Flawed Esquenazi Decision Continues To Impact FCPA Enforcement
In 2014, the 11th Circuit released its decision in U.S. v. Esquenazi.
The case was, and remains, the only appellate court decision in Foreign Corrupt Practices Act history to substantively address the FCPA’s “foreign official” element.
In pertinent part the court stated:
“An ‘instrumentality’ under … the FCPA is an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own. Certainly, what constitutes control and what constitutes a function the government treats as its own are fact-bound questions. It would be unwise and likely impossible to exhaustively answer them in the abstract. Because we only have this case before us, we do not purport to list all of the factors that might prove relevant to deciding whether an entity is an instrumentality of a foreign government. For today, we provide a list of some factors that may be relevant to deciding the issue.
Berko Convicted Of FCPA And Related Offenses
In the latest example of the Trump administration’s retreat from FCPA enforcement (or some still maintain), earlier today 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.
As reported here: “after deliberating for approximately three hours, a jury of four women and eight men found Berko, 52, guilty of violating the Foreign Corrupt Practices Act, conspiracy to do the same, and money laundering conspiracy.”
The trial was believed to be just the 27th FCPA jury trial in the FCPA’s nearly 50 years and the 4th FCPA trial since September 2025.
Berko Trial Begins
This week trial begins in U.S. v. Asante Berko (a former Executive Director of Goldman Sachs International) before Judge Diane Gujarati (E.D.N.Y.).
The trial is believed to be just the 27th FCPA jury trial in the FCPA’s nearly 50 years.
In terms of background, as highlighted in this prior post, in 2020, the SEC announced the filing of a civil complaint charging Asante Berko 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.
Berko Case Proceeds
As highlighted in this prior post, in 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.
A Look At The Post-Hearing Briefs In The Berko Matter
As highlighted in this prior post, in 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.