As highlighted in this prior post, in early 2020, the SEC announced the filing of a civil complaint charging Asante Berko (pictured – a former Executive Director of Goldman Sachs International) with Foreign Corrupt Practices Act violations and other charges for “orchestrating a bribery scheme to help a client [a Turkish energy company] win a government contract to build and operate an electrical power plant” in Ghana.
Berko publicly denied the SEC’s allegations and the SEC sought court approval to serve the summons and complaint via e-mail and through his U.S. counsel. Ultimately settlement negotiations commenced and in mid-2021 Berko agreed to resolve the matter. Without admitting or denying the SEC’s allegations, Berko agreed to pay $329,163.92 (disgorgement of $275,000 along with prejudgment interest of $54,163.92). The final judgment also permanently restrained and enjoined Berko from violating, directly or indirectly, the FCPA’s anti-bribery provisions.
Those who follow the FCPA, myself included, likely thought that was the end of the matter. Perhaps Berko himself thought that.
However, as reported here, last week Berko was arrested in London in connection with a six count August 2020 indictment (unsealed last week in federal court in New York) alleging that he conspired “with at least two Ghanaian officials and four others in a bribery scheme that benefited Goldman, himself and a Turkish energy company that sought to build a power plant in the African nation.” In other words, the same core conduct alleged in the prior SEC enforcement action which Berko resolved in 2021.
In summary fashion, the indictment alleges:
“In or about and between December 2014 and March 2017, Berko, with the intent to benefit himself and, at least in part, U.S. Financial Institution, among others, conspired with others to make corrupt payments to government officials in Ghana to obtain and retain business from the Republic of Ghana that would benefit the business interests of Berko, U.S. Financial Institution, Turkish Energy Company and others. Berko and others also conspired to launder money in and through financial systems in the United States and elsewhere to promote their unlawful bribery scheme. These laundered funds were used, among other ways, to pay bribes to obtain and retain business for Berko, U.S. Financial Institution and Turkish Energy Company.
During the relevant period, Berko was a member of the team at U.S. Financial Institution that was responsible for securing and managing a deal between U.S. Financial Institution’s client, Turkish Energy Company and the Republic of Ghana to build and provide financing for the Power Plant.
To build the Power Plant, Turkish Energy Company needed to secure a “power purchase agreement” or “emergency power agreement” (“PPA” or “EPA”) with the Republic of Ghana. Securing an EPA required approvals from certain Ghanaian officials and government entities, including, among other things, the approval and signature of the Senior Ghana Official, as well as executive, cabinet and parliamentary approval. It also required approval from Ghana Grid Company Limited (“GridCo”), an entity wholly owned by the Republic of Ghana, and the Public Utilities Regulatory Commission (“Pure”), a Ghanaian regulatory body overseen by the President of Ghana.
Berko and his co-conspirators agreed that Berko, Co-Conspirator 1, Co-Conspirator 4 and others would pay bribes to Ghanaian officials to obtain the necessary approvals for the Power Plant.
Berko and his co-conspirators further agreed to seek reimbursement for these bribes from Turkish Energy Company by issuing false invoices for “consultancy services” purportedly provided by Ghana Consulting Company 2, which were then paid by Turkish Energy Company or its parent, Turkish Holding Company, from bank accounts in Turkey to bank accounts in Ghana through the financial system of the United States.
Berko and his co-conspirators, including Co-Conspirator 1 and Co-Conspirator 4, also planned to obtain continuing payments from Turkish Energy Company after they assisted Turkish Energy Company with corruptly securing the EPA through a services contract between Ghana Consulting Company 1 and either Turkish Energy Company or Turkish Holding Company, which would be effectuated once the EPA had been secured.
In furtherance of the scheme, Berko and others caused more than $700,000 in bribes to be transferred to Ghana Official 1, Ghana Official 2 and other Ghanaian officials, including officials in the Ghanaian parliament, Pure and GridCo, corruptly in exchange for, among other things, their assistance in ensuring that Turkish Energy Company was successful in winning the bid to build and operate the Power Plant.
Berko and his co-conspirators sent and received emails and wire transferred money in furtherance of and with the intent to promote the bribery scheme, through correspondent banks that passed through the Eastern District of New York.”