Michael Gaynor
Attorney Benjamin Brafman: My client Dinesh D'Souza was spared imprisonment as a result of Judge Richard Berman's "extraordinary kindness"
By Michael Gaynor
October 3, 2014

It looks likely that D'Souza will be spending the Christmas holidays with his daughter.

Dinesh D'Souza will not be imprisoned, as the prosecution wanted, but it turned out that the prosecution, suspected of selective prosecution in the D'Souza case, is not a grinch out to steal Christmas from D'Souza and his daughter Danielle.

When D'Souza was indicted last January, the prosecution urged that he be required to post bail.

Bail was set at $500,000 and promptly criticized as excessive.. in "9 Violent Criminals Who Paid Less for Bail Than '2016 Filmmaker Dinesh D'Souza" (www.theblaze.com/stories/2014/01/25/9-violent-criminals-who-paid-less-for-bail-than-2016-filmmaker-dinesh-dsouza/), Jason Howerton of The Blaze "uncovered a number of violent and disturbing offenses that resulted in bail amounts less than D'Souza was required to put up."

Even Robert Spencer, director of Jihad Watch and author of The Politically Incorrect Guide to Islam (and the Crusades), The Truth About Muhammad and Arab Winter Comes to America: The Truth About the War We're In put aside his resentment that D'Souza had accused him of being Islamophobic and pronounced the $500,000 bail "ridiculous" (www.frontpagemag.com/2014/robert-spencer/the-dsouza-arrest-obama-adopts-the-stalinist-style/). "What's more, bail for D'Souza was set higher than that given to several people accused of attempted murder, rape, assault, and the like," Spencer wrote. "To whom is Dinesh D'Souza more dangerous than a man who sexually assaulted a teenager, or a man who kept old men captive in a filthy 'dungeon'?"

D'Siouza was released promptly instead of held after promising that a financially responsible person would sign a personal recognizance bond within a week" (www.hollywoodreporter.com/news/2016-obamas-america-filmmaker-dinesh-673842).

Bail was timely posted and D'Souza was able to work on his "America" documentary.

Last May D'Souza pleaded guilty to donating an extra $20,000 to a United States Senate campaign through straw donors and remained free on bail to complete his "America" documentary.

On September 23, 2014, D'Souza was not sentenced to prison although federal guidelines called for a sentence of from 10 to 15 months. The sentencing guidelines are no longer mandatory and Judge Richard M. Berman decided imprisonment was not necessary and probation for five years, including eight months of community confinement (sleeping at a halfway house), a $30,000 fine and therapeutic counseling were sufficient.

Immediately after sentencing, both D'Souza and his attorney Benjamin Brafman described the sentence as fair.

On October 1, 2014 Brafman wrote to Judge Berman requesting accommodation in the commencement of D'Souza's community confinement time.

The letter began : "At the outset, counsel to Mr. D'Souza wants to thank your Honor for the extraordinary kindness this court demonstrated in agreeing to spare Mr. D'Souza from the harshness of a prison sentence."

The letter continued: "Indeed, because of the substantial courtesy already extended to the Defendant, we hesitate ro even write this letter...."

Brafman overcame his hesitation "especially since the Government does not oppose our request, provided that Mr. D'Souza begins and concludes his period of Community Confinement within the first year of his supervision."

Why did Brafman need to make the request?

First, D'Souza had things he wants to do through the end of the year.

Brafman: "To be perfectly candid," Brafman explained, because [he] did not anticipate the very creative sentence imposed by the Court, Mr. D'Souza undertook some personal commitments with his daughter as well as several professional commitments that need to be met between now and January 1, 2015. The defendant's commitments over the next few months are many. Professionally, Mr. D'Souza has contractually committed to a number of universities and not for profit organizations over the next few months. Personally, he has also set time aside to spend with his only child Danielle, as November and December provide her with her longest break from school."

Second, the Court did not impose the sentence the defense requested. If D'Souza was sentenced to prison, Brafman would have requested a surrender date of January 1, 2015 and expected "the Court would grant [his] request" and "if the Court had imposed a sentence of straight probation with Community Service as we had requested, we would not be faced with these logistical issues...."

Is D'Souza at fault in any way for making the professional and personal commitments as he awaited sentencing after pleading guilty to a felony?

NOT according to Brafman.

Brafman: "If anyone is at fault here it is counsel, not Mr. D'Souza."

Brafman's solution: have D'Souza "begin his Community Confinement sentence after January 1, 2015 [so] we can avoid many of the personal and professional complications that have now arisen."

Since Brafman assured the Court that D'Souza would pay his $30,000 fine and $100 Special Assessment and "begin his Community Service and personal therapy ordered by" the Court and the prosecution is not objecting, it looks likely that D''Souza will be spending the Christmas holidays with his daughter.

© 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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