Earlier this month, 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.
Recently, Berko filed a motion for acquittal and a new trial.
In summary fashion the motion states:
“Defendant Asante Kwaku Berko moves pursuant to Rule 29 of the Federal Rules of Criminal Procedure for a judgment of acquittal on all counts because the evidence admitted at trial was insufficient for any rational trier of fact to find that the Government had proven Mr. Berko’s guilt with respect to any of the charged offenses. Specifically, the evidence at trial was insufficient for any reasonable jury to conclude, beyond a reasonable doubt, (1) that Mr. Berko agreed with the alleged co-conspirators to violate the FCPA by paying bribes to Ghanaian government officials, as necessary to sustain a conviction as to Count One, (2) that any of the elements of Count Two were established, including that Mr. Berko offered or paid anything of value, with corrupt intent for an improper purpose, and (3) that the transfers of funds that served as the basis of conviction as to Count Three were the result of a separate agreement among the alleged coconspirators with the specific intent to promote the alleged bribery scheme or substantive FCPA violation. In addition, the evidence was insufficient for the jury to conclude by a preponderance of the evidence that venue in the Eastern District of New York was proven as to all Counts. In the alternative, Mr. Berko moves pursuant to Federal Rule of Criminal Procedure 33 for a new trial on all counts.”
The motion states in pertinent part:
In this case, the evidence is insufficient to show Mr. Berko agreed with the alleged coconspirators to pay bribes to government officials. The evidence involving Ghanaian officials consists of either (1) emails between Aksa personnel, Goldman Sachs personnel, or Tricorp personnel negotiating the deal with the officials, or (2) routine emails regarding the deal’s progress or logistics.
…
There is no evidence in the record to establish a conspiracy to make a payment, offer, or promise to pay a foreign official with the intent to wrongfully influence that official. At trial, the Government failed to introduce a single communication from an alleged bribe payor to a
government official asking for any action to be taken in exchange for a payment, nor communications from government officials showing that they understood they should take a specific action in exchange for a payment. Indeed, there was no evidence—emails, testimony, or
otherwise—showing the alleged bribe payors discussing even the need to pay government officials for the purpose of obtaining a specific action, let alone what the specific purpose was of any of the alleged payments to government officials.At trial, the Government simply argued that if an email suggested a bribe was paid, and Aksa obtained some type of approval necessary for the project to proceed in the same general time frame, then a bribe was paid, regardless of whether there were any financial records, witness testimony, or other evidence supporting such a payment or explaining the purpose of such a payment.
…
The Government’s method of trying to link emails suggesting bribes were paid with other unremarkable, but temporally proximate, emails related to the logical progression of the power plant deal is clearly not enough for a rational jury to find the existence of a conspiracy proven beyond a reasonable doubt.
…
The Government also failed to present evidence sufficient to show that Mr. Berko had the specific intent to violate the FCPA.
…
The trial evidence was woefully insufficient to show that any payments were made to foreign officials for an improper purpose. As stated earlier, the Government failed to introduce a single communication from an alleged bribe payor to a government official asking for any action
to be taken in exchange for a payment, nor communications from government officials showing that they understood they should take a specific action in exchange for a payment. Indeed, there was no evidence showing the alleged bribe payors even discussed needing to pay government officials to obtain a specific action.”
Berko is represented by Wilmer Cutler attorneys Robert Boone, Amanda Masselam Strachan, Eliot Kim, Emily Gruener and Walker Schneider.
