United States v. NIKHIL GUPTA, No. 23 Cr. 289 (VM), Southern District of New York (Nov. 29, 2023) — Indictment

UNITED 
STAT
ES DISTRICT 
COURT 
SOUTHERN 
DISTRICT 
OF 
NEW 
YORK 
UNITE
D STATES 
OF 
AMERICA 
N
IK
HIL GUPTA
, 
a/Ida 
"Nic
k," 
V. 
Defe
nd
ant. 
SEALED 
SUPERSEDING 
INDICTMENT 
S 1 
23 
Cr. 
289 
(VM) 
BACKGROUND 
Overview 
1. 
Ea
rlier 
this 
year, 
an 
id
enti
fi ed  Indian 
gove
rnm
e
nt 
employ
ee 
("CC-1 
"), 
working 
together 
with 
others 
in 
India 
and 
elsewhere
,  inc
ludi
ng 
N
IK.HI
L 
GUPTA
,  a/k/a 
"N
ick
," 
the 
de
fe
ndant 
("GUPTA"), 
dir
ected 
a plot to assassinate
, on U.S. 
soil, an atto
rne
y a
nd 
po
li
tica
l activ
ist, 
who 
is a 
U.S. 
ci
ti
zen 
oflnd
ian 
origin 
residin
g 
in 
New 
York 
City 
(the "
Victim"). 
The 
Vi
ctim  i
s a 
voca
l critic 
of 
the Ind
ian gove
rnment 
and 
leads 
a U.S.-based 
orga
nizat
ion 
th
at advoc
ates 
for 
the 
secessio
n 
of 
Punj
ab,  a  s
tat
e  in 
nmihern 
Indi
a  that 
is  hom
e  to 
a  large 
population 
of 
Sikhs
,  an 
ethnor
eligio
us minori
ty 
gro
up 
in 
Indi
a. 
The 
Victim 
has 
publicly 
called 
fo
r  some 
or 
a
ll 
of 
Punj
ab 
to 
sece
de  from 
Indi
a  a
nd 
esta
bli
sh 
a  Sikh 
sovereign 
state 
ca
lled 
K.h
alistan,  and 
the 
Indi
an 
gove
rnment 
has 
banned 
the 
Vi
ctim 
and 
his 
separa
tist 
organization 
from 
India
.  U.S. 
law 
enforcement 
detected 
and 
di
srup
ted 
the plot 
to 
murder 
the 
Victim. 
2. 
CC-
1  h
as 
variou
s
ly 
described 
being 
emp
loyed 
by 
the 
Indi
an 
government 
as 
a 
"Se
nior Field 
Officer" 
with 
respo
nsibilitie
s 
in 
"Sec
urity 
Manage
ment
" and 
"Int
elligence." 
CC
-1 
also 
has 
referenced 
previous
ly  serv
ing 
in 
India
's 
Centra
l  Reserve 
Police 
Force, 
and  r
ece
ivin
g 
"offi
cer[] 
trainin
g" 
in 
"ba
ttle craft" 
and 
"weapons
."  CC-
1 was 
emp
loyed 
at all 
tim
es 
relevan
t to 

this 
Indictment 
by 
the 
Indian 
government, 
res
ides 
in 
India, 
and 
directed 
the 
assassination 
plot 
from 
India. 
3. 
In 
or 
about 
May 
2023, 
CC-1 
recruited 
GUPTA 
to 
orchestrate 
the 
assassination 
of 
the 
Victim 
in 
the 
United 
States. 
GUPTA, 
an 
Indian 
nationa
l  who 
also 
resides 
in 
India, 
is 
an 
associate 
of 
CC-1 
and 
has 
described 
his 
involvement 
in 
international 
narcotics 
and 
weapons 
trafficking 
in 
his 
communications 
with 
CC
- 1 and 
others. 
4. 
At 
CC-1 
' s direction, 
GUPTA 
contacted 
an 
individua
l whom 
GUPTA 
believed 
to 
be 
a  crimina
l  associate, 
but 
who 
was 
in 
fact 
a  confidential 
source 
working 
with 
U.S. 
law 
enforcement 
(the 
"CS"), 
for 
assistance 
in contracting 
a hitman 
to 
murder 
the 
Victim 
in New 
York 
City. 
The 
CS 
introduced GUPTA 
to 
a purported 
hitman, 
who 
was 
in 
fact 
an 
undercover 
U.S. 
law 
enforcement 
officer 
(the 
"UC"). 
CC
-1 subsequently 
agreed, 
in 
dealings 
brokered 
by 
GUPTA
, to 
pay 
the 
UC 
$100,000 
to 
murder 
the 
Victim. 
On 
or 
about 
June 
9, 2023, 
CC-
1 and 
GUPTA 
arranged 
for 
an 
associate 
to 
deliver 
$15
,000 
in 
cash 
to 
the 
UC 
in 
Manhattan, 
New 
York
,  as 
an 
advance 
payment 
for 
the 
murder. 
5. 
In 
or 
about 
June 
2023, 
in 
furtherance 
of 
the 
assassination 
plot, 
CC-1 
provided 
GUPTA 
with 
persona
l  informat
ion 
about 
the 
Victim
-
including 
the 
Victim's 
home 
address 
in 
New 
York 
City, 
phone 
numbers 
associated 
with 
the 
Victim
, and 
details 
about 
the 
Victim's 
day-to-
day 
conduct
-
which 
GUPTA 
then 
passed 
to 
the 
UC
.  CC-
1 directed GUPTA 
to 
provide 
regular 
updates 
on 
the 
progress 
of 
the 
assassination 
plot, 
which 
GUPTA 
accomp
lished 
by 
forwarding 
to 
CC-I, 
among 
other 
things, 
surveillance 
photograp
hs 
of 
the 
Victim 
that 
the 
UC 
had 
sent 
to GUPTA. 
GUPTA 
directed 
the 
UC 
to 
cany 
out 
the 
murder 
as 
soon 
as 
possib
le, but 
GUPTA 
also 
spec
ifica
lly 
instmcte
d the 
UC 
not 
to 
commit 
the 
murder 
around 
the 
time 
of 
anticipated 
engagements 
schedu
l
ed 
to occur 
in the 
ensuing 
weeks 
between 
high-
level 
U.S. 
and 
Indian 
government 
officials. 
2 

6. 
On 
or 
about 
June 
18, 2023, 
masked 
gunmen 
murdered 
Hardeep 
Singh 
Nijjar 
outside 
a  Sikh 
temple 
in  British 
Columbia
,  Canada
. Nijjar 
was 
an 
associate 
of 
the  Victim, 
and 
li
ke 
the 
Vic
tim
,  was 
a  leade
r 
of 
the 
Sikh 
separatis
t  m
ovement 
and 
an 
outspoken 
critic 
of 
the 
Indian 
gove
rnm
ent. 
Later 
that 
evening, 
ju
st hours 
aft
er the Nijjar 
mlll
·der
, CC-
1 sent 
GUPTA 
a video 
clip 
that 
sho
wed Nijjar's 
bl
oo
dy 
body 
slump
ed 
in 
his vehic
le; about 
an hour 
later, 
CC-
1 sent 
GUPTA 
the 
street 
address 
of 
the V
ictim's 
resi
dence in New 
York 
City. On 
or about 
June 
19
, 2023, 
the day 
after 
the 
Nij
j ar 
mur
der, 
GUPTA 
told 
the 
UC that 
Nijjar 
"was 
al
so 
the 
target
"  and 
"
we 
hav
e  so 
many 
target
s."
1 
GUPTA 
added 
that
, 
in 
light ofNijjar
's 
murder, 
there 
wa
s "no
w 
no 
need t
o wait" 
on 
killin
g the 
Victim. 
On 
or 
about 
Jun
e  20, 
2023, 
CC-
1 sent 
GUPTA 
a  news 
art
icle  about 
the 
Victim 
and 
me
ssage
d GUPTA, 
"
[i]
t's 
[a] 
priority 
now." 
7. 
On 
or  about 
June 
30, 
2023, 
GUPT
A 
was 
a.nested 
in 
the  Czec
h  Republic 
at 
the 
request 
of 
the 
United 
States 
in 
connec
tion 
with 
his 
par
tici
pation 
in the plot 
to murder 
the 
Victim
. 
CC-1 
Recruits 
GUPTA 
to 
Arrange 
th
e 
Victim
's Murder 
8. 
Be
ginnin
g  in 
or  abo
ut 
early  May 
2023, 
in  a 
ser
ies 
of 
telep
honic 
and 
elect
roni
c 
comm
uni
cations 
between 
CC-1 
and 
GUPTA 
over 
enc1y
pt
ed applic
ations, 
CC-
1 aske
d GUPTA 
to 
arrange t
he murd
er 
of 
the Victim 
in 
exc
han
ge 
for 
CC-1 
's 
assi
stance 
in 
sec
urin
g the 
dismi
ssa
l o
f a 
crimina
l case 
against 
GUPT
A 
in 
India. 
GUPTA 
agreed 
to 
orc
hestrate 
the assassinat
ion. 
In 
add
ition 
to 
th
eir electron
ic communications
, GUPTA 
also 
met 
CC-
1 
in
-per
so
n 
in 
New 
Delhi 
in 
furthe
rance 
of 
the 
plot. 
1 
GUPTA 
and the UC 
comm
unic
ated 
in 
English. 
GUPTA 
and 
the CS 
communicated 
in 
English 
with 
occas
iona
l  Spani
sh  phrases. 
GUPTA 
and 
CC-
1  l
arge
ly 
comm
uni
cate
d 
in 
English, 
and 
GUPTA 
somet
im
es left 
CC-
1 voice 
notes 
in 
Hin
di. 
All communic
ation
s are 
described 
in s
ub
stan
ce 
and  in 
par
t,  a
nd 
are 
ba
sed 
on 
draft 
transcrip
tions 
and 
(where 
necessaty) 
Eng
li
sh 
tra
nslation
s. 
Grammat
ical 
and 
typographica
l 
eno
rs appear 
as 
in 
th
e o
ri
gi
nal 
commwtlcations 
unl
ess 
otherwi
se 
indicated. 
3 

9. 
On 
or 
about 
May 
6,  2023, 
at 
the 
outset 
of 
their 
conversation 
over 
a  particular 
encrypted 
messaging 
application, 
CC-1 
wrote 
GUPTA: 
"This 
is 
[C
C-
1]. 
.. 
Save 
my 
name 
as 
[CC-
1 Alias].
"  GUPTA 
saved 
the 
telep
hon
e number 
on 
GUPTA's 
phone 
under 
an 
alias 
for 
CC-1. 
A 
few 
minutes 
later
,  CC-1 
messaged 
GUPTA 
that 
CC
-1 
had 
a  "target 
in 
New 
York" 
and 
anoth
er 
target 
in 
"Ca
liforni
a ."  GUPTA 
replied: 
''We 
will 
hit 
our 
all 
Targets." 
The 
telephone 
number 
used 
by 
CC-1 
has 
an 
India 
country 
code 
and 
is registered 
to 
an 
email 
account 
that, 
based 
on 
Internet 
Protocol 
data
, accessed 
the 
Intern
et during 
the 
period 
of 
the 
murder 
plot 
on 
numerous 
occasions 
from 
the 
vicinity 
of 
New 
Delhi, 
where 
CC-
1 worked 
during 
the 
relevant 
time 
period 
for 
an 
Indian 
government 
agency 
as 
set 
forth 
above. 
10. 
On 
or 
about 
May 
12, 
2023, 
CC-
1  notified 
GUPTA 
that 
hi
s  criminal 
case 
"has 
already 
been 
taken 
care 
of," 
and 
.th
at 
"nobody 
from 
Gu
jr
at _police 
is calling."
2 
On 
or 
about 
May 
23
, 2023, 
CC-1 
again 
assured 
GUPTA 
that 
CC-
1 had 
"spoke
[n] 
with 
the 
boss 
about 
your 
Gujarat 
[case
]," that 
it was 
"a
ll  clear
," and 
"nobody 
will 
ever 
bother 
you 
again.
"  CC-1 
further 
offered 
to 
arrange 
a meeting 
between 
GUPTA 
and 
a "DCP," 
which 
is 
an 
acronym 
used 
in 
India 
for 
Deputy 
Commissioner 
of 
Police. 
11. 
Following 
CC-1 
's 
assurances, 
GUPTA 
pressed 
forward 
to 
arrange 
the murder. 
On 
or 
about 
May 
29, 
2023, 
GUPTA 
asked 
the 
CS 
by 
phone 
if 
the 
CS 
knew 
anyone 
who 
would 
be 
willing 
to 
carry 
out 
a  murder-for-hire 
in 
the 
United 
States. 
GUPTA 
exp
lained 
that 
the 
intended 
victim 
was 
a lawyer 
who 
split 
time 
between 
New 
York 
City 
and 
another 
U.S. 
city 
("U.S. 
City-I
"). 
The 
CS 
responded 
that 
he 
wo
uld 
reach 
out 
to 
his 
contacts. 
1
2. 
Over 
th
e  ensuing 
week
s, 
GUPTA 
engaged 
in 
a series 
of 
electronic 
and 
recorded 
communications 
with 
the 
CS 
and 
later 
the 
UC
, including 
by 
phone, 
video
, and 
text 
message, 
durin
g 
2 
Gujarat 
is a state 
in 
western 
India. 
4 

which 
they 
discusse
d,  among 
other 
things, 
the 
logistics 
and 
price 
of 
the 
murder. 
For 
examp
le, 
during 
a video 
cal
l, GUPTA 
reminded 
the 
CS 
that 
the 
Victim 
worked 
as 
a lawyer 
and 
suggeste
d 
that 
the 
CS' 
s associates 
could 
contact 
the 
Victim 
under 
the 
guise 
of 
obtaining 
legal 
advice 
in 
order 
to 
lure 
the 
Victim 
to 
a place 
where 
he 
could 
be 
more 
eas
ily 
executed. 
GUPTA 
also 
directed 
the 
CS 
to 
a website 
where 
the 
CS 
could 
find 
New 
York 
and 
U.S. 
City-I 
addresses 
for 
the 
Victim's 
office
s.  On 
or 
about 
May 
29, 
2023, 
GUPTA 
messaged 
the 
CS 
the 
Victim's 
name 
and 
other 
information 
abou
t the 
Vict
im
, and 
advised 
that 
the 
Victim 
spent 
most 
of 
his 
time 
in 
New 
York. 
In 
response, 
the 
CS 
asked 
GUPTA 
for 
additiona
l  information 
abo
ut 
th
e  Victim 
and 
details 
about 
payment 
for 
the 
murder. 
13. 
On 
or 
about 
May 
29, 
2023, 
GUPTA 
sent 
scree
nshot
s  to 
CC-
1 
of 
GUPTA's 
text 
me
ssages 
with 
the 
CS, 
in 
which 
the 
CS 
requested 
details 
about 
the 
Victim 
and about 
payment 
for 
killing 
the Victim. 
CC-1 
responded 
that 
"we 
a.re 
ready 
to 
pay 
$150000 
... 
the 
offer 
will 
go 
higher 
dependin
g upon 
the 
quality 
of 
the 
work 
... and 
if 
it's 
done 
as 
soon 
as 
po
ssib
le," 
referring 
to 
the 
murder 
("the 
work") 
and 
exec
uting 
the 
plot 
quickly. 
GUPTA 
rep
lied 
to 
CC-1 
with 
a scree
nsho
t 
of 
the CS 
requesting 
"
10
0 k." 
CC-I 
respo
nded 
"Ok," 
and 
then 
added 
that 
while 
an 
advance 
paym
ent 
was 
not 
possible
, "the who
le  money 
will 
be 
paid 
with 
in 
[sic
] 24 
hour
s after 
the 
work 
is done
." On 
or 
about 
June 
1, 2023, 
CC-
1 sent 
GUPTA 
the 
street 
addr
ess 
for 
the 
Victim's 
hom
e 
in 
New 
York 
City, 
which 
CC-
1 described 
to 
GUPTA 
as 
" the 
locality 
of 
[the 
Victim's] 
House." 
14. 
On 
or 
abo
ut 
June 
2, 2023, 
CC-1 
messaged 
GUPTA, 
asking 
for 
"any 
updat
e" 
on 
the 
murder 
plot, 
stating 
" [i]t'
s important and 
less 
tim
e." GUPTA 
respo
nd
ed 
that he 
expecte
d to 
have 
an 
update 
the 
fo
llowing 
day. 
The 
next 
day
, on 
or 
abo
ut 
Jun
e 3, 
2023, 
GUPTA 
spoke 
with 
the 
CS 
by 
audio 
call, 
and 
urged 
the 
CS 
to 
have 
his 
assoc
iates 
cany 
out 
the 
murd
er soon, 
stating: 
"finish 
him 
brother
, finish 
him
, don't 
take 
too 
much 
tim
e 
... 
push 
these 
g
uy
s, push 
these 
guy
s 
..
. , finish 
5 

the 
job." 
GUPTA 
directed 
the 
CS 
to 
a  particular 
cellphone 
app
lication 
that 
records 
Global 
Positioning 
System 
("GPS") 
coordinates 
and 
enab
les 
the 
user 
to 
take 
photographs 
(the 
"GPS 
Application"), 
which 
CC-1 
had 
previously 
sent 
to 
GUPTA 
on 
or 
about 
May 
25, 
2023, 
and 
GUPTA 
asked 
the 
CS 
to 
have 
the 
CS's 
associates 
in 
New 
York 
use 
the 
GPS 
Application 
to 
transmit 
surveillance 
of 
the 
Victim
. Later 
that 
day
,  GUPTA messaged 
CC-1 
that 
GUPTA 
had 
"spoke
[n] 
with 
the 
NY 
group" and 
"to
ld 
them 
they 
have 
to 
discharge 
[th
e Victim] 
as 
soon 
as 
possible.'
' On 
or 
about 
Jun
e 4, 2023, 
GUPTA 
again 
spoke 
with 
the 
CS 
by 
audio 
call
, and 
promi
sed the 
CS 
that 
"if this 
job 
is done 
successfully" then 
GUPTA 
would 
"bring 
the 
chief' 
to 
meet 
the 
CS
. GUPTA 
further 
noted 
that 
GUPTA 
would 
be 
speakin
g with 
those 
directing 
the 
murder. 
CC-1 
and 
GUPTA 
Make 
an 
Advance 
Payment 
fo1
· the 
Murder 
15. 
As 
their 
plotting 
continued, 
and 
CC-
1  and 
GUPTA 
sought  to 
orchestrate 
the 
assassination 
as 
soon 
as 
possible
, CC-
1 and 
GUPTA 
offered 
to 
make 
an 
up
front 
cash 
payment 
to 
the 
CS 
for 
the 
murder. 
As 
set forth 
below
, CC-1 
and 
GUPTA 
ananged 
the 
payment 
of 
$15,000 
in 
cas
h to 
the 
UC 
in 
Manhattan, 
as 
an 
advance 
payment 
for 
the 
murder 
of 
the 
Victim. 
16. 
On 
or 
about 
June 
4, 2023, 
the 
CS 
sent 
GUPTA 
a purported 
surveillance 
photograph 
of 
the 
Victim 
taken 
using 
the 
GPS 
Application 
(the "Surve
illan
ce 
Photo
").  The 
CS 
represented 
to 
GUPTA 
via 
text 
message 
that 
the 
Surveillance 
Photo 
was 
proof 
that 
the 
CS' 
s New 
York 
associates 
were 
monitoring 
the 
Victim 
and 
that 
the 
Victim 
would 
be 
killed 
as  soon 
as 
they 
received 
an 
advance 
payment 
of 
$25
,000
. On 
or 
about 
June 
5, 
2023
, GUPTA 
sent 
the 
Surveillance 
Photo 
and 
a screenshot 
of 
the 
CS
's 
messages 
to 
CC
-1. 
GUPTA 
asked 
CC-1 
to 
"check 
with 
[his
] 
NY 
dealer 
if he can 
an-ange 
the 
25k 
[payment] 
ther
e." 
1
7. 
On 
or 
about 
June 
6, 
2023, 
GUPTA 
messaged 
the 
CS 
asking 
to 
be 
put 
directly 
in 
touch 
with 
the 
CS's 
New 
York 
associates 
who 
wou
ld 
rec
eive the 
advance 
payment 
and 
cany 
out 
6 

the 
murder 
of 
the 
Victim. 
In 
response
, the 
CS 
introduced 
GUPTA 
through 
electronic 
messages 
to 
the 
UC, 
who 
was 
purpo1ting 
to 
be 
the 
CS's 
associate 
in 
New 
York
. That 
same 
day, 
GUPTA 
sent 
screens
hot
s  to 
CC-1 
of 
GUPTA's 
messages 
with 
the 
CS 
discussing 
the 
advance 
payment 
and 
introducing 
the 
UC. 
CC-1 
replied 
"Ok 
bhaiji."
3 
18. 
Onor 
abou
t June 
7, 2023, 
GUPTA 
messaged 
CC-1 
that 
GUPTA's 
associate 
did 
not 
have 
the 
funds 
ava
ilable 
in 
New 
York 
to 
make 
the 
advance 
payment
, and 
asked 
that 
CC
-1 
check 
with 
his 
contact. 
GUPTA 
adde
d that 
he 
could 
"pay 
here 
in 
Delhi 
also." 
The 
next 
day
, on 
or 
about 
June 
8, 2023, 
CC-
1 replied 
to 
GUPTA 
with 
the 
name 
of 
an 
associate 
("Individ
ual
- I"), 
and 
a phone 
number 
for 
Individual-I 
with 
an 
Indian 
country 
code. 
1
9. 
On 
or 
about 
June 
9, 
2023, 
CC-
1 me
ssage
d  GUPTA, 
"Bhai 
ji 
I  guess 
you 
are 
in 
comm
uni
cation 
with 
[Indi 
vidua
l-1], 
he 
said payment 
will 
be 
mad
e today 
po
sitively 
.. 
Let's 
act
iva
te 
the 
team 
and 
get 
it 
done 
this 
weekend
,"  referring 
to 
executing 
the 
murder 
of 
the 
Victim 
during 
the 
ens
uin
g weekend. 
GUPTA 
responded 
in 
the 
affirmative
. Approx
im
ate
ly two 
hour
s later, 
GUPTA 
inform
ed the 
UC 
by 
text 
message 
and 
voice 
note 
that 
another 
associate 
("Individual-2") 
would 
call 
GUPTA 
to 
arrange 
the 
delivery 
by 
noon 
that 
day 
of 
the 
"parcel," 
meaning 
th
e  advance 
cash 
payment 
for 
the 
murder 
(the 
"Advance Payment"). 
A 
few 
minute
s  later, 
Individual-2 
ca
lled  the 
UC 
and 
stated 
that Individual-2 
had 
$15,000 
for 
the 
UC. 
20. 
Later, 
on 
or 
about 
June 
9, 2023, 
Individual
-2 met 
with 
the 
UC 
in 
Manhattan 
to 
make 
the 
Advance 
Payment. 
During 
the 
me
eting, 
which 
took 
place 
in 
the 
UC'
s vehicle, 
the 
UC 
ca
lled 
GUPTA 
and 
facilita
ted 
a video 
ca
ll between 
GUPTA 
and 
In
dividual-
2, 
dw-
in
g which 
GUPTA 
and 
3 
"B
hai 
ji
" is a respectful 
Hindi 
term 
for 
"brother." 
7 

Individual-2 
discu
ss
ed, 
among 
other 
things, 
GUPTA's 
location 
in 
India. 
Individual-2 
then 
handed 
$15,000 
in 
cash 
to 
the 
UC. 
A still 
image 
of 
the 
Advance 
Payment 
is  shown 
below. 
21. 
On 
or 
about 
June 
10, 
2023, 
GUPTA 
sent 
to 
CC-1 
screen
shot
s 
of 
GUPTA's 
text 
messag
e  conversations 
with 
the 
CS 
and 
the 
UC, 
in 
which 
both 
confirmed 
that 
the 
Advance 
Pa
yment 
had 
been 
mad
e. CC-1 
respon
ded, 
"Ok 
bhai 
ji." 
CC-1 
and 
GUPTA 
Instruct 
That 
the 
Murder 
Shou
ld 
Not 
Occur 
During 
Anticipated 
High-
Level 
Diplomatic 
Engagements 
Between 
India 
and 
the 
United 
Sta
tes 
22
. 
As 
they 
plotted 
the 
murder 
of 
the 
Victim
,  GUPTA 
specifically 
and 
repeatedly 
instructed 
the 
CS 
not 
to 
carry 
out 
the 
assassination 
during 
anticipated 
engagements 
betwee
n high-
leve
l  government 
officia
ls  from 
the 
United 
State
s  and 
India. 
For 
examp
le, 
on 
or 
about 
June 
6, 
2023, 
on 
an 
audio 
call, 
GUPTA 
instructed 
the 
CS 
that 
"we 
need 
to 
calm 
down 
everythin
g 10 
days
" 
because 
of 
such 
engagements 
scheduled 
to 
occur 
over 
the 
ensuing 
weeks. 
GUPTA 
exp
lained 
that, 
given 
the 
Victim
's 
pub
lic 
profi
le as 
an 
activist, 
there 
could 
be 
protests 
in 
the 
wake 
of 
his 
death, 
8 

which 
could 
lead 
to 
"political 
things," 
referring 
to 
geopolitical 
fallout 
if 
the 
Victim 
were 
assassinated 
on 
U.S. 
soil 
during 
those 
planned 
meetings. 
GUPTA 
added 
that 
after 
the 
planned 
engagements, 
there 
would 
be 
"more 
job
s, more 
jobs," 
referring 
to 
more 
targeted 
killings 
like 
that 
of 
the 
Victim 
to 
be 
carried 
out 
in 
the 
future. 
23
. 
Cons
istent 
with 
the 
instructions 
that 
GUPTA 
relayed 
to 
the 
CS, 
CC-1 
instructed 
GUPTA 
not 
to 
carry 
out 
the 
assassination 
of 
the 
Victim 
in 
the 
immediate 
lead-
up 
to, 
or 
during, 
the 
planned 
engagements 
between 
high-level 
U.S. 
and 
Indian 
government 
officials. 
For 
examp
le, 
on 
or 
about 
June 
11
,  2023, 
after 
receiving 
from 
GUPTA 
additional 
purported 
surveillance 
photographs 
of 
the 
Victim
, CC-I 
messaged 
Gupta: 
"It 
looks 
promising 
.. 
but 
we 
have 
today 
only 
.. 
if 
it 
doesn
' t happen 
today 
it will 
be 
done 
after 
24
th
," 
that 
is, after 
the 
engagements. 
GUPTA 
Informs 
the 
CS 
and 
the 
UC 
that 
His 
India-Based 
Co-Conspirators 
Directing 
the 
Murder 
Plot 
Were 
Targeting 
Other 
Victims, 
Including 
in 
Canada 
24. 
During 
GUPTA's 
communications 
with 
the 
CS 
and 
the 
UC, 
GUPTA 
repeatedly 
emphasized 
that 
his 
co-conspirators 
directing 
the 
assassination 
plot 
from 
India 
had 
extensive 
resources 
and 
were 
closely 
monitoring 
the 
progress 
of 
the 
plotting. 
For 
examp
le, on 
or 
abou
t June 
12, 2023, 
the 
UC 
received 
a video 
call 
from 
GUPTA, 
who 
appeared 
to 
be 
in 
a conference 
room. 
During 
the 
call
, GUPTA 
tumed 
the 
camera 
toward 
approximately 
three 
other 
men 
in 
the 
room 
who 
were 
dressed 
in 
bus
iness 
attire, 
sitting 
around 
a confe
rence 
table 
with 
GUPTA. 
As 
GUPTA 
turned 
the 
camera 
back 
toward 
him
se
lf
, he 
told 
the 
UC 
"we 
are 
all 
counting 
on 
yo
u." Approximately 
two 
days 
later, 
on 
or 
about 
June 
14, 
2023, 
GUPTA 
messaged 
the 
UC 
that 
GUPTA 
had 
a "m[essage] 
from 
our 
friends 
for 
you 
brother." 
GUPTA 
then 
forwarded 
a message 
that 
GUPTA 
bad received 
from 
CC-1
, stating: 
"follow 
[the 
Victim] 
till 
the 
time 
he 
enters 
his 
house 
or 
any 
other 
fina
l place." 
2~
. 
GUPTA 
also 
informed 
the 
CS 
and 
the 
UC 
that 
after 
the 
murder 
of 
the 
Victim
, 
GUPTA's 
confederates 
would 
provide 
the 
CS 
and 
the 
UC 
with 
additiona
l  victims 
to 
kill
.  For 
9 

example, 
on 
or 
about 
June 
9, 2023, 
GUPTA 
told 
the 
CS 
during 
a call 
that 
the 
mw-der 
of 
the 
Victim 
would 
change 
the 
UC's 
life 
becau
se 
"we 
will 
give 
more 
bigger 
job 
more, 
more 
job 
every 
month, 
every 
month 
2-3 
job.
" 
26. 
On 
or 
about 
June 
12
, 2023, 
on 
a call 
with 
the 
CS, 
GUPTA 
st  ated 
that 
there 
was 
a 
"big target
" in 
Canada. 
A few 
day
s later
, on 
or 
about 
June 
14, 
2023, 
GUPTA 
messaged 
the 
CS 
that 
"we 
will 
be 
needing 
one 
goo
d team 
in 
Canada 
also, 
[t]omorrow 
I will 
share 
you 
the 
details.,, 
The 
following 
day
, 
on 
or 
about 
June 
15
, 2023, 
GUPTA 
advised 
the 
CS by 
phone 
that 
GUPTA 
was 
still 
"waiting 
[for] 
the 
details" 
about 
the 
Canadian 
target. 
On 
or 
about 
June 
16
, 2023, 
on 
another 
call 
with 
the 
CS, 
GUPTA 
told 
the 
CS 
that 
"we 
are 
doing their 
job, 
brother. 
We 
are 
doing 
their 
New 
York 
[and] 
Canada 
0ob]
," referring 
to 
the 
individuals 
directing 
the 
targeting 
plots 
from 
India. 
Nijjar 
Is 
Murdered 
in 
Canada, 
and 
CC-1 
and 
GUPTA 
Accelerate 
the 
Plan 
to 
Kill 
the 
Victim 
in 
New 
York 
City 
27. 
On 
or 
about 
June 
18
, 2
023
, masked 
gunmen 
shot 
and 
killed 
Nijjar
, an 
associate 
of 
the 
Victim 
and 
another 
leader 
of 
the 
Sikh 
separa
tist movement, 
outside 
a Sikh 
temple 
in 
Canada. 
Lat
er 
that 
evening, 
CC-1 
sent 
GUPTA 
a video 
clip 
showing 
Nijjar's 
bloody 
body 
slumped 
in 
his 
vehicle. 
GUPTA 
replied 
that 
he 
wi
sh
ed 
he 
had 
personally 
conducted 
the 
killin
g and 
aske
d CC-1 
for 
permission 
to 
"go 
to 
the 
field." 
CC-1 
responded 
tha
t "secrecy 
[i
s] impor
tan
t
," 
and 
"(i]t's 
better 
you 
do 
not 
get 
involved 
in 
action." 
Approximately 
one 
hour 
later
, CC-1 
se
nt 
GUPTA 
the 
st
reet 
address 
of 
the 
Victim'
s residence 
in 
New 
York 
City. 
28. 
GUPTA 
forwarded 
th
e video 
clip 
showin
g Nij
jar'
s bloody 
body 
to 
the 
CS 
and 
the 
UC 
minut
es 
after 
receivi
ng 
it from 
CC-1. 
Soo
n  after, 
on 
or 
about 
June 
19
, 2023, 
GUPTA 
spoke 
with 
the 
UC 
by 
audio 
call, 
and 
GUPTA 
told 
the 
UC 
that Nijjar 
"was 
also 
the 
target" 
but 
that 
Nijjar 
was 
"#4, 
#3" on 
the 
list, 
and 
"not 
to 
worry 
[b
ecause
] we 
have 
so 
many 
targe
ts, we 
have 
so 
many 
targets. 
But 
the good 
news 
is this, 
the 
goo
d n
ews is this: 
now 
no 
need to 
wait." 
Separately, GUPTA 
10 

also 
held 
an 
audio 
call 
with 
the 
CS, 
during 
which 
GUPTA 
confirmed 
that 
Nijjar 
was 
the 
target 
that 
GUPTA 
had 
previously 
mentioned 
as 
the 
potentia
l Canadian 
"job" 
stating: 
"This 
is the 
guy, 
I send 
you 
the 
video 
.... 
We 
didn
't  give 
to 
[the 
UC] 
this 
job, 
so 
some 
other 
guy 
did 
this 
job 
... 
in 
Canada
." In 
a change 
from 
his prior 
insttuction 
to delay 
killing 
the 
Victim 
until 
after 
the 
scheduled 
engagements 
between 
high-l
eve
l U.S. 
and 
Indian 
government 
officials, 
GUPTA 
told 
the 
CS 
that 
the UC 
should 
kill 
the 
Victim 
as 
soon 
as 
po
ssible, 
informing 
the 
CS 
that 
" we 
got 
the 
go-ahead 
to 
go 
anytime, 
even 
today
, tomorrow
-
as 
early 
as 
possible. 
[The 
UC] 
has 
to 
finish 
this 
job
, brother." 
GUPTA 
also 
told 
the 
CS 
to 
expect 
the 
Victi
m 
to 
be 
more 
careful 
in the 
wake 
of 
the 
Nijjar 
murder: 
"He 
will 
be 
more 
cautious, 
because 
in 
Canada, 
his 
colleague 
is down. 
His 
colleague 
is down. 
I sent 
you 
the 
video. 
So 
he 
will 
be 
more 
cautious, 
so 
we 
should 
not 
give 
them 
the 
chance, 
any 
chance." 
GUPTA 
added: 
"
Ifhe 
is not 
alone, 
[if] 
th
ere 
are 
two 
guys 
with 
him 
in 
the 
meeting 
or 
some
thing 
. 
. .   put 
eve
ryone 
down
, put 
eve1yo
ne 
down." 
29. 
The 
fo llo
wing 
day, 
on 
or 
about 
June 
20, 
2023, 
CC-1 
sent 
GUPTA 
a news 
article 
about 
the 
Victim. 
CC-
1 then 
messa
ge
d: 
"It's 
[
a] 
priority 
now." 
Shortly 
thereafter, 
GUPTA 
spoke 
to 
the 
CS 
by 
audio 
call, 
and 
GUPTA 
directed 
the 
CS 
to 
"find 
the 
opportunity" 
to 
kill 
the 
Victim 
and 
to 
"do 
it 
quicldy.
" GUPTA 
stated 
that 
before 
the 
"29th 
[o
f June] 
we 
have 
to 
finish 
four 
job
s," 
i.
e., 
the 
Victim 
and, 
after 
that, 
"three 
in 
Canada
." 
CC-1 
and 
GUPTA 
Conti
nue 
Working 
to 
Orchestrate 
the 
Victim's 
Murder 
30. 
After 
the 
Nijjar 
murder 
in 
Canada, 
GUPTA 
demanded 
rapid 
update
s from 
the 
UC 
on 
the 
progress 
of 
the plot 
to 
murder 
the 
Victim, which 
GUPTA 
then 
reported 
to 
CC-1. 
GUPTA 
simultaneously 
relay
ed  int
ellig
ence 
on 
the 
Victim's 
wh
ereabouts 
from 
CC-
1 to 
the 
UC. 
At 
one 
point, 
on 
or 
about 
June 
22, 
2023, 
CC-1 
messaged 
GUPTA 
that 
the 
Vi
ctim 
"is 
somew
here 
else," 
that 
"[h]e 
is 
not 
at 
home
," 
and 
that 
CC-1 
"got 
the 
message 
from 
boss.
"  GUPTA 
immediately 
attem
pted 
to 
call the 
UC
.  When 
the  cal
l  went 
unan
swe
red,  GUPTA 
messaged 
the 
UC 
that 
the 
11 

Victim 
"is 
not 
at 
home 
acco
rdin
g  to 
our 
sources 
... 
[m]
ake 
s
w-
e 
hi
s pre
sence 
befo
re  ente
rin
g 
inside." 
A 
few 
minutes 
later
, CC-1 
messaged 
GU
PT
A, instructing: 
"let them 
also 
verify 
by 
thei
r 
own 
.
.. 
if 
th
ey 
are 
able 
to 
get 
some 
proof 
that he 
is 
in
side 
.. 
it will 
be 
a go 
ahead 
from 
us," 
a reference 
to 
givi
ng t   he gree
n ligh
t 
to 
assass
inate 
the 
Vic
tim 
as 
soo
n as 
it could 
be 
ver
ified that he was 
at 
his 
res
i
de
nce
. 
3
1. 
On 
or 
about 
Jun
e 2
4, 2023, 
CC-
1 messaged 
GUPTA 
that 
"to
d
ay 
we 
mu
st  get 
the 
App 
based 
locati
on 
pie," 
refe
rring 
to 
ob
tainin
g 
surveillance 
of 
the  Victim 
using  the 
GPS 
Appli
cation. 
CC-
1 explain
ed 
th
at " [n]ow 
it
's 
a clear 
go 
ahead 
.. 
we 
will 
also 
be 
abl
e to 
help your 
team 
if they 
are send
ing locatio
n.
" Cons
istent with 
CC-1 
's 
instruction
, GUPTA 
messaged 
th
e UC 
and 
directed 
the 
UC 
to 
transmit 
" [p]ictur
es 
only 
through 
the 
appli
cation." 
On 
or 
abo
ut 
June 
25, 
2023, 
the 
UC 
sen
t  GUPTA 
a series 
of 
photo
grap
hs 
of 
the 
vic
inity 
of 
the Victim's 
resi
dence 
a
nd 
neighborhood, 
which 
bore 
GPS 
coordinate 
stamps 
fro
m 
the 
GPS 
Application. 
GUPTA, 
in 
turn, 
sent 
po1tions 
of 
the 
photo
graphs 
to 
CC-1. 
The next 
day, 
on 
or 
abo
ut 
June 
26
, 2023, 
CC-1 
replied 
to 
GUPTA: 
"Exce
llent 
... 
[t]h
ey 
are 
proving 
that they 
are 
quit
e seriou
s now.
"  CC-
1 added that 
"[t
]he coming 
24 hour
s w
ill 
be  crucial
," that the 
Victim 
"w
ill 
definitely 
come 
to 
eithe
r home 
or 
offic
e
," 
and 
that 
GUPTA 
sho
uld 
tell 
th
e UC 
"to 
be ready 
for 
both 
the 
locat
ion
s." 
GUPTA 
relaye
d 
CC
-1 
's 
instruc
tion, 
dir
ect
ing the 
UC 
to 
"keep 
eyes 
at his 
house, 
his 
office 
and the 
cafe 
he used 
to 
• 
visit." 
32
. 
Also 
o
nor 
about 
June 
~6, 
2023, 
the 
UC 
sent GUPTA 
another 
serie
s 
of 
photograph
s 
of 
the 
Vi
ctim
's 
nei
ghb
orhood taken 
using 
the GPS 
App
lic
ation. 
GUPTA 
transmitte
d 
po
rtion
s 
of 
the 
photographs 
to 
CC
-1
,  w
ho 
then 
provided 
GUPTA 
with 
a 
to
tal 
of 
four 
"[o
]ffice" 
and 
"[p
]erso
nal
" telephon
e numb
ers 
of 
the 
Vi
ctim. 
On 
or 
abo
ut 
Jun
e 29, 
2023, 
GUPTA 
messag
ed 
the 
UC 
that 
"
[w]
e have 
th
e Int
el that 
th
e  [Victim] 
..
. h
as 
arrive
d b
ack 
to 
his home" 
and 
"[t]oday 
he 
12 

should 
come 
out 
definitely." 
GUPTA 
instructed 
the 
UC 
to 
carry 
out 
the 
murd
er, stating: 
" [t]r
y to 
get 
this 
done 
if 
yo
u have 
the 
visuals 
and 
if 
you 
are 
sure." 
GUPTA 
Is 
Arrested 
in 
the 
Czech 
Republic 
33. 
On 
or 
about 
June 
30, 
2023, 
GUPTA 
trave
led 
from 
India 
to 
the 
Czech 
Republic. 
Upon 
his  arriva
l 
in 
the 
Czech 
Republic, 
GUPTA 
was 
arrested 
by 
Czech 
law 
enforcement 
authorities 
at 
the 
request 
of 
the 
United 
State
s,  in 
connection 
with his 
participation 
in 
the 
plot 
to 
assassinate 
the 
Victim. 
STATUTORY 
ALLEGATIONS 
The 
Grand 
Jury 
charges: 
COUNT 
ONE 
(Murder-for-Hire 
Conspiracy) 
34. 
The 
allegations 
contained 
in 
paragraphs 
1  tlu·ough 
33 
of 
thi
s  Indictment 
are 
repeated 
and 
realleged 
as 
if 
fully 
set 
forth 
herein. 
35. 
From 
at 
least 
in 
or 
about 
May 
2023 
through 
at least 
in 
or 
about 
June 
2023, 
in 
the 
Southern 
Di
strict 
of 
New 
York 
and 
elsewhere, 
NIK.BIL 
GUPTA, 
a/k/a 
"Nick," 
the 
defen
dant, 
and 
others 
known 
and 
unknown
,  willfully 
and 
knowing
ly  combined, 
conspi
red,  confederated
,  and 
agreed 
together 
and 
with 
each 
other 
to travel 
in 
and 
cause 
another 
person 
to travel 
in 
interstate 
and 
foreign 
comm
erce, 
and 
to 
use 
and 
cau
se 
another 
person 
to 
use 
the 
mail 
and 
a fac
ility 
of 
inter
sta
te 
and 
forei
gn 
commerce, 
with 
int
ent that 
a murder 
be 
committed 
in 
violation 
of 
the 
laws 
of 
a S
tate 
and 
the 
United 
States 
as 
cons
ideration 
for 
the 
receipt 
of, 
and 
as 
consideration 
for  a 
promise 
and 
agreement 
to 
pay
, a thing 
of 
pec
uniru.y 
value, 
to 
wit
, GUPTA, 
CC
-1
, and 
others 
worked 
together 
to carry 
out 
a plot 
directed 
from 
India 
to hire 
hitmen 
to 
assass
in
ate 
the 
Victim 
in the 
United 
Stat
es, 
13 

used 
cellphones 
to 
communicate 
in 
furtheranc
e 
of 
the 
scheme, 
and 
arranged 
for 
the 
delive
1y 
of 
a 
$15,000 
advance 
cash 
paym
ent 
for 
the murder 
in 
Manhattan
, 
New 
York. 
(Title 
18, 
United 
States 
Code, 
Section 
1958.) 
COUNT 
TWO 
(Murder-for-Hire) 
The 
Grand 
Jmy 
further 
char
ges
: 
36. 
The 
allegations 
contained 
in 
para
graph
s  1  through 
33 
of 
this 
Indictm
e
nt 
are 
repeated 
and 
real
leged 
as 
if 
fu
lly set 
forth 
herein
. 
37. 
From 
at 
lea
st 
in 
or 
about 
May 
2023 
through 
at leas
t 
in 
or 
about 
June 
2023, 
in 
the 
Southern 
Di
strict 
of 
New 
York 
and 
elsewhere, 
NIK.BIL 
GUPTA, 
a/k/a 
''N
ick
," the defendant
, and 
others 
known 
and 
unknown
,  traveled 
in 
and 
caused 
another 
person 
to 
travel 
in 
int
ers
tat
e  and 
foreign 
comm
erce
, and 
used and 
caused 
another 
per
son to 
use 
the 
mail 
and 
a facility 
of 
inter
state 
and 
fo
reign 
commerce, 
with 
int
ent 
that  a murder 
be committed 
in 
viol
ation 
of 
the 
law
s 
of 
a State 
and 
the United 
States 
as 
cons
iderati
on  for 
the 
receipt 
of, 
and 
as 
consideration 
for 
a promise 
and 
agre
eme
nt 
to 
pay
, a thing 
of 
pecuni
ary 
value
, and 
attempt
ed to 
commit 
and 
aided 
and 
abetted 
the 
same, to wit
, GUPT
A, CC-1, 
and 
others 
worked 
together 
to 
carry 
out 
a plot 
directed 
from 
Indi
a to 
hire 
hitmen 
to 
assassinate 
the  Victim 
in 
the 
United 
States
,  used  c
ellphone
s to 
communicate 
in 
furtherance 
of 
the 
scheme, 
and arranged 
for 
the delivery 
of 
a $15
,000 
advance cash 
payment 
for 
th
e murd
er in 
Manh
attan
, New 
York. 
(Title 
18
, United 
Sta
tes 
Code, 
Sections 
1958 
and 
2.) 
FORFEITURE 
ALLEGATION 
38. 
As 
a  r
es
ult 
of 
commi
ttin
g  the  offenses 
alleged 
in 
Counts 
On
e  and 
Two 
of 
thi
s 
Indictment, 
NIKHIL 
GUPTA, 
a/k
/a 
"Nick," 
the 
defe
ndant
,  shall 
forfeit 
to 
the  United 
States
, 
pur
suant 
to 
Title 
18
, U
nit
ed States 
Code
, Section 
98l(a)(l)(C), 
and 
Tit
le 
28, Unit
ed States 
Co
de, 
14 

Sect
ion  2461(c), 
any 
and 
a
ll 
property
,  real  and 
pel'sonal, 
that 
constitutes 
or  i
s  derived 
from 
proceeds 
tra
ceab
le to the 
commission 
of 
said 
offenses, 
including 
but 
not 
limit
ed 
to 
a sum 
of 
money 
in 
Unite
d Sta
tes 
currency 
represe
nting 
the 
amo
unt 
of proc
eeds 
traceable 
to 
the 
comm
i
ss
ion 
of s  aid 
offe
nses. 
Substitute 
Assets 
Provi
sion 
39. 
If 
any 
of the 
above-descri
bed forfeitable 
prop
erty
, as 
a resu
lt 
of 
any 
act 
or 
o
mi
ssion 
of 
the 
defen
dant: 
a. 
cannot 
be 
locate
d upon 
the 
exe
rcise 
of 
du
e dili
gence
; 
b. 
has 
been 
tran
sfe
rr
ed 
or sold to, 
or 
depo
sited with, 
a 
t.lurd 
person; 
c. 
has been 
p laced 
beyo
nd 
the 
juri
sdic
tio
n 
of 
the 
Cou
rt; 
d. 
has been 
substantia
lly diminish
ed in 
value; 
or 
e. 
has 
bee
n commingled 
with othe
r property 
which 
cannot 
be 
s
ub
div
ided 
without 
diffic
ulty
; 
it is the 
in
tent of the 
Uni
ted 
States
, pursuan
t to 
Title 2
1, U
nited 
States 
Co
de,  Sectio
n 8
53
(p)
, and 
Title 
28, 
United 
Sta
tes  Code, 
Sectio
n  246
1(c), 
to  seek 
forfe
iture 
of 
any 
other 
property 
of 
the 
defendant 
up 
to the 
value 
of 
the 
abov
e forfe
itable property. 
(Title 
18
, United 
States 
Code, 
Secti
on 
981
; 
Title 
2 1, United 
Sta
tes 
Code, 
Sect
ion 
853; 
and 
Title 
28, 
Uni
ted 
States 
Code, 
Sect
ion 
2461.) 
15 
DAMIAN 
WILLIAMS 
United 
St
ates 
Attorney 

DAMIAN WILLIAMS  
United States Attorney 
Southern District of New York 
By:  PIERRE G. ARMAND 
Assistant United States Attorney 
86 Chambers Street, 3rd Floor 
New York, New York 10007 
Telephone: (212) 637-2724 
Email: [email protected]  
 
UNITED STATES DISTRICT COURT  
SOUTHERN DISTRICT OF NEW YORK 

 
 
 
 
 
 

18 Civ. 9160 (VEC) 
 
 
 
COMPLAINT-IN-
INTERVENTION OF THE 
UNITED STATES OF 
AMERICA 
 
 
JURY TRIAL DEMANDED 

 

 
 

The United States of America, by its attorney, Damian Williams, United States 

Attorney for the Southern District of New York, alleges for its complaint-in-intervention as 

follows: 

UNITED STATES OF AMERICA ex rel. CABOT SQUARE 
LLC, 
 

Plaintiff, 
 

v. 
 
FULCRUM CAPITAL HOLDINGS LLC, MATTHEW 
HAMILTON, TIMOTHY HORRIGAN, FONDACO 
SGR S.P.A., COMPAGNIA DI SAN PAOLO, and 
CARAC, 

                                     Defendants. 

UNITED STATES OF AMERICA, 
 

Plaintiff-Intervenor, 
 
                              v. 
 
FULCRUM CAPITAL HOLDINGS LLC, 

 
 Defendant. 



 

2 

PRELIMINARY STATEMENT 

1. This is a civil fraud action brought by plaintiff-intervenor the United States of 

America (the “United States” or the “Government”) against defendant Fulcrum Capital 

Holdings LLC (“Fulcrum” or “Defendant”), an investment firm based in Austin, Texas, to 

recover damages and civil penalties arising from Fulcrum’s violations of the False Claims 

Act (the “FCA”), 31 U.S.C. § 3729 et seq., in connection with fraudulently obtaining 

remission payments from the Madoff Victim Fund (the “MVF”). 

2. The MVF was created by the United States Department of Justice (“DOJ” or the 

“Department”) to compensate victims of the massive Ponzi scheme perpetrated by Bernard 

L. Madoff through a process called remission.  The United States Attorney’s Office for the 

Southern District of New York (the “SDNY”) has provided funds to the MVF through civil 

and criminal asset forfeiture recoveries for pro rata distribution to Madoff fraud victims.  

To ensure equitable distribution of MVF funds, all claimants are required to disclose to the 

MVF any Madoff-related collateral recoveries they have obtained, meaning any monies 

received from sources other than the MVF, such as insurance, private lawsuits or 

settlements, the court-supervised liquidation of Madoff’s firm, or proceeds from selling 

their Madoff-related investments and/or recovery rights to another party.  To prevent MVF 

claimants from receiving duplicative recoveries, the MVF is required to reduce remission 

payments paid to claimants by the amount of any collateral recoveries they received. 

3. Fulcrum purchased from multiple third parties who had submitted remission claims 

to the MVF their shares in Madoff feeder funds,  as well as the claimants’ rights to receive 

remission payments from the MVF.  Because claims for remission cannot legally be 

assigned, these victims outwardly retained their status as MVF claimants, but privately 

agreed to promptly pass on any distributions they received from the MVF to Fulcrum. 



 

3 

4. When the MVF sent notices to the claimants requiring them to disclose, under 

penalty of perjury, any collateral recoveries they had received, Fulcrum directed the 

claimants to submit false collateral recovery update documentation to the MVF concealing 

the vast majority of the amounts that Fulcrum had previously paid them for the Madoff 

feeder fund shares and attendant rights and remission claims.  As a result of this deception, 

the MVF paid the claimants larger recoveries than they should have received.  The 

claimants then passed most of these amounts on to Fulcrum.   

5. As a result of the foregoing conduct, Fulcrum violated the FCA, and submitted or 

caused to be submitted false claims for payment to the MVF. 

JURISDICTION AND VENUE 

6. This Court has subject matter jurisdiction over the Government’s claims under the 

FCA pursuant to 31 U.S.C. § 3730(a) and 28 U.S.C §§ 1331 and 1345.  

7. This Court may exercise personal jurisdiction over Fulcrum pursuant to  

31 U.S.C. § 3732(a), which provides for nationwide service of process.  Further, because 

Fulcrum transacts business in this District and, in furtherance of the fraud alleged, caused 

false claims or statements to be submitted to the MVF in this District, venue is proper in 

this District pursuant to 31 U.S.C. § 3732(a) as well as 28 U.S.C. §§ 1391(b) and 1391(c). 

PARTIES 

8. Plaintiff is the United States of America.  Through DOJ, the United States 

administers the MVF.   

9. Defendant Fulcrum, a Delaware limited liability company, is an investment firm  

with its principal place of business in Austin, Texas. 

BACKGROUND 

A.  The False Claims Act 



 

4 

10. The False Claims Act was originally enacted in 1863 to address fraud on the 

Government in the midst of the Civil War, and it reflects Congress’s objective to “enhance 

the Government’s ability to recover losses sustained as a result of fraud against the 

Government.” See S. Rep. No. 99-345, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 5266.  

11. As relevant here, the FCA establishes treble damages liability to the Government 

where an individual or entity:  

(A) “knowingly presents, or causes to be presented, a false or fraudulent claim for 
payment or approval,” 31 U.S.C. § 3729(a)(1)(A); or 

(B) “knowingly makes, uses, or causes to be made or used, a false record or statement 
material to a false or fraudulent claim, id. § 3729(a)(1)(B). 

In addition to treble damages, the FCA also provides for assessment of a civil 

penalty for each violation or each false claim.  “Knowing,” within the meaning of the FCA, 

is defined to include a defendant acting in reckless disregard or deliberate indifference of 

the truth or falsity of information, as well as actual knowledge of such falsity by defendant.  

See id. § 3729(b)(1).  

B.  The Madoff Fraud, the Madoff Victim Fund, and the Remission Process 

13. From as early as the 1970s through December 2008, Bernard L. Madoff perpetrated 

the largest Ponzi scheme in history, defrauding thousands of direct and indirect investors in 

Bernard L. Madoff Investment Securities LLC (“Madoff Securities”) of billions of dollars 

(the  “Madoff Fraud”).  In March 2009, Madoff pleaded guilty to eleven federal felonies, 

including securities, mail, and wire fraud, and in June 2009, Madoff was sentenced to serve 

150 years in prison and forfeit over $170 billion.    

14. The SDNY has recovered over $9 billion related to the Madoff Fraud through civil 

and criminal asset forfeiture proceedings.  



 

5 

15. In 2013, DOJ created the MVF to distribute certain funds forfeited to the United 

States related to the Madoff Fraud to victims pursuant to DOJ remission regulations, 28 

C.F.R §§ 9.1-9.9 (the  “Regulations”), and appointed Richard Breeden as special master to 

oversee the MVF and assist DOJ in connection with remission proceedings for victims of 

the Madoff Fraud.    

16. From November 2013 through April 2014, the MVF received remission claims 

from tens of thousands of victims of the Madoff Fraud, and in November 2017, the MVF 

began making distributions to victims whose claims were approved by DOJ.  To date, the 

MVF has made eight distributions to more than 40,000 approved claimants.  

17. The MVF remission process is governed by the Regulations and the Plan of 

Distribution for the MVF approved by DOJ.  The MVF has published the Plan of 

Distribution on its website in the form of answers to frequently asked questions since 

November 2013. 

18. The Plan of Distribution and Regulations provide, among other things, that only 

victims of the Madoff Fraud are eligible to receive remission payments from the MVF, 

meaning that claimants must have lost their own money through the Madoff Fraud.  

Specifically, the Plan of Distribution states: 

a. To be eligible to participate in payments from the MVF, a person must be a 
“victim” of the fraud perpetrated through Madoff Securities. Any person who is not a 
victim of the Madoff fraud is not eligible to receive a payment of remission. 
 

b. Federal law defines a “victim” as “any person” who suffered a “pecuniary 
loss” as a “direct result” of crime. For purposes of the MVF, you qualify as a victim if 
you lost your own money as a direct result of investments that were rendered worthless 
by the Madoff fraud. 
 

19. The Plan of Distribution further states: “A victim is the person or entity that 

suffered a pecuniary loss as a direct result of the criminality that gave rise to the forfeiture 



 

6 

of assets in this case. That status cannot be purchased or transferred; indeed, the forfeiture 

laws and regulations forbid it. You are either a victim or you are not.”  The Regulations 

similarly provide that purchasers of remission rights are not eligible victims.  See 28 C.F.R. 

§ 9.2 (a victim for purposes of remission is “a person who has incurred a pecuniary loss as a 

direct result of the commission of the offense underlying a forfeiture” and generally “does 

not include one who acquires a right to sue the perpetrator of the criminal offense for any 

loss by assignment, subrogation, inheritance, or otherwise from the actual victim”). 

20. The Plan of Distribution and Regulations further provide that victims may recover 

only their pro rata share of the net losses they incurred as a result of the Madoff Fraud, 

calculated on a cash-in, cash-out basis, and that any collateral recoveries the victim has 

received from any source other than the MVF must be deducted from the net loss amount.  

Specifically, the Plan of Distribution states: 

a. It is your responsibility to establish to the satisfaction of the Ruling Official 
within the Department that you suffered a specific, net loss. 
 

b. There is a limited amount of money to compensate an enormous group of 
victims, some of whom have not yet received a penny. So, no double dipping will be 
allowed, and no one is eligible to recover more than his or her actual “net loss” on a cash-
in, cash-out basis.  
 

c. The starting point in measuring your loss is all the cash you invested in 
Madoff Securities, less any cash you received back. This establishes the cash that was 
taken from you, less your recoveries during the years of the fraud. 
 

d. Once your original “net loss” is known, the Department’s regulations require 
all “collateral recoveries” you have already received, or that you will receive in the future, 
to be deducted from a claim for remission.  
 
21. The Regulations generally require remission to be granted  “on a pro rata basis … 

when petitions cannot be granted in full due to the limited value of the forfeited property,” 

28 C.F.R. § 9.8(f), and prohibit remission where the victim already has been “compensated 

for the wrongful loss” or has “recourse reasonably available to other assets from which to 



 

7 

obtain compensation for the wrongful loss,” id. §§ 9.8(b)(4), 9.2(b)(5).  The Regulations 

further require any victim receiving remission payments to reimburse the United States “to 

the extent the individual later receives compensation for the loss … from any other source.”  

Id. § 9.8(g). 

22. The Plan of Distribution defines “collateral recoveries” broadly to cover any 

compensation a victim may receive from any source.  Specifically, the Plan provides: 

a. Collateral recoveries include any payments you received from the [Securities 
Investors Protection Corporation], all bankruptcy distributions (directly or through an 
intermediary) on all accounts you held, insurance or class action recoveries, or any other 
form of compensation you have received. You will have to certify under penalties of 
perjury the completeness and the accuracy of the disclosure of your recoveries to date.  
 
23. The MVF has issued Collateral Recovery Update (“CRU”) Notices to all eligible 

claimants in advance of each of its distributions.  Completion of the CRU form attached to 

the Notice or other updated collateral recovery disclosure is a condition precedent for being 

considered for a MVF distribution.  The CRU  Notices make clear that all collateral 

recoveries must be disclosed and that collateral recoveries include compensation from any 

source, including proceeds from the sale of claims for Madoff recoveries.  For example, the 

CRU Notices provide the following: 

a. [I]f you HAVE received payment relating to your Madoff losses from your 
investment fund, from class action litigation, from bankruptcy distributions, from the sale 
of your claim, or from any other source, then you must update us on your recoveries.   
 

b. The reason MVF needs this information is simple. Federal law prohibits MVF 
from paying anyone more than their actual losses. In addition, the amount of your next 
payment will be a specific percentage of your eligible Madoff fraud loss LESS all prior 
recoveries. Without knowing your prior recoveries, we can’t determine how much you 
should be paid. 
 

c. As with all prior MVF payouts, in order to be eligible for a payment you must 
complete a collateral recovery update.  If you are eligible for a … payment, the amount of 
your payment will be the distribution target recovery percentage of your approved fraud 
loss amount, less all prior recoveries from any source and previous MVF distributions.  
Therefore, MVF must ask you to update information on your total recoveries in order to 
calculate your potential payment.  



 

8 

 
24. From 2013 through the present, the MVF posted multiple notices on its website 

providing further clarification on what constitutes a collateral recovery and further 

explaining the importance of disclosing collateral recoveries to permit the MVF to properly 

calculate remission payments.  For example: 

a. August-December 2017 Update:  MVF previously sent you a collateral 
recovery update request explaining that: “Collateral recoveries include bankruptcy 
distributions, litigation recoveries, settlement proceeds, insurance recoveries, or any other 
compensation received for your Madoff losses.” Essentially, anything you received from 
anyone due to your Madoff loss is a collateral recovery. In particular, you need to report 
to MVF all payouts from the Madoff bankruptcy, as well as any proceeds you received as 
a result of the sale or assignment of your claim in either the bankruptcy or MVF 
proceedings.  
 

b. Spring 2018 Update:  MVF calculates individual victim payments based on 
what amount is required to bring an individual victim to a total percentage recovery of 
their eligible fraud loss, including all prior recoveries from other sources (sometimes 
called “collateral recoveries”). We describe that payout percentage… as the baseline 
recovery percentage, and it is likely to go up with each MVF distribution. Because the 
amount of recoveries from all sources received by a victim is part of the payment 
computation, every victim has been asked to provide periodic updates on their own 
recoveries from sources other than MVF.  Absent disclosure of outside recoveries, some 
investors would be paid more than the recovery percentage being paid to everyone else. 
 

FACTUAL ALLEGATIONS 
 

Fulcrum Engaged in a Scheme to Fraudulently Obtain  
Inflated Remission Payments From the MVF 

 
25. From at least October 2016 through October 2022, Fulcrum violated the FCA by 

fraudulently obtaining, as a non-victim of the Madoff Fraud, remission payments from the 

MVF to which it was not entitled.  Specifically, Fulcrum purchased recovery rights from 

various Madoff Fraud victims who had submitted remission claims to the MVF and 

compelled them to transfer any remission payments they received from the MVF to 

Fulcrum.   

26. Fulcrum also fraudulently compelled the claimants whose Madoff recovery rights it 

had purchased to submit false disclosures to the MVF, concealing the amounts Fulcrum 



 

9 

paid for those recovery rights.   As explained above, to prevent MVF claimants from 

receiving duplicative recoveries, the Regulations and MVF Plan of Distribution require (i) 

MVF claimants to report all collateral recoveries received, including proceeds from the sale 

of any Madoff recovery rights or MVF claims, and (ii) the MVF to reduce remission 

payments by the amount of such  collateral recoveries.  Compliance with these 

requirements would have resulted in Fulcrum obtaining substantially smaller remission 

payments from the MVF.  Therefore, as a result of Fulcrum’s fraudulent concealment of 

these collateral recoveries, the MVF made inflated remission payments to the victims, 

which they in turn paid over to Fulcrum. 

A.  Fulcrum Purchased Madoff Recovery Rights From MVF Claimants 

27. Through a number of transactions during 2014-2019, Fulcrum purchased Madoff 

claims and MVF recovery rights from multiple victims of the Madoff Fraud. 

28. Luxalpha SICAV (“Luxalpha”) was a Luxembourg-based investment fund that 

operated as a Madoff Securities feeder fund, and its underlying investors suffered losses as 

a result of the Madoff Fraud.   

29. Among the persons and entities who were beneficial owners of Luxalpha shares 

were:  (i) Carac, a public pension fund based in Paris, France; (ii) a group of investors in a 

fund called “Fondaco Absolute Return,” which was managed by Fondaco SGR S.p.A. 

(“Fondaco”), an institutional asset management company based in Torino, Italy (the 

“Fondaco Investors”), including Compagnia di San Paolo (“CSP”), a foundation based in 

Torino, Italy; and  (iii) a group of individuals located in France, named Bruno Plancke, 

Michel Plancke, Olivier Plancke, Thierry Plancke, and Virginie Reant Plancke (the 

“Planckes”). 



 

10 

30. In February, March and April 2014, Carac, the Fondaco Investors, and the Planckes 

(the “Claimants”) each filed claims with the MVF seeking remission payments for losses 

they claimed to have incurred as a result of their investments in Madoff Securities through 

Luxalpha.  

31. Fulcrum subsequently purchased the Claimants’ Luxalpha shares and attendant 

rights and MVF claims.  Specifically, Fulcrum purchased Fondaco’s Luxalpha shares in 

July 2014, Carac’s Luxalpha shares in October 2014, and the Planckes’ Luxalpha shares in 

January 2019.  Fulcrum immediately resold the Fondaco and Carac shares to third parties, 

but purported to retain rights to most of the Claimants’ MVF remission payments.  In 

particular, Fulcrum entered into Purchase and Sale Agreements (“PSAs”) with Carac, CSP, 

and the Planckes pursuant to which Fulcrum purported to acquire their rights to receive 

remission payments from the MVF.    

32. Fulcrum knew that, pursuant to the Regulations and the Plan of Distribution, 

Fulcrum was not eligible to receive remission payments directly from the MVF because 

Fulcrum was not a Madoff Fraud victim and had merely purchased the Claimants’ 

Luxalpha shares and attendant rights and MVF remission claims.  Accordingly, as part of 

the PSAs, Fulcrum required Carac, CSP, and the Planckes to transfer any amounts they 

received from the MVF to Fulcrum.  Specifically, as part of the PSAs, Carac, CSP, and the 

Planckes agreed that they would retain no beneficial interest in any distributions they 

received from the MVF, that they would hold any such distributions as agents of Fulcrum, 

and that they would deliver any such distributions to Fulcrum within five days of receipt.   

B.  Fulcrum Fraudulently Directed the Claimants to Submit False Claims or 
      Statements to the MVF in Order to Obtain Inflated Remission Payments 
 
33. Fulcrum knew that, pursuant to the Regulations and Plan of Distribution, the 

Claimants were required to report to the MVF all collateral recoveries they received, 



 

11 

including proceeds from the sale of their Luxalpha shares and MVF remission claims, and 

that the MVF would reduce any remission payments to the Claimants by the amount of the 

collateral recoveries they reported.   

34. For example, in internal emails in or about August 2017, Fulcrum representatives 

circulated and discussed the MVF’s August-December 2017 Update reiterating that 

collateral recoveries, which reduce remission payments, include “any proceeds [claimants] 

received as a result of the sale or assignment of [their] claim in either the bankruptcy or 

MVF proceedings.”   

35. To ensure that the MVF would not reduce the Claimants’ remission payments by 

the amounts Fulcrum had paid the Claimants for their Luxalpha shares and attendant rights 

and MVF remission claims, Fulcrum acquired the right to control Carac’s, CSP’s, and the 

Planckes’ communications with the MVF and fraudulently required them to conceal this 

collateral recovery information from the MVF. 

36. Specifically, under the PSAs, Carac, CSP, and the Planckes granted Fulcrum 

irrevocable power of attorney with respect to the remission claims and authorized Fulcrum 

to act in each of their names, places, and steads with respect to those claims.  Further, 

Carac, CSP, and the Planckes agreed to deliver all correspondence they received from the 

MVF to Fulcrum and take all actions requested by Fulcrum to effectuate the terms of the 

PSAs. 

37. From October 2016 through October 2022, the MVF sent multiple CRU Notices to 

the Claimants requesting that they identify all compensation received from any source 

other than the MVF, including proceeds from the sale of Madoff claims.  Pursuant to the 

PSAs, Fulcrum received Claimants’ copies of the CRU Notices, and fraudulently instructed 

or otherwise caused the Claimants to submit false CRU responses to the MVF that failed 



 

12 

fully to disclose the amounts the Claimants had received from selling their Luxalpha shares 

and related rights and remission claims to Fulcrum.      

38. For example, in September 2017 and May 2019 pursuant to the PSA and at 

Fulcrum’s behest, Carac submitted two CRU responses to the MVF that falsely represented 

that Carac had received no collateral recoveries, when in fact it had received significant 

sales proceeds from Fulcrum.  

39. Similarly, from February 2017 through July 2019, pursuant to the PSA and at 

Fulcrum’s behest, CSP submitted four CRU responses to the MVF that falsely failed to 

disclose the full amount that CSP had received from Fulcrum for its Luxalpha shares and 

related rights.  CSP stated that it had sold its remission claim to an unidentified secondary 

market player for a specified amount, but this amount reflected only the smaller amount 

CSP received from Fulcrum for the purported sale of its remission rights, rather than the 

total proceeds CSP received from Fulcrum for the sale of its Luxalpha shares and related 

rights.   

40. In or about August 2017, representatives of CSP encouraged Fulcrum to reach out 

to the MVF to confirm whether the sales proceeds Fulcrum had received constituted 

collateral recoveries, but Fulcrum refused to do so, and instead insisted that CSP submit 

false disclosures to the MVF concealing the Fondaco Investors’ sale of their Luxalpha 

shares and attendant rights to Fulcrum. 

41. From February 2017 through July 2019, the Fondaco Investors other than CSP 

likewise submitted twenty-eight CRU responses to the MVF that falsely represented that 

these investors had received no collateral recoveries, when in fact they had received 

significant sales proceeds from Fulcrum.  



 

13 

42. From August 2019 through October 2020, pursuant to the PSA, and at Fulcrum’s 

behest, the Planckes submitted twenty CRU responses to the MVF that falsely represented 

that the Planckes had received no collateral recoveries other than those they received from 

a financial intermediary in connection with a litigation settlement, when in fact they had 

received significant additional proceeds from Fulcrum for the sale of their Luxalpha shares 

and attendant rights and MVF remission claims.   

43. Fulcrum knew that the aforementioned CRU responses that the Claimants submitted 

to the MVF were false.  

44. Fulcrum’s misrepresentations concerning collateral recoveries were material to the 

MVF’s and DOJ’s remission payment decisions.  As noted above, prior to each MVF 

distribution, MVF claimants have been required to certify under penalty of perjury to the 

truthfulness and accuracy of their CRU responses as a condition precedent to receiving a 

remission payment.  Had Fulcrum disclosed, or caused the Claimants to disclose, the 

amounts the Claimants had received from Fulcrum for the sale of their Luxalpha shares and 

attendant rights and MVF remission claims, the MVF would have reduced the Claimants’ 

respective remission payments by the amount of those sales proceeds. 

45.  As a result of Fulcrum instructing or otherwise causing the Claimants to submit 

false collateral recovery information as described above, the MVF distributed remission 

payments to the Claimants that they were not entitled to receive.  Pursuant to the PSAs, 

Carac, CSP, and the Planckes then transferred the amounts they had improperly received 

from the MVF to Fulcrum. 

 

 

 



 

14 

CLAIMS FOR RELIEF 

FIRST CLAIM 

Violations of the False Claims Act: Presenting False Claims for Payment 
31 U.S.C. § 3729(a)(1)(A) 

 
46. The Government incorporates by reference paragraphs 1 through 45 above as if 

fully set forth in this paragraph. 

47. The Government asserts claims against Fulcrum under 31 U.S.C. § 3729(a)(1)(A). 

48. Fulcrum knowingly, or acting with deliberate ignorance or reckless disregard for 

the truth, presented, or caused to be presented, false or fraudulent claims for payment or 

approval to the MVF in violation of 31 U.S.C. § 3729(a)(1)(A).  Specifically, Fulcrum 

fraudulently instructed or otherwise caused the Claimants to submit false claims to the 

MVF that failed to identify collateral recoveries the Claimants had received from Fulcrum 

for the sale of their Luxalpha shares and attendant rights and remission claims to the MVF. 

49. As a result of these false or fraudulent claims, the MVF made inflated remission 

payments to the Claimants to which they were not entitled.  Carac, CSP, and the Planckes 

then transferred these amounts they had unlawfully received from the MVF to Fulcrum. 

50. By reason of the false or fraudulent claims or statements that Fulcrum knowingly 

presented, or caused to be presented, for payment or approval, the Government has been 

damaged in a substantial amount to be determined at trial, and is entitled to recover treble 

damages plus a civil monetary penalty for each false claim. 

SECOND CLAIM 
  

Violations of the False Claims Act: Use of False Statements 
31 U.S.C. § 3729(a)(1)(B) 

 
51. The Government incorporates by reference paragraphs 1 through 50 above as if 

fully set forth in this paragraph. 



 

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52. The Government asserts claims against Fulcrum under 31 U.S.C. § 3729(a)(1)(B). 

53. Fulcrum knowingly, or acting with deliberate ignorance or reckless disregard for 

the truth, made, used, or caused to be made or used, false records or statements that were 

material to false or fraudulent claims for payment submitted to the MVF.  Specifically, 

Fulcrum fraudulently instructed or otherwise caused the Claimants to submit false 

disclosures to the MVF that concealed collateral recoveries the Claimants had received 

from Fulcrum for the sale of their Luxalpha shares and attendant rights and  remission 

claims to the MVF. 

54. As a result of these false or fraudulent disclosures, the MVF made inflated 

remission payments to the Claimants to which they were not entitled.  Carac, CSP, and the 

Planckes then transferred these amounts they had unlawfully received from the MVF to 

Fulcrum. 

55. By reason of these false records or statements, the Government has been damaged 

in a substantial amount to be determined at trial and is entitled to recover treble damages 

plus a civil monetary penalty for each false record or statement. 

PRAYER FOR RELIEF 

 WHEREFORE, plaintiff, the Government, requests that judgment be entered in its 

favor as follows: 

1. On the First and Second Claims for relief (violations of the FCA, 31 U.S.C. §§ 

3729(a)(1)(A) and 3729(a)(1)(B)), a judgment against Fulcrum for treble the 

Government’s damages, in an amount to be determined at trial, plus a civil penalty in the 

maximum applicable amount for each violation of the FCA by Fulcrum; 

2. An award of costs incurred by the Government pursuant to 31 U.S.C. § 

3729(a)(3); and  



 

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3. Such further relief as is proper. 

Dated: New York, New York 
 September __, 2023 
      DAMIAN WILLIAMS 

United States Attorney for the 
Southern District of New York 
       

     By:  /s/  Pierre G. Armand   
PIERRE G. ARMAND 
Assistant United States Attorney 
United States Attorney’s Office 
86 Chambers Street, 3rd Floor 
New York, NY 10007 
Tel: (212) 637-2724 
Email:  [email protected] 
Attorney for the United States of America