Michael Gaynor
The sentencing of Dinesh D'Souza is still undecided
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By Michael Gaynor
September 15, 2014

If D'Souza wants a prison sentence closer to 10 months than 16 months, and perhaps community service, it would behoove him to tell Judge Berman on September 23 that he did more wrong than make a politically insignificant excess contribution out of friendship, demonstrate genuine contrition and humility that was not apparent when he pled guilty and describe what he did as criminal instead of merely mistaken.

Since at least the 1820s, the United States Supreme Court has opened its court sessions with the prayer of "God save the United States and this Honorable Court."

God help Judge Richard M. Berman to do what is right on September 23, 2014, when he is scheduled to sentence Dinesh D'Souza for contributing an extra $20,000 to the unsuccessful campaign of his friend from their Dartmouth College days, Wendy Long.

The prosecution in its sentencing report stated that under United States sentencing guidelines D'Souza should be imprisoned for from 10 to 16 months and passed on the opportunity to suggest a specific period of time within those guidelines.

D'Souza publicly said repeatedly that he believes that he was targeted for his outspoken criticism of the Obama administration, illustrated by his 2012 documentary, "2016: Obama's America."

Since D'Souza had publicly claimed repeatedly to have been the victim of selective prosecution and attributed that to his political opposition to President Obama, the prosecution's decision not to recommend a specific sentence seems like smart strategy.

Pleading for the last pound of flesh would give credence to D'Souza's claim and Judge Berman already ruled that D'Souza had not presented any evidence in support of his selective prosecution claim.

The prosecution claimed that D'Souza's illegal conduit contributions were discovered as a result of the Federal Bureau of Investigation's New York office's review of campaign filings of both parties for the seat held by Senator Gillibrand, "rather than through any investigative focus on the defendant himself" (www.nytimes.com/2014/04/23/nyregion/dsouza-lawyer-brafman-says-obama-criticism-spurred-straw-donor-case.html?_r=0).

Exactly how the conduit contributions were discovered is not apparent, but the prosecution obtained strong evidence of illegality from one of the four straw donors. Last April The New York Times reported: "Prosecutors...said they had obtained a copy of a recording made surreptitiously last October by the husband of a woman Mr. D'Souza was involved with romantically around the time of the donations, when Mr. D'Souza was separated from his wife" and "In making the recording, the husband was not acting at the government's direction, prosecutors said."

The New York Times added that husband's wife was recorded as saying that Mr. D'Souza had told her that if he were charged he might plead guilty, but would initially plead not guilty because that 'gives him a window of opportunity to get his story out there,' the government said."

D'Souza later was charged, pleaded not guilty and got his story out there as the prosecution and the defense prepared for trial.

D'Souza opined even after pleading guilty that "the Obama administration has shown itself quite willing to go after its adversaries and ignore in some cases the greater offenses of its own allies" (http://dailycaller.com/2014/06/11/dsouza-on-possibility-of-going-to-prison-its-something-i-have-to-cope-with/#ixzz3DKl4OAkT).

I share that opinion, but Judge Berman said that no evidence of that was presented to him and it does not follow that being a critic of an Administration should convey immunity from prosecution for violating federal campaign finance law and there is no legal basis for setting aside D'Souza's conviction on the grounds that the Obama Administration lied about Obamacare, or Benghazi, or harassed True the Vote founder Catherine Engelbrecht for her temerity in pursuing election integrity, or dropped the New Black Panther Party voter intimidation case.

D'Souza in his sentencing presentation depicted himself a disgraced and humiliated and urged that he be permitted to do community service instead of being imprisoned.

Last June Jamie Weinstein of The Daily Caller reported (http://dailycaller.com/2014/06/11/dsouza-on-possibility-of-going-to-prison-its-something-i-have-to-cope-with/#ixzz3DKl4OAkT) on d'Souza's thoughts on his sentencing as follows:

"Conservative author and documentarian Dinesh D'Souza says he has been contemplating the possibility of going to prison ever since pleading guilty to a campaign finance law violation.

"'Yes, I have thought about it. It is something that I have to cope with,' D'Souza told The Daily Caller in a recent interview about his new book, 'America: Imagine A World Without Her.' 'It's certainly not an inevitability. It is in the hands of a judge who will make a decision about that at the end of September. I did something foolish and wrong, which is to say I exceeded the campaign finance limit and I take responsibility for that.'"

Having perused the sentencing submissions of both D'Souza and the prosecution, it seems to me that prison time is inevitable for D'Souza, not because he poses a danger to society or is likely to commit another crime, but because he has not acknowledged all that he did wrong and therefore does not appear to be truly repentant.

D'Souza conceded in the interview quoted from above that he "did something foolish and wrong, which is to say [he] exceeded the campaign finance limit and [he] take[s] responsibility for that.'"

What D'Souza has not conceded is that he did more than simply write a check for more than the federal campaign finance law allows and instead took steps to evade the law.

Like me, D'Souza believes that the limitation of his campaign contribution is unconstitutional.

Unfortunately, the Supreme Court got that one.

Also unfortunately, D'Souza did his best to conceal his act of civil disobedience by involving married friends. These friends made the maximum lawful contributions with the understanding that they would be reimbursed and D'Souza then gave them each $10,000 in cash.

Cash reimbursement suggests that a paper trail was deliberately avoided and that suggests guilty knowledge, not principled civil disobedience.

Worse, according to the prosecution sentencing report, D'Souza lied to his good friend Wendy Long about the conduit distributions, causing her campaign to file (innocently) false reports.

The federal campaign finance law not only imposes limits, but also imposes transparency.

D'Souza's conduit contributions violated not only the limit, but the transparency requirement.

As part of his plea bargain, the charge that D'Souza had caused the Long campaign to file false reports, which carried a maximum prison sentence of five years, was dropped.

If D'Souza wants a prison sentence closer to 10 months than 16 months, and perhaps community service, it would behoove him to tell Judge Berman on September 23 that he did more wrong than make a politically insignificant excess contribution out of friendship, demonstrate genuine contrition and humility that was not apparent when he pled guilty and describe what he did as criminal instead of merely mistaken. Otherwise, I expect Judge Berman will give him more time to ponder what he did in prison.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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