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.
As highlighted in this prior post, in late 2022 Berko was arrested in London in connection with a six count August 2020 indictment 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 July 2024, the DOJ announced that Berko was extradited from the United Kingdom to the United States. As stated in the DOJ release: “Berko is charged with one count of conspiring to violate the Foreign Corrupt Practices Act (FCPA), one count of violating the FCPA, and one count of conspiring to commit money laundering.”
In July 2025, Berko’s lawyers at Wilmer Cutler filed a motion to dismiss the indictment and a motion to suppress materials seized pursuant to a search warrant.
The memorandum in support of the motion begins with the following preliminary statement.
“The defendant, Asante Kwaku Berko, moves to dismiss Indictment as the Government’s prosecution suffers from fatal legal deficiencies. Specifically, the Indictment was improperly sealed and Mr. Berko’s arrest was unreasonably delayed, resulting in a circumvention of the statute of limitations and a violation of Mr. Berko’s right to a speedy trial. The defendant also seeks the suppression of his personal emails that were obtained pursuant to an unlawful search warrant. The search warrant improperly relied on conclusory and uncorroborated statements from a confidential source whose credibility and reliability were never attested to in the warrant. The warrant was so facially deficient that it should never have been granted or executed. Accordingly, as discussed in detail below, the Court should grant the defendant’s motion to dismiss the Indictment with prejudice. Additionally, the Court should suppress the search warrant for Mr. Berko’s personal emails.”
Under the heading “The Indictment was Improperly Sealed,” the memorandum states in pertinent part:
Mr. Berko was clearly aware of the investigation against him for nearly the entirety of the investigation. Not only were Mr. Berko’s lawyers at MoFo in contact with the Government regarding their investigation, Mr. Berko voluntarily interviewed with the Government for over eight hours concerning their investigation. Moreover, Mr. Berko was the only defendant charged in the Indictment, so there was no concern that an unsealed Indictment would tip off other defendants who were unaware of the investigation. Furthermore, Mr. Berko’s whereabouts were never unknown. Mr. Berko told the Government at his proffer that he was splitting time between Ghana and London. Indeed, he was arrested leaving London to return to Ghana. In addition, at the time of the Indictment’s sealing, Mr. Berko was actively litigating in court against the SEC’s complaint regarding the same conduct alleged in the Indictment. He was not hiding from the Government’s investigation, nor has he ever done so. To the contrary, Mr. Berko cooperated with the Government’s investigation from the beginning.
Accordingly, the Government’s motivation for sealing the Indictment could not have stemmed from a need to keep their investigation secret, a fear that Mr. Berko would flee, or a concern for the safety of the arresting officers. As the Government has failed to establish a legitimate prosecutorial objective for sealing, the Indictment should be dismissed. […] Alternatively, the defendant requests a hearing where the Government bears the burden of demonstrating that there were legitimate prosecutorial purposes for sealing the Indictment.
The memorandum next states:
“Even if the sealing of the Indictment was proper, the DOJ’s two-year delay in unsealing the Indictment was unreasonable. “Once an indictment is sealed, the Government must exercise reasonable care in locating the defendant.” […] This is especially true where the sealing of the indictment extends beyond the period established by the statute of limitations. “[W]hen a sealed indictment has tolled the statute of limitations, the policy of repose underlying the statute demands that the Government unseal the indictment as soon as its legitimate need for delay has been satisfied.” […] Indeed, a court has found that “a period of more than twelve months” after the statute of limitations has expired “is not reasonable.” […].
Here, the Government does not appear to have taken the most basic steps to effectuate Mr. Berko’s arrest, resulting in an unsealing delay of over two years. Despite knowing that Mr. Berko was cooperating with their investigation and was represented by lawyers at MoFo, the DOJ never contacted Mr. Berko’s lawyers about the Indictment or the possibility of Mr. Berko surrendering to law enforcement authorities. The DOJ also never bothered to seek Mr. Berko’s extradition from Ghana, despite Mr. Berko telling the DOJ that he lived there and was a citizen of the country. Indeed, Mr. Berko had been living openly in Ghana for several years before his arrest and it is unclear if the DOJ ever conducted surveillance or contacted anyone or any entity in Ghana to confirm Mr. Berko’s location. Accordingly, the Court should find that the Government took unreasonably long to unseal the Indictment as it failed to “exercise reasonable care in locating the defendant.” […] Alternatively, the Court should hold an evidentiary hearing to determine whether the Government fulfilled its obligation to “make appropriate efforts” to locate Mr. Berko.
The Preliminary Statement in the DOJ’s response brief states:
The defendant’s motion to dismiss the Indictment for allegedly improper sealing and a violation of his right to a speedy trial, and to suppress the fruits of an email search warrant (“Warrant”) for lack of probable cause, should be denied as meritless. Sealing the Indictment was proper because the defendant remained a fugitive in Ghana and maintained corrupt ties to high-ranking Ghanaian government (“GoG”) officials. Further, there has been no violation of the defendant’s right to a speedy trial where the government diligently pursued his extradition from numerous countries other than Ghana and much of the delay is attributable to the defendant’s own actions. Finally, the Warrant was supported by probable cause and law enforcement relied upon the Warrant in good faith. Thus, the Motion should be denied in its entirety without a hearing.”
Among other things, the DOJ states in response:
“[T]he government took meaningful steps to effectuate the defendant’s arrest. Within approximately one month of the return of the Indictment, the government sent a request to INTERPOL for a Diffusion Notice to virtually every member country, except Ghana. The government reasonably concluded that seeking the defendant’s extradition from Ghana would be futile, if not actively harmful to the investigation, given the complicity of high-ranking GoG officials—including [redacted] and members of Parliament—in the defendant’s criminal scheme.
[…]
Nonetheless, the defendant contends the delay was unreasonable because he was “cooperating” (he wasn’t); he was “living openly” (overseas); and he could have been asked to self-surrender (which carried the risk of flight if he refused). The defendant has cited to, and the government is aware of, nothing to suggest a defendant must be given the opportunity to self-surrender, and little in the record here provided reason to believe such a request would have been successful. The defendant required a letter of safe passage to attend the proffer in the United States in 2017, lied to the government during the proffer, and then did not voluntarily travel to the United States at any time thereafter. See Ex. C (compare regular travel to the United States between 2010 to 2016, with no voluntary travel to the United States after the proffer in 2017). Moreover, far from seeking to face the prosecution “head on,” once captured, the defendant contested his extradition for almost two years. Here, it was reasonable to conclude the defendant was a flight risk and would attempt to evade prosecution.”
Oral argument on the motion was held on August 28, 2025 and recently Judge Diane Gujarati (E.D.N.Y.) held a status conference in which she granted Berko’s request for a hearing with respect to that portion of the motion that seeks dismissal of the Indictment.
The hearing is scheduled to occur on November 5th.
