Informant (28 page)

Shepard could not tell what the Ajinomoto executives were talking about. They were speaking softly, in Japanese. He pushed the buttons on the remote control, making the camera zoom in. He didn’t notice what Whitacre was doing.

•   •   •

The device looked okay. Whitacre closed the cover.

Click.

Whitacre opened the case again. Something on the back was rubbing against the recorder. He pressed it, and then snapped the panel closed. He shut the briefcase.

Andreas returned to the room, tugging his ear.

No one had noticed anything.

Yamada stepped toward the easel. The Asian companies had great difficulty accepting the argument that ADM deserved any lysine growth in 1994, he said.

“Their ground is, ADM has already eaten all the growth,’’ Yamada explained.

“For the past three years,’’ Whitacre said.

Yamada laughed. “And now ADM is trying to absorb all the growth. That is not fair.’’

The approach was a variation on a classic Japanese negotiating strategy known as
naniwabushi.
Yamada had adopted a victim mentality, complaining that the other side was unfairly taking advantage of the Asian companies’ weakness. In Tokyo, the method is effective in resolving disputes without confrontation.

But for Andreas and Whitacre, the statement seemed beside the point. Andreas was frustrated. Everyone else was standing, debating the numbers. It was time to make ADM’s position clear.

“There’s another thing you gotta keep in mind,’’ Andreas said, turning to the easel. “We have a lot more capacity than we’re using.’’

This was Ajinomoto’s big fear. Andreas was threatening to flood the market and start another price war.

Ikeda nodded. “Yeah, we understand.’’

“If in fact there becomes a free-for-all,’’ Andreas said, “our numbers are liable to be a lot larger than five thousand tons.’’

Yamada put his hands behind his back. “Hum.’’

“Because we’ll grow at twenty thousand tons instead of five,’’ Andreas said.

Yamada nodded.

Two women dressed as waitresses walked into the room, rolling a table that carried lunch for Andreas and Yamada. One was an FBI agent.

“You think they oughta just leave that on that table?’’ Andreas said, glancing at the food.

“We can serve you if you like,’’ a waitress replied.

Ikeda and Yamada walked to the easel, again discussing their plans in Japanese. Whitacre and Andreas stepped to the other side of the room as the women cleared the main table, laying out the lunch of salads and steak sandwiches.

Shepard knew the meeting was close to breaking up. Yamada and Andreas were scheduled to eat alone; Whitacre and Ikeda would be stepping out of the room for an hour. As soon as Whitacre left, Shepard would have to shut off the recorder. And the two sides hadn’t yet reached an agreement.

There might be only minutes left.

Whitacre was signing the bill when Ikeda laid out Ajinomoto’s proposal: ADM would be allocated its recent production—or about sixty-seven thousand tons—plus an amount he called alpha. That word meant, he said, a substantial portion of lysine growth. The proposal was vague, with few specifics.

But it sounded to Whitacre and Andreas as if they had a deal. All ADM wanted was sixty-seven thousand tons plus some growth. Whitacre said that Ajinomoto was now making the same proposal as ADM.

“This is just a way to say it,’’ Ikeda said. “It’s more agreeable to other people.’’

Andreas smiled. He didn’t care what the Japanese called it, so long as ADM got what it wanted.

“You decide how to say it,’’ he said.

Ikeda walked to the easel and tore off the piece of paper that contained all of the production numbers.

Andreas laughed. “We better keep that,’’ he said.

Neither side said it out loud, but they seemed to have reached their illegal deal. Right in front of the waitresses, just as they were serving lunch.

Whitacre walked out of the room.

He had what he had come for.

Shepard had heard the words. Just before they broke, the companies had reached their deal. As soon as Whitacre left, the agent reached for the console, and pushed the buttons. The monitor screen went blank.

•   •   •

Quietly, the hidden camera shut off.

Andreas looked at Yamada. Now they were alone. This was his moment to be blunt, to underscore that ADM was not going to buckle.

“Look,’’ he said, “I checked again after Mark just now. I don’t care what your people think, our figures are right. So I don’t care what you do.’’

“We have to present it differently,’’ Yamada said. “The Asian way is different.’’

“I don’t care what you do,’’ Andreas said. “Do whatever you want.’’

Yamada said nothing.

An hour later, an agent informed Shepard that Whitacre and Ikeda had returned to the room. Shepard switched on the monitor and VCR. Whitacre was standing over the table. The sheet of paper that Ikeda had torn from the easel was still lying amid the clutter.

Shepard and Weatherall watched as Whitacre picked up the sheet.

“I guess I should probably keep this, huh?’’ Whitacre said, folding the paper.

Shepard and Weatherall watched as Whitacre reached down for his briefcase. Weatherall marveled at how smooth Whitacre had been. He had just taken a risk with a deft maneuver and managed to obtain a key piece of evidence for the FBI.

This guy, Weatherall thought, was the best cooperating witness he had ever seen.

Just before seven-thirty that evening, Herndon drove into the parking lot of a Pizza Hut near the Decatur Airport and pulled into a space. Minutes passed before he saw Whitacre’s blue Town Car come around the corner. As soon as Whitacre parked next to him, Herndon hopped in on the passenger side.

“Hey, Mark. I hear you had a good meeting.’’

“Yeah,’’ Whitacre said, looking excited. “I think you guys are really going to be pleased with this.’’

Whitacre was talking a mile a minute, repeating himself. He was obviously pumped.

“This is just what you guys have been driving home, as far as us showing Mick’s involvement in the conspiracy,’’ he said breathlessly. “It’s clear as day. He’s involved in the conspiracy. He divides the market with Yamada. He just divided the market with Yamada. It’s right there. This should really help you with Mick, showing his involvement. Man, it’s a good tape. Mick’s dividing the market. This should give you guys everything you need. Awesome, Bobby.’’

Herndon sat back. Whitacre needed time to decompress. This was his first chance to talk about everything that had happened.

“Okay, we’ll have to look at the tape and see what’s there,’’ Herndon said. “We need to get you home to your family, but let me get the tapes first.’’

Whitacre took out the microcassette recorder. Herndon removed the tape and, using his pen, popped its plastic tabs to ensure it would not be erased. He asked Whitacre questions about the tape as he filled out the paperwork. Whitacre’s suit jacket, with the small recorder sewn inside, was already lying between them on the car seat. Herndon picked it up, then grabbed the briefcase. He planned to remove the tapes from the equipment the next morning.

About twenty minutes later, Herndon thanked him and said good night. He watched as Whitacre swung out of the parking lot into late-evening traffic. For a moment, he kept an eye out to make sure that Whitacre wasn’t being followed. Herndon was feeling protective of his witness. Whitacre was helping them crack the conspiracy. He was part of the team.

Days later, on Halloween, Herndon wheeled a kitchen chair into his living room, in front of the television. He had finally received a copy of the Irvine tape and wanted to work on a summary. He slid the tape into his VCR, picked up the remote, and pressed the Play button. One of his family cats, Mookie, jumped on his lap as the scene unfolded.

The recording was fabulous. Over and over, Herndon fast-forwarded and rewound the tape, reviewing critical scenes as he listened and watched.

The time counter, in white letters at the bottom of the video, was approaching 11:00 when Herndon saw Whitacre head to the bathroom. Of course, he left his briefcase behind and it continued tap-ing. Under the law, that portion of the tape couldn’t be turned over to prosecutors—no consenting party was present.

Later, Herndon watched as Andreas laid out his proposal.

Wait a minute.

On the screen, Herndon saw Whitacre lift the briefcase panel covering the recording device. It was out in the open, there for almost anyone to see.

What is he doing?

Herndon hit Rewind to watch the scene again.

What an idiot!

Herndon would have to talk to Whitacre about this. Later, he called Shepard in the Decatur R.A.

“You’re not going to believe this, Brian,’’ Herndon said. “But I watched the tape and it looks to me like Whitacre lifted up the panel on his briefcase, right there with everyone around him.’’

Shepard paused. “You’re kidding,’’ he said.

Herndon told Shepard the counter number on the tape where Whitacre had opened the case. Shepard hung up. He wanted to see this for himself. If there was a problem with the briefcase, Whitacre could have shut it off. They were going to have to talk to him. He couldn’t be so reckless.

“Where’s the agreement?’’

Robin Mann was speaking to the three case agents by telephone. Days before, they had sent her a copy of the Irvine tape, then sat back waiting for the call of congratulations. But Mann had objections: Under the law, it was the
agreement
that constituted a crime, not the discussion. While Mann felt an agreement had probably been reached, she knew a jury would want to hear the participants declare a deal. Instead, the executives in Irvine had talked around a deal for hours, subtly sliding into an agreement in the last minutes before lunch. It was good evidence, but Mann felt it could have been better. Any good defense lawyer would notice the problems.

But as the agents listened on three phones in the Decatur R.A., they felt frustrated. How could Mann not see the agreement? Did she just not
want
to see it?

“If this isn’t an agreement, then what are they doing there?’’ Weatherall asked. “Don’t get bogged down in the words. Look at what the actions are.’’

“I’ve looked at it, Joe,’’ Mann said. “I see a chart with a lot of numbers, and I can’t really pinpoint what the agreement was.’’

Weatherall sighed. “It’s right in front of you.’’

“It could just be a proposal,’’ she said. “All the other companies weren’t there. Nobody said they were in agreement.’’

Shepard picked up the argument, again explaining that the agreement was clear in the full context of the tape. Weatherall, feeling sour, put down the phone. He stood and walked to the doorway of the back office, where Herndon was listening on the phone.

Herndon glanced up. Weatherall waved his arm dismissively and stuck out his tongue. He was making his opinion clear. Herndon stifled a smile.

After hanging up, the agents met in the main room. What more did Mann want? Maybe, they theorized, she was getting cold feet about a trial. Finally, after several minutes of complaining, the agents decided to speak with Whitacre about trying to get the word
agreement
on tape. But that didn’t mean they had to be happy about it.

On Monday, November 22, Whitacre was filling out his latest expense report. He had been out of town the previous week and now his desk was littered with receipts. On the form, he wrote that he had traveled to Chicago the previous Monday and Tuesday, attaching his bill from the Embassy Suites on North State Street. For the four days that followed, he wrote that he had been in Miami, at an industry meeting.

He included daily hotel expenses in Miami of $387.27, but attached no receipt—the bill, he wrote, was coming by mail. Whitacre listed several meals with members of the trade group and included receipts. But the top of each one had been carefully cut off—no one would ever be able to determine the name or location of the restaurants. In fact, nowhere in his expense report was there a single receipt with the word
Miami
on it. And even though Whitacre usually placed dozens of calls a day, anyone checking would have found no record of
any
during three of his days in Florida—either from his hotel or on his corporate phone card.

On his trip, Whitacre had been very careful to avoid creating a paper trail. It would be extremely difficult for either ADM or the FBI to realize that, during the time Whitacre was claiming to have been in Miami, he had not even been in the United States.

Nailing down proof of the Irvine agreement proved harder than the agents had expected. While ADM and Ajinomoto had walked away convinced that they had reached a deal, each side had a different opinion of the terms. Whitacre and Andreas—and the FBI, for that matter—had believed that the Japanese company had committed to allocating ADM its prior year’s production, plus a big part of the expected fourteen thousand tons of growth in 1994.

But Yamada and Ikeda had never expressly said that. Instead, they had retreated behind a vague word—
alpha
—that they defined as a “substantial portion of growth.” At no point, though, did they say what growth they were talking about. It was not, as ADM believed, the fourteen thousand tons of growth estimated for 1994. Instead, alpha was part of the growth that might occur
beyond
the predicted amount. The fourteen thousand tons would be divvied up among the Asian companies alone. ADM’s alpha would kick in only if the market grew beyond that—so, if fifteen thousand more tons were sold in 1994, ADM would receive a substantial part of just the
one thousand tons
exceeding the predicted growth. In effect, Ajinomoto was telling ADM that it could have most of the food on the plate, so long as everyone else first had a chance to lick it clean.

Ajinomoto had simply repackaged its earlier proposal. The vague terms that the Japanese had used were not meant to satisfy the other competitors, as Yamada appeared to have said. They were there to appease the Americans. ADM’s attempts to bombard Ajinomoto with logic had gotten nowhere; the Japanese were still convinced that their proposals were intrinsically correct.