U.S. ATTORNEY(L.A.) ANDRE BIROTTE SHOULD NOT BE CONFIRMED TO BE A U.S. DISTRICT COURT JUDGE : HE IS DISHONEST; HE LACKS GOOD CHARACTER; HE IS LEGALLY A CRIMINAL HIMSELF (FOR VIOLATING PROVISIONS OF FEDERAL CRIMINAL LAW) ; HE SELECTIVELY PROSECUTES CASES TO THE DETRIMENT OF ACTUAL VICTIMS; AND, FROM ALL INDICATIONS, HE WOULD NOT BE A FAIR DISTRICT COURT JUDGE

Los Angeles, California



August 1, 2014
(Today's Date)

April 25, 2104
(Original Date)



Recently, U.S. Attorney (Los Angeles) Andre Birotte was nominated to be a U.S. District Court judge in Los Angeles. Regrettably, especially because he is black and a minority candidate (and there are few of those nominated and sitting on the federal bench in California), I, as a Black lawyer, must oppose the nomination and state, based on my personal knowledge, that he would not be a good federal judge and should not be confirmed and seated on the federal bench.

Among the reasons why he should not be seated are : (1) he is dishonest; (2) he lacks good character; (3) he is legally a criminal himself for violating federal criminal law; (3) he selectively prosecutes cases favoring victimless crimes over crimes with a victim; and (4) he has been an unfair federal prosecutor, so he will probably be an unfair federal judge.



DISHONESTY

On at least two occasions, when I have filed federal criminal Complaints, Birotte, through his office, has provided false and dishonest reasons for not investigating and prosecuting the Complaints. On both occasions, Birotte, through his office has stated that his office, the U.S. Attorney's Office in Los Angeles, does not perform investigations (criminal or civil). This is clearly not true. Even the Attorney General himself, Eric Holder, stated, and admitted, at a recent Congressional hearing, that the Justice Department conducted investigations for another entity. So, the statements by Birotte's office that his office does not perform investigations were simply false. They were also a source of dishonesty for Birotte and his office because the reason for submitting the false statements were to avoid investigating the Complaints, which Birotte knew were meritorious, but, which he did not wish to prosecute. Rather than simply admitting that the Complaints had merit, but that he chose not to prosecute them, which would only raise a charge of abuse of discretion (which would nonetheless be sustained and still be a violation of the law on constitutional grounds), Birotte, through his office, chose to lie to a member of the public and to a victim seeking relief, which was dishonest.

Another level of dishonesty evolving from the false statements mentioned above is based on the processing of the criminal complaints filed with the U.S. Attorney's Office. Ordinarily, when complaints are submitted to the U.S. Attorney's Office, they are distributed to one of the other investigative arms of the Justice Department, e.g., the Federal Bureau of Investigation (FBI), the Alcohol, Tobacco, and Firearms (ATF), etc., for investigation. Only after the case has been submitted to the investigative agency and thereafter turned over to the U.S. Attorney, does the U.S. Attorney perform its own investigation if it chooses to. So, when a complaint is initially submitted to the U.S. Attorney's Office, the Complainant is actually requesting the U.S. Attorney to submit the Complaint to an investigative agency, usually the FBI, for investigation. But, the Complaint is simply submitted to the U.S. Attorney's Office for convenience and ratification. Indeed, the Complaint form, which is produced by the U.S. Attorney's Office, informs the Complainant that he or she may submit the Complaint to the U.S. Attorney's Office (for investigation by the proper investigative agency). Therefore, it is dishonest for the U.S. Attorney's Office to respond to a Complainant as if the Complaint was submitted to the U.S. Attorney's Office for investigation, while knowing that the Complaint was actually submitted to an independent investigative agency for investigation; and, thereafter, to falsely state to the Complainant that the U.S. Attorney's Office does not perform investigations (as if the Complainant intended that the Complaint be submitted to the U.S. Attorney, rather than the FBI or other agency). When any Complainant submits a Complaint, it is with the intention that the Complaint be investigated by the proper official, and the U.S. Attorney knows this. Therefore, this was another level of dishonesty (and fraud) associated with the U.S. Attorney's false statement.

Finally, in at least one letter, the U.S. Attorney's Office, knowing that I charged the Defendants in the Complaint with violating federal criminal law, and that I am an attorney, referred me to the State District Attorney's Office for resolution of my charges against the named individuals. Birotte and the U.S. Attorney's Office knew when they referred me to the District Attorney's Office that the D.A.'s Office did not have jurisdiction over my federal charges, and therefore, could not provide me with any relief. Nevertheless, they, in bad faith, made the referral to me anyway (which is probably what they do to many other lay people or citizens who have no knowledge or understanding about jurisdiction). This was dishonest as well.



CRIMINALITY

Not only were the above-mentioned statements regarding the U.S. Attorney's Office not performing investigations false, but they were also a violation of federal criminal law. The statements by the U.S. Attorney's Office claiming that it does not conduct investigations were materially false, because, it, in fact, does conduct investigations, both criminal and civil. And, since the false statements were intended to and did deny the Complainant-victim any relief (i.e.,a proper investigation and prosecution, and any monetary or injunctive relief, i.e., restitution) for his Complaints (by indirectly considering the case closed), the statements were material. Pursuant to 18 U.S.C. sec. 1001, "whoever, in any matter within the jurisdiction of the executive. . . branch of the Government of the United States, knowingly and willfully (2) makes any materially false,. . . or fraudulent statement or representation; or (3)makes or uses any false writing or document knowing the same to contain any materially false. . . , or fraudulent statement or entry; shall be fined under this title (and/or) imprisoned not more than 5 years. . . ."

Birotte, through his Office, knowingly and willfully sent letters to me containing materially false or fraudulent statements (stating that the U.S. Attorney's Office does not conduct investigations). One letter contained no signature, therefore, it had to be assigned to Birotte himself. Further, because the letter was sent to me by mail through the U.S. Postal Service, the action was a version of mail fraud. See 18 U.S.C. sec. 1341 ("Whoever, having devised or intending to devise any scheme. . . to defraud.. . . for the purpose of executing such scheme. . .or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service,. . . or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both." A criminal Complaint was filed against Birotte for his actions as to one letter at least. And, until Birotte is brought within the criminal justice system, by arrest or otherwise, and is cloaked with a presumption of "innocent until proven guilty", he is and remains a criminal. And, a present and active criminal should not be a district court judge.

NOTE : I will forward a copy of this blog to the Senate Judiciary Committee, and UPON REQUEST, I will forward a copy of certain letters to that Committee.



CHARACTER

Even if Birotte is not convicted of a crime, the conduct of a U.S. Attorney submitting false statements to a citizen of the United States attempting to file a criminal Complaint, when that U.S. Attorney is obligated to investigate and enforce the law, speaks volumes about the character of the U.S. Attorney, especially as it relates to being confirmed and assigned to a district court judge position. Should a U.S. Attorney who has demonstrated a pattern of lying to avoid investigating and prosecuting meritorious complaints be assigned to a U.S. District Court judge position? I think not.



SELECTIVE PROSECUTION : VICTIMLESS CRIMES V. CRIMES WITH A VICTIM

Birotte has demonstrated that he will selectively utilize prosecutorial resources to prosecute victimless crimes ahead of crimes with actual victims who have suffered actual, immediate, and specific harm, which is entirely prejudicial to actual victims.

While I have not scanned the entire prosecutorial case record to determine the number of victimless crimes prosecuted ahead of a crime with a victim, and I need not do so in order to prove my point (because no victimless crime should be prosecuted ahead of a crime with a real and actual victim who has suffered real and actual damage--either physical, mental, or property), I will cite to two recent victimless crime cases and my own "crime with a victim" case for comparison.

In 2007, I filed a formal criminal Complaint in and with the U.S. Attorney's Office (and have filed several since surrounding different scenarios and individuals; all meritorious) charging several individuals, state judges, with causing and maintaining my eviction from my home-law office located in Ventura, CA, through unlawful and racially-motivated and discriminatory means. The premises, a storefront business office with living facilities, were both my home and law office. At the time of my eviction, I had lived in the premises about 4 years, and I was still strugggling to make my law practice a success monetarily (as far as benefits to my few clients and the community, I had already been a success, see infra). Also, at the time of my eviction, I was the only Black lawyer practicing in the city of Ventura, and the only Black lawyer with a private practice emphasizing federal law in the County of Ventura, CA (the county where the Rodney King police officers were found not guilty for the beating of King), both the city and county had about a 2% Black population and a 70% white population (i.e., predominantly white), with the remaining percentages spread among the remaining minorities (with Hispanics having the largest percentage).

I had black, white, and brown clients, but my major successes were on behalf of black clients, see, e.g., In the Matter of Robin Juraine Crammond, 23 I & N Dec. 9 (BIA 2001)(en banc) (in this case, it was the parents of Robin, a citizen of Belize, who retained me after Robin had been ordered deported after immigration hearings (Robin was represented by another lawyer for the hearings--I entered the case after the hearings were complete, and basically filed an appeal with the BIA). I moved to re-open the case, was successful, and the deportation order was reversed. However, Robin left the country without proper authorization while the motion was pending, so the reversal was vacated; and Jackson v. Guirbino, 364 F.3d 1002 (9th Cir. 2004)(again, I was retained by Jackson's parents during Jackson's incarceration. When I entered the case, Jackson, who is Black, had already filed his own appeal, pro se, and had also filed his Opening Brief on appeal (and raised multiple issues). So, I had to file a Supplemental Brief. And, it was the Miranda issue that I raised in my Supplemental Brief that caused the reversal of Jackson's murder conviction. A reading of the Court's opinion, however, makes it appear that only one brief was filed with a multitude of immaterial issues. That was not the case). Also, I successfully settled a sexual harrassment case on behalf of a Black woman against the U.S. Navy. So, I, and my law office, clearly was an asset to the community, and especially, the Black community. That is, my services were specifically needed in Ventura County. So when my law office was shutdown, it was not only harm to me, but also to the black community of Ventura County.

However, at the time of my eviction, in 2003, in terms of assets or monies, I simply had enough to maintain myself (but, I had never missed a rent payment throughout my four years of residence and practice, and my manager testified to that fact at a negligence trial--consequently, this is one reason or type of proof which points to my eviction being unlawfully and intentionally obtained), while awaiting for some cases to mature.

I had to move to Los Angeles, where I had family, and I was never able to obtain another home or law office thereafter, to this day. I never recovered from the unlawful eviction, and, if anything, my circumstance deteriorated or got worse.

So, when I filed the federal criminal Complaint in 2007, I specifically sought restitution, including monetary and injunctive relief (i.e., the return of my home-law office). But, other than fraudulent letters, I never received any substantial response from the U.S. Attorney's Office regarding my Complaint, either from the George W. Bush administration or the Obama administration that followed.

However, it is clear that U.S. Attorney Birotte's reasons for not prosecuting the case was not based on the merits of the Complaint, because the Bush administration FBI took some action on the Complaint (based on my submitted evidence alone), i.e., causing two Defendant judges to step down from the bench (but not providing me with any relief), which demonstrated that the Complaint was meritorious. Indeed, the actions of the Bush's FBI was, in reality and unofficially, an NPA (Non-Prosecution Agreement), whereby the Justice Department agrees not to prosecute an individual (upon sufficient probable cause proof that the individual has committed a federal offense) in exchange for the person paying restitution (to the victim of the individual's crime, where there is a definite victim). But, the FBI and the U.S. Attorney's Office, in my case, refused to make the Defendants pay restitution. So, while the U.S. Attorney's Office allowed the NPA Defendants to retire, and escape prosecution, it refused to provide me with any relief for the discrimination. U.S. Attorney Birotte could have and should have enforced the agreement himself once he took office (by requiring the Defendants to pay restitution), but, he has not.

There were other victims as well, including two white clients of mine, who were part of the 2007 Complaint, and who also were ignored. One was Jeanette Andrews, who sought relief regarding discriminatory treatment of her disability discrimination case against the Navy, and Harold Griffith, who sought relief for discriminatory treatment of his Social Security disability case (they both were named Complainants in the 2007 Complaint).

Moreover, there were further victims based on further Complaints filed after the 2007 Complaints, and no action were taken by the U.S. Attorney's Office or Birotte regarding any of the Complaints. All of the Complaints are still pending in the U.S. Attorney's Office in Los Angeles. All of the individuals named in the Complaints (except two from the 2007 Complaint, which were withdrawn) remain pending.


On the other hand, I know of at least two recent personal gain and victimless crimes cases which were prosecuted by the Los Angeles' U.S. Attorney's Office and U.S. Attorney Birotte. Namely, U.S. v. Toby G. Scammell, No. CR 13-0733, a securities case, whereby a former investment fund employee was indicted in October, 2013 on federal charges for insider trading in stock prior to a deal involving the acquisition of one company by another, in which Scammell is said to have "reaped illegal profits of over $192,000"; and the recent indictment of California State Senator Ronald Calderon for bribery and other charges, whereby Calderon is said to have received over $100,000 from bribery schemes. Both of these cases are personal gain cases without an actual victim, other than secondarily the public in some way. But primarily, these are crimes committed for the enrichment of the individual criminal, while the crimes with a victim are intended to and usually do cause specific and individual harm to a specific individual (but, sometimes that harm can be remedied by prosecution and the payment of restitution). Such is the case with my case (as outlined above). Meanwhile, as Scammell and Calderon were being indicted and prosecuted, the Defendants in my Complaints, who have caused actual harm to real victims, were and are being ignored.

My case and the other cases with victims mentioned above were pending at the time the U.S. Attorney's Office prosecuted the Scammell and Calderon cases.

It is prejudicial and nearly a complete abuse of discretion for a U.S. Attorney, any U.S. Attorney, to give priority to victimless cases over cases with actual crime victims, because of the nature of the different circumstances. Very rarely should any victimless crime case be prosecuted before a case with an actual crime victim, especially where a victim is in need of immediate attention to remedy the harm done. Since Birotte has been U.S. Attorney, in my view, he has placed victimless crimes ahead of crimes with actual victims, which evidences poor judgment. And if he displays poor judgment as a U.S. Attorney, he will display poor judgment as an United States District Judge.


FAIRNESS

In my view, the most significant attribute or trait a judge, any judge (state or federal), must possess is the ability to be fair. It is not always easily achieved and much of it must come from within. Most times it requires a high level of strength. It is not easy for some to be fair in America (with the multitude of races, cultures, languages, customs, etc.), but it is achievable. Many times it may conflict with your own values, or with your own personal beliefs as to what is right or wrong. But, one can achieve fairness. For some, like myself, it comes easily and naturally. However, I do not think that U.S. Attorney Birotte has achieved it, and there's no indication that he will achieve it as a district court judge. From my knowledge, experience, and belief, Birotte treats different criminals differently when they should be treated alike, and he treats different crimes alike when they should be treated differently. That is, he favors some high level criminals, e.g., chief executives and/or CEO's of corporations and banks and judges, over low level criminals, which is not only unfair, but also can be unconstitutional and illegal. And, he favors prosecuting victimless crimes over crimes with victims, when it should be the other way around, which is unfair, both to the victims and the public, who likely would not want their resources used in this manner.



U.S. Attorney Andre Birotte should not be confirmed to be a U.S. District Court judge in Los Angeles.


**UPDATE--August 1, 2014

According to the L.A. Times, Birotte has now been confirmed by the Senate. So, he will now be a sitting District Court Judge. He will not be a good one. If he lied as a U.S. Attorney, he will lie as a U.S. District Judge. The Senate confirmation process is a sham and a shame. Qualifications alone is no indication that one will be a good judge. Birotte is proof of that.

CALIFORNIA STATE SENATORS RONALD S. CALDERON AND LELAND YEE V. CALIFORNIA STATE JUDGES STEVEN HINTZ, BARRY KLOPFER, DAVID LONG, AND KEN RILEY***, MICHAEL PASTOR, AND ROBERT PERRY : WHY WERE INDICTMENTS SOUGHT AND OBTAINED BY THE U.S. ATTORNEY'S OFFICES ( LOS ANGELES AND SAN FRANCISCO) FOR SENATORS RONALD CALDERON AND LELAND YEE, BUT NOT FOR STATE JUDGES HINTZ, KLOPFER, LONG, RILEY, PASTOR, AND PERRY , WHEN BOTH GROUPS OF STATE OFFICIALS (SENATORS AND JUDGES) WERE ACCUSED OF VIOLATING FEDERAL CRIMINAL LAW? AND, WHY WERE SENATORS CALDERON AND YEE INDICTED, WHILE JUDGES HINTZ AND KLOPFER WERE ALLOWED TO RETIRE RATHER THAN FACE INDICTMENT? ANOTHER CASE OF SELECTIVE PROSECUTION BY U.S. ATTORNEY ANDRE BIROTTE (AND HIS SAN FRANCISCO COUNTERPART) AND THE U.S. JUSTICE DEPARTMENT. WILL SENATORS CALDERON AND YEE (UNLIKE SEN. RODERICK WRIGHT, CONVICTED ON 8 COUNTS) ASSERT AND RAISE THEIR PRE-TRIAL DEFENSE?

Los Angeles, California


May 5, 2014
(Today's Date)


April 16, 2014
(Original Date)

*Denotes change made in original blog after initial publishing

**UPDATE (Denotes NEW information added to blog after original publishing)

***It is my understanding and belief that all four of these judges have retired; but, that fact does not prohibit or prevent their indictment and prosecution. They could have and should have been indicted before the Calderon-Yee indictments. And, they can be indicted now.

****This blog is being submitted as part of the War on Racial Dsicrimination(WRD) in California and the United States of America.




On one hand, in the past few months, two minority state senators, Ronald S. Calderon and Leland Yee, have been indicted by grand juries for violating federal criminal law. Those indictments were secured by the U.S. Attorney's Offices in Los Angeles and San Francisco, respectively, and, more specifically, for Senator Calderon, by U.S. Attorney Andre Birotte in Los Angeles. On the other hand, six white state judges (in the Central District of California) have been accused of violating federal criminal law, and the U.S. Attorney's Office and Birotte have not sought grand jury indictments against them (or charge them in any other way). So, the question is : why the difference in treatment?

NOTE: Although Senator Yee was indicted out of San Francisco,CA, through the San Francisco U.S. Attorney's Office(Northern District), he can nonetheless allege a difference in treatment as to the Central District judges (because it's the U.S. Justice Department that purportedly is treating him differently, regardless of which U.S. Attorney's Office actually sought the indictment), although I could identify several Northern District federal judges and other officials that Yee could point to in terms of different treatment. But, here, I will rely on the Central District judges, because they are state judges and they provide a more exacting and clearer picture of the difference in treatment between comparative groups, i.e., State Senators and State Judges.





Briefly, in 2007, I filed a federal criminal Complaint in and with the U.S. Attorney's Office in Los Angeles, whereby I charged four of the above-named state judges, among others, with conspiracy to deny constitutional rights under color of law, based on race or color (or racial discrimination), denial of constitutional rights under color of law based on race or color (racial discrimination), and, except Hintz, making and filing false statements during a judicial proceeding(based on Long, Klopfer, and Riley acting as appellate judges). Clearly, the Complaint had merit, because based on my information, understanding, and belief, the FBI took some action on the Complaint, e.g., causing the retirement of Hintz and Klopfer; but, the U.S. Attorney's office refused to seek indictments or otherwise prosecute the judges. However, that 2007 Complaint is still pending, and it was pending at the time that Calderon and Yee were indicted by the respective grand juries. So, U.S. Atorney Birotte, in Los Angeles, chose to seek an indictment of Calderon, but not of Hintz, Klopfer,Long, or Riley.

When the 2007 Complaint was filed, all of the said state judges were members of the Superior Court of California, Ventura County. The charges in the Complaint evolved from the judges' treatment of an unlawful detainer case, whereby I was unlawfully evicted from my home-law office in Ventura, California, *through the acts of the trial judge, Steven Hintz. At the time, I was the only Black lawyer practicing in the predominantly white city of Ventura, CA. And, it is clear that my services were needed, particularly by minorities. See, e.g., In the matter of Robin Juraine Crammond, 23 I & N Dec.9 (BIA 2001)(en banc), and Jackson v. Guirbino, 364 F.3d 1002 (9th Cir. 2004).


In 2011, two additional federal criminal Complaints were separately filed against judges Pastor and Perry of the Superior Court of California, Los Angeles County, on behalf of Dr. Conrad Murray (convicted of the manslaughter of Michael Jackson)(Pastor) and Oscar Grant(deceased black man murdered by a BART police officer in San Francisco)(Perry). Pastor was charged with conspiracy to deny constitutional rights under color of law and Perry was charged with deprivation of rights under color of law and conspiracy against rights. The Complaints are still pending, notwithstanding the U.S. Attorney's Office's refusal to investigate the Complaints; and the Complaints were pending at the time that Calderon and Yee were indicted. So, Birotte chose to seek an indictment of Calderon, but not Pastor and Perry.



With the above in mind, the essential question is :

WHY DID THE U.S. ATTORNEY'S OFFICES IN LOS ANGELES AND SAN FRANCISCO, AND U.S. ATTORNEY ANDRE BIROTTE SPECIFICALLY (FOR CALDERON), SEEK AND OBTAIN INDICTMENTS OF STATE SENATORS CALDERON AND YEE, BUT DID NOT SEEK INDICTMENTS OF STATE JUDGES HINTZ, LONG, RILEY, KLOPFER, PASTOR, AND PERRY, WHEN BOTH GROUPS OF STATE OFFICIALS (SENATORS AND JUDGES) WERE ACCUSED OF VIOLATING PROVISIONS OF FEDERAL CRIMINAL LAW?


Could it be because of the time difference in the actions being brought to the attention of the Justice Department? No, it couldn't be that. The Complaints against the state judges have been pending since 2007, so if the Justice Department intended to seek indictments of the judges it could have and should have been done prior to the Calderon-Yee indictments. Therefore, the time period is current for both the senators and the judges. When the respective U.S. Attorneys presented Calderon's and Yee's cases to the respective grand juries, they could have presented the judges' cases as well.


Could it be because of the nature of the charges? Perhaps. But, it would be an illegitimate basis for not prosecuting the judges. That is, the Calderon and Yee charges are generally personal gain charges, e.g., bribery, money laundering, fraud, filing false tax returns, etc., while the judges' charges are generally directed at causing personal harm to citizens. So that if the nature of the charges was the determinant factor in deciding whether to prosecute or not prosecute the senators or the judges, it would appear that the judges should have been indicted instead of the senators. Certainly, most citizens would be more concerned with protecting themselves from, and would want protection from, state officials causing them personal harm than those officials acting for personal gain, but not causing personal harm to citizens.


Could it be because of the seriousness of the charges? Or, because the personal gain charges were more serious than racial discrimination charges? No, I think not. While the personal gain conduct reflects on the Defendant's character and provides the Defendant with monetary gain, it does not cause direct harm to individual citizens and deprive those citizens of their constitutional rights (but, I'm sure it will be argued that citizens were harmed in some indirect way--like murder is considered a crime against the state or the people, even though, the only direct harm is done to the murder victim ). On the other hand, racial discrimination causes direct and individual harm to the person being discriminated against; if no other type of harm, it causes emotional harm to the person it is directed against. I would love to see the government argue before a court that it thought Calderon or Yee's conduct, e.g., bribery and money laundering, was more serious than racial discrimination, and that's why it decided to prosecute Calderon and Yee and not prosecute the judges.


Could it be because Calderon and Yee are senators and the Hintz and Pastor Defendants are judges? Perhaps, but it would, nonetheless, be an illegitimate and unconstitutional basis for treating the two groups differently, where both groups are state officers, and where both branches of government, legislative and judicial, are equal. Both Calderon and Yee, as well as the judges are high level state officials, and neither group has immunity from prosecution.


Could it be because of gender? No, both the legislators and the judges are males.


Could it be because of race or color? Yes, nearly to a certainty. Both Calderon and Yee are minorities, Hispanic-Latino and Asian; while all the judge Defendants are white (and white males). Considering the factors that I have described and discussed above, the only reasonable and logical reason for the difference in treatment between the State legislators and the State judges is race or color. Calderon and Yee were targeted for indictment and prosecution because they are minority senators. That is, the undertaking of the investigation in the first instance was done because they were minorities, even if there would not have been sufficient evidence at the end to seek an indictment. To the contrary, regarding the white judges, even when there was sufficient evidence at the outset (supplied by the victim)(without further and official investigation) to submit to a grand jury for indictment, the U.S. Attorney, Birotte, refused to seek an indictment. For instance, the FBI acted on the victim's evidence (of racial discrimination) alone in forcing Hintz and Klopfer to step down from the bench or retire. Yet, the U.S. Attorney's Office refuses to seek an indictment of Hintz and Klopfer, because they are white.

Consequently, I conclude that even if there were other factors contributing to the government's decision to indict Calderon and Yee, such as probable cause evidence, the greatest factor was Calderon's and Yee's race or color. The U.S. Attorney's Offices in Los Angeles(and U.S. Attorney Birotte) and San Francisco sought indictments of Calderon and Yee because they were minority senators, which is a denial of equal protection of the law.



SELECTIVE PROSECUTION

State Senators Calderon and Yee were obviously selectively prosecuted by the U.S. Attorney's Offices in Los Angeles (and U.S. Attorney Birotte) and San Francisco. This is especially so when viewed from the perspective or context of the comparative individuals of State Judges Hintz, Klopfer, Long, Riley, Pastor, and Perry. These individuals are sufficient for Calderon and Yee to establish a prima facie case of selective prosecution, and to prove their case.

To prove their prima facie case, Calderon and Yee must only show that: (1) others similarly situated have not been prosecuted, and (2) the prosecution is based on an impermissible motive. Based on the State Judge individuals identified herein, Calderon and Yee have demonstrated both elements.


Here are some of the reasons why State Senators Calderon and Yee are similarly-situated to the State Judge Defendants:

1. Both the Legislative (Calderon and Yee) and Judicial (Hintz,Long, Klopfer, Riley, Pastor, and Perry) Defendants are California State officials and employees.

2. Both the Legislative and Judicial Defendants are high level state officials.

3. Both the Legislative and Judicial Defendants are accused of violating federal criminal law.

4. Both the Legislative and Judicial Defendants are accused of committing federal felonies.

5. Both the Legislative and Judicial Defendants are members of a major Branch of State government, and both Branches are equal to each other.

6. Both the Legislative and Judicial Defendants committed crimes that did not involve direct physical harm to a victim, e.g., murder or mayhem.

7. Both the Legislative and Judicial Defendants are accused of being involved in conpiracies.


The impermissible motives are discriminatory purpose and intent based on race or color, or racial discrimination. If Calderon and Yee were white males, they would not have been indicted. If they were white male Senators, they likely would not have even been investigated by the U.S. Attorney's Office or the U.S. Justice Department. *On what basis did the Justice Department decide to investigate Calderon and Yee? I take no position regarding other high level State positions at this time.



CALDERON'S POSSIBLE VINDICTIVE PROSECUTION CLAIM

In addition to the selective prosecution defense, it appears that Calderon may also have a vindictive prosecution claim based on his refusal to wear a wire for the government, if that is true. I will be the first to admit that I have insufficient verified factual information to make any credible determination of the claim. I am here simply suggesting that the scenario, if true, might provide Calderon with a vindictive prosecution claim in support of his selective prosecution claim. Would the government have sought the indictment against Calderon if he had agreed to wear the wire?



State Senator Roderick Wright, who is Black, also had a selective prosecution defense in his state criminal trial (regarding a different matter--i.e., voting fraud--than the matter herein) but he chose not to raise it. He was convicted on 8 Counts and awaits his sentence, after never having raised the defense. And, he was aware of it.

Will Senators Calderon and Yee also refuse to raise the pretrial defense, and give the government a free ride (by not having to prove that they treated Calderon and Yee differently or did not discriminate against Calderon and Yee, based on their race)? Or, will they step up to the plate and take their at bat? We'll see.




MINORITY MEMBERS OF THE CALIFORNIA STATE SENATE

It appears to me that most, if not all, remaining minority members of the California State Senate would strongly urge Senators Calderon and Yee to assert and raise their pre-trial selective prosecution defense, in order to try and prevent any future discriminatory and/or unconstitutional indictments and prosecutions of other minority members of the Senate. I know there may be some, at first blush, that will acclaim, "that's not going to happen to me, because I'm not going to engage in that type of conduct or do those type of things." However, that 's not the point. The point is: minority State Senators should not have to go through or be susceptible to closer scrutiny, e.g., preliminary or "hunch" investigations and search warrants, than their white counterparts. For example, take the case of Sen. Wright again. It is clear from the commentary surrounding Sen. Wright's case, and from Senator Wright himself, that other, white, State senators probably have lived at or used illegal addresses regarding the submission of their proper addresses for voting and representation of their respective districts. It is equally clear that the government did not pursue those white senators for criminal violations regarding residency.

Senator Wright was pursued or targeted because he is Black. More importantly, he was likely scrutinized in the first instance because he is a minority. So, the question for the remaining minority senators is not whether they will likely engage in the conduct similar to Calderon and Yee, but rather, are they likely to continue to be scrutinized for criminal conduct by the government (state and federal) closer than their white State counterparts (be they senators, judges, or Executive Branch officials)? I believe the answer is "yes". Therefore, if that's the case, that should be the motivation for the minority State Senators to urge Calderon and Yee to assert and raise their pretrial defense of selective prosecution. Not to protect them from future indictments (because they shouldn't worry about indictments if they will not engage in any illegal conduct), but to protect them from discriminatory and/or unconstitutional government scrutiny of them because they are minorities (while refusing to implement the same type of scrutiny over or regarding white senators and judges), *and to protect them from future discriminatory and unconstitutional indictments.




A FINAL NOTE: If Calderon and Yee decide to exercise their right and assert their pre-trial selective prosecution defense, were it to be denied, they would have a right to an immediate direct appeal because a determination of the matter would affect their right not to have to undergo a trial altogether and it is separate from the merits of the indictment charges themselves.

JUDGES JAY S. BYBEE, WILLIAM FLETCHER, AND RICHARD CLIFTON V. INDIAN DIPLOMAT-DOCTOR DEVYANI KHOBRAGADE : BYBEE, FLETCHER, AND CLIFTON LIED TO DENY A BLACK LAWYER HIS CIVIL RIGHTS CLAIMS AND HIS HOME-LAW OFFICE, AND RELATED COMPENSATION AND TO COVER-UP TWO ILLEGAL ORDERS ISSUED BY A DISTRICT COURT JUDGE; BUT, NO INDICTMENTS. ON THE OTHER HAND, KHOBRAGADE PURPORTEDLY LIED ABOUT WAGES PAID TO A DOMESTIC WORKER, AND SHE IS INDICTED TWICE, FOR THE SAME CHARGES . WHY? COULD IT BE BECAUSE OF HER RACE, OR SELECTIVE AND VINDICTIVE PROSECUTION? CLEARLY.

Los Angeles, California



April 23, 2014
(Today's date)

April 2, 2014
(Original Date)

*Denotes change made in original blog after initial publishing

**UPDATE (Denotes NEW information added to blog after original publishing)




On March 14, 2014, or thereabouts, the U.S. Attorney's Office in Manhattan (N.Y.) issued a second indictment against an Indian diplomat after the first indictment was dismissed by a federal judge based on diplomatic immunity. The question is : what motivated the U.S. Justice Department to go after the diplomat, Devyani Khobragade, a second time (after the first indictment was dismissed) based on the same facts? And, further, was that motivation based on Khobragade's race or color (Indian/brown) or the Justice Department's selective and vindictive prosecution of her? I conclude that the second indictment was based on all three factors: race, selective prosecution, and vindictive prosecution.

In clarifying my conclusion, I will rely on and use some of the facts of the 2014 Federal Criminal Complaint that I recently filed against Ninth Circuit judges Jay S. Bybee, William Fletcher, and Richard Clifton (hereinafter "Bybee" or the "Bybee case"), among others, as a comparative base. I will compare some of the elements of my Complaint, such as the parties and the charges, to those of the Khobragade case, in explaining why I believe and conclude that the Justice Department's pursuance of Khobragade is not only racially-motivated, but is being perpetrated in a selective and vindictive manner.

Briefly, Khobragade is a citizen of India, and she is also a medical doctor, a former member of the Indian Foreign Service, and a former Deputy Consul General in the Consulate General of India in New York (Wikipedia). She also, prior to her departure from the United States, "was granted a G-1 visa by the United States Department of State. . . under the terms of Section 15 of the Headquarters Agreement between the United Nations and the United States which gives her full diplomatic immunity and would preclude any court jurisdiction over her. The U.S. officials said that the State Department had no choice but to grant Khobragade full diplomatic immunity once she was accredited to the United Nations because she did not pose a national security threat." (Wikipedia). From November 2012 until June 2013, a one Sangeeta Richard worked for Khobragade as a nanny and domestic help. Richard is an Indian national and at one time possessed an Indian diplomatic passport.

Khobragade apparently hired Richard in India for work to be performed in the U.S. Thus, Richard had to obtain a visa to travel to and enter the United States legally. Khobragade drafted an agreement to map out the terms of the working relationship between her and Richard, especially regarding the amount of money Richard would be paid. Khobragade attached this agreement to Richard's visa application (as part of the application) and submitted it to the United States government. Richard was granted and issued a visa.

Apparently, after Khobragade and Richard arrived in the United States, and Richard began working for Khobragade, at some point, friction developed between the two, apparently over Richard's working conditions and pay. Eventually, Richard (apparently joined by the U.S. government) filed a federal criminal complaint against Khobragade (Khobragade also filed a complaint against Richard in the Delhi Court in India) with the Department of State, it appears. Based on this complaint, Khobragade was arrested and eventually charged with visa fraud and making false and fraudulent statements in support of a visa application filed by Khobragade for another individual (Richard).


Now, for the comparative facts of Bybee : Three federal appellate judges were charged by the Complainant with making a false and fraudulent statement during a judicial proceeding, and contained within that allegation would be the allegation of the judges making a false and fraudulent statement in support of a decision that would benefit another individual (district judge Cormac J. Carney). Or, alternatively, the allegation can be interpreted as submitting or filing a decision (that would benefit another individual) that the judges "knew to contain materially false and fraudulent statements"(the language of the charge against Khobragade)(Wikipedia).


With the above in mind, we now ask the essential question :

WHY DID THE U.S. DEPARTMENT OF JUSTICE INDICT DEVYANI KHOBRAGADE TWICE ON THE SAME CHARGES AND NOT INDICT JUDGES JAY S. BYBEE, WILLIAM FLETCHER, AND RICHARD CLIFTON ("BYBEE") ONCE FOR SIMILAR CHARGES?


Could it be because of a time difference in the actions being brought to the attention of the Justice Department? No, it couldn't be that. Khobragade was re-indicted on March 14, 2014, after being originally indicted on January 9, 2014; the Bybee Complaint was filed on February 19, 2014, and by March 7, 2014, the government decided that it was not going to indict Bybee (or the others). So, Khobragade and Bybee happened at or about (and it doesn't need to be exact) the same time. And even if it wasn't at the same time, as long as the Bybee indictment could have been brought near the time (before or after) or when the Khobragade second indictment was brought, time would be irrelevant. And, it is.

Could it be because of the nature of the charges? Or, because the Khobragade charges were somehow so different or unique that they required prosecution a second time? No. The Khobragade charges are simple fraud and making false statement charges. Run-of-the-mill charges. Making a false statement (in violation of federal law) is making a false statement. As long as the false statement violates federal criminal law, the context of the false statement, e.g., a visa application versus a judicial decision, is immaterial; and, in most cases, irrelevant, except perhaps regarding the penalty or sentence upon conviction. Moreover, Khobragade was charged with making a false statement pursuant to or in violation of 18 U.S.C. sec. 1001. And, guess what? The Bybee Defendants were charged (by the victim) with violating 18 U.S.C. sec. 1001 also.


Could it be because of the seriousness of the charges? Or, because the Khogragade acts were so serious, significant, or harmful, that the Justice Department felt compelled to prosecute Khobragade a second time? No. Khobragade purportedly lied regarding the amount of wages that she was paying Richard, or some other matters, but, she did not lie, if she lied, to avoid paying Richard altogether or at all. Richard complained, I believe, that she was not paid minimum wage or contractual wages, and the wage dispute also went to the visa fraud. This was a simple wage dispute that evolved into a federal matter because it occurred during federal proceedings; but admittedly, if Richard's accusations of draconian or unbearable working conditions are valid, it would elevate the seriousness of the actions. However, even with deplorable working conditions added to the equation, Khobragade's lies and fraud does not surpass the quality and seriousness of the fraud and false statement perpetrated by the Bybee Defendants. First of all, the Defendants themselves represent different types of liars than Khobragade, notwithstanding Khobragade's diplomatic/medical doctor status. The Defendants in Bybee, federal appellate judges, represent the highest level of the American judicial system and process, short of the United States Supreme Court. Therefore, short of the Supreme Court, they are expected to possess and implement the highest standard of judicial conduct in the land. And, they are expected to display the highest standard of character in the land. So, a lie by a federal appellate judge is not the same as a lie by a foreign diplomat, who likely didn't even consider American federal law
when she made her statements. Conversely, the American federal appellate judges are supposed to and expected to know federal law dealing with false statements and fraud, and the attendant consequences.

Next, the lie by the Bybee Defendants was much more serious than the lie by Khobragade. The lie by the Bybee Defendants was for the specific purpose of denying a Black lawyer his home-law office (which was taken 10 years ago), his claims in his federal civil rights complaint, and all compensation (not just a part of it, i.e., Khobragade didn't lie, if she lied--I was not a direct party or victim to the facts of her case, to deny Richard all of her pay or compensation; her lies just went to how much Richard was to be paid), and to cover up for a federal district judge who issued two illegal orders in the district court. The seriousness of this purpose for lying, alone, surpasses any seriousness of Khobragade's lies. Thus, the Justice Department didn't pursue a second indictment of Khobragade because of the seriousness of her lies; otherwise, it would have indicted the Bybee Defendants as well.


Could it be because of the seriousness of the harm or damage caused to the victim, such that the U.S. Justice Department felt compelled to seek restitution for her or him, e.g., the Bernie Madoff matter? No, this could not have been a consideration, because the harm or damage to the Bybee victim (loss of a home-law office and resulting damages for over 10 years) was far more significant than the loss suffered by the Khobragade victim (i.e., loss of minimum wage fees for several months, or perhaps more based on one's interpretation of the employment agreement between Khobragade and Richard), and, therefore, the Bybee harm would necessarily have required the Justice Department to prosecute the Bybee Defendants if harm to the victim was the reason the Justice Department brought the second indictment against Khobragade. So, harm to the victim was not the determinant factor in the Justice Department's decision to indict Khobragade the second time.


Could it be because Khobragade's case was brought in New York and Bybee's case was brought in California? No. The U.S. Attorney's Office in Los Angeles has the same power and authority as the New York Office. And, both Offices are under the direction of the U.S. Justice Department. And, it's ultimately the U.S. Justice Department that decides to bring a prosecution or decides not to bring a prosecution, through the respective U.S. Attorney's Offices.


Could it be because of the respective professions, with Khobragade being a medical doctor and diplomat, and Bybee being appellate judges? No, the crimes charged against Khobragade and Bybee (by the Complainant) can be committed by anyone, regardless of their profession; and judges committing criminal acts (unlike civil acts during civil proceedings) do not enjoy judicial immunity. Therefore, the fact that Bybee are judges and Khobragade is a doctor-diplomat makes no difference, and if it does or did, it's illegal (and would be a ground for dismissal of the indictment).


Could it be because Khobragade is a female or woman, and the Bybee Defendants are male? Possibly. Or, maybe even probably. But, if true, it would be an illegal basis, and a basis for dismissal of the indictment. But, it clearly is a possibility or probability, when matched against the males in Bybee.


Could it be because of Khobragade's national origin, India? Yes, there is a strong probability to a certainty that Khobragade's national origin is a basis for her second indictment because of some friction between the United States and India, especially regarding Richard. See, infra. "On March 15, 2014, Indian government spokesman Syed Akbaruddin said India was 'disappointed' by the U.S. Justice Department's second indictment of Khobragade, calling the decision to do so 'unnecessary' and warned that: 'Any measures consequent to this decision in the US will unfortunately impact upon efforts on both sides to build the India-US strategic partnership, to which both sides are committed.' He added that the Indian government will 'no longer engage on this case in the United States' legal system.' " Wikipedia. "On March 14, 2014, when Khobragade was indicted again after a dismissal of the first indictment on March 12, State Department Spokeswoman Marie Harf told reporters that the State Department stands by the court papers it had filed opposing Khobragade's bid to get the charges dismissed." Id. However, if the indictment was handed down or Khobragade was charged based on her national origin, then the indictment would be illegal and a ground for dismissal.


Could it be because of Khobragade's race or color? Yes, nearly to a certainty. (Khobragade's race or color is tied to her national origin, that is, Indian and black or brown in color). This is especially so when viewed in the context of the white male Defendants of Bybee. The Bybee Defendants were not indicted at all for similar crimes to Khobragade's, i.e.,fraud and false statements, and violation of 18 U.S.C. sec. 1001; while Khobragade was indicted twice. Furthermore, in the related state case of New York v. Strauss-Kahn (involving a foreign dignitary and the accusations of a minority domestic worker), the New York D.A. ultimately dismissed the indictment against Strauss-Kahn, who is a white male, because, purportedly, the victim had credibility problems (e.g., changing her version of the events surrounding the alleged assault or rape). In Khobragade's case, Richard also had credibility problems("On November 19, 2013, a Delhi Court issued a non-bailable arrest warrant against Richard, which was forwarded to US State Department and US embassy for her immediate arrest", Wikipedia), but, instead of accepting the dismissal of the indictment against Khobragade (for diplomatic immunity), the Justice Department, through the U.S. Attorney's Office, re-issued the indictment. Even though Strauss-Kahn is a state case, it provides some support for the notion that Khobragade was treated differently because she is a minority female, or because she is not white. Furthermore, Khobragade and Indian officials complained that "U.S. Marshals Service officers strip-searched Khobragade and held her in detention alongside other prisoners." L.A. Times, "India decries new U.S. indictment", March 16, 2014. "Indian officials vehemently complained that she had been mistreated." Id. Does anyone seriously believe that if the three federal Circuit judges in Bybee were arrested that they would be subjected to a strip search? Notwithstanding the New York U.S. Attorney maintaining that "Khobragade was treated in accordance with the law and given some privileges that American arrestees wouldn't get. . . ." Id.

Additionally, this writer, just last year, represented an Indian-American male, Syed Jawaid, who sued the Department of Homeland Security for employment discrimination, charging racial and religious discrimination. He clearly had a meritorious case, and, but for a biased administrative judge (who conducted the hearing), he should have won his case on the merits. He was clearly discriminated against because he was Indian and Muslim. His case is now before the Equal Employment Opportunity Commission on appeal. Moreover, this same Indian was involved with one of my civil rights claims against the government, that is, the Fourth Amendment claim of intercepting and searching his mail sent to me, as his attorney, in violation of both his search and seizure rights, his privacy rights, and his religious rights (because I believe it was done in part because he is Muslim, with an Indian-Muslim name)(NOTE: Mr. Jawaid is now deceased, but he submitted an *affirmation supporting the Fourth Amendment claim before passing). This is one of the claims that the Bybee Defendants ignored in lying to deny me relief.

Finally, another view of the racism injected into Khobragade's case can be seen through the lens of the early Jim Crow era. That is, the Justice Department persistently and aggressively indicted and re-indicted Khobragade based on a complaint filed by Richard, or an Indian (minority) complaining about another Indian (minority). Yet, with the Bybee case, when a Black man filed a complaint against three white men, the Justice Department refused to even investigate the Complaint, which harkens back to the Jim Crow days (and earlier) when white men could inflict whatever damage they wanted against Black men and women, e.g.,taking their land, raping the women, lynching the men, etc., and nothing was done. Here, in Bybee, a Black man complained to the Justice Department about three white men illegally (by lying) denying him re-possession of his home-law office and compensation for his civil rights claims, and nothing was done (either by the Justice Department or the Bybee Defendants, when both knew or should have known that the Black lawyer's law office was unlawfully taken).

Moreover, when the Bybee Defendants lied to deny the black lawyer his home-law office, there was an extra layer of invidiousness or racial malice involved, and it likely impacted the minority community of Ventura County, CA. When the black lawyer's office was initially shutdown, in 2003, through the unlawful eviction caused by a white state judge, Steven Hintz, the lawyer was the only Black lawyer practicing in the city of Ventura, CA (with a population of approx. 110,873, with 70% white, 25% Hispanic, 3% Asian, and less than 2% Black), and the only Black lawyer with a practice emphasizing federal law in the County of Ventura (the county where the police beating Rodney King were acquitted)(with a total population of approx. 600,000, with 70% white and less than 2% Black)(the population numbers and racial percentages have remained approximately the same both at the time of the initial eviction of the black lawyer and presently), and it was clear that my services were needed in the community, especially by minorities. See In the Matter of Robin Juraine Crammond, 23 I & N Dec. 9 (BIA 2001)(en banc), vacated on other grounds (in this case, it was the parents of Robin who retained me after Robin had been ordered deported after immigration hearings (Robin was represented by another lawyer for the hearings--I entered after the hearings were complete, and basically filed an appeal with the BIA). I moved to re-open the case, was successful, and the deportation order was reversed. However, Robin left the country without authorization while the motion was pending, so the reversal was vacated); and Jackson v. Guirbino, 364 F.3d 1002 (9th Cir. 2004)(again, I was retained by Jackson's parents during Jackson's incarceration. When I entered the case, Jackson had already filed his own appeal, pro se, and had also filed his Opening Brief on appeal (and raised multiple issues). So, I had to file a Supplemental Brief. And, it was the Miranda issue that I raised in my Supplemental Brief that caused the reversal of Jackson's murder conviction. A reading of the Court's opinion makes it appear that only one brief was filed with a multitude of immaterial issues, and that was not the case). Therefore, when the Bybee defendants lied to deny the Black lawyer his law office, they also acted to continue to deny likely minority citizens from receiving representation in Ventura County (in addition to getting rid of the only Black lawyer in the City of Ventura). This was a continuation of the Jim Crow racism perpetuated by the initial false statement of the Bybee Defendants in their so-called decision.

This Jim Crow racism affected Khobragade by allowing the Justice Department to pursue her because she is not white, while ignoring the Bybee Defendants because they are white, when they both (Khobragade and Bybee) are accused of committing the same crimes (fraud and making a false statement).


Consequently, I conclude that even if there were other factors contributing to the government's decision to indict Khobragade a second time, the greatest factor was Khobragade's race or color (Indian or brown-black). The second greatest factor was her sex or gender, female. If Khobragade was not an Indian female, she probably would not have been indicted a second time. That is, had she been a white female instead of an Indian or brown-black female, she probably would not have been indicted a second time. She was indicted a second time because she is Indian or brown-black, which is a denial of equal protection of the law.



SELECTIVE PROSECUTION

It seems clear that Khobragade was selectively prosecuted by the Justice Department. While there are probably other cases, both in New York and other states, that could be used for comparison, the Bybee individuals and case is sufficient for Khobragade to establish a prima facie case of selective prosecution, and to prove her case. But, I know of other individuals and cases as well.

To prove her prima facie case, Khobragrade must only show that : (1) others similarly situated have not been prosecuted, and (2) the prosecution is based on an impermissible motive. Based on Bybee, she has demonstrated both elements.

Here's at least five reasons why she's similarly-situated to the Bybee Defendants:

1. The federal criminal charges against both are similar : both Khobragade and Bybee are charged with making false statements and fraud, in violation of 18 U.S.C. sec. 1001. Further, Khobragade is charged with making false statements in support of or on behalf of another (Richard); Bybee is also charged (by the victim) with making a false statement on behalf of or to support another (a district judge, Cormac J. Carney).

2. Both Khobragade and Bybee maintain what can be perceived as high level government positions, that is, diplomat-medical doctor and federal Circuit judge.

3. Both Khobragade and Bybee had complaints filed against them by minority victims.

4. In both the Khobragade and Bybee cases, the minority victims claimed that they suffered financial losses at the hands of the respective Defendants.

5. In both cases, the false statement and fraud accusations are based on papers filed with a major Branch of government : Khobragade's papers (visa application with attached employment contract) were filed with the Executive Branch (State Department) and Bybee's papers (an appellate decision) were filed with the Judicial Branch (9th Circuit Court of Appeals).


And, of course, the impermissible motives are discriminatory purpose or intent based on race and gender, with the predominant motive being racial discrimination. If Khobragade was a white male, she would not have been re-indicted. If she was a white female, she would not have been re-indicted. If she was an Indian male, she probably would have been re-indicted. But because she is an Indian female, she was re-indicted. I take no position on the original indictment, my position and concern here is with the re-indictment or the second indictment only. Again, if Khobragade was not an Indian female, she would not have been indicted a second time for the same offenses.



VINDICTIVE PROSECUTION

In support of her selective prosecution defense, and it is a defense (usually a pre-trial defense, but it also can be raised post-trial under certain circumstances), Khobragade also has a vindictive prosecution claim. That is, that the Justice Department indicted her the second time because she "exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness". This is also her prima facie showing.

Some of the circumstances, if true, that give rise to an inference of vindictiveness are:

1. "Khobragade was transferred by the government of India to the UN mission in New York, subject to clearance from the United States Department of State, which would entitle her to full diplomatic immunity. Her former post only entitled her to consular immunity." Wikipedia. It is the full diplomatic immunity that provided Khobragade with the basis for the dismissal of the indictment. The consular immunity would not have been sufficient. U.S. Ambassador to India Nancy Jo Powell "clarified that immunity from U.S. courts only applies to 'acts performed in the exercise of consular functions '". Id. So, clearly, the U.S. government did not appreciate this action by the Indian government, which provided a basis for dismissal of the indictment that was not there previously, and, which in fact, prevented the indictment from being executed.

2. "On January 8, 2014, the U.S. issued Khobragade the G-1 visa that granted her full diplomatic immunity. Following this an unknown US State official is reported to have stated 'The US requested waiver of immunity (of Devyani Khobragade). India denied that request.'" Wikipedia. If true, the United States probably didn't appreciate the Indian government's refusal to waive immunity, which, clearly, it had a right to do. It would be the same as asking a criminal defendant to waive his right to an attorney.

3."On 10 January the Indian government ordered the expulsion of US diplomat Wayne May because he had assisted Richard's family in securing T-visas and traveling to the United States. Media sources also quoted disparaging remarks about India and Indian culture made by May and his wife on their personal social media accounts since their posting to New Delhi." Wikipedia. If true, the expulsion of May was a sufficient basis for the United States to want to retaliate against Khobragade and indict her a second time. Take the recent example of the conflict between Russia and the United States. When the United States took some action against Russian officials as part of a sanction against Russia, the Russian government in turn took action against certain American officials.

4. The U.S. government knows that Khobragade has two American children still living in the U.S., and a second indictment with an associated arrest warrant will likely keep Khobragade from seeing her children (which is a type of punishment) or prompt her arrest (after re-entering U.S. soil) because of her desire to see them. Without the second indictment, Khobragade would be free to see her children as she pleases and raise them in the United States. Now, she must rely on her husband to travel to India with the children in order to see them, and to raise them in the United States.


Thus, Ms. Khobragade has a valid selective prosecution defense, supported by a valid claim of vindictive prosecution, which together should cause the dismissal of the second indictment against her.