Topic category:  Law & Litigation Issues

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 J. Gaynor

Biography - Michael J. 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.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.