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.
Thereafter, Berko filed a motion for acquittal and a new trial which stated 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.”
The motion continued:
“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.
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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.
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The Government also failed to present evidence sufficient to show that Mr. Berko had the specific intent to violate the FCPA.
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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.”
Earlier this week, Judge Diane Gujarati (E.D.N.Y.) denied the motion.
Regarding acquittal, Judge Gujarati stated:
“Assessed under the well-settled legal standards governing Rule 29 motions, the trial evidence – including, inter alia, Defendant Berko’s own recorded statements; emails (including on Defendant Berko’s personal email) among Defendant Berko and various individuals identified by the Government as co-conspirators and emails also involving various of Defendant Berko’s Goldman Sachs colleagues; testimony of one of Defendant Berko’s Goldman Sachs colleagues; bank records; and testimony regarding the review and analysis of bank records – was sufficient to defeat the Rule 29 Motion. As to each of Counts One, Two, and Three, the trial evidence was sufficient for a rational jury to have found beyond a reasonable doubt that Defendant Berko was guilty. The trial evidence was sufficient for a rational jury to have found beyond a reasonable doubt each element of each of Counts One, Two, and Three. Moreover, the trial evidence was sufficient as to venue with respect to each of Counts One, Two, and Three.
Defendant Berko’s efforts to have the Court disregard certain evidence, consider other evidence in isolation, draw inferences in his favor rather than in the Government’s favor, and/or impose on the Government requirements beyond those that the applicable law dictates are unavailing on the record here.
The Rule 29 Motion is denied.”
Regarding a new trial, Judge Gujarati stated:
“In support of his – alternative – request for a new trial, Defendant Berko appears to rely on the same arguments he advances in support of his Rule 29 Motion. Defendant Berko has failed to satisfy his burden of demonstrating entitlement to a new trial under Rule 33. On the record before the Court – and considering the trial evidence as a whole – the Court is unable to conclude that the interest of justice requires the grant of a new trial. Here, it would not be a manifest injustice to let the verdict stand.
The Rule 33 Motion is denied.”
