United States v. Andreas, Michael D.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-3097, 99-3078, 99-3098, 99-3106,

99-3107, 99-3279 & 99-3363

United States of America,

Plaintiff-Appellee/Cross-Appellant,

v.

Michael D. Andreas and Terrance S. Wilson,

Defendants-Appellants/Cross-Appellees.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 CR 762--Blanche M. Manning, Judge.

Argued February 7, 2000--Decided June 26, 2000

Before Kanne, Rovner and Evans, Circuit Judges.

Kanne, Circuit Judge. For many years, Archer

Daniels Midland Co.’s philosophy of customer

relations could be summed up by a quote from

former ADM President James Randall: "Our

competitors are our friends. Our customers are

the enemy." This motto animated the company’s

business dealings and ultimately led to blatant

violations of U.S. antitrust law, a guilty plea

and a staggering criminal fine against the

company. It also led to the criminal charges

against three top ADM executives that are the

subject of this appeal. The facts involved in

this case reflect an inexplicable lack of

business ethics and an atmosphere of general

lawlessness that infected the very heart of one

of America’s leading corporate citizens. Top

executives at ADM and its Asian co-conspirators

throughout the early 1990s spied on each other,

fabricated aliases and front organizations to

hide their activities, hired prostitutes to

gather information from competitors, lied,

cheated, embezzled, extorted and obstructed

justice.

After a two-month trial, a jury convicted three

ADM officials of conspiring to violate sec. 1 of

the Sherman Antitrust Act, 15 U.S.C. sec. 1,

which prohibits any conspiracy or combination to

restrain trade. District Judge Blanche M. Manning

sentenced defendants Michael D. Andreas and

Terrance S. Wilson to twenty-four months in

prison. They now appeal several issues related to

their convictions and sentences, and the

government counter-appeals one issue related to

sentencing. We find no error related to the

convictions, but agree with the government that

the defendants should have received longer

sentences for their leadership roles in the

conspiracy.

I. History

The defendants in this case, Andreas and

Wilson, were executives at Archer Daniels Midland

Co., the Decatur, Illinois-based agriculture

processing company. Mark E. Whitacre, the third

ADM executive named in the indictment, did not

join this appeal./1 ADM, the self-professed

"supermarket to the world," is a behemoth in its

industry with global sales of $14 billion in 1999

and 23,000 employees. Its concerns include nearly

every farm commodity, such as corn, soybeans and

wheat, but also the processing of commodities

into such products as fuel ethanol, high-fructose

sweeteners, feed additives and various types of

seed oils. ADM has a worldwide sales force and a

global transportation network involving thousands

of rail lines, barges and trucks. The company is

publicly held and listed on the New York Stock

Exchange.

The Andreas family has long controlled ADM.

Dwayne Andreas is a director and the former CEO,

G. Allen Andreas is the board chairman and

president, and various other family members

occupy other executive positions. Michael D.

Andreas, commonly called "Mick," was vice

chairman of the board of directors and executive

vice president of sales and marketing. Wilson was

president of the corn processing division and

reported directly to Michael Andreas.

A. The Lysine Industry

Lysine is an amino acid used to stimulate an

animal’s growth. It is produced by a fermentation

process in which nutrients, primarily sugar, are

fed to microorganisms, which multiply and

metabolize. As a product of that process, the

microorganisms excrete lysine, which is then

harvested and sold to feed manufacturers who add

it to animal feed. Feed manufacturers sell the

feed to farmers who use it to raise chickens and

pigs. The fermentation process tends to be very

delicate, and utmost care must be used to keep

the fermentation plant sterile.

Until 1991, the lysine market had been

dominated by a cartel of three companies in Korea

and Japan, with American and European

subsidiaries. Ajinomoto Co., Inc. of Japan, was

the industry leader, accounting for up to half of

all world lysine sales. Ajinomoto had 50 percent

interests in two subsidiaries, Eurolysine, based

in Paris, and Heartland Lysine, based in Chicago.

The other two producers of lysine were Miwon Co.,

Ltd. (later renamed Sewon Co., Ltd.) of South

Korea, and Kyowa Hakko, Ltd. of Japan. Miwon ran

a New Jersey-based subsidiary called Sewon

America, and Kyowa owned the American subsidiary

Biokyowa, Inc., which is based in Missouri.

Lysine is a highly fungible commodity and sold

almost entirely on the basis of price. Pricing

depended largely on two variables: the price of

organic substitutes, such as soy or fish meal,

and the price charged by other lysine producers.

Together, the three parent companies produced all

of the world’s lysine until the 1990s, presenting

an obvious opportunity for collusive behavior.

Indeed the Asian cartel periodically agreed to

fix prices, which at times reached as high as

$3.00 per pound.

In 1989, ADM announced that it was building

what would be the world’s largest lysine plant.

If goals were met, the Illinois facility could

produce two or three times as much lysine as any

other plant and could ultimately account for up

to half of all the lysine produced globally. Even

before the plant became operational, ADM embarked

on an ambitious marketing campaign aimed at

attracting large American meat companies, such as

Tyson Foods, in part by capitalizing on anti-Asia

sentiment prevalent at the time. Also around

1990, another South Korean company, Cheil Jedang

Co., began producing lysine. Despite some early

difficulties with the fermenting process, the ADM

plant began producing lysine in 1991 and

immediately became a market heavyweight, possibly

even the industry leader. The two new producers

created chaos in the market, igniting a price war

that drove the price of lysine down, eventually

to about 70-cents per pound. The Asian companies

understandably were greatly concerned by

developments in this once profitable field.

B. Start of the Conspiracy

Against this background, Kyowa Hakko arranged a

meeting with Ajinomoto and ADM in June 1992.

Mexico City was chosen as the site in part

because the participants did not want to meet

within the jurisdiction of American antitrust

laws. Ajinomoto was represented by Kanji Mimoto

and Hirokazu Ikeda from the Tokyo headquarters,

and Alain Crouy from its Eurolysine subsidiary.

Masaru Yamamoto represented Kyowa Hakko, and

Wilson and Whitacre attended for ADM. Mimoto,

Ikeda, Crouy and Yamamoto testified as government

witnesses at trial. At this meeting, the three

companies first discussed price agreements and

allocating sales volumes among the market

participants. Wilson, who was senior to Whitacre

in the corporate hierarchy, led the discussion on

behalf of ADM. The price agreements came easily,

and all present agreed to raise the price in two

stages by the end of 1992. According to internal

Ajinomoto documents prepared after the meeting,

the cartel’s goal was to raise the price to $1.05

per pound in North America and Europe by October

1992 and up to $1.20 per pound by December, with

other price hikes for other regions. The

companies agreed to that price schedule and

presumed that Ajinomoto and Kyowa would convince

Sewon and Cheil to agree as well.

The sales volume allocation, in which the

cartel (now including ADM) would decide how much

each company would sell, was a matter of strong

disagreement. In ADM’s view, ADM should have one-

third of the market, Ajinomoto and its

subsidiaries should have one-third and Kyowa and

the Koreans should have the remaining third.

Ajinomoto--the historical industry leader--

disagreed vehemently and thought ADM did not

deserve an equal portion of the market and could

not produce that much lysine in any case. Wilson

also suggested each company pick an auditor to

whom sales volumes could be reported so that the

cartel could keep track of each other’s business.

The meeting ended without a sales volume

allocation agreement, but two months later, at

the recommendation of Whitacre, the cartel raised

prices anyway, and prices rose from $.70 to $1.05

per pound.

Still, the cartel considered a price agreement

without allocating sales volume to be an

imperfect scheme because each company would have

an incentive to cheat on the price to get more

sales, so long as its competitors continued to

sell at the agreed price. With cheating, the

price ultimately would drop, and the agreement

would falter. An effort had to be made to get the

parties to agree to a volume agreement, and to

that end, Whitacre invited Ajinomoto officials to

visit ADM’s Decatur lysine facility to prove that

it could produce the volume ADM claimed. Mimoto,

Ikeda and other Ajinomoto officials, including an

engineer named Fujiwara, visited the plant in

September 1992. At a meeting before the tour,

Whitacre and Mimoto confirmed the price schedule

to which the parties had agreed in Mexico City.

The cartel met again in October 1992, this time

in Paris. All five major lysine producers

attended, along with representatives of their

subsidiaries. Wilson and Whitacre again

represented ADM. To disguise the purpose of the

meeting, the parties created a fake agenda, and

later a fictitious lysine producers trade

association, so they could meet and share

information without raising the suspicions of

customers or law enforcement agencies. According

to the agenda, the group was to discuss such

topics as animal rights and the environment. In

reality, they discussed something much dearer to

their hearts--the price of lysine. According to

internal Ajinomoto documents, the "purpose of the

meeting" was to "confirm present price level and

reaction of the market, and 2, future price

schedule."

Shortly after this meeting, under circumstances

explained below, Whitacre began cooperating with

the FBI in an undercover sting operation aimed at

busting the price-fixing conspiracy. As a result,

most of the meetings and telephone conversations

involving Whitacre and other conspirators after

October 1992 were audiotaped or videotaped.

Despite the cartel’s efforts to raise prices,

the price of lysine dropped in 1993. According to

executives of the companies who testified at

trial, without a sales volume agreement, each

company had an incentive to underbid the agreed

price, and consequently each company had to match

the lower bids or lose sales to its underbidding

competitors. This resulted in the price of lysine

falling in the spring of 1993. The group, calling

itself "G-5 " or "the club," met in Vancouver,

Canada, in June 1993 to deal with the

disintegrating price agreement. Wilson and

Whitacre again represented ADM. At this meeting,

the Asian companies presented a sales volume

allocation that limited each company to a certain

tonnage of lysine per year. ADM, through Wilson,

rejected the suggested tonnage assignment because

it granted ADM less than one-third of the market.

Ajinomoto still considered ADM’s demands too

high.

That summer’s strong commodities market

permitted frequent increases in the lysine price,

to which each of the companies agreed, despite

the absence of a volume allocation. The cartel’s

continued strong interest in a volume allocation

to support the price agreement led to another

meeting in Paris in October 1993. The failure to

reach a volume schedule in Paris finally led to

a call for a meeting between the top management

at Ajinomoto and ADM: Kazutoshi Yamada and Mick

Andreas.

In October 1993, Andreas and Whitacre met with

Yamada and Ikeda in Irvine, California. With

Whitacre’s assistance, the meeting was secretly

videotaped and audiotaped. Andreas threatened

Yamada that ADM would flood the market unless a

sales volume allocation agreement was reached

that would allow ADM to sell more than it had the

previous year. The four discussed the dangers of

competing in a free market and hammered out a

deal on volume allocations, with Andreas

accepting less than a one-third share of the

market in exchange for a large portion of the

market’s growth. Specific prices were not

discussed, but Andreas acknowledged the price

deal that had already been negotiated. Yamada

agreed to present ADM’s proposal to the other

three Asian producers.

A central concern to Andreas was the difficulty

he expected the Asian producers to encounter in

maintaining their agreed price level. As Andreas

explained at some length, the Asian companies had

a more decentralized sales system that depended

on agents making deals with customers. ADM

featured a very centralized system in which

agents played a small role in overall sales and

had no discretion over price. In such an

environment, maintaining control over price was

easy; for the Japanese, Andreas feared it would

be difficult and suggested that Ajinomoto move to

a more ADM-like centralized pricing system.

Andreas also expressed concern that customers

could "cheat" the producers by bargaining down

the price, apparently by claiming to have

received lower bids from competing producers.

Ikeda and Yamada agreed that customer cheating

was a problem, and the four briefly discussed a

quick-response system that would allow the

producers to verify with each other the prices

offered to particular customers.

After the Irvine meeting, the cartel met in

Tokyo to work out the details of the Andreas-

Yamada arrangement. All the companies except for

Cheil now agreed to both tonnage maximums and

percentage market shares. The group excluded

Cheil from this discussion because it considered

Cheil’s volume demand unreasonable. The cartel,

expecting the lysine market to grow in 1994,

thought it wise to agree on percentages of the

market that each company could have since it was

possible that all five producers could sell more

than their allotted tonnage. With a total

expected market of 245,000 tons for 1994,

Ajinomoto was to sell 84,000 tons, ADM would sell

67,000 tons, Kyowa would sell 46,000 tons, Miwon

would sell 34,000 tons and Cheil, if it

eventually accepted the deal, would get 14,000

tons, according to the deal hammered out by

Yamada and Andreas in Irvine.

As they had before the Andreas-Yamada meeting,

Wilson and Whitacre attended these Tokyo meetings

for ADM. In Tokyo, Wilson suggested, and the

members agreed, that each producer report their

monthly sales figures by telephone to Mimoto

throughout the year, and if one producer exceeded

its allocation, it would compensate the others by

buying enough from the shorted members to even

out the allocation. The producers also agreed on

a new price of $1.20 for the United States

market. The agreement to buy each other’s unsold

allocation cemented the deal by eliminating any

incentive for a company to underbid the sales

price. According to Mimoto: "[S]ince there is an

agreement on the quantity allocation, our sales

quantity is guaranteed by other manufacturers of

the lysine. So by matching the price, to us,

lowering the price is very silly. We can just

keep the price." With the agreement on prices and

quantities in place, the lysine price remained at

the agreed level for January and February 1994.

On March 10, 1994, the cartel met in Hawaii. At

this meeting, attended by Wilson and Whitacre on

behalf of ADM, the producers discussed the

progress of the volume allocation agreement,

reported their sales figures and agreed on

prices. They also considered letting Cheil into

the allocation agreement and agreed to grant the

company a market share of 17,000 tons. Cheil

accepted this arrangement at a meeting later that

day, at which Wilson explained that the

conspiracy would operate almost identically to

the scheme used to fix prices in the citric-acid

market. The cartel further agreed on prices for

Europe, South America, Asia and the rest of the

world, and discussed how the global allocations

would work on a regional basis. According to the

figures reported to Mimoto through May 1994,

prices were maintained, and both ADM and

Ajinomoto were on track to meet their sales

volume limits.

In the summer of 1994, the producers met in

Sapporo, Japan, for a routine cartel meeting.

Whitacre represented ADM by himself. At this

meeting, Sewon demanded a larger share of the

market for 1995. This created a problem for the

cartel, which necessitated another meeting

between Andreas and Yamada. In October 1994,

while on a separate business trip to the United

States, Yamada met with Andreas in a private

dining room at the Four Seasons Hotel in Chicago.

Whitacre, Wilson and Mimoto also attended along

with their bosses.

The cartel met in Atlanta in January 1995,

using a major poultry exposition as camouflage

for the producers being in the same place at the

same time. The cartel, without the presence of

Sewon, decided to cut Sewon out of the agreement

for 1995 because of its unrealistic volume

demand. Sewon then joined the meeting and agreed

to abide by the set price, if not the volume. The

group discussed the year-end sales figures for

1994, comparing them to each company’s allocated

volume, and discussed the new allotment for 1995.

According to the 1994 numbers, each company

finished fairly close to its allotted volume. The

cartel met once more in Hong Kong before the FBI

raided the offices of ADM in Decatur and

Heartland Lysine in Chicago. These raids ended

the cartel. Heartland Lysine immediately notified

its home office in Japan of the search, and

Ajinomoto began destroying evidence of the cartel

housed in its Tokyo office. Mimoto overlooked

documents stored at his home and later turned

these over to the FBI. Included in these saved

documents were copies of internal Ajinomoto

reports of the Mexico and Paris meetings.

C. The Investigation

Mark E. Whitacre joined ADM in 1989 as

president of its bioproducts division. That year,

ADM announced that it would enter the lysine

market dominated by Asian producers. Whitacre,

who held a Ph.D. in biochemistry from Cornell

University and degrees in agricultural science,

answered directly to Mick Andreas. Just 32 years

old when he joined the company, Whitacre’s star

clearly was rising fast at ADM, and some industry

analysts thought he could be the next president

of ADM.

In 1992, Whitacre began working with Wilson,

and the two attended the first meetings of the

lysine producers in Mexico City. Also in 1992,

Whitacre began embezzling large sums of money

from ADM and eventually stole at least $9 million

from the company by submitting to ADM phony

invoices for work done by outside companies, who

would then funnel the money to Whitacre’s

personal offshore and Swiss bank accounts. To

cover up the embezzlement, Whitacre hatched a

scheme in the summer of 1992 to accuse Ajinomoto

of planting a saboteur in ADM’s Decatur plant.

Whitacre would accuse the saboteur of

contaminating the delicate bacterial environment

needed for the production of lysine, a story made

believable because of the many early difficulties

the ADM lysine plant encountered.

In accordance with the plot, Whitacre told Mick

Andreas that an engineer at Ajinomoto named

Fujiwara had contacted him at his home and

offered to sell ADM the name of the saboteur in

exchange for $10 million. The story was a lie.

However, Dwayne Andreas believed it and feared it

could jeopardize relations between the United

States and Japan. He called the CIA, but the CIA,

considering the matter one of federal law

enforcement rather than national security,

directed the call to the FBI, which sent agents

out to ADM to interview Whitacre and other

officials about the extortion. Whitacre

apparently had not expected this and realized

quickly that his lie would be discovered by the

FBI, particularly after Special Agent Brian

Shepard asked Whitacre if he could tap Whitacre’s

home telephone to record the next extortion

demand. Whitacre knew that when the extortionist

failed to call, Shepard would know Whitacre had

invented the story. Whitacre confessed the scheme

to Shepard, but to save himself, he agreed to

become an undercover informant to help the FBI

investigate price fixing at ADM. He did not come

totally clean with the FBI, however; he failed to

mention the millions he embezzled and in fact

continued to embezzle after he began working for

the government. For the next two-and-a-half

years, Whitacre acted as an undercover

cooperating witness--legally a government agent--

and secretly taped hundreds of hours of

conversations and meetings with Wilson, Mick

Andreas and the other conspirators. In addition,

the FBI secretly videotaped meetings of the

lysine producers.

Whitacre made between 120 and 130 tapes for the

FBI during the investigation, beginning with a

November 9, 1992, conversation with Yamamoto, by

using recording equipment, tapes and instruction

provided by the government. FBI agents met with

Whitacre more than 150 times during the

investigation. The tapes were collected and

reviewed usually within a day or two of the FBI

receiving them, and Department of Justice (DOJ)

attorneys regularly participated in reviewing the

tapes and monitoring the supervision of Whitacre.

However, the FBI’s supervision of Whitacre was

not flawless. Whitacre was, to say the least, a

difficult cooperating witness to handle. Whitacre

lied to the FBI during the probe, failed

polygraph tests, bragged to his gardener about

his role as an FBI mole, all while continuing to

embezzle millions of dollars from the company. He

even envisioned himself ascending to the ADM

presidency as a hero once Andreas, Wilson and

Randall/2 were taken down in the FBI sting. In

short, he was out of control, and the FBI

struggled to keep him on track. Nonetheless, the

FBI and the DOJ considered him the best

opportunity to stop a massive price-fixing

scheme.

Whitacre exercised much discretion in deciding

which conversations to record. He was given a

tape recorder that could be hidden in his coat

breast pocket and another that could be stowed in

his briefcase. Agent Shepard showed him how to

use the devices and sometimes affixed a recording

device to Whitacre’s body. Another recording

device was used to tap one of Whitacre’s home

telephones, but not his cellular telephone. All

recordings were done with Whitacre’s express,

signed consent, and all but one were done after

Whitacre confessed that his story about a

saboteur was a hoax and he began cooperating.

Whitacre was told to record conversations

relevant to the conspiracy, but not to record

anything about ADM’s legitimate business. In

direct contravention of the FBI’s recording

policy, Whitacre did not record many

conversations he had with the alleged

conspirators. The record shows Whitacre

telephoned Ajinomoto and Kyowa 114 times, but 80

were never recorded or documented by the FBI as

required. In addition, many conversations with

co-defendants Wilson and Andreas were never

recorded or documented.

Whitacre once claimed that Shepard ordered him

to destroy tapes bearing exculpatory

conversations, but Shepard denied this charge and

Whitacre later recanted it in a sworn affidavit.

Both Whitacre and a friend he entrusted with some

of the tapes testified that no tapes were

destroyed at Shepard’s command. A tape expert

testified for the government that none of the

tapes exhibited evidence of splicing or

alteration and that only a few showed evidence of

"bulk erasure" or over-recording. Although that

meant that some recordings may have been taped

over, the expert expressed an opinion that none

of the final recordings had been altered.

Andreas and Wilson moved to suppress the

inculpatory tapes before trial and to allow them

to introduce evidence that exculpatory tapes had

been destroyed. For reasons explained below, the

motion was denied although the trial court found

that the FBI’s supervision of Whitacre and its

blatant inability to follow its own internal

policies "border on gross negligence."

D. Barrie Cox

As part of its investigation into lysine and

citric-acid price fixing by ADM, the government

sought to interview Barrie R. Cox, a British

national and president of ADM’s food additives

division in Europe. Cox, who reported directly to

Wilson from 1991 through June 1995, was believed

to have information regarding a conspiracy to fix

prices in the citric-acid market. Prosecutors

thought he could help them better gauge the value

of ADM’s cooperation, which was a factor in

determining how high the fine should be when ADM

eventually pleaded guilty, a plea which was

expected to follow within a week. To avoid

extradition problems from Great Britain and to

procure Cox’s cooperation, the San Francisco

antitrust office of the DOJ sent Cox a letter

dated October 11, 1996, guaranteeing use-immunity

for any information provided by Cox during the

interview. The letter stated in part:

This is to confirm, as set forth in my letter to

Mr. William W. Taylor, III, . . . that in

connection with the interview of Archer Daniels

Midland Company’s ("ADM") employee, Mr. Barrie R.

Cox, the United States acknowledges that

statements made by Mr. Cox and information

provided by Mr. Cox during the interview are

covered by Federal Rule of Criminal Procedure

11(e)(6) and also may not be used directly or

indirectly against ADM or any of its employees,

subsidiaries or affiliates in any criminal

prosecution.

When the letter was sent and Cox was

interviewed, the government was in the final

stages of negotiating ADM’s guilty plea

agreement. Rule 11(e)(6) of the Federal Rules of

Criminal Procedure prohibits the government from

using the following against a defendant who made

a plea or participated in plea discussions:

(C) any statement made in the course of any

proceedings under this rule regarding either [a

guilty plea that was later withdrawn or a plea of

nolo contendere]; or

(D) any statement made in the course of plea

discussions with an attorney for the government

which do not result in a plea of guilty or which

result in a plea of guilty later withdrawn.

Based on this guarantee, Cox submitted to the

interview. In the interview and later at trial,

Cox provided details of the citric-acid

conspiracy that showed it to be closely similar

in design and function to the lysine conspiracy.

Andreas and Wilson moved to suppress Cox’s

testimony and argued that the government, by its

letter to Cox, intended to immunize them as ADM

employees, despite the fact that they had already

been notified that the government would seek

indictments against them. The district court

found this argument unpersuasive and denied the

motion to immunize Andreas and Wilson or suppress

the testimony.

Cox testified that ADM fixed prices and

participated in volume allocations in the citric-

acid market for at least four years, from 1991 to

1995. Wilson, Cox’s superior, was actively

involved in the schemes in which citric-acid

producers representing about two-thirds of the

global market would meet on a regular basis to

set prices and agree to sales quotas for each

company. Cox testified that before he joined

ADM,/3 Andreas asked him if it was possible to

arrange a meeting of the competitors in the

citric-acid market. Later, Wilson and Cox

arranged meetings with the major competitors, who

agreed to fix prices and establish volume quotas.

The quotas were considered necessary to

discourage any cartel member from cutting prices.

As in the lysine conspiracy, the allocations were

determined by each company’s historical sales

performance. If any company sold too much, it

would be required to buy the following year from

the company that sold too little. To monitor the

progress of the conspiracy, each company reported

its sales monthly to a designated cartel member.

Additionally, a trade association was formed to

help cover up the cartel’s actions. Wilson

participated in several of the cartel’s meetings.

E. Closing Arguments

In closing argument at the end of the two-month

trial, then-Assistant U.S. Attorney Scott Lassar

gave his opinion of the sufficiency of the

evidence:

I think that you’re going to see--and you

probably suspect this already--that the case that

has been presented here by the government is one

of the most compelling and powerful that has ever

been presented in an American courtroom. Why do

I make a statement like that? Well, the most

powerful evidence you could ever have would be a

videotape of the defendant committing the crime.

You can’t get better evidence than that. You’ve

got it as to defendant Andreas and defendant

Wilson.

Defense counsel objected to what they considered

Lassar’s impermissible vouching for the strength

of the government’s case when he called it "one

of the most compelling and powerful that has ever

been presented in an American courtroom." The

court agreed and gave a limiting instruction to

the jury to disregard Lassar’s personal opinion.

Lassar also remarked on defendants’ responses to

the FBI questioning at the time of the raids on

ADM in June 1995. At that time, the FBI briefly

questioned both Andreas and Wilson. After denying

that they committed a crime, both men refused to

answer questions without the presence of counsel.

At trial, Wilson and Andreas exercised their

right not to testify. Lassar characterized the

defendants’ initial responses by saying, "they

lied and lied and lied." He then continued with

his closing:

When the defense attorneys address you, they’re

going to come up with all kinds of different

defenses all over the place. But when you’re

hearing all those defenses, ask yourselves why

didn’t we hear those defenses from Mr. Wilson and

Mr. Andreas on June 27, 1995? That was their

opportunity if they had a defense. They were

confronted. That was their opportunity to give

all these defenses. You’re not going to hear

those lies from the attorneys because the

attorneys have an advantage over their clients.

The attorneys have heard all the evidence the

government has. They knew before trial about all

those tapes, and so they constructed new defenses

for your benefit that they’re going to argue to

you, not the ones their clients came up with, and

that’s evidence to you that the defenses you’re

going to hear are not true because if they were

true, you would have heard them given to the FBI

by Mr. Wilson and Mr. Andreas in June 1995.

The three defendants argued that Lassar sought

to introduce indirectly the defendants’ choice

not to testify. Judge Manning strongly rebuked

Lassar, but declined to declare a mistrial.

Instead, the court instructed the jury to

disregard Lassar’s impermissible comments.

F. Sentencing

The jury convicted the three defendants on the

single-count conspiracy indictment. On July 9,

1999, the court sentenced the defendants. United

States Sentencing Guidelines sec. 2R1.1 mandated

a base-offense level of ten and a seven-level

increase because the volume of commerce affected

was more than $100 million. With criminal

histories in category I, the applicable range

under the Guidelines for an offense level of

seventeen was twenty-four to thirty months. The

Presentence Investigation Reports (PSR)

recommended a four-level increase for Andreas and

three-level increase for Wilson based on their

leadership roles in the conspiracy, pursuant to

U.S.S.G. sec. 3B1.1. The court rejected the

leadership role enhancements because it found

that Wilson and Andreas were no more culpable

than their co-conspirators. The court then

sentenced each defendant to twenty-four months in

prison.

II. Analysis

On appeal, Andreas and Wilson raise ten issues

including, among others, challenges to

evidentiary rulings, the sufficiency of the

evidence and the calculation of their sentences

under the Sentencing Guidelines. The government

appeals only one ruling, the denial of an upward

adjustment for the defendants’ leadership roles

in the crime.

A. The Tape-Recorded Evidence

1. Admission of Audiotape Evidence

The defendants appeal the district court’s

decision to admit the tape recordings made by

Whitacre on two grounds. First, they claim they

were denied due process because evidence showed

that the FBI and Whitacre engaged in "selective

taping" and destroyed exculpatory tapes, which

rendered the tapes unreliable, misleading and the

product of bad faith. Second, they allege that

the tapes were made in violation of the federal

wiretap statute, 18 U.S.C. sec. 2511. The

district court considered and rejected these

arguments, and we review that decision for abuse

of discretion. See United States v. Bradley, 145

F.3d 889, 892 (7th Cir. 1998). The abuse of

discretion standard for evidentiary rulings

presents a high hurdle for defendants, allowing

reversal "only when no reasonable person could

agree" with the trial judge, United States v.

Sinclair, 74 F.3d 753, 756-57 (7th Cir. 1996),

and only if the error was not harmless. See

Holmes v. Elgin, Joliet & E. Ry. Co., 18 F.3d

1393, 1397 (7th Cir. 1994).

a. Due Process

The defendants claim the admission of the tapes

violated their due process rights because the FBI

failed to supervise Whitacre adequately, badly

mismanaged the two-year taping operation and

because Whitacre had ulterior motives for acting

as a mole, thereby rendering the tapes so

unreliable as to make them constitutionally

defective. See United States v. Feekes, 879 F.2d

1562, 1564 n.2 (7th Cir. 1989); United States v.

Faurote, 749 F.2d 40, 44 (7th Cir. 1984). After

holding an evidentiary hearing, the trial court

denied the defendants’ motions to suppress the

tape recordings.

In Feekes, we expressed in dicta that

government conduct in managing an undercover

taping investigation could be so outrageous as to

"run afoul of the constitutional guarantee of due

process." Feekes, 879 F.2d at 1564 n.2. As

examples, we mentioned selective taping and

editing of conversations and deliberate

destruction of certain tapes. Id. However, we

also noted that credibility determinations

regarding an informant belong to the jury, not

the court, and that it was equally important to

consider the total circumstances of the

undercover operation in assessing the supposed

outrageousness of the government’s conduct. Id.

at 1565. In conducting criminal investigations,

law enforcement frequently must rely on unsavory

characters, such as Whitacre, whose motives are

less than pure. As with all due process analyses,

the touchstone consideration is whether the

proceeding was fundamentally fair, and selective

recording without more does not offend the

Constitution. See United States v. Chaudhry, 850

F.2d 851, 857 (1st Cir. 1988).

Whitacre’s behavior while acting as a

cooperating witness can be characterized as

troublesome and, at times, criminal. That is to

say, he lied, cheated, stole and then lied some

more. He failed to follow orders and had

delusions of grandeur that would make Napoleon

blush. Still, this Court cannot fathom how that

affected the accuracy of his recording equipment.

The tapes themselves reflect complete

conversations and are internally consistent and

corroborated by other witnesses. While evidence

that an informant selectively failed to record

exculpatory evidence would raise due process

concerns, the defendants produced no such

evidence. Rather, they rely merely on an

assumption that because Whitacre was dishonest

and sought to benefit from having his superiors

convicted, then he must have selectively failed

to record exculpatory conversations.

The defendants contend that the FBI granted

Whitacre unfettered discretion to choose what to

tape, but this mischaracterizes the FBI’s

instructions to Whitacre. Andreas and Wilson say

Whitacre was told to tape incriminating

conversations, not conversations regarding

legitimate ADM business, and this amounts to an

instruction not to tape exculpatory remarks. The

FBI’s actual instructions were to tape all

conversations regarding the conspiracy, which

would include inculpatory and exculpatory

statements, but to omit conversations about other

ADM business. Had the subjects of the

investigation had a conversation related to the

conspiracy that was exculpatory, Whitacre was

under orders to record it. His discretion was not

unfettered, nor was he told to do anything

improper.

In Faurote, we reaffirmed the principle that

the party seeking to introduce taped evidence

bears the burden of establishing its truth,

accuracy and authenticity, and that the trial

judge has broad discretion in deciding whether

this standard has been met. 749 F.2d at 43.

Defendants cannot mount a serious challenge under

this standard. The government established the

accuracy of the recordings through witnesses who

attended the meetings, and defense counsel took

full advantage of the opportunity to voir dire

and cross-examine these witnesses on the truth,

accuracy and meaning of the tapes. A tape expert

testified that although some of the tapes had

been reused, none of the conversations on the

tapes had been altered or edited in any way. We

see no "extraordinary circumstances" (in fact, no

circumstances whatsoever) that would cause us to

reverse the trial court’s decision to admit the

tapes.

Finally, the defendants contend that the FBI

ordered Whitacre to destroy exculpatory tapes,

which would undoubtedly violate due process if

true. See California v. Trombetta, 467 U.S. 479,

488-89 (1984); United States v. Watts, 29 F.3d

287, 290 (7th Cir. 1994). To establish such a

violation, the defendants must show that (1) the

government acted in bad faith by not preserving

evidence, (2) the exculpatory nature of the

evidence was apparent before its destruction and

(3) the defendant cannot obtain the same evidence

elsewhere. See Trombetta, 467 U.S. at 488-89;

Watts, 29 F.3d at 290. The defendants produced no

credible evidence that any evidence was actually

destroyed. Whitacre never claimed he destroyed

tapes; rather, he offered but then recanted an

allegation that a friend to whom he sent some

tapes destroyed them after the FBI told Whitacre

to get rid of the tapes. That friend, David

Hoech, denied destroying any tapes. It follows

that because no evidence was destroyed, its

exculpatory nature could not have been apparent

before its destruction. Furthermore, because

Whitacre recanted his allegation that the FBI

ordered him to destroy tapes--an allegation that

was far from credible even when made--no evidence

indicates bad faith by the government.

b. Federal Wiretap Laws

The defendants further contend that the tape

recordings violated federal wiretap laws, and

therefore must be excluded from trial based on 18

U.S.C. sec. 2515, which prohibits the evidentiary

use of any illegally obtained tape recording. Two

exceptions to sec. 2515 potentially apply. First,

sec. 2511(2)(c) allows the use of tape recordings

made by a participant to the conversation who was

"acting under color of law." 18 U.S.C. sec.

2511(2)(c). Second, sec. 2511(2)(d) allows the

use of recordings made by participants in a

conversation unless that party had a "criminal or

tortious" purpose in making the recording. 18

U.S.C. sec. 2511(2)(d). Because we find that

Whitacre acted under color of law, we do not need

to reach the second possibility.

The government asserts that Whitacre was acting

as a cooperating witness, and therefore under

color of law, from November 1992 through the end

of the conspiracy. See Obron Atlantic Corp. v.

Barr, 990 F.2d 861, 864 (6th Cir. 1993) (allowing

use of tape recordings made by corporate

executive in price-fixing investigation); United

States v. Haimowitz, 725 F.2d 1561, 1582 (11th

Cir. 1984) (holding that cooperating witness

under direction of FBI was acting under color of

law); United States v. Horton, 601 F.2d 319, 322

(7th Cir. 1979) (holding that tapes made by FBI

informant were admissible under sec.2511(2) (c)-

(d)); United States v. Craig, 573 F.2d 455, 476

(7th Cir. 1977) (holding that informant acted

under color of law when FBI supervised

recording). Andreas and Wilson counter that the

FBI’s supervision of Whitacre was so lax as to

strip him of this status.

In Craig, we noted several factors in the

government’s supervision of an informant that

indicated the government directed the recording.

573 F.2d at 476. In that case, such factors

included whether the government supervised every

aspect of the recording, selected the

conversations to be recorded, supplied and

operated the equipment, and recovered the tapes

and equipment after each session. Id. We did not

suggest that these factors were necessary to a

finding that the witness acted under color of

law, only that they were sufficient. Id.

Therefore, their absence in the instant case,

while probative, is not dispositive.

Defendants cite dicta in Thomas v. Pearl, 998

F.2d 447, 451 (7th Cir. 1993), for the

proposition that because police officers "who

secretly taped conversations without a warrant or

the approval of their superiors" would not be

acting under color of law, then a fortiori, a

private citizen acting without a warrant or the

approval of superiors cannot be. In Thomas, we

were comparing the "color of law" provision from

the wiretap statute with the way the term has

been interpreted in cases arising under 42 U.S.C.

sec. 1983. In civil rights cases, we have

interpreted the term very broadly, equating it

with state action. In Thomas, we held that such

a broad reading of "color of law" in the wiretap

statute would be nonsensical because it would

permit every government employee to tape with

impunity, regardless of their purpose. 998 F.2d

at 451. We used the example of police officers

acting in violation of the Fourth Amendment to

make the point that government employment by

itself does not mean acting under color of law

for purposes of the wiretap statute. Id. Here,

the government does not contend that Whitacre was

acting under color of law because he was a

government employee. Thomas, then, is of only

marginal relevance.

Rather, when assessing whether someone acted

under "color of law" for the wiretap statute, the

question is whether the witness was acting under

the government’s direction when making the

recording. See Craig, 573 F.2d at 476; see also

Obron Atlantic, 990 F.2d at 864; Haimowitz, 725

F.2d at 1582; United States v. Shields, 675 F.2d

1152, 1156-57 (11th Cir. 1982); United States v.

Tousant, 619 F.2d 810, 813 (9th Cir. 1980). No

cases demand that the government’s supervision of

its cooperating witnesses and informants need be

flawless. In fact, the investigation in Obron

Atlantic suffered many of the same defects as the

ADM investigation. 990 F.2d at 863. The mole in

Obron Atlantic used his own equipment, decided

which calls to tape, failed to maintain a log of

his recordings and sometimes held on to tapes for

weeks or months before turning them over. Id. The

court found that the witness’s "continuous,

albeit irregular, contact [with] DOJ attorneys,

following their explicit request that he assist

them in this very way and their instructions on

how to conduct the calls, outweighs the lack of

direct DOJ supervision over the recording process

and [his] failure to comply with certain

directives." Id. at 865. What we find essential

is that the government requested or authorized

the taping with the intent of using it in an

investigation and that they monitored the

progress of the covert surveillance activities.

To be sure, the FBI’s supervision of Whitacre’s

surreptitious taping activities will likely never

make it into the textbooks. The defendants make

use of the technical errors in the supervision to

paint a picture of a rogue witness, completely

out of control, acting alone, throwing away tapes

and manipulating evidence with callous

indifference. Many conversations between Whitacre

and one or more conspirators that should have

been recorded were not, and the FBI frequently

did not file the necessary reports or provide

explanations for these missed conversations. Many

of the tapes Whitacre made were not collected as

promptly as they should have been, and the

catalogue of tapes given to and collected from

Whitacre was not meticulously maintained. The FBI

did not seem to follow its own internal

guidelines on supervising taping activities, but

this does not provide a basis for constitutional

challenge. See United States v. Caceres, 440 U.S.

741, 752 (1979) (holding that a breach of

administrative guidelines does not establish a

constitutional violation automatically).

Still, these technical deficiencies do not show

Whitacre acting independently of the FBI. FBI

agents requested Whitacre begin taping his co-

conspirators, instructed him on what type of

conversation to record, supplied him with taping

equipment and tapes, instructed him on the proper

use of the equipment and met with him regularly

to discuss developments in the conspiracy and

collect the tapes. When possible, the FBI itself

monitored the conversations by setting up remote-

controlled video recorders to tape the face-to-

face meetings of the conspirators and having FBI

agents act as hotel staff to infiltrate the

meetings. As in Craig, this evidence was

sufficient to prove that Whitacre acted at the

direction of the FBI in gathering the tapes, and

therefore acted under color of law.

2. Evidence of Exculpatory Audiotapes

Wilson and Andreas next contend that the trial

court’s decision to exclude the testimony of

Special Agent Athena Varounis denied them the use

of potentially exculpatory evidence. The

defendants believe that Varounis would have

testified about her investigation of claims by

Whitacre and his wife that the FBI instructed

Whitacre to destroy exculpatory tapes. On April

16, 1997, after he learned he would be indicted,

Whitacre and his wife, Ginger Whitacre, met with

Varounis in Chicago and alleged that Agent

Shepard told him to destroy tapes. Whitacre later

recanted the allegation, but Wilson and Andreas

sought to introduce it as hearsay pursuant to

Rule 804(b)(3) of the Federal Rules of Evidence

as a statement against penal interest. Whitacre

exercised his Fifth Amendment right not to

testify at trial, making him unavailable to

testify, so defendants sought to have Varounis

recount Whitacre’s statements to her regarding

the FBI’s alleged order to destroy evidence. The

trial court refused to allow the testimony

because the statements were not, on balance,

against Whitacre’s penal interest when made and

were not adequately corroborated.

To be admissible under Rule 804(b)(3), a

statement must have been against the declarant’s

penal or pecuniary interest at the time it was

made, must be corroborated to ensure its

trustworthiness and the declarant must be

unavailable to testify. See United States v.

Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990); see

also Williamson v. United States, 512 U.S. 594

(1994). Courts must look to the totality of

circumstances to determine whether the declarant

truly exposed himself to criminal liability by

making the statements. See United States v.

Butler, 71 F.3d 243, 253 (7th Cir. 1995).

The trial court found that Whitacre’s statements

were not credible when made and were contradicted

by other evidence. Hoech, the friend to whom

Whitacre supposedly sent the tapes, testified

that he did not destroy any tapes, and other

evidence showed Whitacre’s story to be a poorly

constructed hoax. For instance, Whitacre claimed

the order to destroy evidence came during a

meeting in Illinois on a day when records show

Whitacre was out of the state. Varounis found no

evidence that any tapes had been destroyed.

Whitacre himself recanted the allegation in a

sworn affidavit before being sentenced for

embezzlement. Whitacre’s propensity to lie cannot

be doubted, and the court chose not to accept his

(by then recanted) story over contradictory

statements of other witnesses.

Andreas and Wilson contend that Whitacre’s

statements to Varounis indicate Whitacre

obstructed justice and were therefore against his

penal interest, but it is unclear how this could

be true. Whitacre, who was about to be charged

with conspiring to violate the antitrust law, and

Whitacre’s wife said only that the FBI instructed

him to destroy tapes, and he denied that he ever

actually destroyed evidence. Furthermore, because

Whitacre was acting as a government agent since

November 1992, none of the tapes could have been

inculpatory as to him. Therefore, by claiming the

FBI ordered tapes destroyed, he did not damage

his own defense against the antitrust conspiracy

charge at all, but he delivered a potentially

crippling blow to the FBI agents’ credibility at

trial. Since Whitacre’s antitrust conviction

would be based largely on FBI and co-conspirator

testimony regarding the pre-November 1992 events,

this tactic could have been a major boon to him

in fighting his own conspiracy charge. Whitacre

may also have preferred conviction on the less

serious charge of obstructing justice rather than

face a longer prison term for criminal

conspiracy. Judge Manning correctly found that,

on balance, the Whitacres’ allegations of

evidence tampering were not against Whitacre’s

penal interest. The trial court did not abuse its

discretion in barring Agent Varounis’ testimony.

B. Barrie Cox

1. The Immunity Agreement

The government and Cox entered into a use-

immunity agreement to facilitate Cox’s interview

with the FBI and the DOJ in preparation for ADM’s

impending plea agreement, which would settle all

charges against the corporation. At all times,

the government was preparing to prosecute Wilson

and Andreas criminally, which makes the

defendants’ request that this Court interpret the

Cox immunity agreement (the "agreement" or

"letters") to immunize them truly remarkable.

They contend that this absurd result follows from

a logical chain beginning with the government’s

intent to immunize Andreas and Wilson, even

though Andreas and Wilson were the prime

individual targets of the government’s three-year

investigation. The defendants contend they are

third-party beneficiaries of the agreement and

that because the government cannot present an

entirely independent source for Cox’s testimony,

the indictment must be dismissed, or at the very

least, Cox’s testimony regarding the citric-acid

conspiracy should have been suppressed. We

decline to take the first step down this too

clever road.

Without deciding whether third parties can ever

be immunized by another’s compelled testimony,/4

we agree with the district court that Wilson and

Andreas do not have standing to enforce the terms

of the Cox agreement. Immunity agreements, like

plea bargains, are interpreted as ordinary

contracts in light of the parties’ reasonable

expectations at the time of contracting. See

Wilson v. Washington, 138 F.3d 647, 652 (7th Cir.

1998); United States v. Fields, 766 F.2d 1161,

1168 (7th Cir. 1985). Individuals who are not

parties to a contract may enforce its terms only

when the original parties intended the contract

to directly benefit them as third parties. See

Restatement (Second) of Contracts sec. 304

(1979); Holbrook v. Pitt, 643 F.2d 1261, 1270

(7th Cir. 1981) ("Under settled principles of

federal common law, a third party may have

enforceable rights under a contract if the

contract was made for his direct benefit."); see

also Carson Pirie Scott & Co. v. Parrett, 178

N.E. 498, 501 (Ill. 1931)./5 A contract creates

a right in a third-party beneficiary if

recognition of that right effectuates the intent

of the parties and the "circumstances indicate

that the promisee intends to give the beneficiary

the benefit of the promised performance."

Restatement (Second) of Contracts sec. 304;

Holbrook, 643 F.2d at 1271 n. 17 (adopting the

Second Restatement definition); see generally

Cahill v. Eastern Benefit Sys., Inc., 603 N.E.2d

788, 792-93 (Ill. App. Ct. 1992) ("The critical

inquiry centers on the intention of the parties,

which is to be gleaned from the language of the

contract and the circumstances surrounding the

parties at the time of its execution.") (citing

People ex rel. Resnik v. Curtis & Davis,

Architects & Planners, Inc., 400 N.E.2d 918, 919

(Ill. 1980)).

In this case, the circumstances conclusively

establish that neither the promisee (Cox) nor the

promisor (the government) intended to give

Andreas and Wilson any benefit of the promise

since both knew Andreas and Wilson specifically

would be excluded from the plea deal. In October

1996, the government was in the final stages of

negotiating a plea agreement with ADM that would

end the investigations into the corporation’s

responsibility for antitrust violations in the

lysine and citric-acid industries. The plea

agreement included a statement that "the United

States agrees: (a) not to bring charges against

any current director, officer or employee of the

defendant or any of the defendant’s subsidiaries

or affiliates (other than Michael D. Andreas and

Terrance Wilson)." In exchange for the plea, ADM

agreed to pay a $100 million fine and cooperate

(and allow its employees to cooperate) with the

government. In the October 11 letter to Aubrey M.

Daniel, attorney for ADM, the DOJ expressly

conditioned the plea on "the cooperation of ADM’s

employees with the investigation and resulting

prosecutions." (Emphasis added.)

The DOJ sought Cox’s testimony in advance of

the plea hearing to help it "assess the value of

ADM’s proffered cooperation." The government had

agreed that if ADM’s cooperation was especially

helpful, it would not seek a higher fine under

the Sentencing Guidelines. Both letters expressly

referenced Rule 11(e)(6) of the Federal Rules of

Criminal Procedure, placing the letters squarely

in the context of the impending plea agreement,

which expressly excluded Andreas and Wilson.

The letter to ADM’s attorney (the "Daniel

letter") incorporated the letter to Cox’s

attorney, Taylor (the "Taylor letter"). The

Taylor letter specifically referenced the

proposed plea agreement of ADM and expressed the

understanding of the United States that "the

interview is being conducted in the course of our

plea discussions with your clients’ employer,

ADM." The Daniel letter, like the Taylor letter,

further refers to the Federal Rules of Criminal

Procedure. The references to the plea

negotiations and the plea agreement express the

intent of the parties to execute an immunity

agreement to protect Cox, ADM and all ADM

employees except for Andreas and Wilson, from

prosecution based on Cox’s testimony.

The text of the letters and the circumstances

surrounding them do not evince an intent to vest

third-party rights in Andreas and Wilson. To the

contrary, the evidence demonstrates an intent to

exclude Andreas and Wilson from any benefit of

the agreement. Because they are not parties or

third-party beneficiaries, we hold that Wilson

and Andreas do not have standing to enforce the

terms of the immunity agreement./6

2. Citric-Acid Conspiracy Evidence

Defendant Andreas objected to the admission of

Cox’s testimony regarding the citric-acid

conspiracy as unduly prejudicial. Andreas

contends that no evidence showed he had been

involved in the citric-acid conspiracy, and

therefore it could not be admitted against him

under Rule 404(b) of the Federal Rules of

Evidence, which allows evidence of other crimes

or bad acts to be used to show a defendant’s

motive, plan or intent in the instant crime. Rule

404(b) strictly prohibits the evidence of other

crimes or bad acts to support the inference that

the defendant has a propensity to commit that

type of crime, but we do not believe that

happened here. First, Andreas contends vigorously

that the evidence of the citric-acid conspiracy

fails to implicate him in any crime, including

the citric-acid conspiracy, so it follows that

the potential for an impermissible inference

regarding his character must be nil. However, we

find an alternative basis for allowing Cox’s

testimony.

Rule 404(b) guards against the impermissible

inference that because a defendant committed

Crime A at some time in the past, he is more

likely to have committed Crime B, the crime

charged in the present. The risk that the jury

may improperly comprehend and weigh evidence of

prior bad acts looms so large that courts in this

country have long forbidden the government from

invoking it. See Victor J. Gold, Federal Rule of

Evidence 403: Observations on the Nature of

Unfairly Prejudicial Evidence, 58 Wash. L. Rev.

497, 524-30 (1983). Yet we have carved out two

important categories of cases where the rule does

not apply. The first, and most common, is

expressly stated in the rule itself, and that

allows the use of other crimes evidence for

purposes other than to show a propensity to

commit the crime, such as to show the defendant’s

motive, plan or intent. See Fed. R. Evid. 404(b)

("Evidence of other crimes, wrongs, or acts . .

. may, however, be admissible for other purposes,

such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or

absence of mistake or accident . . . .").

The second exception, which applies here, covers

acts that are so intricately interwoven with the

facts of the charged crime that to omit the

evidence relating to it would lead to confusion

or leave an unexplainable gap in the narrative of

the crime. See United States v. Akinrinade, 61

F.3d 1279, 1285-86 (7th Cir. 1995). While not an

express exception to Rule 404(b), this type of

evidence is permitted by virtue of not being

included within the province of the rule. "Other

crimes or acts" does not include those acts that

are part and parcel of the charged crime itself;

they simply are not "other." To omit the evidence

would leave unanswered some questions regarding

the charged offense. Such evidence includes acts

that although not charged as crimes, "are

directly related to the charged offense." United

States v. Adames, 56 F.3d 737, 742 (7th Cir.

1995). "[T]he question is whether the evidence is

properly admitted to provide the jury with a

complete story of the crime . . . ." United

States v. Ramirez, 45 F.3d 1096, 1102 (7th Cir.

1995) (internal quotation omitted).

Andreas’ situation mirrors Adames. That case

involved a drug conspiracy in which one of the

defendants, Adames, had been caught in a drug

sting operation in Texas (the "Texas sting")

unrelated to his co-defendants in the charged

offense. Adames, 56 F.3d at 741. However, the

Texas sting prevented Adames from delivering the

promised amount of marijuana and caused other

changes in the conspirators’ plan. The co-

defendants moved to exclude evidence of the Texas

sting on the ground that it was a separate,

extraneous conspiracy that did not implicate them

at all. Like Andreas, they also moved to exclude

on the basis that even if allowable under Rule

404(b), it would be unduly prejudicial and should

be barred by Rule 403.

The trial court found, and we agreed, that the

Texas sting was sufficiently linked to the

charged offense to be admitted notwithstanding

Rule 404(b). Id. at 742. The Texas sting provided

direct evidence of the crime charged and

therefore could not be considered "other crimes"

evidence. Furthermore, the Texas sting was not so

shocking, repulsive or emotionally charged that

its probative value was outweighed by its

prejudicial effect. We noted that probative

evidence is always prejudicial, but the question

remains whether it is unfairly prejudicial. Id.

The evidence of the citric-acid conspiracy

answered at least three relevant questions.

First, the jurors heard the conspirators in tape-

recorded meetings discussing the citric-acid

conspiracy, and they heard Wilson explaining that

certain aspects of the lysine conspiracy, such as

the bogus trade association, would operate in the

same way. The evidence of the citric-acid

conspiracy was relevant to explain these

references in the conspirators’ conversations.

Second, testimony at trial showed that in the

halls of ADM’s Decatur headquarters, the lysine

and citric-acid conspiracies were closely related

parts of a master plan to control prices and

product supply through collusion with

competitors. The citric-acid conspiracy, of which

Andreas was aware, provided the blueprint for and

motivating force behind the nascent lysine

scheme. Many of the lysine cartel’s meetings

revolved around the need to allocate sales

volume, a lesson dictated by the experience in

the citric-acid conspiracy.

Finally, omitting the citric-acid evidence would

leave Wilson’s participation in the lysine

conspiracy unexplained. Wilson--head of the corn

division--was called in to work on the

bioproducts project solely because he had

experience with cartels that he gained from the

citric-acid conspiracy. Wilson was to tutor

Whitacre in running a citric-acid type

conspiracy. The inference cannot be missed that

since Wilson reported directly to Andreas,

Andreas must have known why his corn processing

chief was working so closely and traveling so

much with the bioproducts chief. Because Wilson’s

entire reason for getting involved in lysine was

to share his criminal experience with Whitacre,

it takes little imagination to see how evidence

of the citric-acid conspiracy implicated Andreas.

To omit this evidence would, as in Adames, leave

an unexplained gap in the narrative of the crime.

We find the evidence of the citric-acid

conspiracy was relevant to Andreas’ guilt and not

unfairly prejudicial.

C. Per Se Violations

The grand jury indictment charged the defendants

with engaging in a "conspiracy to suppress and

eliminate competition by fixing the price and

allocating the sales volumes of lysine . . . the

substantial terms of [the conspiracy] were: (a)

to agree to fix and maintain prices . . . and (b)

to agree to allocate the sales volumes of lysine

among the corporate conspirators." The

government’s theory of the case held that the

conspirators sought to raise prices by two

independent but related means--price fixing and

volume agreements--either one of which would

accomplish the ultimate goal of the conspiracy.

The court instructed the jury that it could

convict the defendants of violating sec. 1 of the

Sherman Antitrust Act if it found the defendants

entered into an agreement either to fix prices or

to "divide sales of a product among the various

competitors." The defendants moved for acquittal

on the sales volume portion of the indictment,

arguing that it could not be considered a per se

antitrust violation. The court denied the motion

and a subsequent renewed motion for acquittal

following the conviction. We review de novo a

denial of motion for acquittal, but view the

evidence in the light most favorable to the

government. See United States v. Hach, 162 F.3d

937, 942 (7th Cir. 1998).

On appeal, Wilson and Andreas contend that the

jury instruction impermissibly allowed the jury

to convict them for allocating sales volumes

without requiring the government to prove with

economic evidence that such an allocation

unreasonably restrained trade. Violations of sec.

1 require evidence proving that the charged

practice had the effect of unreasonably

restraining trade under the "rule of reason,"

except in the limited cases referred to as per se

violations. See White Motor Co. v. United States,

372 U.S. 253, 261-62 (1963); see also Broadcast

Music, Inc. v. CBS, Inc., 441 U.S. 1, 7-8 (1979).

Per se violations are ones that "always or almost

always tend to restrict competition and decrease

output" such that the court may dispense with the

requirement of economic evidence. Id. at 19-20.

Per se violations are "naked restraints of trade

with no purpose except stifling of competition,"

White Motor, 372 U.S. at 263, and have been

characterized as so "plainly anti-competitive"

and lacking "any redeeming virtue" that they are

presumed illegal under sec. 1. See Broadcast

Music, 441 U.S. at 8 (internal quotations and

citations omitted). Courts apply per se treatment

only after "considerable experience" with a

particular business practice has inevitably

resulted in a finding of anticompetitive effects.

United States v. Topco Assocs., Inc., 405 U.S.

596, 607 (1972); Bunker Ramo Corp. v. United

Business Forms, Inc., 713 F.2d 1272, 1284 (7th

Cir. 1983). The defendants do not contend that

price fixing is not a per se violation, only that

the agreement to allocate sales volumes, which

according to the indictment and jury charge was

a separate and independent goal of the

conspiracy, should be subject to rule of reason

analysis. We will reverse jury verdicts in

multiple-goal conspiracies when the potential

exists that the jury convicted the defendant on

an improper ground. See United States v.

McKinney, 954 F.2d 471, 475 (7th Cir. 1992).

The issue then is whether the agreement to

divide the market among the five lysine producers

constituted a per se violation of the Sherman

Act. The defendants’ argument relies heavily on

the fact that neither the words "sales volume

allocation" nor any practices precisely identical

to their scheme appear in the case law as a per

se violation. The agreement did feature some

clever characteristics that the conspirators

hoped would help them avoid detection, but these

small differences are not sufficient to

distinguish their plot from more common per se

prohibited practices. For instance, a

conventional illegal agreement to allocate

particular customers raises a strong chance that

the customers themselves would become suspicious

when the customers found that they could not buy

the product from certain companies. See, e.g.,

United States v. Socony-Vacuum Oil Co., 310 U.S.

150 (1940); United States v. Cooperative Theatres

of Ohio, Inc., 845 F.2d 1367 (6th Cir. 1988). The

lysine cartel’s plan avoided this risk by

allowing the customer to choose from whom to buy.

Because the product was entirely fungible and

priced equivalently, the source of the product

did not matter to either consumers or suppliers,

so the customers’ choices mattered little until

the end of the year.

Other types of market divisions, such as those

based on geography, see, e.g., Palmer v. BRG of

Georgia, Inc., 498 U.S. 46 (1990), or product

lines, made little sense and were unnecessary for

this particular industry. Similarly, a

conventional illegal agreement to limit industry

output, see, e.g., Westinghouse Elec. Corp. v.

Gulf Oil Corp., 588 F.2d 221, 226 (7th Cir.

1978), would be less desirable since the

conspirators believed market demand was growing.

So long as the lysine price remained high, it

served the conspirators’ best interests to allow

for market growth, and the agreement adequately

accounted for divvying up that growth.

Yet the fact that the lysine producers’ scheme

did not fit precisely the characterization of a

prototypical per se practice does not remove it

from per se treatment. At bottom, the lysine

cartel’s agreement was a conspiracy to limit the

producers’ output and thereby raise prices.

Functionally, an agreement to restrict output

works in most cases to raises prices above a

competitive level, see General Leaseways, Inc. v.

National Truck Leasing Ass’n, 744 F.2d 588, 594

(7th Cir. 1984), and for this reason, output

restrictions have long been treated as per se

violations. See Federal Trade Comm’n v. Superior

Court Trial Lawyers Ass’n, 493 U.S. 411 (1990);

National Collegiate Athletic Ass’n v. Board of

Regents, 468 U.S. 85, 100 (1984); Socony-Vacuum,

310 U.S. 150, 223. A prototypical output

restriction raises prices by reducing supply

below demand. Here, the volume division among the

lysine competitors restricted competition over

those sales that would lower the commodity price.

Putting aside for a moment the provision for

market growth, the sales volume allocation

divided the market’s expected demand among the

five companies on an annual basis. Each agreed

not to sell more than their allotment. If after

eleven months of a given year, a producer had

reached its allocation, the agreement would

require it to turn down any additional sales,

thereby limiting its output. If it did not stop

sales, the agreement required the over-limit

producer to purchase an amount equal to its

excess from a producer who had fallen short. This

would erase the effect of the surplus sales,

returning the producer to a state as if it had

limited its output.

The agreement allowing for market growth did

not change the essential nature of the sales

volume allocation as a volume limitation; it

merely allowed for per-producer volume limits in

a growing market. An output limitation in a

static market might give each producer a specific

tonnage that it could sell. In a growing market,

an output limitation could achieve the same end

by giving each producer a specific tonnage plus

a proportionate share of the growth. Although no

one could know exactly how much the market would

grow until the final numbers were in, fairly good

estimates could be made, and any errors could be

corrected at the year-end accounting. This meant

that, as in the static market scenario, a

producer that reached its expected limit by the

start of the eleventh month would be prohibited

from making any additional sales. The volume

agreement, then, limited competition over those

sales that would lower the price, and as we said

in General Leaseways, 744 F.2d at 594, such an

agreement can be treated as a per se offense.

The conspirators began discussing the volume

limits at their first meeting in Mexico City when

Wilson proposed the idea and explained its vital

importance to the overall scheme to control the

industry. Ajinomoto, ADM and the others began

haggling over how much each would be allowed to

produce. This argument continued until Andreas

and Yamada met in Irvine, and Andreas threatened

to flood the market unless Ajinomoto agreed to

the volume limits. The conspirators left this

meeting with an agreement that Ajinomoto would

sell 84,000 tons of lysine and ADM would sell

67,000 tons, with adjustments for expected growth

in the market. This agreement constituted an

output limitation, which long has been condemned

as a per se violation of the Sherman Act.

Therefore, the jury instruction correctly advised

the jurors of the required elements of a sec. 1

violation.

Although output limitations have been treated

under the per se rule, the Supreme Court has

recognized special circumstances when horizontal

agreements on production could be pro-competitive

and therefore treated under rule of reason

analysis. See NCAA, 468 U.S. at 117; Broadcast

Music, 441 U.S. at 19. In these case, output

limitations have been shown to be potentially

pro-competitive because of the unique nature of

the product involved, and therefore the cases

merited rule of reason treatment. In NCAA, the

output restriction addressed declining fan

attendance caused by widespread television

coverage of the athletic contests. Without some

restriction on television coverage, the schools

feared they would lose too much ticket-based

revenue to continue holding games at all.

Here, the district court found nothing in the

record that rose to the level of the special

circumstances in NCAA and Broadcast Music to

warrant departure from per se treatment. Nothing

suggests that a market allocation was necessary

to maintain a competitive industry. In contrast

to NCAA, where each school’s athletic program

relied on the continued existence of competing

schools to stage intercollegiate games, each

lysine competitor could have continued selling

its product without the others. While market

demand might not support the full production of

five companies at a profitable price, this fact

does not distinguish lysine from many other

markets. ADM’s entrance into the market may have

resulted in oversupply and lower prices for

consumers, but this does not grant a license to

violate the antitrust laws.

D. Intent Requirement

Andreas and Wilson next appeal the district

court’s refusal to give a requested instruction

highlighting their defense theory on intent. The

defendants argued at trial that whenever they

seemed to be agreeing and conspiring with their

competitors to violate the antitrust laws, they

were actually playing a clever game of deception.

By pretending to agree, they sought to put the

Asian companies at a disadvantage so that they

would share information and fall into a false

sense of security, while ADM aggressively pursued

new customers. Their proposed intent instruction

would have advised the jury that an agreement

does not exist if "one party did not intend to

abide by the agreement." We review de novo a

district court’s decision to give or not to give

a jury instruction, see United States v. Brack,

188 F.3d 748, 761 (7th Cir. 1999), but review the

language of an instruction with great deference,

upholding instructions that "are accurate

statements of the law and which are supported by

the record." United States v. Vang, 128 F.3d

1065, 1069 (7th Cir. 1997) (quoting Doe v.

Johnson, 52 F.3d 1448, 1456 (7th Cir. 1995)).

We agree that a defendant’s subjective intent

is a required element of a criminal antitrust

violation, see United States v. United States

Gypsum Co., 438 U.S. 422, 434-36 (1978), and that

a defendant who pretended to agree but did not

intend to honor the agreement could not be

convicted of a crime. See United States v.

Bestway Disposal Corp., 724 F.Supp. 62, 67

(S.D.N.Y. 1988). However, we reject the

defendants’ claim of error for two reasons.

First, the defendants’ theory was not supported

by any evidence in the record. A defense jury

instruction must be given only if "the

instruction reflects a theory that is supported

by the evidence." United States v. Fawley, 137

F.3d 458, 468 (7th Cir. 1998) (citation omitted).

Andreas and Wilson presented no evidence, nor did

any emerge during the government’s case in chief,

that they never intended to abide by the

agreements. In fact, all evidence showed they

fully intended to abide by the agreement. Some of

the witnesses testified to distrust among the

conspirators, but the evidence showed a lack of

trust in their co-conspirators to abide by the

agreement, not a lack of intent that they

themselves would abide by it. The conspirators

actually instituted verification measures to

force each other to abide by the terms of their

agreement and eliminate the potential incentive

for themselves and each other to cheat. ADM,

through Wilson and Whitacre, proposed these

verification measures, belying any reasonable

possibility that they intended to cheat.

Second, the jury instructions as given

adequately covered this possible defense theory.

A defense jury instruction must be given only if

"the instruction reflects a theory which is not

already part of the charge." Id. The district

court instructed the jury:

[Y]ou must determine whether the evidence shows

beyond a reasonable doubt that the defendant

knowingly and intentionally became a member of

the charged conspiracy to fix prices and allocate

sales volumes. "Knowingly" means that the

defendant realized what he was doing and was

aware of the nature of his conduct and did not

act through ignorance, mistake, or accident.

In order to find that the defendant acted

knowingly, you must find that he voluntarily and

intentionally became a member of the conspiracy

charged in the indictment, knowing of its goal

and intending to help accomplish it.

A supposed conspirator who only pretended to

agree to abide by an agreement would not "know[

] of its goal and intend [ ] to help accomplish

it." If the jury had a reasonable doubt whether

Wilson, Whitacre and Andreas intended to abide by

the agreement, this instruction would prevent the

jury from convicting them.

The defendants sought an instruction that

explained their theory in much more argumentative

detail, but the court was under no obligation to

render it. See Brack, 188 F.3d at 761; United

States v. Given, 164 F.3d 389, 394 (7th Cir.

1999). U.S. Gypsum requires reversal when the

instruction allows conviction on an incorrect

theory of the law. 438 U.S. at 446. For example,

the district court in U.S. Gypsum gave an

instruction that allowed the jury to convict the

defendant entirely on an anticompetitive

"effects" theory, which did not require a finding

of criminal intent at all. Id. at 434-36. The

Supreme Court reversed because the "effects"

instruction did not adequately reflect the

statute and held that criminal intent required

both an intent to enter the agreement and an

intent to effectuate the goal of the conspiracy.

Id. In contrast, the district court’s instruction

in this case that the defendants must have

intended to "help accomplish" the known goal of

the conspiracy is entirely consistent with the

reasoning and holding of U.S. Gypsum.

E. Sufficiency of the Evidence

Andreas next asks us to overturn the jury’s

verdict because there was insufficient evidence

to support it. We will overturn a jury verdict

"only if the record contains no evidence,

regardless of how it is weighed, from which the

jury could find guilt beyond a reasonable doubt."

United States v. Agostino, 132 F.3d 1183, 1192

(7th Cir. 1997). We view "the evidence in the

light most favorable to the prosecution," and

decide whether "any rational trier of fact could

have found the essential elements of the crime

beyond a reasonable doubt." Agostino, 132 F.3d at

1192 (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)).

Andreas attended three meetings of the

conspirators and served a vital role in the

successful efforts to reach an agreement to

implement the price-fixing and volume deals. The

jury viewed videotape recordings of Andreas’

meetings with the admitted co-conspirators and

heard Andreas threaten to flood the market if

they did not agree. Evidence at trial indicated

that the details of the plan were arranged by

upper management, but that all sides recognized

that their corporate superiors remained in

control of the deal and would be called in to

settle any unresolved disputes. This in fact

happened when the conspirators could not reach an

agreement on output; Andreas and Yamada were

called in as the deal closers, and they succeeded

in that role. At the Irvine meeting, Andreas

expressed his concerns about the management of

the Asian firms in regard to whether they would

be able to carry out their part of the price-

fixing scheme. A jury rationally could understand

Andreas’ words at this meeting only to indicate

his knowledge of, participation in and control of

the entire plot.

Furthermore, Andreas directly supervised Wilson

and Whitacre. They reported the results of the

meetings to him, and he on more than one occasion

coached them on what to say at an upcoming

meeting. Evidence showed Andreas knew that the

conspirators were working on a price deal and a

volume deal and gave Whitacre orders on how to

set up the volume agreement. In an April 1993

conversation heard by the jury, Andreas called

Whitacre into his office before a meeting of the

cartel and told Whitacre to pretend he was

Yamada. Andreas then rehearsed for Whitacre what

he would say to Yamada: "We go over there and say

to ’em like we’ve thought it over carefully. Uhm,

we know that you feel that we shouldn’t be at the

same size as you at this stage . . . we’ve

decided that the best thing for the industry

would be that you and I decide that we will stay

the same size." The FBI also caught Andreas on

tape threatening the Asian companies and

insisting on how he thought the volume production

should be divided.

It would require a great leap of imagination to

believe that Andreas knew nothing of the illegal

deals on price and output carried out by his

direct subordinates, yet happened to play a key

role in Irvine and at subsequent meetings to

facilitate those deals. The jury apparently, and

reasonably, considered insincere and facetious

Andreas’ occasional statements that ADM would not

do anything illegal at a time when he was

actively playing a vital role in achieving a

criminal purpose. In fact, the jury heard the

conspirators laughing when Wilson reported

Andreas’ "we don’t make deals" statement. None of

the conspirators believed this, and the jury

certainly was not required to believe it either.

Based on the overwhelming evidence presented at

trial, we cannot conclude that the jury acted

irrationally in convicting Andreas of conspiring

to restrain trade.

F. Closing Arguments

The government’s closing argument twice prompted

objections related to improper comments,

requiring the trial court to assess the damage

done to the fairness of the proceedings. After a

thorough analysis, the court refused to declare

a mistrial, admonished the government and

instructed the jury appropriately. The defendants

appeal the denial of a mistrial on two grounds.

1. Vouching

The defendants contend that lead prosecutor

Scott Lassar impermissibly vouched for the

strength of the government’s case. In closing

argument, Lassar characterized the case against

the three defendants as "one of the most

compelling and powerful that has ever been

presented in an American courtroom." The trial

court agreed with the defense, but declined to

declare a mistrial after finding the comment to

be harmless. We review for abuse of discretion a

trial court’s refusal to grant a mistrial. See

United States v. Morgan, 113 F.3d 85, 89 (7th

Cir. 1997).

In cases of prosecutorial misconduct during

argument, we determine first whether the

prosecutor’s comment considered by itself was

improper and then examine the entire record to

see if the improper comment deprived the

defendants of a fair trial. See United States v.

Severson, 3 F.3d 1005, 1014 (7th Cir. 1993). As

the Supreme Court has repeatedly said, "it is not

enough that the prosecutors’ remarks were

undesirable or even universally condemned . . .

The relevant question is whether the prosecutors’

comments ’so infected the trial with unfairness

as to make the resulting conviction a denial of

due process.’" Darden v. Wainwright, 477 U.S.

168, 181 (1986) (internal citations omitted).

Vouching occurs when the prosecutor interjects

his personal opinion about the credibility of a

witness or the strength of the evidence as a

whole. Rodriguez v. Scillia, 193 F.3d 913, 919

(7th Cir. 1999); United States v. Alexander, 163

F.3d 426, 429 (7th Cir. 1998). In such a

situation, vouching introduces credibility

evidence that would have been inadmissible during

trial. However, a prosecutor may draw reasonable

inferences from the evidence adduced at trial,

even going so far as to call a defendant a liar

if the record supports that accusation. See

United States v. Goodapple, 958 F.2d 1402, 1409-

10 (7th Cir. 1992); see also Morgan, 113 F.3d at

89 (holding that a prosecutor calling a witness

an "honest citizen" was a fair inference from the

record).

Looking at the comment in isolation, two

reasonable interpretations of Lassar’s comments

emerge./7 The "most compelling and powerful"

case remark came amid Lassar’s discussion of the

type of evidence used in the case, evidence that

arguably caught the defendants red-handed. Most

criminal cases do not feature the defendants

committing the crime on camera, so the prominent

use of that type of evidence could be considered

the "most compelling and powerful" type of

evidence used in a court in America. In fact,

Lassar told the jury "the most powerful evidence

you could ever have would be a videotape of the

defendant committing the crime. You can’t get

better evidence than that." Lassar’s comment that

this was among the "most compelling" cases, could

fairly have been interpreted as meaning the case

featured among the "most compelling" types of

evidence.

Alternatively, a jury could interpret Lassar’s

remarks as expressing his personal opinion about

the strength of the evidence compared to the many

other cases prosecuted in America, the vast

majority of which result in convictions. The

influence of his opinion could not help but be

bolstered by his status as a seasoned prosecutor

and the newly appointed United States Attorney

for the Northern District of Illinois. By this

comment, Lassar did not merely suggest to the

jury what he thought they might find when

examining the evidence, a type of comment that we

have approved although it steps close to the line

of impermissible argument. See Whitaker, 127 F.3d

at 606-07. He introduced a comparison that

invited the jury to rely on his experience as a

prosecutor while preventing any real response

from the defense.

Where there are two reasonable interpretations

of a prosecutor’s conduct--one proper and one

improper--we cannot say that the trial court

abused its discretion in finding it to be

improper. See United States v. Cheska, 202 F.3d

947, 950 (7th Cir. 2000) (holding that discretion

is abused only when no reasonable person could

agree with the trial court’s assessment)

(citations omitted). Here, the trial court’s

judgment that Lassar improperly vouched for the

government’s case was reasonable and therefore

not an abuse of discretion.

We next look to see whether the remark deprived

the defendants of a fair proceeding when

considered in the context of the whole trial. See

Alexander, 163 F.3d at 429-30; United States v.

Reed, 2 F.3d 1441, 1450 (7th Cir. 1993). To guide

us in this decision, we consider five factors:

(1) the nature and seriousness of the statement;

(2) whether defense counsel invited it; (3)

whether the district court sufficiently

instructed the jury to disregard it; (4) whether

defense counsel had the opportunity to respond to

the improper statement; and (5) whether the

weight of the evidence was against the defendant.

See Rodriguez v. Peters, 63 F.3d 546, 558 (7th

Cir. 1995); United States v. Johnson-Dix, 54 F.3d

1295, 1304 (7th Cir. 1995).

First, we consider the prosecution’s comment on

the weight of the evidence to be less damaging

than other forms of impermissible argument.

Typically, in vouching situations, the

prosecution has attempted to bolster a witness’s

credibility by introducing facts that were not in

evidence. See Cheska, 202 F.3d at 950-52 (holding

that a prosecutor’s comment that a witness’s

cooperation had "convicted 23 other people"

impermissibly bolstered witness’s credibility

through evidence outside the record); Johnson-

Dix, 54 F.3d at 1304 (finding improper but

harmless the prosecutor’s comment that a federal

agent would risk his career by committing

perjury). Lassar’s comment did not serve to

bolster anyone’s credibility and so did not

invade the province of the jury to assess

credibility or determine facts. Essentially, the

prosecution appealed to the jury’s supposed

belief that the government only prosecutes strong

cases and this was, in Lassar’s opinion, one of

the strongest. Although improper, this

generalized comment cannot be considered nearly

as damaging as introducing a fact that bolsters

a particular witness’s credibility. Cf. Johnson-

Dix, 54 F.3d at 1304 (holding that prosecutor’s

remark vouching for credibility of government

agent was "certainly improper"). Furthermore, the

prosecution made the comment only once, which

considering the length of the trial and the

closing argument, could not have weighed that

heavily in the minds of the jury. See Alexander,

163 F.3d at 429 (considering frequency of

improper statements as an element of its

seriousness).

Defense counsel could not have invited Lassar’s

comment and could not counter it directly during

their own closings, so those two factors weigh in

favor of reversal. However, the two remaining

factors strongly support the district court’s

decision. The court instructed the jury before

the completion of closing arguments with the

following:

During the course of Mr. Lassar’s closing

argument he made reference to the strength of the

evidence in this case as compared to other cases.

Such references to other cases are totally

irrelevant. So I would instruct you that you

should absolutely disregard any statements or

references comparing this case to any other case,

and you should decide this case solely on the

evidence presented in this case without regard to

any comparison to any other case.

We presume juries can and do follow curative

instructions. See United States v. Mazzone, 782

F.2d 757, 764 (7th Cir. 1986) (presuming jury

followed curative instruction given after

prosecutor’s improper statements in closing).

Considering the largely irrelevant implication of

Lassar’s comparison, we believe a jury could

easily follow this instruction.

Finally, the Court has reviewed all of the

evidence against Andreas and Wilson and can

fairly characterize it as overwhelming. Cf.

United States v. Owens, 145 F.3d 923, 928 (7th

Cir. 1998); Johnson-Dix, 54 F.3d at 1305 (holding

that weight of the evidence indicates that jury

verdict cannot be attributed solely to

prosecutor’s closing comment that FBI agent would

not risk his career through perjury). In Owens,

145 F.3d at 928, the prosecutor told the jury

that he, the prosecutor, told the witness "if you

lie to me, your deal is off." Without deciding

whether the comment in isolation was improper, we

held that "in light of the overwhelming evidence

against" the defendant, the remark did not

deprive him of a fair trial. The evidence at

trial included the defendant "caught on both

audio and video tape" in a drug transaction that

officers surveilled. Id. at 925. The taping had

been accomplished because a man arrested on a

drug charge had agreed to cooperate as an

undercover informant and wear a wire during the

sting operation. Three officers and the informant

testified at trial against the defendant. In our

view, this amounted to "overwhelming evidence,"

which combined with a curative instruction,

rendered the trial fair despite the improper

vouching. Id. at 928.

After reviewing the entire record, including

several videotapes and audiotapes, we find the

evidence against Wilson and Andreas to be much

stronger than that proffered in Owens. Lassar’s

missteps came at the end of a two-month trial in

which the jury heard directly from co-

conspirators, heard the defendants’ voices and

saw their faces on video making illegal deals. It

would challenge credibility to say that a

prosecutor’s rather nugatory comment assessing

the evidence at trial rendered the trial

fundamentally unfair. Therefore, we cannot say

that Judge Manning abused her discretion in

denying the motion for mistrial.

2. Fifth Amendment

During closing, Lassar also discussed the

defendants’ interviews with the FBI in June 1995

at which they denied any knowledge of price

fixing or sales volume allocation agreements. At

the time of those interviews, the defendants did

not know of the extensive tape-recorded evidence

of their conversations detailing both agreements.

That evidence severely undercut a "no knowledge"

defense, and at trial, the defendants did not

deny knowledge. Rather, defense counsel argued

that the agreements were pro-competitive or that

they were part of a clever deception. These

theories were directly inconsistent with the

denials Andreas and Wilson offered in June 1995.

Lassar suggested to the jury that they "ask

[themselves] why didn’t we hear those defenses

from Mr. Wilson and Mr. Andreas on June 27, 1995?

That was their opportunity if they had a defense.

They were confronted. That was their opportunity

to give all these defenses." He then implied that

defense counsel would fabricate new explanations

for their clients’ behavior that their clients

did not offer a year earlier and that the new

explanations were lies. The defense objected on

the ground that Lassar’s statements punished the

defendants for invoking their Fifth Amendment

right not to testify. The district court agreed,

finding Lassar’s closing to be improper under the

standard announced in United States v. Cotnam, 88

F.3d 487, 497 (7th Cir. 1996). Judge Manning

strongly rebuked the government for this error,

but ultimately found the remarks to be harmless.

Cf. id. at 499-500 (applying harmless error

review); Rodriguez v. Peters, 63 F.3d at 562

(holding that defendant suffered "no prejudice"

from allegedly improper comment on defendant’s

refusal to testify). She instructed the jury to

disregard the improper portions of Lassar’s

closing and not to penalize the defendants for

remaining silent.

The government contends that Lassar referred

only to the "lies" that Andreas and Wilson told

when questioned by the FBI in June 1995, and in

fact he prefaced this section of his argument by

saying, "There’s one more event to talk about,

and that event occurred on June [27],/8 1995."

The district court, however, rejected this

explanation. In Judge Manning’s view, Lassar’s

comments were not narrowly confined to an attack

on defendants’ inconsistent statements, but

reached well into their refusal to testify. The

right against self-incrimination is violated when

(1) the prosecutors manifestly intended to refer

to the defendant’s silence, or (2) the remark was

of such a character that the jury would

"naturally and necessarily" take it to be a

comment on the defendant’s silence. Rodriguez v.

Peters, 63 F.3d at 561 (citations omitted.) Once

we determine that a violation occurred, we apply

harmless error review to decide whether the

remark prejudiced the defendant’s case. See id.

As an initial point, the defense emphasizes the

distinction between error that is "harmless" and

error that is "harmless beyond a reasonable

doubt." The defense believes Judge Manning

applied a lower standard of harmless error review

to the purported Fifth Amendment violation, and

because she found the error to be "just barely"

harmless, it follows that under the higher

standard, the error could not be harmless. As we

acknowledged in Cotnam, 88 F.3d at 498 n.11, this

Court has not always clearly articulated the

different analyses to be applied to prosecutorial

misconduct under the Fifth Amendment compared to

that applied under a general due process claim.

Rodriguez v. Peters, for example, seemed to apply

both the five-factor due process test to a Fifth

Amendment violation, 63 F.3d at 557, as well as

the two-part Fifth Amendment test. 63 F.3d at

561. Ultimately, we found "no prejudice" stemming

from the Fifth Amendment error in Rodriguez v.

Peters, 63 F.3d at 562, a holding that does not

reveal whether in that case we considered the

appropriate standard to be harmless or harmless

beyond a reasonable doubt, since "no prejudice"

would be harmless under either standard.

Judge Manning addressed the improper

prosecutorial comment claims together, see United

States v. Andreas, 23 F.Supp.2d 855, 862 (N.D.

Ill. 1998), rather than separately. As such, she

applied the five-factor test we use for due

process challenges to both types of claims. See

id. While this may not have been technically

correct, Judge Manning did apply the highest

standard of review--"harmless beyond a reasonable

doubt"--to both sets of claims. See Andreas, 23

F.Supp.2d at 862 (citing Cotnam, 88 F.3d at 498)

("[T]he government bears the burden of proving

beyond a reasonable doubt that the defendants

would have been convicted absent the

unconstitutional remarks."). The district court

conflated the tests for the two types of cases,

but much more importantly, the court reviewed

both the due process and Fifth Amendment

challenges under the "harmless beyond a

reasonable doubt" standard. If this constituted

error, it served only to overprotect the

defendants’ rights, not to underprotect them./9

As such, we do not find that Judge Manning

applied the wrong standard for harmless error and

review her denial of a mistrial for abuse of

discretion.

As a first step in addressing the Fifth

Amendment claim in this case, we do not believe

that the government intended to draw attention to

Andreas’ and Wilson’s silence at trial. We credit

the government’s explanation, bolstered by the

context of the remark, that it meant to point out

the inconsistency between the statements made by

Wilson and Andreas in June 1995 with the defense

theories at trial. That leaves open the

possibility that a jury would "naturally and

necessarily" take the remarks to be a comment on

the defendants’ silence at trial. While part of

the comments innocently referred to the "lies"

told in June 1995, the government stepped over

the line when it directed the jury to "ask

[yourselves] why didn’t we hear those defenses

from Mr. Wilson and Mr. Andreas on June 27, 1995.

That was their opportunity if they had a defense

. . . That was their opportunity to give all

these defenses." While unintended, these

sentences "naturally and necessarily" imply guilt

from the defendants’ silences; they indicate a

requirement that innocent people must supply

defenses, and in that way, the remarks violated

the Fifth Amendment.

Once a constitutional violation has been found,

"the government can only prevail if it sustains

the burden of proving beyond a reasonable doubt

that the defendant would have been convicted

absent the prosecutor’s unconstitutional

remarks." Cotnam, 88 F.3d at 500 (quoting United

States ex rel. Burke v. Greer, 756 F.2d 1295,

1302 (7th Cir. 1985)). Considering the

overwhelming nature of the evidence, we agree

with the district court that the error was

entirely harmless. See, e.g., Chapman v.

California, 386 U.S. 18, 22-24 (1967) (holding

that trial court must determine whether Fifth

Amendment violation was harmless beyond a

reasonable doubt); Cotnam, 88 F.3d at 499-500;

Rodriguez v. Peters, 63 F.3d at 562; United

States v. Hubbard, 61 F.3d 1261, 1269 (7th Cir.

1995); Williams v. Lane, 826 F.2d 654, 667 (7th

Cir. 1987) (applying harmless beyond a reasonable

doubt standard to Fifth Amendment violation);

United States v. Buege, 578 F.2d 187, 189 (7th

Cir. 1978) (same).

To determine the extent of the harm from an

improper remark, we must consider the context in

which it was offered. See Hubbard, 61 F.3d at

1268. In Hubbard, the government objected to the

introduction of a hearsay statement by saying,

"That is hearsay . . . Let Hubbard [the

defendant] tell us." Id. We found that comment to

be less damaging than if it were made in a

closing argument, but in viewing the context of

the remark, we credited the government’s

explanation that it meant only to refer to the

hearsay problem, not to the defendant’s refusal

to testify. Id. Considering the context of the

remark, we found it to be harmless.

Here also, the context shows the government

sought to point out the inconsistency between the

defendants’ prior statements and the current

defense theories. The remarks immediately

followed a discussion of the June 1995 raids and

the defendants’ voluntary statements at that

time. The jury may have drawn no more than that

from Lassar’s remarks. Judge Manning properly

instructed the jury to disregard any inference

that the defendants should have testified at

trial, and we presume juries follow proper

instructions. See Rodriguez v. Peters, 63 F.3d at

562. This curative instruction undercuts the

potential that the statements caused the jury to

convict the defendants.

Finally, the evidence as a whole included

statements from co-conspirators and tape-recorded

conversations of both Andreas and Wilson that

clearly showed they knew of and participated in

the conspiracy to fix prices and restrain trade.

There simply could be no doubt in the jurors’

minds after hearing overwhelming evidence of the

defendants’ meetings with the cartel that they

knowingly violated the Sherman Act. Assuming that

the prosecution indirectly--although

impermissibly--called to the jury’s attention the

lack of a defense justification for their

actions, these comments amounted to a few brief

words in the midst of a two-month trial. To say

that these brief comments resulted in the

convictions would ignore the far more plausible

conclusion that the overwhelming evidence of

guilt led to the jury verdict. In that context,

we find the error to be harmless.

G. Sentencing

The defendants and the government each appeal

one issue related to sentencing. The first,

whether "volume of commerce" includes all sales

or some subset of all sales affected by the

conspiracy, is a question of law, which we review

de novo. See United States v. McClanahan, 136

F.3d 1146, 1149 (7th Cir. 1998). However, once we

determine the correct legal principle, we review

deferentially the lower court’s findings of fact

regarding the volume of commerce affected. See

United States v. Hammick, 36 F.3d 594, 597-98

(7th Cir. 1994) (holding that factual findings in

sentencing context are reviewed for clear error).

The second issue is whether the district court

correctly denied a sentencing enhancement based

on the defendants’ leadership roles in the

conspiracy, a factual finding which we also

review for clear error. See id.

1. Volume of Commerce Enhancement

The district court enhanced Andreas’ and

Wilson’s sentences based on a volume of commerce

affected by the conspiracy greater than $100

million. See U.S. Sentencing Guidelines Manual

sec. 2R1.1(b)(2)(G). After an evidentiary

hearing, at which both sides presented evidence

and argument regarding the amount of sales

affected by the conspiracy, the court accepted

the report of the U.S. Probation Office that the

volume of commerce amounted to $168 million. The

court, relying in part on the Sixth Circuit’s

opinion in United States v. Hayter Oil Co., 51

F.3d 1265 (6th Cir. 1995), rejected the

defendants’ argument that "affected commerce"

means only that quantity sold at the targeted

price and determined that "affected commerce"

includes all sales made within the scope of the

conspiracy, which amounted conservatively to $168

million.

Wilson and Andreas contend that "affected

commerce" means only sales that reflect a

successful price agreement, meaning sales at or

above the target price. This is clearly wrong.

When construing the Guidelines, we look first to

the plain language, and where that is unambiguous

we need look no further. This is one of those

cases.

Section 2R1.1 directs the court to increase the

base offense level by seven if the "volume of

commerce attributable to the defendant" was more

than $100 million. It then explains that "the

volume of commerce attributable to an individual

participant in a conspiracy is the volume of

commerce done by him or his principal in goods or

services that were affected by the violation."

U.S.S.G. sec. 2R1.1. The plain language of this

section makes clear that the volume of commerce

includes only those sales "affected by the

violation," rather than all sales. However,

"affected" is a very broad term whose breadth

does not support the unduly constricted meaning

given to it by the defendants, i.e., only those

sales made at the price set by the conspirators.

In this view, had the price been 70-cents per

pound and the conspirators agreed to raise it to

$1.05, none of the subsequent sales between $.70

and $1.04 would be affected by the conspiracy.

This interpretation is ridiculous. To support

this view, the defendants cite a district court

case from New York. See United States v. SKW

Metals & Alloys, 4 F.Supp.2d 166, 172 (W.D.N.Y.

1997). The Second Circuit, agreeing that this

argument is plainly wrong, reversed SKW Metals

after Andreas and Wilson filed their initial

briefs. See United States v. SKW Metals & Alloys,

Inc., 195 F.3d 83, 91 (2d Cir. 1999) ("SKW Metals

II"). In their reply, the defendants now argue

that, consistent with SKW Metals II, no sales

were affected by the conspiracy because the

conspiracy was entirely, or almost entirely,

ineffective.

In Hayter Oil, the court held that "affected"

meant all sales "during the period of the

conspiracy, without regard to whether individual

sales were made at the target price." 51 F.3d at

1273. Hayter Oil involved a simple conspiracy by

gasoline station owners in a Tennessee town to

set prices at a certain above-market level.

Because of competition from non-conspirators and

cheating by conspirators, the price did not

always hold at the agreed level, and frequent

meetings of the conspirators were required to

reestablish the price. The district court

sentenced the defendants based on sales only at

the agreed level and not on all sales affected by

the conspiracy. See id. at 1272. The Sixth

Circuit reversed and held that the plain language

of the Guidelines allowed for a much broader

definition of "affected," including "all commerce

that was influenced, directly or indirectly, by

the price-fixing conspiracy." Id. at 1273. That

would include sales made above the market price,

even though below the target price. Ultimately,

the court held that standard may have encompassed

all sales of gasoline, assuming that all sales

were a penny or more above the market price. To

that extent, we would agree with the outcome of

Hayter Oil to include all sales during the time

period of the conspiracy, but would disagree to

the extent that it forecloses the possibility

that some sales might have been unaffected even

though occurring during the conspiracy.

The Sixth Circuit reasoned that a broad

definition of affected would encompass "even

sales lost due to, in accordance with the normal

economic principles of supply and demand, the

decreased demand that accompanies higher prices."

Id. We agree in principle with this focus on

sales broadly affected by the changed dynamics of

a market influenced by illegal restraints.

Economic decisions, such as pricing and

production, depend on the interplay of a host of

variables, none of which can act "independently"

in any meaningful sense of that word. In most

cases, an agreement to raise prices necessarily

affects demand, which will affect output, and the

burden to show that some sales were "unaffected"

is a difficult one.

However, like the Second Circuit, we disagree

with the Hayter Oil holding in so far as it

implies that all sales during the time period of

the price-fixing conspiracy should be counted for

purposes of sec. 2R1.1 simply because they

occurred during the period of the conspiracy.

While Hayter Oil reflects a possible and not

unreasonable reading of the Guidelines, it is not

the most natural one. Section 2R1.1 counts "the

volume of commerce done by him or his principal

in goods or services that were affected by the

violation." Recognizing that many companies have

multiple product lines that compete in separate

markets, this language may simply instruct the

court to count only the commerce in the product

line that was the subject of the illegal

agreement. "Affected" might mean all sales of

lysine, which was a product line within the scope

of the agreement, but not corn oil, which was

not. That reading would permit counting all

lysine sales during the time period of the

conspiracy and even those sales at or below the

market price.

Although a permissible reading, we do not adopt

Hayter Oil because the purpose of the sec. 2R1.1

enhancement is to gauge the harm inflicted by the

illegal agreement. See U.S.S.G. sec. 2R1.1

background para. 4 ("Tying the offense level to

the scale or scope of the offense is important in

order to ensure that the sanction is in fact

punitive . . . [but] damages are difficult and

time consuming to establish. The volume of

commerce is an acceptable and more readily

measurable substitute [for determining the scale

of the offense]."). Theoretically, sales that

were entirely unaffected did not harm consumers

and therefore should not be counted for

sentencing because they would not reflect the

scale or scope of the offense.

In SKW Metals II, the Second Circuit agreed

with Hayter Oil in reversing the trial court’s

judgment that affected sales meant only sales at

or above the target price in a price-fixing

conspiracy. See 195 F.3d at 90. The court also

adopted a broad reading of "affected" in line

with the realities of the economic marketplace in

which few things are ever truly "unaffected" by

other market forces. See id. The court reasoned

that "[s]ales can be ’affected’ by a conspiracy

when the conspiracy merely acts upon or

influences negotiations, sale prices, the volume

of goods sold, or other transactional terms.

While a price-fixing conspiracy is operating . .

. it is reasonable to conclude that all sales

made by defendants during that period are ’affected.’"

Id. The court refused to adopt the government’s

categorical position that all sales be counted

regardless of whether they were "affected" by the

conspiracy. Id. at 91-92.

An action may affect commerce in many ways

other than achieving a pre-determined price

level, and we will not frustrate the goal of this

provision by grafting some narrow meaning onto

the ordinary use of the word "affected." The

Guidelines provision serves to set the punishment

based on a measurement of the harm done by the

crime, and the drafters chose "volume of

commerce" as a proxy for determining that harm.

Conspiracies to limit output have broad-ranging

effects on all decisions made by the former

competitors from the moment of their inception.

Decisions to expand production, decrease price,

institute promotions or compete for certain

customers all are affected by an agreement to

limit production. See SKW Metals II, 195 F.3d at

90. An agreement to raise prices, similarly,

affects the conspirators’ decisions related to

production and consumers’ decisions related to

demand. Therefore, the presumption must be that

all sales during the period of the conspiracy

have been affected by the illegal agreement,

since few if any factors in the world of

economics can be held in strict isolation.

Still, it is conceivable that under a price

agreement, sales made before new price schedules

are issued or new quotes given to potential

customers may be wholly unaffected, or that some

subsequent sales might be sold at the actual

market price. See, e.g., id. at 93 (Newman, J.,

concurring) (positing example of "rare instance"

where a supplier may quote a bargain price for

his brother-in-law without regard to the agreed

price)./10 We agree with the Second Circuit

that these odd sales completely unaffected by the

conspiracy should not be counted for sentencing

purposes. See id. at 92.

The burden of proof under the Guidelines

requires only that the government establish

relevant conduct by a preponderance of the

evidence, see United States v. Kroledge, 201 F.3d

900, 908-09 (7th Cir. 2000), a standard that

supports a rebuttable presumption that all sales

during the conspiracy were affected by the

illegal agreement. See SKW Metals II, 195 F.3d at

93-94. (Newman, J., concurring) (requiring

defendant prove that one or more sales were not

affected by the conspiracy). Courts frequently

require defendants to prove affirmative defenses

by a preponderance of the evidence, see, e.g.,

United States v. Hunte, 196 F.3d 687, 693 (7th

Cir. 1999) (requiring defendant to prove basis

for a downward departure by a preponderance of

the evidence); United States v. Wicks, 132 F.3d

383, 389 (7th Cir. 1997) (holding that a

defendant must prove an affirmative defense at

sentencing stage by a preponderance of evidence).

Evidence of the "rare circumstance" of a

completely unaffected transaction "would be

peculiarly within the knowledge of the

defendant," SKW Metals II, 195 F.3d at 93, and

the defendant should bear the burden of proving

that rare circumstance by a preponderance of the

evidence.

Because horizontal agreements to restrain trade,

whether by price or output restrictions,

naturally affect all sales during the period that

the conspiracy operates, the trial court

correctly determined the volume of commerce based

on all sales within the scope of the conspiracy.

Andreas and Wilson presented evidence at

sentencing that certain sales were not affected,

and the district court considered that proof. The

lysine conspiracy restrained trade by allocating

each market participant’s output and fixing

prices. Together these two methods served to

raise the price beginning in the summer of 1992

and lasting for nearly three years. The price

fluctuated, and cartel members cheated each other

when they could, but the evidence soundly

supports a volume of commerce influenced by the

conspiracy of at least $168 million. Based on the

evidence at trial, the court was entitled to find

that the conspiracy was indeed successful at

affecting more than $100 million in commerce.

2. Leadership Roles

The government requested that Andreas’ and

Wilson’s sentences be increased based on their

leadership roles in the conspiracy. See U.S.S.G.

sec. 3B1.1. The district court denied the

enhancement, finding that neither man was more

culpable than his co-conspirators. We review for

clear error the district court’s application of

a sentencing enhancement under sec. 3B1.1. See

United States v. Golden, 954 F.2d 1413, 1418 (7th

Cir. 1992).

Section 3B1.1 enhances a defendant’s sentence

based on the defendant’s role in the offense. An

organizer or leader of a criminal activity that

"involved five or more participants or was

otherwise extensive" receives a four-level

increase, while a manager or supervisor earns a

three-level increase. See U.S.S.G. sec. 3B1.1(a),

(b). Section 3B1.1 requires that the district

court find that the "defendant organized or

supervised a criminal activity involving four

other participants." United States v. Kamoga, 177

F.3d 617, 621 (7th Cir. 1999). The district court

found that the conspiracy satisfied the size

requirements of sec. 3B1.1, but that Andreas and

Wilson did not control the requisite number of

participants to merit the increase. See United

States v. Mustread, 42 F.3d 1097, 1103 (7th Cir.

1994). After reviewing the record, we hold that

the district court erred in making this finding

of fact.

Evidence submitted at trial and during the

sentencing phase indicated that at least three

sales executives--Marty Allison, Alfred Jansen

and John Ashley--in addition to Andreas, Wilson

and Whitacre, helped to implement the pricing and

volume allocation schemes. Even discounting

Whitacre, who was a government agent during part

of the conspiracy and therefore cannot be counted

as a participant for that part, see U.S.S.G. sec.

3B1.1 application note 1, the crime still

involved the requisite number of participants for

an enhancement.

Furthermore, the court should have considered

Andreas’ control over the foreign co-conspirators

at the Irvine meeting as counting toward the

minimum number of participants needed for the

sec. 3B1.1 enhancement. A co-conspirator who used

his power to guide or direct other conspirators

qualifies as an organizer even though his control

was not absolute. See Kamoga, 177 F.3d at 621.

The need to negotiate some details of the

conspiracy with the cartel members also does not

strip a defendant of the organizer role. See

United States v. Evans, 92 F.3d 540, 545 (7th

Cir. 1996) (recognizing possibility of collective

leadership fulfilling sec. 3B1.1); United States

v. Barnes, 993 F.2d 680, 685 (9th Cir. 1993).

The district court erred in focusing on the

conspiracy as a union of equals, which it was

only in part. Neither the Guidelines nor our

cases require the "participants" to be mere

drones working for their queen. In Evans, 92 F.3d

at 545, we recognized the "concept of collective

leadership," which is the case here. Evidence

from the Irvine meeting showed that Andreas used

coercive power to force the foreign competitors

to accept ADM’s leadership role in the cartel,

demonstrating his control over the cartel and its

participants. When the cartel had internal

squabbles and disputes, Andreas was called in to

resolve them. ADM’s market power gave Andreas the

ability to coerce the other cartel members into

submission, and the evidence is clear that he

used that power to lead the conspiracy. The fact

that control over co-conspirators was not

absolute and that he had to negotiate does not

negate the conclusion that Andreas was the

ultimate leader of the price-fixing cabal.

The evidence at trial conclusively showed that

Wilson engaged in the conspiracy by running the

meetings and speaking for ADM. He appears on

countless tapes proposing ways to run the cartel

and ways to make it more efficient. His entire

purpose in attending lysine meetings as the head

of the corn processing division was to bring his

management skills to the cartel. Neither he nor

Andreas can claim in any meaningful way to be

merely equally culpable with the other

conspirators since it was ADM that suggested the

scheme, planned it and carried it out. Therefore,

we find the district court’s decision to deny the

four- and three-level enhancements for Andreas

and Wilson, respectively, to be clearly

erroneous.

III. Conclusion

For the reasons stated above, the convictions

of Andreas and Wilson are Affirmed and the cases

are Remanded to the district court for re-

sentencing in accordance with this opinion.

/1 At his insistence, Whitacre was tried in absentia

from the prison where he is serving a 108-month

sentence for embezzlement. He was represented

vigorously by counsel at trial and aided his

defense through telephone communication with his

lawyer. Kazutoshi Yamada, an employee of

Ajinomoto Co. of Japan, was the fourth defendant

named in the indictment. He has not been tried

and remains a fugitive.

/2 Randall was not indicted.

/3 Until 1990, Cox worked for a company that

produced citric acid. In 1990, ADM bought the

citric-acid operation, and Cox joined ADM at that

time.

/4 Kastigar v. United States, 406 U.S. 441 (1972),

and its progeny, including United States v.

Palumbo, 897 F.2d 245 (7th Cir. 1990), deal with

the use of evidence against defendants obtained

from those defendants pursuant to an immunity

agreement. Here, the defendants who seek to

benefit from the immunity agreement have not

testified nor have they ever entered into any

agreement. They cannot claim to have been induced

into testifying against themselves and can point

to no violation of the Fifth Amendment, as in

Kastigar and Palumbo.

/5 Federal courts look to general principles of

contract law to interpret a plea or immunity

agreement. See United States v. Given, 164 F.3d

389, 395-96 (7th Cir. 1999). The parties focus on

Illinois law, which fairly typifies the general

law of contracts and is persuasive in this

instance.

/6 The analysis and resolution of this issue

overlaps with the question of whether, assuming

standing, the terms of the agreement actually

immunized Andreas and Wilson. We also would

answer that question in the negative.

/7 The government’s argument that the prefatory "I

think that you’re going to see" saves an

otherwise impermissible statement is unavailing.

This court has allowed a prosecutor to begin with

phrases such as "I believe that you will find"

because it only suggests what the government

thinks the evidence adduced at trial means. See

United States v. Whitaker, 127 F.3d 595, 606-07

(7th Cir. 1997). "I believe" and "I think" are

but patterns of speech that can be innocuous.

Such phrases, however, do not automatically

immunize any statement that follows.

/8 Lassar misspoke in closing and used the wrong

date.

/9 Similarly, in misstating the two-part test for a

Fifth Amendment violation as a conjunctive rather

than disjunctive, the district court again

overprotected the defendants’ rights, which by

definition cannot prejudice the defendant.

/10 We acknowledge this example as one of the rare

instances when a price fixer would forgo

anticompetitive profits, but it also illustrates

how rare the occasion when a price fixer able to

charge higher prices would act in an economically

irrational way and sell below the inflated market

price.