United States District Court, S.D. New York
March 12, 2014
UNITED STATES OF AMERICA
DEVYANI KHOBRAGADE, Defendant
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
A. Consular Immunity
As a signatory to the VCCR, the United States grants limited immunity to consular officers. Specifically, " [c]onsular officers . . . shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving state in respect of acts performed in the exercise of consular functions."  Aside from official acts, consular officers are not immune from arrest or detention for " grave crimes" where the arrest is made " pursuant to a decision by the competent judicial authority." 
B. Diplomatic Immunity
The United States is also signatory to the Vienna Convention on Diplomatic Relations (" VCDR" ), which applies to diplomatic agents such as ambassadors and diplomatic mission personnel. Diplomatic officers enjoy a higher level of immunity than consular officers. With several exceptions not applicable here, diplomatic officers may not be arrested, detained, prosecuted or sued unless their immunity is waived by the sending state. The United States Congress implemented the VCDR through 22 U.S.C. § 254d, which states:
Any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations, under section 254b or 254c of this title, or under any other laws extending diplomatic privileges and immunities, shall be dismissed. Such immunity may be established upon motion or suggestion by or on behalf of the individual, or as otherwise permitted by law or applicable rules of procedure.
In proceedings where a person's diplomatic status is contested, courts generally consider the State Department's determination to be conclusive.
C. Residual Immunity
Both consular and diplomatic immunity expire after the officer's appointment has been terminated and she has departed the United States, or after a reasonable time for departure has passed. Consular officers and diplomatic officers enjoy residual immunity after the term of appointment only for acts performed in the exercise of official functions. For all other acts, including those that took place during a period of full immunity, former diplomats are not immune from prosecution.
It is undisputed that Khobragade acquired full diplomatic immunity at 5:47 PM on January 8, 2014, and did not lose that immunity until her departure from the country on the evening of January 9, 2014. On January 9, immediately following the return of the Indictment, 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 Government argues that the Indictment should not be dismissed because Khobragade did not have diplomatic immunity at the time of her arrest, and has no immunity at the present time. In support, the Government submits a declaration from Steven Kerr, Attorney-Advisor in the Office of the Legal Advisor of the United States Department of State. Kerr concludes that " Dr. Khobragade did not enjoy immunity from arrest or detention at the time of her arrest in this case, and she does not presently enjoy immunity from prosecution for the crimes charged in the Indictment." 
Even assuming Kerr's conclusions to be correct, the case must be dismissed based on Khobragade's conceded immunity on January 9, 2014. The fact that Khobragade lost full diplomatic immunity when she left the country does not cure the lack of jurisdiction when she was indicted. Courts in civil cases have dismissed claims against individuals who had diplomatic immunity at an earlier stage of proceedings, even if they no longer possessed immunity at the time dismissal was sought. These courts reasoned that the lack of jurisdiction at the time of the relevant procedural acts, such as service of process, rendered those acts void. Because Khobragade moved to dismiss on January 9, 2014, the motion must be decided in reference to her diplomatic status on that date.
Similarly, Khobragade's status at the time of her arrest is not determinative. The State Department has explained that " criminal immunity precludes the exercise of jurisdiction by the courts over an individual whether the incident occurred prior to or during the period in which such immunity exists."  Furthermore, several courts have held that diplomatic immunity acquired during the pendency of proceedings destroys jurisdiction even if the suit was validly commenced before immunity applied. For example, in Abdulaziz v. Metropolitan Dade County, the Eleventh Circuit concluded that diplomatic immunity " serves as a defense to suits already commenced."  The court found that the " action was properly dismissed when immunity was acquired and the court was so notified."  Lower courts have cited and followed Abdulaziz in the absence of binding case law in other circuits.
The Court notes that Abdulaziz involved civil claims rather than criminal charges. However, the Government has not cited any criminal case in which immunity was acquired after arrest, and the Court is not aware of any such case. Abdulaziz is persuasive precedent given that the standard for dismissing criminal and civil cases based on diplomatic immunity is the same, Furthermore, because diplomatic immunity is a jurisdictional bar, it is logical to dismiss proceedings the moment immunity is acquired. Even if 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.
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 Khobragade. 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. . . ."  However, the Government may not proceed on an Indictment obtained when Khobragade was immune from the jurisdiction of the Court.
For the foregoing reasons, Khobragade's motion to dismiss the Indictment on the ground of diplomatic immunity is granted. 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. The Clerk of the Court is directed to close this motion (Dkt. No. 15) and this case.