Key Tobacco Witness Gets Immunity, Sources Say

The U.S. Justice Department has granted immunity from criminal prosecution to a New Jersey scientist who helped Brown & Williamson Tobacco Corp. create a tobacco plant with unusually high levels of nicotine, sources close to the department told The Times.

Legal experts said that the granting of immunity to a witness was a clear sign that the Justice Department’s criminal probe into the tobacco companies had intensified and remains a significant threat to the industry despite a $368.5-billion litigation settlement now pending in Congress.

“It’s a real sword hanging over them that they can’t negotiate away,” said New York University law professor Stephen Gillers.

The Justice Department has convened grand juries in Washington, New York and Brooklyn to look into possible wrongdoing by cigarette companies and their trade associations.

They have subpoenaed a number of current and former employees of the major cigarette companies, including B&W; and the industry’s two largest firms, Philip Morris and R.J. Reynolds.

In addition to the battery of highly skilled lawyers defending them in civil suits, the tobacco companies have hired top-flight criminal defense lawyers such as Robert B. Fiske Jr., the former Whitewater special counsel.

In May, the FBI added additional agents to a tobacco task force in its Washington field office, including some to wade through a mountain of potentially incriminating documents that the agency has acquired--many as a result of pre-trial discovery in the burgeoning number of civil lawsuits against the industry.

Sources close to the investigation said Janis A. Bravo testified at a federal grand jury investigating whether tobacco company officials lied to government agencies. She helped develop the high-nicotine plant as part of a joint venture between B&W; and a company she worked for called DNA Plant Technology (DNAP).

Bravo declined to return calls. Her lawyer, Henry W. Asbill of Washington, D.C., refused to confirm or deny that his client had been granted immunity or had testified.

“There’s nothing of advantage to me or my client from me saying anything to you,” Asbill said Saturday.

“I don’t know where this is going. At some point I may want to say something. I don’t want to say anything now,” he added.

Justice Department spokesman Bill Brooks declined to comment, as did FBI spokeswoman Susan Lloyd. B&W; spokesman Joe Helewicz said: “We wouldn’t discuss anything related to a grand jury.”

The B&W; project to develop the high-potency tobacco was first revealed at a congressional hearing in June 1994. Then-FDA Commissioner David A. Kessler testified that the plant, called “Y-1,” contained nearly twice as much nicotine by weight as the average in normal U.S. flue-cured tobacco.

He said the decadelong secret project showed that cigarette companies manipulated nicotine levels--a matter of critical interest to the FDA at the time, as it was attempting to establish a basis for regulating cigarettes.

Executives from B&W;, the third-largest cigarette maker in the U.S., maintained that they were merely trying to enhance cigarette flavor. However, it emerged during a hearing that B&W; officials had said different things at different times to FDA investigators.

According to sources close to the Justice Department investigation, several former tobacco company officials have also been discussing immunity with the government, including a former Philip Morris research director, Thomas S. Osdene. The Times reported in May that Osdene invoked the 5th Amendment privilege against self-incrimination during a deposition in a civil case.

Since that time, The Times has learned, Osdene invoked the 5th Amendment numerous times during a subsequent deposition in another civil case. The transcripts of those depositions have been sealed. Osdene has declined to discuss the case.

However, a federal judge in Virginia released a transcript of a private hearing on April 29 at which Osdene’s lawyer, Gary Nunes, said that “while Justice agreed that he may be a candidate for immunity, they would not immunize him at this time.”

Bravo’s name first surfaced when FDA investigators were investigating reports in 1994 that B&W; had developed a high-potency tobacco. Kessler had announced in March that the agency was exploring the possibility of regulating cigarettes.

On May 3, 1994, a team of FDA investigators met with B&W; officials in Macon, Ga. At the meeting, FDA officials asked questions about breeding plants for high nicotine levels. Company officials said it was not “feasible” because of agreements among U.S. cigarette companies that set limits on the nicotine yield of tobacco plants grown in this country.

Ten days later, FDA officials got a tip that they should “check the patents.” The investigators ordered a computer search of a worldwide patent database. Four days later, an FDA librarian turned up a citation that led to a document written in Portuguese, registered in Brazil and filed in the Netherlands. It had been lodged by B&W.;

The patent involved a new kind of tobacco plant, mostly grown in Brazil, with nicotine levels of 6% or greater. That startled the FDA, investigator Mitchell Zeller said at the time. “We knew there had been breeding efforts but, as far as we knew, the highest they’d ever gotten the nicotine up to in flue-cured tobacco was 3.4%. So this was quite a leap.”

The probe intensified. FDA officials started looking through U.S. Customs Service records to see if they could find instances of Y-1 leaves entering the country.

On May 25 they made a surprise visit to Bravo, whose name was one of those listed on the patent as inventors of the plant.

Bravo told Zeller and another investigator that by the time her company, which specializes in agricultural biotechnology, was hired, B&W; already had a high-nicotine gene in its seed. She told the investigators that her job was to make the new male plant sterile--unable to produce seeds on its own without the addition of pollen. A plant thus rendered sterile presumably could make it harder for competitors to obtain seeds.

Bravo also revealed that she had traveled to Brazil to see the tobacco grown. Moreover, she told the investigators she had shipped the seeds from the U.S. to Brazil before 1991--when federal law prohibited the export of tobacco seeds. The only exception to the law was for very small amounts of seeds for research purposes.

But Bravo told the investigators that in one year she might have shipped as much as 10 pounds of seed from the company’s New Jersey offices. The bulk went to Brazil and the rest to B&W; headquarters in Louisville, Ky. Executives of DNA Plant Technology said they committed no export violations and no charges ever have been filed.

A few weeks later, another FDA investigator discovered customs invoices from September 1992 showing that more than half a million pounds of Y-1 tobacco leaves had been shipped to B&W; from a Brazilian company.

Soon thereafter, FDA investigators interviewed James F. Chaplin, a specialist in plant breeding, and he told them that he was responsible for developing the high-nicotine seeds that became the basis for Y-1. Moreover, Chaplin told the investigators that he grew some experimental varieties on a farm in North Carolina, under a contract with B&W.;

After hearing about the FDA’s discoveries, B&W; asked for a meeting with the FDA. Company officials made two revelations that startled agency officials: The company had 4 million pounds of Y-1 leaf in storage in the U.S., and it had used Y-1 in five brands of cigarettes, including two varieties of Viceroy, two varieties of Richland and Raleigh Lights King Size.

Four days later, on June 21, at a hearing of the House Energy and Commerce Subcommittee on Health and the Environment, Kessler said FDA officials were told by DNAP executives--at B&W;’s instruction--the plant had never been put into commercial use.

“I think we can draw our own conclusions about whether they were being helpful to the FDA,” Kessler said in response to a question about B&W;’s actions from the subcommittee chairman, Rep. Henry A. Waxman (D-Los Angeles).

At the same hearing, Kessler testified that the FDA had gathered evidence showing tobacco companies add ammonia compounds to cigarettes to heighten the amount of nicotine released from tobacco when smoked.

In sum, he said, the agency’s “findings lay to rest any notion that there is no manipulation and control of nicotine undertaken in the tobacco industry.”

B&W; retorted that Kessler had misrepresented its motives, issuing a statement that the purpose of Y-1 was to enhance flavor, not to heighten the levels of nicotine.

At a hearing two days later, company Chairman Thomas E. Sandefur accused Kessler of creating a misleading impression that the company lied or hid information about Y-1. He said FDA officials had not asked about Y-1 at the original May 3 meeting, but the FDA’s Zeller retorted that the questions agency investigators asked provided ample opportunity for the company to talk about Y-1.

In December 1994, Rep. Martin T. Meehan (D-Mass.) sent a memo to Atty. Gen. Janet Reno urging the Justice Department to start a formal investigation of possible violation of federal criminal laws by tobacco companies and some of their executives, including Sandefur, who died last year.

Meehan’s memo came on the heels of early requests by Congress members to investigate whether seven executives of U.S. cigarette companies perjured themselves in a hearing when they said nicotine was not addictive.