Plea rejected, Devyani ordered to appear in court on Jan 13

A New York court has refused to grant relief to Indian diplomat Devyani Khobragade on the ground that adjournment of the date when she has to be indicted will not grant her the “relief she seeks” regarding plea negotiations between her and the government to resolve the visa fraud case. George Joseph reports

In a major setback to Indian diplomat Devyani Khobragade, a federal judge has denied her request to extend the January 13 deadline for a preliminary hearing, the date by which she has to be indicted.

Magistrate Judge Sarah Netburn of the US District Court for the Southern District of New York, in her order, said: ‘The defendant has requested only that the preliminary date be adjourned for 30 days for good cause shown, pursuant to Rule 5.1(d). Because a modification of the hearing date will not itself alter the time period for the filing of an indictment or information, the defendant's concerns regarding the pressures of an impending indictment on plea negotiations will not grant her the relief she seeks.

‘Therefore, good cause has not been demonstrated, and the defendant's request for an adjournment of the preliminary hearing date is denied.’

As per the court order, Khobragade has to appear before the grand jury for indictment on January 13 unless the State Department declares that she has diplomatic immunity.

While requesting postponement of the indictment, Khobragde’s attorney Daniel N Arshack questioned the prosecution giving publicity to the ongoing discussions between the two sides to find a solution to the case, which created a diplomatic standoff between India and the US.

He also questioned the prosecution’s stand opposing the request to postpone the indictment.

‘We are surprised and distressed that the prosecution has elected to publically characterise the discussions that have taken place in the manner in which they have.

It is precisely the desire to avoid further polarization that we have asked the court to extend the time within which the prosecution must either indict or be ready for a preliminary hearing,’ Arshack noted in his letter to the judge.

But the judge did not agree with the defense stand.

The judge noted that Khobragade had consented to a waiver of the time limits and agreed to a preliminary hearing date of January 13.

Under the rule, a magistrate judge must timely conduct a preliminary hearing unless, among other grounds, before the date it is scheduled, the defendant is indicted or the government files information against the defendant.

The order also noted the defense plea that the issuance of an indictment is a polarizing event and the prosecution’s stand opposing any postponement.

The judge noted, ‘The government opposes the defendant's application on the grounds that the negotiations to date do not merit a continuance of the preliminary hearing date, that the government will continue good faith plea negotiations following indictment and that, in any event, the decision whether to seek an indictment is one entirely at the discretion of the government, such that a continuance of the preliminary hearing date does not provide the defendant with any meaningful assurance.’

But an adjournment of the preliminary hearing date will not grant the defendant the relief she seeks, the judge said.

As per law, an indictment or information charging the defendant with the commission of an offense must be filed within 30 days of the date of the defendant's arrest or service of a summons in connection with such charges.

Adjournment is allowed only in extraordinary situations, which is not the case here, the judge noted.

Opposing the request to postpone the adjournment, the US Attorney’s office noted, ‘This Office remains receptive to continuing the plea discussions that have taken place over the past several weeks. We have participated in hours of discussion in the hope of negotiating a plea that could be entered in court before January 13. Indeed, as recently as Saturday, January 5, the government outlined reasonable parameters for a plea that could resolve the case, to which the defendant has not responded.

‘While we remain open to continuing these plea discussions as the case proceeds, the discussions are simply not at a stage that merits a continuance of the preliminary hearing.

Moreover, the plea discussions can continue following indictment of the case.’

The prosecution also noted that it was not seeking an extension of the ‘deadline for indictment and therefore there is no motion for the court to decide. At any rate, as the court knows, the timing under which the government seeks an indictment is in the discretion of the government, and the defendant cannot alter that.’

But Arshack questioned this and stated that the defense made the application to extend the time period because they wish to eliminate the pressure on the situation and permit the efforts which are ongoing to resolve the matter.

He also noted that the ‘ongoing and sincere efforts of stakeholders in all capacities, not just those of the defense team and the Department of Justice, will be well served, and the interests of justice will be advanced by being permitted to try to resolve this without the issuance of an indictment or preliminary hearing by January 13.’

‘There can be no benefit in forcing the prosecution to issue an indictment by an arbitrary date where the defendant herself is waiving the requirement. After all, the purpose of setting the time limits in the first place is to protect the interests of the defendant. In this case, it is the defendant who is asking to extend that date because it is the date itself which is interfering with the possibility of an early, expeditious and judicially economical resolution.’

He also noted that the prosecution too will benefit by an extension of 30 days by having more time. 

A 1999-batch IFS officer, Khobragade was arrested on charges of making false declarations in a visa application for her maid Sangeeta Richard. She was released on a $250,000 bond.

PTI adds: The lawyer of Devyani Khobragade is not losing hope, saying he is "considering" other options.

"We are considering our options," Khobragade's lawyer Daniel Arshack told PTI when asked about his request being denied by Netburn. Arshack did not elaborate further.

However, sources said one of the options Khobragade, 39, now has is to file another motion in court seeking extension of the indictment deadline and preliminary hearing and she could contemplate filing another motion.