Diplomat berates Bharara for going public on plea discussions

Senior Indian diplomat Devyani Khobragade has berated US Attorney Preet Bharara for publicly disclosing plea discussions underway to resolve the visa fraud case against her, saying it was a "distressingly calculated" move which could further polarise the situation.

Noting that the two sides had agreed not to make public the plea discussions, her lawyer Daniel Arshack gave a strong rejoinder to Bharara who had written to Magistrate Judge Sarah Netburn stating that he had outlined reasonable parameters that could resolve the issue.

"We can only think that the violation of that agreement is a distressingly calculated one," Arshack said.

With the deadline for her indictment slated for January 13, the diplomat had sought one-month extension, saying the "pressure of the impending" date is interfering with the ability of the parties to have meaningful discussions.

But her plea has been opposed by the prosecution.

India has been demanding the withdrawal of the case against Khobragade and an apology from the US for the treatment meted out to the 39-year-old diplomat, including a strip search and detention with criminals after her arrest on December 12.

India-born US prosecutor Bharara's office is required to file charges against the diplomat within 30 days of her arrest.

The US said last month it is proceeding with the prosecution of Khobragade and has no intention of withdrawing the case.

At the time of her arrest, Khobragade was Deputy Consul General in New York and was subsequently transferred to India's Permanent Mission to the UN.

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 USD 250,000 bond.

India retaliated by downgrading privileges of a certain category of US diplomats among other steps last month.

Bharara said his office has been receptive to continuing the plea discussions that have been taking place with the diplomat over the past several weeks.

He said his office has participated in "hours of discussion in the hope of negotiating a plea" that could be entered in court before January 13.

Arshack voiced his displeasure with Bharara giving details of the plea discussions in a letter he submitted to Netburn.

"We are surprised and distressed that the prosecution has elected to publicly characterise the discussions that have taken place in the manner in which they have. Indeed, the agreed upon ground rules of the communications we have had to date were that no public characterisation of the discussions would be made.

"We can only think that the violation of that agreement is a distressingly calculated one. It must be noted that we strongly disagree with their characterisation and we hope that the prosecution will not unilaterally take any further steps which will further polarise the situation," Arshack said.

He said it is "precisely the desire" to avoid further polarisation that he is asking the federal court to extend the time within which the prosecution must either indict or be ready for a preliminary hearing.

Arshack said his client is herself asking for extension of the deadline since the date itself is "interfering" with the possibility of an "early, expeditious and judicially economical resolution.

"Repeatedly, the prosecution has explained that the existence of the January 13, 2014 deadline was driving its determination to immediately seek an indictment. We have made this application to extend the time period because we wish to eliminate the pressure on the situation and permit the efforts which are ongoing to resolve this matter, both between the parties to this criminal litigation and elsewhere to move forward," Arshack added.

Arshack argued that filing an indictment could jeopardize ongoing efforts between the two parties as well as at diplomatic levels between New Delhi and Washington.

"The ongoing and sincere efforts of stakeholders in all capacities, not just those of the defence 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, 2014," Arshack said.

Bharara had said that the government is not seeking an extension of the deadline for indictment, noting that the plea discussions to resolve the issue can continue even after the indictment has been filed.

Arshack termed the prosecution's suggestion that "there is no motion for the court to decide" because they have not asked for an extension as being "remarkably incorrect".

"They have pointed out the obvious that they are not asking for such relief. While that is true, it is also true that nowhere in the prosecution's response have they actually opposed our application...And why would they, they benefit also by having more time. We do therefore ask that our application (for extension of time) be granted," Arshack said.

He added that the prosecution is free to issue an indictment at any time and the requested extension "will clearly not preclude their doing so.

"But we take the prosecution at its word that it is rapidly proceeding towards an indictment specifically because of the January 13, 2014 deadline".

"...The change in the rule to permit extensions of the time period, such as this requested one, were to 'provide greater judicial economy'. 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."