From above:
IV. DISCUSSION
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 ofJanuary 9,2014.20 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.21 {Didn't your's truly had some think akin to this posted here
)}
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.22 In support, the Government submits a
declaration from Steven Kerr, Attorney-Advisor in the Office ofthe Legal Advisor
ofthe United States Department ofState. Kerr concludes that "Dr. Khobragade
did not enjoy immunity from arrest or detention at the time ofher arrest in this
case, and she does not presently enjoy immunity from prosecution for the crimes
charged in the Indictment.,,23
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 diplOlmtic immunity when she left the country does
not cure the lack ofjurisdiction when she was indicted. Courts in civil cases have
dismissed claims against individuals who had diplomatic immunity at an earlier
stage of proceedings, even ifthey no longer possessed immunity at the time
dismissal was sought.24 These courts reasoned that the lack ofjurisdiction at the
time of the relevant procedural acts, such as service ofprocess, 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 ofher arrest is not
determinative. The State Department has explained that "criminal immunity
precludes the exercise ofjurisdiction by the courts over an individual whether the
incident occurred prior to or during theperiod in which such immunity exists.,,25
Furthermore, several courts have held that diplomatic immunity acquired during
the pendency ofproceedings destroys jurisdiction even ifthe 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.,,26 The court found that the "action was
properly dismissed when immunity was acquired and the court was so notified.,,27
Lower courts have cited and followed Abdulaziz in the absence of binding case law
in other circuits.28
The Court notes that Abdulaziz involval 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.29 Abdulaziz is persuasive precedent given that the standard for dismissing
criminal and civil cases based on diplomatic immunity is the same.30 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 ofher arrest and has none now, her acquisition of immunity
during the pendency ofproceedings 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.31 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 ...."32
However, the
Government may not proceed on an Indictment obtained when Khobragade was
immune from the jurisdiction of the Court.
v. CONCLUSION
For the foregoing reasons, Khobragade's motion to dismiss the
Indictment on the ground of diplormtic 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.
HerOnner repeated that statement in her judgement. Both sounded like a red rag being waved in front of a bull. Prosecutor's H&D very much put on the line.