In the DOJ – Judge Nicholas Garaufis (E.D.N.Y.) kerfuffle in the Adani et al matter (see here for a summary) one issue the DOJ raised in responding to Judge Garaufis’s directive to provide reasons for dismissal along with “sufficient factual support for each basis” was the following.
“[W]hatever reason is given, defendants in other cases will start claiming—wrongly or rightly—that their case meets those same considerations, too, resulting in a wave of requests for dismissal in other cases, consuming significant Department resources.”
Sure enough, as highlighted in this prior post regarding the FCPA enforcement action against Smartmatic.
In August, Asante Berko (a former Executive Director of Goldman Sachs International) was convicted by a jury of FCPA and related offenses in connection with a Ghana bribery scheme after a trial in the E.D. of New York. In his sentencing memorandum, Berko has taken a similar approach.
Under the heading “The Nature and Circumstances of Mr. Berko’s Offense Warrants a Downward Variance,” the memo states in pertinent part (certain internal citations omitted):
“Mr. Berko’s conduct falls outside of the type of FCPA conduct that DOJ has determined merits enforcement pursuant to President Trump’s Executive Order No. 14209, Pausing Foreign Corrupt Practices Act Enforcement To Further American Economic and National Security (Feb. 10, 2025) (hereinafter, the “Executive Order”) and the Memorandum from Deputy Attorney General Todd Blanche, dated June 9, 2025, entitled Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA) (“Blanche Memorandum”).
[…]
In evaluating the nature and circumstances of Mr. Berko’s offense, the Court should therefore consider the DOJ’s guidelines for FCPA enforcement, including the Executive Order, the Blanche Memorandum, and the DOJ’s rationale for dismissing a recent FCPA EDNY case.
Those materials suggest that the DOJ no longer prioritizes FCPA cases that lack connection to the United States, that have no connection to drug cartels or transnational criminal organizations (“TCOs”), and pose no threat or injury to American companies, individuals, or security interests, or that implicate important sectors like defense, intelligence or critical infrastructure. DOJ has recently dismissed cases that fail to implicateany of its FCPA enforcement priorities. In the DOJ’s July 4, 2026 letter submitted in connection with United States v. Gautam S. Adani et al., (the “Adani Letter”), DOJ explained its reasons for dismissing the FCPA and securities fraud case pending in the same courthouse, including that the case was essentially foreign, with conduct that “occurred almost entirely in India,” with a bribery scheme “carried out by Indian nationals on behalf of an Indian company listed on the Indian stock exchange to Indian government officials for Indian contracts,” and that “[n]ot a single penny has ever been lost” on the securities at issue in the case. Further, the conduct “did not involve criminal organizations, did not have any effect on U.S. companies, did not in any way implicate national security, was not egregious, and has been the subject of investigations in India.” As to the securities fraud charges, the DOJ further explained that the resolution of a prior civil case “made it even more obvious that there was no point in pursuing criminal securities charges for the same conduct,” especially since “[e]ven if the criminal case were to continue, no victim would stand to recover any restitution, because there were no losses to recover.”
Mr. Berko’s case likewise falls outside of the scope of the DOJ’s FCPA enforcement priorities, as set forth in the Executive Order and Blanche Memorandum. There is no evidence in the record to indicate that any American company participated in or benefited from the scheme or that there was an injury to any specific and identifiable American companies or individuals. Mr. Berko did not engage in any conduct that poses a threat to U.S. national security. There is no connection between the alleged scheme and the types of corruption the Blanche Memorandum seeks to root out in “sectors like defense, intelligence or critical infrastructure.” Mr. Berko’s case also has key similarities to the Adani case, including (1) its dearth of touchpoints to the U.S., (2) lack of harm to U.S. companies, individuals, or U.S. national security interests, and (3) the fact that Mr. Berko has already entered into a civil resolution with the U.S. Securities and Exchange Commission. The Government’s decision to pursue this case, despite its similarities to the Adani case, demonstrates an inconsistent and unfair application of the Executive Order and Blanche Memorandum.”
