Jan. 9 (Bloomberg) -- Devyani Khobragade, the Indian diplomat charged with visa fraud for underpaying her Indian babysitter, has been in “ongoing” plea talks, Manhattan federal prosecutors said, as she lost a bid to delay her case.
U.S. Magistrate Judge Sarah Netburn rejected Khobragade’s request for a 30-day postponement, saying she failed to demonstrate “good cause” why the delay should be granted and the government hadn’t asked for an adjournment. A postponement also wouldn’t prevent prosecutors from seeking a grand jury indictment, Netburn said in her order yesterday. Under federal law, prosecutors face a Jan. 13 deadline to file an indictment.
“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,” Netburn said.
Daniel Arshack, a lawyer for Khobragade, 39, told Netburn in a Jan. 6 letter that the delay was needed to “facilitate” plea discussions and that his client was “distressed” that prosecutors in the office of Manhattan U.S. Attorney Preet Bharara said publicly that plea talks were under way. The Jan. 13 deadline was causing “polarization” in the talks, Arshack said.
Khobragade was charged Dec. 12 with visa fraud and making false statements. Arrested in front of her daughter’s school on West 97th Street in Manhattan, she was held by the U.S. Marshals Service in the federal courthouse in lower Manhattan. While there, she was strip-searched and held with other female suspects. Later that day, she was presented before a U.S. magistrate judge and released on a $250,000 unsecured bond.
News of her treatment triggered a furor in India, and was followed by government officials there scaling back security outside the U.S. embassy in New Delhi and protests demanding a ban on U.S. goods. Prime Minister Manmohan Singh called her arrest deplorable while other officials have said the charges should be dropped immediately.
Prosecutors said in a Jan. 6 letter to Netburn that they weren’t seeking any extension in the case and that the court had no jurisdiction over the matter, as the timing and whether prosecutors bring an indictment “is in the discretion of the government, and the defendant cannot alter that.”
“The office remains receptive to continuing the plea discussions that have taken place over the past several weeks,” assistant U.S. attorneys Amanda Kramer and Kristy Greenberg said in the letter. “We have participated in hours of discussion in the hope of negotiating a plea that could be entered in court before Jan. 13.”
Prosecutors said that as recently as Jan. 5, the government had “outlined reasonable parameters for a plea that could resolve the case” which Khobragade and her lawyers hadn’t responded to at that point.
Under U.S. law, prosecutors have 30 days to file an indictment after a defendant is arrested on a sworn criminal complaint filed with the court. If convicted of visa fraud, Khobragade faces as long as 10 years in prison while the false statements charge carries a maximum term of five years, Bharara’s office said.
Prosecutors said Khobragade submitted a contract as part of the visa application, alleging she paid a babysitter $9.75 an hour -- above minimum wage as required by law. In a second contract, the diplomat agreed to pay the babysitter 30,000 rupees a month, or about $573, the U.S. said, which would be $3.31 per hour. New York’s minimum wage is $7.25 per hour.
Arshack didn’t immediately return a voice-mail message today seeking comment on plea discussions. In a Dec. 24 interview, he said the case was based on a series of mistakes and should never have been brought.
A U.S. State Department agent misread a form the diplomat helped the babysitter complete, along with related documents, Arshack said in the interview. The form, which was prepared and submitted online, called for Khobragade’s salary, not that of the babysitter, he said. Khobragade wrote $4,500 per month, whereas the babysitter made about $1,560 a month, he said.
Arshack said the government also misconstrued the different payment terms in the two employment contracts. Arshack said the second contract spelled out payments that were to be deducted from the babysitter’s pay and sent to her husband in New Delhi.
Khobragade was named by her country to serve as a member of its permanent mission to the United Nations, a position that gives her a higher level diplomatic immunity than she enjoyed as deputy consul general.
Bharara took the unusual step of issuing a statement on Dec. 18 responding to criticism of Khobragade’s treatment, saying she was treated as any other defendant in U.S. custody. Khobragade had been “accorded courtesies” beyond others in U.S. custody, he said, having been allowed her to keep her mobile phone and make phone calls for two hours to arrange for child care.
He defended the actions of U.S. marshals, saying Khobragade was “fully searched” in a private setting by a female marshal. Such searches are standard practice for every defendant in U.S. custody to ensure the safety of personnel and suspects, he said.
The case is U.S. v. Khobragade, 13-mj-02870, U.S. District Court, Southern District of New York (Manhattan).
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