United States District Court, S.D. New York
For the Government: Amanda Kay Kramer, Kristy Jean Greenberg, Assistant United States Attorneys, New York, NY.
For Defendant: Daniel N. Arshack, Esq., Arshack, Hajek & Lehman PLLC, New York, NY.
OPINION AND ORDER
Shira A. Scheindlin, U.S.D.J.
On December 12, 2013, Dr. Devyani Khobragade was arrested and charged with visa fraud and making false statements to the government in violation of Title 18, United States Code, Sections 1546 and 1001. On January 9, 2014, Khobragade was indicted on the above charges, and moved to dismiss the Indictment on the basis of diplomatic immunity. Upon the Government's request, the Court reserved decision pending full briefing. For the reasons that follow, Khobragade's motion is granted and the Indictment is dismissed.
II. BACKGROUND INFORMATION
Khobragade, a citizen of India, served as a consular officer in the United States from October 26, 2012 through January 8, 2014, a position that cloaked her with
consular immunity pursuant to the Vienna Convention on Consular Relations (" VCCR" ). Khobragade contends that she additionally obtained diplomatic immunity on August 26, 2013 by virtue of her appointment as a Special Advisor to the United Nations, and that such immunity continued through at least December 31, 2013. The Government denies that Khobragade ever had diplomatic immunity as a Special Advisor, and alternately argues that any period of diplomatic immunity ended well before December 2013.
On December 12, 2013, Khobragade was arrested on a complaint and presented before a magistrate judge, who released her under several bail conditions including a bond in the amount of $250,000 co-signed by three other people. On January 8, 2014, Khobragade was appointed a Counselor to the Permanent Mission of India to the United Nations, a position that cloaked her with full diplomatic immunity. On January 9, 2014, a grand jury returned the Indictment charging Khobragade with visa fraud and making false statements to the government in violation of Title 18, United States Code, Sections 1546, 1001, and 2. Later that day, the State Department asked the Indian government to waive Khobragade's diplomatic immunity " in order that the charges may be adjudicated in accordance with the laws of the United States."  After the Indian government declined to waive Khobragade's immunity, the State Department requested her immediate departure from the country.
Also on January 9, 2014, Khobragade's counsel appeared before the Court and moved to dismiss the case on grounds of diplomatic immunity, or alternately to exonerate her conditions of bail. The Court modified Khobragade's bail conditions to permit her return to India, but withheld judgment on the remaining issues pending full briefing by the parties. Khobragade left the country later that evening.
III. APPLICABLE LAW