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Old 12-19-2013   #41
jmm99
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Default A Bit Ironic, This ...

both prosecutor



and accused



were born in India.

This is a Federal case - not a NY state case (not NYC cops and prosecutors). If you are familiar with current US Marshal Service procedures for arrest and detention (I'm not), you can tell whether guidelines were met or not. The following is from the Wiki, based on media accounts; only provides a framework and has to be confirmed by reference to the court documents:

Quote:
Charges on Devyani Khobragade

Devyani Khobragade was charged on December 11, 2013, by a Special Agent with the United States Department of State, Diplomatic Security Service. The charge alleges that Khobragade committed Visa Fraud willfully and under penalty of perjury under Title 28, United States Code, Section 1746. It further alleges that Khobragade submitted an employment contract to the U.S. Department of State, in support of a visa application filed by Khobragade for another individual, which she knew to contain materially false and fraudulent statements[16].

Under the verbal agreement in India, it is alleged, Khobragade agreed to pay a starting salary of 25,000 rupees per month, plus an additional 5,000 rupees for overtime. Based on exchange rate at that time 30,000 rupees is equivalent to $573.07 U.S. dollars[16] which at 40 hours per week equates to a rate of $3.31 per hour.

In the visa application form submitted on October 15, 2012, however, Khobragade made a statement that she would be paying Sangeeta around $4,500 per month, the complaint says.[16]

Also Khobragade executed a contract with Sangeeta Richard which stipulated her hourly salary in the U.S. would be $9.75 and that the normal working hours per week shall be 40. This contract was submitted to the U.S. government as part of the visa application. Khobragade also instructed her not to say anything to the embassy interviewer about being paid 30,000 rupees per month.[16]

It is alleged that shortly before departing to the airport in India, Khobragade asked Richard to sign another employment contract, which was not to be revealed to the U.S. government.[17] As per this contract she was to be paid an expected salary of Rs. 30,000 per month.[16]

Arrest

Based on the charges filed by by a Special Agent with the United States Department of State, Diplomatic Security Service, the United States Magistrate Judge Debra Freeman issued an arrest warrant against Khobragade. Khobragade was arrested in New York on December 12, 2013 by United States Marshals after she dropped her daughter at school[18].

She was later handcuffed; strip searched, which allegedly included a cavity search[19] and confined with other prisoners after her detention. Khobragade was detained for six hours and released on a $250,000 bond after pleading not guilty and surrendering her passport.[2][3][5][6]

Reactions

United States

On December 18, 2013, John Kerry expressed regret over the arrest and strip-search of the Indian diplomat Devyani Khobragade and empathised as a father of two daughters at similar age as Khobragade. [20]

Manhattan federal prosecutor Preet Bharara whose office had filed the charges,[21][22] defended the handling of the arrest and custody, though his office was not involved. He claimed that Khobragade was accorded courtesies well beyond what other defendants, most of whom are American citizens, are accorded. [17]
(footnotes in original).

The official DoJ (Southern District of New York) statement deals with the prosecution, and not directly with the whys and wherefores of the original complainant, the reviewing magistrate and the arresting officers.

The complaint is here - two counts.

18 USC § 1546 - Fraud and misuse of visas, permits, and other documents.

18 USC § 1001 - Statements or entries generally.

18 USC § 1002 - Possession of false papers to defraud United States.

These are 5-10 year felonies.

BTW: I tend to agree with Ray about the almost terminal stupidity of the US DoS when it comes to India - an opinion developed over the years (which takes us far from this case - or the 1971 war, for that matter).

And, John Kerry, again tries to own both sides of an issue, Devyani Khobragade Row: Secretary Of State John Kerry Expresses ‘Regret,’ While US Prosecutor Defends The Arrest (by Amrutha Gayathri, December 19 2013). Does Mr Kerry disown the complaint brought by his own department's Mark Smith? Not that I can see. So, we have something of a "non-regret, regret".

Regards

Mike
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Old 12-19-2013   #42
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Sorry for the lecture but you know me
I don't mind and I don't think it is a lecture. It is just passing on some things you know that I don't. You, Ray and Omar are my go to girl and guys on the sub-continent.
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Old 12-19-2013   #43
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Ray:

All those things you bring up will be adjudicated.

From what I understand Preet Bharara is a very sharp guy and a very hardnosed guy. On CNBC they always remark that he is one guy you don't want to be going after you.

One interesting thing he brought up in the statement Madhu linked to is there is vocal exception taken to the treatment of Ms. Khobragade but not such vocal exception taken to the treatment of Ms. Richard.

I have another question. Is Ms. Khobragade politically connected somehow? Is she related to somebody big? If she was a diplomat from Africa or Chicago I would say darn right she is. But I don't know about India so much.
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Last edited by carl; 12-19-2013 at 08:29 PM.
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Old 12-19-2013   #44
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As I have no knowledge about the case itself I won't comment on the legal aspects but it is certainly difficult to imagine such a thing happening consciously to a foreign person of such status in Italy. Not that every foreigner is handled with kid gloves.

Procedures may be procedures and everybody might get treated according to the same rigid rules but I'm pretty sure quite a few guys in Washington are less then happy about the actions. In general a more relaxed approach to persons with some diplomatic status is more diplomatic and benefits the host nation more. If the Indian side was informed by the potential issue over diplomatic channels I'm still somewhat surprised that the US side of those channels did not make it, in their own interest, 'clear' to the prosecutor stating that the specific dipomatic status 'did' protect her.

The world of diplomats quite a few players will take note of the US way to interpret the specific status and on the actions of it's police force. Who knows what the future brings.
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Old 12-19-2013   #45
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Old 12-19-2013   #46
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Firn:

One of the characteristics of the American persona is that 'I am just as good a man as you are'. From that you get everybody gets treated the same, especially when dealing with the cops. Not that is an ideal, not always in play, but the ideal.

If somebody from DC was to interfere with a criminal prosecution because 'She's special', that wouldn't go over too big with the Americans. No, that wouldn't go over at all. Not to mention that if the US Attorney could be so easily influenced with a discreet word, you don't really have the rule of law do you?

Actually, for a lot of us flyover people, we don't give a hoot if the guys in Washington are less than happy. Defenestrate 'em.
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Old 12-19-2013   #47
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Default Tracing back ...

from arraignment before the Federal magistrate (pursuant to the DoS complaint which we have) about 4pm, she was in custody of the US Marshals Service from about noon. This was the most verbatim statement I could find, as reported by PTI, US Marshals (Press Trust of India, Washington, December 19, 2013):

Quote:
Indian diplomat Devyani Khobragade, arrested last week in New York on charges of visa fraud, was not subject to cavity search, as being alleged, the US Marshals Services claimed today.

"In reference to your question about the cavity search, the answer is no," Nikki Credic-Barrett, spokesperson of the US Marshals Service, told PTI in response to a question on the allegations by the family of the senior Indian diplomat that she was subject to cavity search.

"Devyani Khobragade was transferred to the US Marshals at approximately noon, December 12, pending her initial appearance before a United States federal magistrate judge," the spokesperson said.

"After her appearance, she was released at approximately 4 p.M. The same day. Khobragade was subject to the same search procedures as other arrestees held within the general prisoner population in the Southern District of New York, which in this case was a strip-search," Credic-Barrett said.

"In reference to the DNA swab, the responsibility for collection of a DNA sample was that of the arresting agency, US Department of State, Bureau of Diplomatic Security," she said when asked about the allegations of DNA swab.
The applicable USMS Directive is here; and the point of controversy will be this:

Quote:
3. Strip Search: A complete search of a prisoner's attire and a visual inspection of the prisoner's naked body, including body cavities. The following procedures are applicable to a strip search:

a. Strip searches on prisoners in custody are authorized when there is reasonable suspicion that the prisoner may be (a) carrying contraband and/or weapons, or (b) considered to be a security, escape, and/or suicide risk. Reasonable suspicion may be based upon, but is not limited to, one or more of the following criteria:

1) Serious nature of the offense(s) charged, i.e., whether crime of violence or drugs;

2) Prisoner's appearance or demeanor;

3) Circumstances surrounding the prisoner's arrest or detention; i.e., whether the prisoner has been convicted or is a pretrial detainee;

4) Prisoner's criminal history;

5) Type and security level of institution in which the prisoner is detained; or

6) History of discovery of contraband and/or weapons, either on the prisoner individually or in the institution in which prisoners are detained.
I expect the USMS will defend its officers' decision on the basis of 5 & 6.

Please note that this is a "false statement" case - a Martha Stewart redux; and technically the legality of the search does not bear on that charge.

And, a "whoa Silver" on those talking about generic "US police". This case was brought by the US Department of State - and the arrest and initial custody (until noon) was by DoS Diplomatic Security officers. I expect that we'll also find out that some diplomatic "back channeling" went on before the arrest.

Regards

Mike

Last edited by jmm99; 12-19-2013 at 11:28 PM.
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Old 12-20-2013   #48
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India-US diplomat row: The Devyani Khobragade case looks all maid up

Why did the US grant visas to Sangeeta Richard's family and fly them out to the US two days before Devyani was arrested?

http://www.dnaindia.com/india/report...aid-up-1937478
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Old 12-20-2013   #49
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Originally Posted by Ray View Post
Why did the US grant visas to Sangeeta Richard's family and fly them out to the US two days before Devyani was arrested?
About that question, Preet Bharara had this to say:

"Fifth, as has been reported, the victim's family has been brought to the United States. As also has been reported, legal process was started in India against the victim, attempting to silence her, and attempts were made to compel her to return to India. Further, the Victim's family reportedly was confronted in numerous ways regarding this case. Speculation about why the family was brought here has been rampant and incorrect. Some focus should perhaps be put on why it was necessary to evacuate the family and what actions were taken in India vis-a-vis them. This Office and the Justice Department are compelled to make sure that victims, witnesses and their families are safe and secure while cases are pending."

It appears you don't want to mess with Mr. Bharara.
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Old 12-20-2013   #50
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Originally Posted by carl View Post
About that question, Preet Bharara had this to say:

"Fifth, as has been reported, the victim's family has been brought to the United States. As also has been reported, legal process was started in India against the victim, attempting to silence her, and attempts were made to compel her to return to India. Further, the Victim's family reportedly was confronted in numerous ways regarding this case. Speculation about why the family was brought here has been rampant and incorrect. Some focus should perhaps be put on why it was necessary to evacuate the family and what actions were taken in India vis-a-vis them. This Office and the Justice Department are compelled to make sure that victims, witnesses and their families are safe and secure while cases are pending."

It appears you don't want to mess with Mr. Bharara.
I think it is disingenuous of Bharara or anyone to feel that the US is the sole refuge for justice in the whole world, while every other country's systems and judiciary are flawed. It does appear a bit arrogant, if not supercilious, to those who are not Americans.

The necessity about 'evacuating' is really hilarious. Is India a totalitarian State? In fact, the manner in which the NYPD reacts like wild men on the loose to situations is legend. And then they also go scot free! Does not speak highly of US justice, does it?

What makes Bharrara feel that in India people are compelled to make sure that victims, witnesses and their families are safe and secure while cases are pending?

Let me also add that people of Indian origin have this tendency to out American Americans to prove they are more American than America. Bararra is no exception nor is a chap called Ravi Batra I saw on TV who instead of answering questions went into a hyperbolic ecstasy talking of the US constitution being the greatest in the world and such tripe. He was hilarious!

The summary of the case (take it for what it is worth) is here
http://en.wikipedia.org/wiki/Devyani...agade_incident

This case has got the majority of Indians indignant, not on the legal aspect, but the violation of diplomatic niceties and moralising with pious justification, more so, when US diplomats pay less than a one dollar to their paid help in third world countries as is reported by the US documents itself! I wonder how come the US Govt and the US courts do not find it a violation, when the Embassies and Consulates are taken to be US territories! Surely, the pontificating US State Dept can take suo moto congnisance. And what about the only court in the world that gives Justice (as is claimed) – the US Courts?

The worry that I have is that there is a real and genuine revulsion in India over the insensitive US' handling of the case.

The danger is that it may push India away from the US and into the opposite camp.

It might mean "Hi Yo, Silver away!'.

The case and its outcome does not worry me.

What worries me is the repercussion on the Indo US relationship.

Last edited by Ray; 12-20-2013 at 07:23 AM.
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Old 12-20-2013   #51
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Firn:

One of the characteristics of the American persona is that 'I am just as good a man as you are'. From that you get everybody gets treated the same, especially when dealing with the cops. Not that is an ideal, not always in play, but the ideal.

If somebody from DC was to interfere with a criminal prosecution because 'She's special', that wouldn't go over too big with the Americans. No, that wouldn't go over at all. Not to mention that if the US Attorney could be so easily influenced with a discreet word, you don't really have the rule of law do you?

Actually, for a lot of us flyover people, we don't give a hoot if the guys in Washington are less than happy. Defenestrate 'em.
I actually expected such a response which contains some arguments I do admire to a good degree.

I just want to add three line of thoughts:

1) Looking at some stats and taking into account a couple of papers I have read it is quite obvious that people in the US tend to get treated differently by the security forces and judicial system according to gender, race, age, wealth and location. It is difficult to argue that the US stands out in equal treatment compared to other Western democracies. Overall a strong push towards an equal approach is good as it pulls it against all too common bias into the right direction.

Interestingly sometimes a high status might cause you to get worse treatment because it can earn some agents points in the eyes of the public. You end up with things which are sometimes against the interest of the public but get it's approval and helps someones self-interest.

2) I think it is undeniable that the person in question is 'special'. Not special as a human but as a rappresentative of a foreign power, even more so an important one. There is a long list of reasons manifested in human history and practical politics why diplomats get treated differently, especially if you are not on friendly terms with the other side. It costs a modern state in general extremely little to create a environment which can help to promote it's interests. If you want to screw another powers diplomant you want to do it for a good political reason as a 'bad' treatment of a rappresentative gets easily seen as a bad treatment of the whole nation.

3) In my opinion it is not against the rule of law if the US foreign department interprets an international convention in a broad sense if it is in the interest of the nation and tells its internal organs so.

Ray already mentioned in addition what angried a good deal of well-connected people in India:

Quote:
This case has got the majority of Indians indignant, not on the legal aspect, but the violation of diplomatic niceties and moralising with pious justification, more so, when US diplomats pay less than a one dollar to their paid help in third world countries as is reported by the US documents itself! I wonder how come the US Govt and the US courts do not find it a violation, when the Embassies and Consulates are taken to be US territories! Surely, the pontificating US State Dept can take suo moto congnisance. And what about the only court in the world that gives Justice (as is claimed) – the US Courts?
I have no doubt that the Italian/European reaction would be quite similar.
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Last edited by Firn; 12-20-2013 at 11:41 AM.
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Old 12-20-2013   #52
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Ray:

I don't think Mr. Bharara is making any judgments about the US vs the world in the justice dept. I think he is making a specific judgment about how his victim will be treated in India. For better or worse, good info or bad, he wants to get her and her family out of there, so he did. It's his call. We don't know what threat he thought they faced but I would note that this case pits a person of high status whom I'll bet is politically connected against a domestic servant.

I don't know if Americans with Indian origins act like that. I've known a number of them and they seem pretty average to me. High achievers but average in their political views.

Madhu cautions about saying the bulk of Indians are upset about this. Maybe they are. But I figure the bulk of the Indians are closer to Ms. Richard in status than they are to the diplomat so maybe they ain't so upset. The chattering classes are upset is appears though.

The thing you have to remember is from the American point of view, this has nothing to do with the country of India or the dignity thereof. It has to do with an arrogant individual who was throwing her weight around and picking on somebody who was weaker. Not only that she was doing it in violation of American law in the US. This is a 'Who the hell do you think you are?' thing directed at an individual. If people in India are figuring it is directed at India, they are wrong. And if she is given special treatment for her individual actions because she is perceive as a reification of India, then she is gaming the system.
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Old 12-20-2013   #53
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Originally Posted by Firn View Post
I actually expected such a response which contains some arguments I do admire to a good degree.
Yes sir. You put out the bait and I'll go for it.

Tell me exactly what you mean in your point number 1. There are of course inconsistencies in how the law is applied here. There are in all countries, but I am interested in what things precisely you are talking about.

In your point 2 I would contest the use of the word "screw". Ms. Khobragade was arrested on criminal charges. She wasn't picked up for nothing. If she violates the law, a serious violation, and gets picked up, that isn't getting screwed, that's getting arrested. If that is objected to, that is asking for special treatment beyond her status. That rubs us flyover people the wrong way.
[/QUOTE]
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Old 12-20-2013   #54
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To be honest I'm not in the business of laying out baits, as I gain nothing from having you on my hook.

I think in short I wanted to say that in any country, including the US people are getting treated in different ways for a couple of reasons despite the enshrined 'equal' treament. Nobody is much holier then the other in this regard and trying to get more equal is a good thing. There are however some obvious and distinct exceptions to the general rule and among those people are diplomats and their staff to a good degree.

There are certainly no 'better' humans then you or me but their are special due to the special powers bestowed upon them by their country and international conventions. It is just pragmatic for pretty much every country to treat them with care and courtesy, no *** required and in doubt the State department should stick to a fitting interpretation of their status.

All in all I have said my bit and with that I will step out of the discussion.

Merry Christmas and holidays for those who get them.
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Old 12-21-2013   #55
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Yes sir. You put out the bait and I'll go for it.

Tell me exactly what you mean in your point number 1. There are of course inconsistencies in how the law is applied here. There are in all countries, but I am interested in what things precisely you are talking about.

In your point 2 I would contest the use of the word "screw". Ms. Khobragade was arrested on criminal charges. She wasn't picked up for nothing. If she violates the law, a serious violation, and gets picked up, that isn't getting screwed, that's getting arrested. If that is objected to, that is asking for special treatment beyond her status. That rubs us flyover people the wrong way.
Actually, as per the Vienna Convention for Consular Staff Article 47 on Exemption from Work Permits,

1. Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labor.

2. Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this Article.


It must also be remembered that the US is a signatory to the Vienna Convention for Consular Staff.

In view of the above, one should not forget:

1. Ms Richard, the maid, was on a consular staff visa and not an ordinary visa.

2. Ms Richards' employment was thus exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State

3. Ms Richard wanted Ms Khobargade to change her passport to an ordinary one so that she could get employment in the US, contrary to the provision of the Vienna Convention for Consular staff which forbids 'do not carry on any other gainful occupation in the receiving State'.

Ms Khobargade, reported the issue to the US Govt and NYPD 5 times and no action was taken.

The maid vanished and her husband and children were whisked away from India under T Visa, which is trafficking visa, when they were facing criminal charges in an Indian Court.

Therefore, MS Khobargade violated no law of the US and instead was perfectly correct as per the international Convention ie the Vienna Convention.

The visa to the maid was given by the US Embassy after interviewing her individually and the maid herself signed the necessary documents including declarations.

Therefore, where has she (ms Khobargade) gone wrong?

Further, is a wage dispute a serious crime? or a 'grave crime' in the US?
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Old 12-21-2013   #56
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While I'm not a lawyer, I'd guess that the points of contention might be...

Quote:
with respect to services rendered for the sending State
Whether or not personal services are considered "services rendered for the sending state" might be open to some interpretation.

Quote:
exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labor.
That would only cover obligations in regard to work permits, not obligations involving wages, working hours or conditions, etc.
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Old 12-21-2013   #57
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While I'm not a lawyer, I'd guess that the points of contention might be...



Whether or not personal services are considered "services rendered for the sending state" might be open to some interpretation.



That would only cover obligations in regard to work permits, not obligations involving wages, working hours or conditions, etc.
One would surely be enlightened to know what service a maid does 'in services for the sending states'.

Are 'Members of the private staff of consular officers' to work for the State?

The little that I understand of the English Language, it appears clear for comprehension, but then I could be wrong!
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Old 12-21-2013   #58
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Ray:

All those legal points will be adjudicated. As I said, Mr. Bharara is reputed to be a very sharp guy so I doubt he will bring a weak case.

As for all the other things, when dealing with American public opinion that doesn't make a big difference. If a foreign diplomat is seen as using the letter of the law to abuse a domestic servant or evade American law, people are going to get very, very upset. Causing the people of the host country to get very upset is not a diplomatic thing to do. I think we look at it along the lines of 'You ain't gonna get away with that here.'

Also I don't know so many details of the case but as far as public opinion goes, a powerful person like Ms. Khobragade isn't going to get much sympathy here if she is whining (and it will be perceived as whining) about her maid.
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Old 12-21-2013   #59
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Default Ray, as usual your advocacy is suburb; but

this is not a work visa case or a wages & hours case. It is a false statement case.

Let us assume beyond argument that Ms. Khobragade had no obligation re: a work visa and no obligation to pay a given wage. Just as Martha Stewart had no obligation to make any statements to the Federal investigators.

But, Ms. Khobragade did make statements (so the State Department alleges in its complaint - and in writing). Which is why I've always advised my clients not to make statements to the government, state or Federal - unless really necessary; and then be careful.

Quote:
Solomon L. Wisenberg suggests simply asking for the agent's business card and saying, "[M]y attorney will be in contact with you." How to Avoid Going to Jail under 18 U.S.C. Section 1001 for Lying to Government Agents.
Good Advice.

Regards

Mike

Last edited by jmm99; 12-21-2013 at 03:28 PM.
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Old 12-28-2013   #60
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New Delhi, Dec. 27: The brightest minds of the foreign policy establishment in India and the US can be trusted to find a way out of the nanny mess and ensure that Devyani Khobragade’s “full diplomatic immunity” that preceded her arrest is not undermined.

But countless Indians are still trying to figure out one question: did the super-smart Americans misread the figure of $4,500 in the visa form of the housekeeper, Sangeeta Richard, as her salary while it was that of the Indian diplomat?

The issue goes to the heart of a key section of the US visa application that tens of thousands of Indians travelling to America for work fill each year.

The Telegraph tries to find out what happened, given incessant form-filling is a national sport that few Indians can avoid playing if they want to be part of the system.

What is this $4,500 all about?
http://www.telegraphindia.com/113122...p#.Ur5SyfQW3Kc
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