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, 

, 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, 

, 756-57 (7th Cir. 1996),
and only if the error was not harmless. See
Holmes v. Elgin, Joliet & E. Ry. Co., 

, 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, 

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

, 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." 

n.2. As
examples, we mentioned selective taping and
editing of conversations and deliberate
destruction of certain tapes. 

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. 

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, 

, 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 

.
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, 

,
488-89 (1984); United States v. Watts, 

, 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 

;

. 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, 

, 864 (6th Cir. 1993) (allowing
use of tape recordings made by corporate
executive in price-fixing investigation); United
States v. Haimowitz, 

, 1582 (11th
Cir. 1984) (holding that cooperating witness
under direction of FBI was acting under color of
law); United States v. Horton, 

, 322
(7th Cir. 1979) (holding that tapes made by FBI
informant were admissible under sec.2511(2) (c)-
(d)); United States v. Craig, 

, 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 

. 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. 

not
suggest that these factors were necessary to a
finding that the witness acted under color of
law, only that they were sufficient. 

absence in the instant case,
while probative, is not dispositive.

      Defendants cite dicta in Thomas v. Pearl, 

, 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 

. 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. 

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 

; see also
Obron 

; 

; United States v. Shields, 

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

, 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 

. 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. 

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." 

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, 

, 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, 

, 1420 (7th Cir. 1990); see
also Williamson v. United States, 

(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, 

, 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, 

, 652 (7th Cir.
1998); United States v. Fields, 

,
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, 

, 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, 

, 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;

n. 17 (adopting the
Second Restatement definition); see generally
Cahill v. Eastern Benefit Sys., Inc., 

, 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., 

, 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, 

. 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, 

, 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, 

, 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, 

, 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. 

. 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). 

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. 

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, 

, 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,

, 261-62 (1963); see also Broadcast
Music, Inc. v. CBS, Inc., 

, 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. 

Per se violations are "naked restraints of trade
with no purpose except stifling of competition,"
White 

, and have been
characterized as so "plainly anti-competitive"
and lacking "any redeeming virtue" that they are
presumed illegal under sec. 1. See Broadcast

(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., 

, 607 (1972); Bunker Ramo Corp. v. United
Business Forms, Inc., 

, 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, 

, 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., 

(1940); United States v. Cooperative Theatres
of Ohio, Inc., 

(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., 

(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., 

, 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, 

, 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, 

(1990);
National Collegiate Athletic Ass’n v. Board of
Regents, 

, 100 (1984); Socony-Vacuum,

, 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 

, 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 

; Broadcast

. 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,

, 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, 

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

, 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., 

, 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., 

, 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, 

, 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." 

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 

; United
States v. Given, 

, 394 (7th Cir.
1999). U.S. Gypsum requires reversal when the
instruction allows conviction on an incorrect
theory of the 

. 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. 

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.

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, 

, 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." 

(quoting Jackson v. Virginia, 

,
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, 

, 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, 

, 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, 

, 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, 

, 919
(7th Cir. 1999); United States v. Alexander, 

, 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, 

, 1409-
10 (7th Cir. 1992); see also 

(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 

. 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, 

, 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

; United States v.
Reed, 

, 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, 

, 558 (7th
Cir. 1995); United States v. Johnson-Dix, 

, 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 

(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-

(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-

(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 

(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, 

, 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, 

, 928 (7th
Cir. 1998); 

(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 

, 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. 

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. 

      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, 

, 497 (7th Cir. 1996). Judge Manning
strongly rebuked the government for this error,
but ultimately found the remarks to be harmless.
Cf. 

(applying harmless error
review); Rodriguez v. 

(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.

(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 

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 

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 

, as well as
the two-part Fifth Amendment 

. Ultimately, we found "no prejudice" stemming
from the Fifth Amendment error in Rodriguez v.

, 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, 

, 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

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 

(citing 

)
("[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." 

(quoting United
States ex rel. Burke v. Greer, 

,
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, 

, 22-24 (1967) (holding
that trial court must determine whether Fifth
Amendment violation was harmless beyond a
reasonable doubt); 

;
Rodriguez v. 

; United
States v. Hubbard, 

, 1269 (7th Cir.
1995); Williams v. Lane, 

, 667 (7th
Cir. 1987) (applying harmless beyond a reasonable
doubt standard to Fifth Amendment violation);
United States v. Buege, 

, 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 

. In Hubbard, the government objected to the
introduction of a hearsay statement by saying,
"That is hearsay . . . Let Hubbard [the
defendant] tell us." 

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. 

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. 

. 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, 

, 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, 

, 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 

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., 

(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, 

, 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., 

, 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 

. 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 

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." 

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."

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. 

. 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 

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.’"

refused to adopt the government’s
categorical position that all sales be counted
regardless of whether they were "affected" by the
conspiracy. 

      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 

. 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., 

(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 

      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, 

, 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 

. (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, 

, 693 (7th
Cir. 1999) (requiring defendant to prove basis
for a downward departure by a preponderance of
the evidence); United States v. Wicks, 

, 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 

, 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, 

, 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, 

, 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, 

, 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 

.
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, 

, 545 (7th
Cir. 1996) (recognizing possibility of collective
leadership fulfilling sec. 3B1.1); United States
v. Barnes, 

, 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 

, 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, 

(1972),
and its progeny, including United States v.
Palumbo, 

(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, 

, 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, 

, 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.