US COURT DISMISSES DEVYANI’S INDICTMENT IN VISA FRAUD CASE

Indian diplomat Devyani Khobragade on Thursday won dismissal of the indictment against her for visa fraud, with a U.S. judge ruling she had full diplomatic immunity although prosecutors are not barred from bringing new charges in future.

District Judge Shira Scheindlin said in her 14-page order that “it is undisputed” that Ms. Khobragade acquired full diplomatic immunity at 5:47 p.m. on January 8 after the U.S. State Department approved her accreditation as a counsellor to India’s mission to the United Nations.

While the indictment was returned on January 9, Ms. Khobragade had the immunity till she departed from the U.S. for India on the evening of January 9 and so the prosecutors cannot proceed with the current indictment.

14-page order

“Ms. Khobragade’s motion to dismiss the indictment on the ground of diplomatic immunity is granted. Ms. Khobragade’s conditions of bail are terminated, and her bond is exonerated. It is ordered that any open arrest warrants based on this indictment must be vacated,” Ms. Scheindlin said in her 14-page order, capping months of unprecedented diplomatic tensions between the U.S. and India.

“On January 9, immediately following the return of the indictment, Ms. Khobragade appeared before the court through counsel and moved to dismiss the case. Because the court lacked jurisdiction over her at that time, and at the time the indictment was returned, the motion must be granted,” the judge said ordering that the motion and the case be closed.

Preet Bharara’s arguments

U.S. Attorney Preet Bharara’s office had argued that Ms. Khobragade, 39, was not immune from her December 12 arrest on charges of visa fraud and making false statements about the visa application of her domestic help Sangeeta Richard.

Attorney Bharara had said that the indictment should not be dismissed since Ms. Khobragade did not employ her domestic worker Richard in her capacity as Deputy Consul General and so does not enjoy immunity from prosecution for the “crimes” for which she was arrested in December.

Reacting to the order, Attorney Bharara’s office said the judge has not barred them from going ahead with a new indictment against Ms. Khobragade, who now no longer enjoys diplomatic immunity in the U.S. following her departure to India, and will “proceed accordingly” with any fresh indictment.

Ms. Scheindlin said that “even if Ms. Khobragade had no immunity at the time of her arrest and has none now, her acquisition of immunity during the pendency of proceedings mandates dismissal.”

She ruled that the government “may not proceed on an indictment obtained when Ms. Khobragade was immune from the jurisdiction of the court”.

“The court has no occasion to decide whether the acts charged in the Indictment constitute ‘official acts’ that would be protected by residual immunity. However, if the acts charged in the Indictment were not ‘performed in the exercise of official functions,’ then there is currently no bar to a new indictment against Ms. Khobragade,” the judge’s order said.

“Ms. Khobragade concedes that “(t)he prosecution is clearly legally able to seek a new indictment at this time or at some point in the future now that (she) no longer possesses diplomatic status and immunity....”

Attorney Bharara’s office said the district court found that Ms. Khobragade had immunity during a limited period of time between January 8 and January 9, when the current indictment was returned by a grand jury.

“As the court indicated in its decision that as Devyani Khobragade has conceded, there is currently no bar to a new indictment against her for her alleged criminal conduct and we intend to proceed accordingly,” Chief Public Information Officer for the US Attorney’s Office, Southern District of New York James Margolin told PTI.

Khobragade’s lawyer welcomes verdict

Indian Ambassador to the U.S. Jaishankar, who was in the city to attend a reception held in his honour at the Indian Consulate, incidentally the former office of Ms. Khobragade, did not comment on the judge’s order except to say that since the order came only today, “people need to study it.”

Ms. Khobragade’s lawyer Daniel Arshack welcomed the ruling saying that “the law requires that any prosecution brought against an individual with diplomatic immunity must be dismissed. We’re pleased and heartened that the rule of law has prevailed.”

“We are heartened that the court agreed with our legal analysis and rejected the prosecution’s arguments by dismissing the case,” Mr. Arshack said.

“Technically, the prosecution remains free to re-indict Dr Khobragade. However, the decision to do so might well be viewed as an aggressive and unnecessary act. This current circumstance might well present the best opportunity for a lasting and final diplomatic resolution,” he said.