The undercover agent takes two guises in our national consciousness. At one extreme is the highly trained professional who risks his or her life to go after the worst drug dealers and mobsters. At the other extreme is the apolitical and poorly trained apparatchik, designated by a bureaucratic superior to infiltrate a group deemed subversive or otherwise troublesome to authorities. The infiltrator may even become a provocateur as a way to give the authorities an excuse to crack down. Government agents did a lot of this during the 1960s, while monitoring civil rights and far-left organizations. At this end of the spectrum, the work is not only unglamorous but ethically questionable. Who wants to rat on their fellow citizens asserting rights guaranteed by the Constitution, like free speech, assembly and those not even mentioned because they seem so obvious, like consuming the foods of their choice?
This latter extreme was on display in early May in Elizabethtown, Pennsylvania, where Mennonite dairy farmer Glenn Wise was charged with three counts of selling unpasteurized milk without a license.
In a tiny magisterial district courtroom filled with about forty of Wise's friends and supporters, the Pennsylvania Department of Agriculture's case relied primarily on the testimony of an undercover agent, in real life a low-level PDA employee with the title "food sanitarian." The agent-employee, Joe Goetz, painted a picture of an employee forced into distasteful undercover actions against a small farmer, the father of nine children.
"I was directed by my supervisor to make a purchase of raw milk and kefir" from Wise, Goetz stated under questioning by the PDA's attorney. So Goetz infiltrated the Communities' Alliance for Responsible EcoFarming (CARE), a private Pennsylvania buying club that serves as an umbrella organization for many of the state's farmers who sell raw dairy products to consumers. He described how he went to the Wises' Shady Acres Dairy Farm on three occasions in 2007 and 2008, each time purchasing half a gallon of raw milk and a quart of kefir.
When it was the defense's turn, the slender, soft-spoken Wise, who handled his own defense, quickly showed himself to be a sharp inquisitor.
"So you did sign a CARE contract?"
"Did you read that contract?"
The CARE contract, it turns out, bounds members "under penalty of perjury" that they are "not acting under color of law to entrap, hurt, prosecute, or otherwise trespass/and/or gather information for any agency, corporation, person or other entity to in any way negatively affect the CARE Alliance/Association, its board of directors, members or its purpose."
Magisterial District Judge Jayne Duncan dismissed two of the citations, and reduced the fine on the third from $300 to $50, saying the PDA had been "unfair" by using secretive methods, including an undercover agent, to go after Wise. The farmer was relieved, but vowed to appeal the $50 fine to a higher court, to get a further ruling on not only the PDA's tactics but on his right to sell unpasteurized dairy products privately to consumers. The agency currently allows raw milk sales by licensed dairies, but prohibits all sales of unpasteurized yogurt, kefir, butter and other similar products.
The case against Glenn Wise is only the latest in a troubling series of legal cases in which both state and federal authorities are relying on undercover agents to entrap dairy farmers. "They're relying on undercover agents more than in the past," says veteran agriculture attorney Gary Cox, who has represented a number of dairy farmers around the country on behalf of the Farm-to-Consumer Legal Defense Fund . "My take is that since there is more and more raw milk consumption, the regulators are going undercover more and more."
One of the first of these cases occurred in Ohio in 2005, when an Ohio Department of Agriculture undercover agent visited the dairy farm in Millersburg owned by Amish farmer Arlie Stutzman. Stutzman ran a herdshare operation, whereby area residents bought shares in his cows in exchange for unpasteurized milk. The agent pretended to be a building contractor, and asked to purchase a gallon of raw milk. After much back-and-forth, Stutzman agreed to accept a $2 "donation." According to testimony at an ODA hearing on revoking Stutzman's dairy license, Stutzman "testified that he had been taught that if any person asks for food, one should give it if he has such."
The hearing examiner allowed that Stutzman's explanation was "a noble exercise," but revoked his license nonetheless. A few months later, he was allowed to apply for another, and received it. In late 2006, a state judge ruled in a related case that the state's campaign against herdshare programs was illegal.
In 2006, the Michigan Department of Agriculture dispatched an undercover employee to join an Ann Arbor food cooperative for six months, and used the agent's information about the distribution of unpasteurized milk to launch a sting operation against farmer Richard Hebron. State officials searched Hebron's home and confiscated thousands of dollars of dairy products and business records. Though he could potentially have been tried on felony charges, Hebron was let off with a $1,000 fine as part of a settlement some months later when a local prosecutor declined to seek a criminal indictment.
Late last year, the owners of upstate New York raw milk dairy Meadowsweet Farm inadvertently discovered an undercover agent among the more than 200 members of their limited liability company (LLC), organized to arrange raw milk sales to members in the Ithaca area. When the dairy was hit with a citation and ordered to appear at a hearing in January by New York's Department of Agriculture and Markets, the owners, Barb and Steve Smith, subpoenaed the undercover agent as a witness, hoping to score points with the hearing officer. No decision from the hearing has yet been reported by the agency.
In California earlier this year, US Food and Drug Administration (FDA) agents allegedly sought to recruit a dairy employee to go undercover. Amanda Hall, an employee of California's largest producer of raw milk, Organic Pastures Dairy Co., says that two FDA criminal agents visited her at her home in Fresno one evening in March after work. A few weeks earlier, she had received a subpoena to testify before a federal grand jury, and the agents said their visit was in connection with an investigation into out-of-state sales of raw milk.
After questioning her about her role in taking phone orders for raw dairy products, "One of them asked me, 'Would you ever consider wearing a wire? If you would wear it, you would be getting information from Mark [McAfee, the dairy's owner]. You could benefit. You wouldn't be paid millions, but it would sure help you out.' " Amanda declined, and the agent left a card, saying that if she changed her mind, she should call.
She told McAfee the next day about the confrontation, and he broadcast it to the local media, cutting Hall's undercover career short before it even started. The FDA agent who left his card, Stephen Jackson, refused to comment on the investigation.
When undercover agents come under cross examination, things can get a embarrassing. One of the first questions defense lawyer Gary Cox asked Dennis Brandow Jr., the undercover agent for New York's Department of Agriculture and Markets, in the Meadowsweet Farm hearing, was this: "When you became a member of the LLC, did you tell them that you were going to be a snitch?" The objection from the Agriculture and Markets lawyer was upheld, but Cox's point had been made.
The day before Glenn Wise went on trial in Elizabethtown, Pennsylvania, earlier this month, another Mennonite dairy farmer, Mark Nolt, was put on trial on similar charges about fifty miles west, in Mount Holly Springs. In this case, two PDA employees testified they had purchased milk undercover from Nolt at farmers markets.
Nolt also served as his own lawyer, and it didn't take him long to crack one of the undercover agents, Anthony Russo, who is a microbiologist when he's not working undercover. Nolt, in his cross examination, inquired about who drove the car and where Russo parked on each of two occasions he secretly purchased dairy products.
Russo was obviously uncomfortable about having to confront the victim of his subterfuge, because he volunteered: "I was nervous about going. I don't like doing that kind of stuff. I was hoping you weren't there because I didn't want to get any [dairy] samples."
What are these cases really about? It might be argued that, individually, these are mostly harmless cases of low-level bureaucrats gathering evidence by posing as consumers. But taken together, something more is definitely going on.
For one thing, the use of undercover agents tends to be accompanied by other questionable investigative techniques. Meadowsweet Farm has filed suit against the New York Department of Agriculture and Markets, alleging in part that a search warrant used by the agency before filing its undercover-agent-inspired complaint was deficient because of its open-ended time frame and vague language about the amount of force that could be used in confiscating evidence.
The week before Mark Nolt's trial, a caravan of law enforcement vehicles arrived unannounced at his farm, carrying eleven PDA employees and four state police officers. The officers secured a perimeter around the farm to prevent any neighbors, including Nolt's elderly father who lives down the road, from gaining entrance. They handcuffed Nolt and took him away in a police car to be arraigned without allowing him to alert his family. And while a search warrant limited the officials to confiscating milk processing equipment, the authorities also took Nolt's expensive cheese-making equipment and cream separator.
A PDA spokesperson declined to explain those seizures, except to say, "Because this is an ongoing criminal prosecution, we cannot go into detail about how certain items seized during the execution of the search warrant will be used as evidence."
While the undercover agents are often uncomfortable, citizen targets are rattled even more. The buying groups and cooperatives being formed by many small dairies have already become less trusting of outsiders, sharply quizzing prospective new members, which discourages the very sense of community that draws consumers to these farms.
Cox of the Farm-to-Consumer Legal Defense Fund thinks the current campaign against raw dairy products is being orchestrated among state agriculture departments by the FDA as part of a concerted effort to intimidate the growing number of dairies producing unpasteurized milk, which are nearly always small farms (see "Milk Wars" ).
He suspects it's also related to the National Animal Identification System (NAIS), the highly controversial US Department of Agriculture program to require computer tags on all farm animals (see "USDA Bets the Farm on Animal ID Program" .) "NAIS helps big business and will put small farmers out of business," he says.
That may be the ultimate goal of a growing undercover-agent tactic--get rid of ever more troublesome small farms and let agribusiness entirely have its way.