, and had attended all of the children’s school shows. But now, between ADM and the FBI, the family seemed last on the list. One night, she argued with him about his absences. He needed to come home more, she told him. His children needed him;
she
needed him.