U.S. v Khobragade: Response to U.S. attorney on Jan. 17

The Indian consular official's attorney said he was "surprised and distressed" at the U.S. attorney's characterization of discussions. Read more about the new legal dispute

ARSHACK, HAJEK & LEHRMAN, PLLC
1790 BROADWAY, 7TH FLOOR
NEW YORK, NEW YORK 10019
TEL: 212-582-6500
FAX: 212-459-0568

January 7, 2014

By Fax – 212-805-4060
Hon. Magistrate Judge Sarah Netburn
United States District Court for
The Southern District of New York
500 Pearl Street
New York, New York 10007
Re: U.S. v. Devyani Khobragade – 13 Mag. 2870
Dear Magistrate Judge Netburn:
Please accept this reply to the Government’s response to our request to postpone the
preliminary hearing date in this matter currently scheduled for January 13, 2014.
We are surprised and distressed that the prosecution has elected to publically
characterize 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 characterization 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 characterization and we hope that the prosecution will not
unilaterally take any further steps which will further polarize the situation.
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. 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. As the court is well aware, the issuance of an indictment is a polarizing event
and one which cannot easily be undone. 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

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resolve this without the issuance of an indictment or preliminary hearing by January 13,
2014.
Of course, we are aware 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 Advisory Committee notes to the 2002 amendments to FRCP 5.1(d) make it
clear that 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. 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.
The prosecution’s suggestion that there is no motion for the court to decide because
they have not asked for an extension is 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 be granted.
For all of the reasons presented, we request that the court extend the deadline by 30
days to and including February 12, 2014.
Sincerely,

Daniel N. Arshack
Counsel to Devyani Khobragade
Cc: AUSA Amanda Kramer -- by email
Lisa Chan- Pretrial Services -- by email

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