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.