U.S. objects to providing defence material to Nikhil Gupta in Pannun case till appearance in New York court

Mr. Gupta, 52, was charged by federal prosecutors here in an indictment unsealed in November last year with working with an Indian government employee in the foiled plot to kill Khalistani separatist Gurpatwant Singh Pannun.

Sikh separatist leader Gurpatwant Singh Pannun is pictured in his office in New York on November 29, 2023. | Photo Credit: AP

The U.S. government has objected to providing defence materials to Indian national Nikhil Gupta, detained in a Czech prison on murder-for-hire charges in a foiled assassination attempt on a Khalistani separatist, saying it will provide the information only upon his appearance in a New York court and arraignment in the case.

Mr. Gupta, 52, was charged by federal prosecutors here in an indictment unsealed in November last year with working with an Indian government employee in the foiled plot to kill Khalistani separatist Gurpatwant Singh Pannun, who holds U.S. and Canadian citizenships, on American soil.

Mr. Gupta was arrested in Prague, the Czech Republic on June 30, 2023 and is being held there currently. The U.S. government is seeking his extradition to the U.S.

Mr. Gupta’s attorney filed a ‘Motion to Compel Production of Discovery’ on January 4 in the U.S. District Court, Southern District of New York, requesting the court to direct federal prosecutors to provide “the defence materials relevant to its ability to defend the instant charges”. The attorney stated that Mr. Gupta “was last in the United States in 2017”. 

The motion states that Mr. Gupta’s family has reported to the media that they have “limited access” to him, he is not allowed consular access and he “faces basic human rights violations in custody in Prague, including extended solitary confinement. A habeas petition has been filed on his behalf with the Supreme Court of the Czech Republic”. 

U.S. District Judge Victor Marrero had on January 8 given the government three days to respond to the motion filed by Mr. Gupta’s attorney. The government, in its reply filed on Wednesday, said Mr. Gupta’s motion asking for discovery material should be denied.

“The government respectfully submits this letter in opposition to defendant Nikhil Gupta’s motion to compel discovery during the pendency of his extradition proceedings in the Czech Republic,” federal prosecutors said.

They said that consistent with federal rules of criminal procedure, “the government is prepared to produce discovery promptly upon the defendant’s appearance in this District and arraignment on this case. Before then, however, the defendant is not entitled to discovery, and he identifies no good reason for the Court to order it”.

In the government’s response, U.S. Attorney Damian Williams said that Mr. Gupta has identified no legal entitlement or justification for discovery at this time.

“The government stands ready to provide discovery to him, like any other criminal defendant, promptly upon his appearance and arraignment in this District. His motion to compel discovery should be denied,” Mr. Williams said.

Mr. Gupta’s counsel in New York, Jeff Chabrowe, has said in his motion that the attorney representing Mr. Gupta in Prague in his extradition proceedings states that “no evidence or documentation of any sort has been given to him other than the US indictment itself”.

He said Mr. Gupta has been interviewed in Prague “by groups of senior U.S. agents on several occasions and continues to be interviewed”.

“An order compelling discovery is particularly appropriate here” as Mr. Gupta “is being subject to repeated interrogations by U.S. officials without the presence of the counsel representing him in his criminal case,” the motion by Mr. Chabrowe said.

“The defence counsel present in Prague has no evidence or other case materials, other than the bare indictment. Most critically, the defendant continues (to be) interrogated by U.S. officials, after the indictment, where his uninformed counsel has no ability to secure his rights. Accordingly, this Court should order the government to comply with the defence discovery request here,” the motion said.

Mr. Gupta’s motion said a municipal court in Prague has initially recommended extradition, “but several layers of judicial review remain before any final extradition order issues.”

It added that in the interim, Mr. Chabrowe asked the U.S. Attorney’s office to begin providing discovery but the U.S. Attorney for the Southern District of New York “refuses to do so”.

The government, in its motion, rejected Mr. Gupta’s assertion that he has been subjected to repeated interrogations by U.S. officials without the presence of the counsel representing him in his criminal case.

“In fact, he has met only twice with U.S. law enforcement authorities, the second time in the presence of counsel, and on both occasions, he was advised of his rights. In the first meeting, immediately after his arrest, the defendant waived his rights verbally and spoke with law enforcement agents.”

The government said that the second meeting occurred in the presence of Mr. Gupta’s counsel in the Czech Republic, and when he declined to be interviewed, the meeting concluded.

India has already constituted a probe committee to investigate the allegations.