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.”
Oral argument on the motion was held on August 28, 2025 and last month 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 occurred on November 5th and the Judge ordered post-hearing briefings to be submitted by November 20th.
In his post-hearing brief, Asante asserts in pertinent part:
“At the Hearing, the Government failed to establish that the Indictment was sealed for legitimate prosecutorial reasons.
[…]
As an initial matter, the Government did not offer any testimony or documentary evidence from any of the prosecutors to establish that the Indictment was sealed for legitimate prosecutorial reasons. Instead, the Government relied solely on the testimony of its lead case agent, Special Agent Justin McNair. But McNair could not speak to the prosecutors’ reasoning for seeking the sealing of the Indictment on the grounds stated in the sealing form. Indeed, he stated as much at the Hearing. He said that he had never seen the sealing form other than in preparing for the Hearing, he had no role in drafting the language used in the form, he was never consulted by the prosecutors about the accuracy of the statements in the form, and, as discussed later, he did not understand certain of the statements in the form to be true. To prove the legitimacy of the prosecutors’ stated reasons for sealing, the Government needed to offer
evidence from the prosecutors, not the case agent.[…]
Alternatively, the Indictment must be dismissed given the Government’s failure to establish that its two-year delay in unsealing the Indictment was reasonable.
[…]
The Government has long since conceded that it did not take the most basic step to effectuate Mr. Berko’s timely arrest—seeking his extradition from Ghana. It has attempted to excuse its inaction by arguing that it reasonably concluded that “it was extremely unlikely that the defendant would be extradited from Ghana because of his political connections.”
[…]
At the Hearing, the Government attempted to elicit testimony from Agent McNair to support its claim that its decision not to seek extradition was reasonable. Agent McNair claimed that prior to the Indictment being sealed, his personal view was “that it was highly unlikely” that Ghana would extradite Mr. Berko due to “Mr. Berko’s high connections within both parties of the Government of Ghana.” To be clear, neither Agent McNair’s personal view nor Mr. Berko’s supposed connections “within both parties of the Government” was ever mentioned in the affidavit he submitted to the court in the instant matter, in any of the Government’s briefing, during the oral arguments held on August 28, 2025, nor to the Magistrate Judge who approved the sealing of the Indictment. Nevertheless, Agent McNair’s currently claimed belief that extradition was “highly unlikely” due to Mr. Berko’s supposed political connections was so flawed as to render his testimony unpersuasive.
[…]
Even if the Court were to determine that seeking Mr. Berko’s extradition from Ghana would have been futile, the Government still did not exhibit reasonable care in locating the defendant post-Indictment. After the Government obtained the Indictment, it did next to nothing to locate the defendant. That is simply insufficient under the law.
In its post-hearing brief, the DOJ asserts in pertinent part:
“The defendant’s July 1, 2025, motion (“Motion”) to dismiss the Indictment for allegedly improper sealing and a violation of his constitutional right to a speedy trial should be denied as meritless, as set forth in the government’s prior filings, at oral argument on August 28, 2025, and during the November 5, 2025, evidentiary hearing , during which the government called Federal Bureau of Investigation (“FBI”) Special Agent Justin McNair, and the defendant called his former defense counsel, Carl Loewenson. As detailed at each of those junctures, sealing the Indictment and maintaining it under seal was proper while the defendant remained a fugitive in Ghana and maintained corrupt ties to high-ranking Ghanaian government officials. Further, there was no violation of the defendant’s right to a speedy trial because the government diligently pursued his arrest and extradition domestically and from numerous countries. The defendant suffered no actual prejudice from the delay.”
