Michael Gaynor
Judge Richard Berman should avoid any appearance of sentencing Dinesh D'Souza excessively
By Michael Gaynor
September 18, 2014

An excessive sentence would undermine confidence in the administration of justice and appear to violate the judicial oath to "administer justice without respect to persons" (28 U.S.C. Section 453).

The claim of conservative author, political documentary-maker and prominent Obama critic Dinesh D'Souza that he was selectively prosecuted was rejected by Judge Richard M. Berman for lack of evidence.

Then D'Souza pleaded guilty to contributing $20,000 more than he was entitled to contribute to Wendy Long's 2012 United States Senate campaign.

It is Judge Berman's duty to sentence D'Souza. The prosecution and defense have made their sentencing submissions and sentencing is scheduled for September 23 at 11 A.M.

It is every judge's duty to avoid even the appearance of impropriety and not to issue a sentence within federal guidelines when doing so will create such an appearance.

Sentencing D'Souza within the federal sentencing guidelines is not necessarily appropriate and, in D'Souza's case, in which those guidelines call for imprisonment of 10 to 16 months, even a 10-month sentence would appear to be improper, because last year a federal district court judge sentenced prominent Democrat lawyer-lobbyist Harvey Whittemore to two years in prison.

A sentence of D'Souza that appears to be excesssive when compared to the sentence of Whittemore would appear to be improper and unjust, and that appearance must be avoided

The facts of the D'Souza case as compared to the facts of the Whittemore case if D'Souza is to be properly sentenced.

The United States Department of Justice press release issued on June 6, 2012 on the Whittemore case stated as follows:

"Nevada Lobbyist Harvey Whittemore Indicted for Making Unlawful Campaign Contributions and Lying to Investigators

"WASHINGTON – Nevada lobbyist and lawyer Harvey Whittemore was indicted today in the District of Nevada by a federal grand jury on charges that he made unlawful campaign contributions to an elected member of Congress, caused false statements to be made to the Federal Election Commission (FEC) and lied to the FBI, announced Assistant Attorney General Lanny A. Breuer of the Justice Department's Criminal Division and Daniel G. Bogden, U.S. Attorney for the District of Nevada.

"F. Harvey Whittemore, 55, of Reno, Nevada, was charged with one count of making excessive campaign contributions, one count of making contributions in the name of others and two counts of making a false statement to a federal agency. Whittemore is scheduled to appear before a U.S. Magistrate Judge in Reno, Nevada, on June 7, 2012, at 3:00 p.m. PDT for arraignment. If convicted, Whittemore faces up to five years in prison and a $250,000 fine on each count.

"'Mr. Whittemore allegedly used his family members and employees as conduits to make illegal contributions to the campaign committee of an elected member of Congress,' said Assistant Attorney General Breuer. 'Furthermore, according to today's indictment, he attempted to conceal his crimes by lying to the FBI. Our campaign finance laws establish maximum limits on individual contributions, and failure to adhere to those rules jeopardizes the integrity of our elections. We will continue to pursue those who engage in such conduct.'

"'We remain committed to investigating and prosecuting illegal behavior that jeopardizes the integrity of our elections and corrupts our political process,' said U.S. Attorney Bogden. 'Campaign finance laws exist to protect that process and criminal violations of those laws will be vigorously prosecuted by this office.'

"Under federal law, it is illegal to contribute to a federal political campaign using a conduit in order to hide the identity of the true contributor. Federal law also sets limits on the amount that an individual can contribute to a campaign. In 2007, the maximum individual contribution was $2,300 for a primary election and $2,300 for a general election; thus, the maximum for one candidate was $4,600.

"The indictment states that Whittemore was the chief executive of Company A. On about Feb. 21, 2007, Whittemore allegedly met with an elected member of Congress (identified in the indictment as Federal Elected Official 1), and agreed to try to collect $150,000 in contributions for the elected official's campaign committee by March 31, 2007, which marked the end of a legally required quarterly reporting period. Aware of the strict limits on individual federal campaign contributions, Whittemore allegedly devised a scheme and plan whereby he used family members, employees of Company A, and their respective spouses, as prohibited conduits through which to funnel his own money to the federal elected official's campaign committee under the guise of lawful campaign contributions. This scheme allowed Whittemore to make an individual campaign donation to the federal elected official in excess of the limits established by federal law. Whittemore allegedly concealed the scheme from the FEC, the elected official and the elected official's campaign committee.

"In March 2007, Whittemore allegedly solicited the employees, family members and their respective spouses to make the maximum campaign donations to the federal elected official and reimbursed the contributors with personal checks and wire transfers. The indictment alleges that Whittemore attempted to conceal some of the reimbursements he made to the contributors by telling the employees that they were bonuses. Whittemore also allegedly paid the contributors additional money on top of the reimbursements. If a conduit contributed $4,600, Whittemore reimbursed the individual $5,000; likewise if a couple contributed $9,200, he paid the couple $10,000.

"On about March 28, 2007, Whittemore allegedly caused a Company A employee to transmit $138,000 in contributions to the federal elected official's campaign committee, the vast majority of which were conduit contributions that Whittemore had personally funded in order to satisfy his pledge to the federal elected official. On April 15, 2007, the campaign committee then unknowingly filed false reports with the FEC stating that the conduits had made the contributions, when in fact, Whittemore had made them.

"On about Feb. 9, 2012, Whittemore allegedly made false statements during an interview with FBI agents by claiming that he never made a request for campaign contributions; never asked employees of company A to contribute to the elected official's campaign; never provided payments to anyone with the expectation that they would serve as reimbursements for campaign contributions; never spoke to any candidate about raising money for the candidate; and never gave money to family members to make political contributions.

"The case is being investigated by the FBI and is being prosecuted by First Assistant U.S. Attorney Steven W. Myhre, Assistant U.S. Attorney Sue Fahami and Trial Attorney Eric G. Olshan of the Public Integrity Section in the Justice Department's Criminal Division.

"An indictment contains only charges and is not evidence of guilt. The defendant is presumed innocent and is entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt."

"Federal Elected Official 1" was Senate Majority Harry Reid, Whittemore's close friend. Whittemore, having promised to deliver $150,000, used 29 conduits to contribute $133,400 more than he was entitled to contribute to Reid's United States Senate reelection campaign in 2007. Five years later he was indicted. In May 2013, he was found guilty by a federal jury on three out of four felony charges. (One juror refused to convict on the count charging Whittlemore with lying to the FBI.)

On September 30, 2013, United States District Court Judge Larry Hicks declared that Whittlemore had committed "an incredibly criminal, intentional act," sentenced him to two years in prison, fined him $100,000 and ordered two years of supervision after incarceration and 100 hours of community service.

In 2012 D'Souza made four excess maximum contributions to the Senate campaign of a close friend since their Dartmouth College days through straw donors. Then the combined maximum contribution was $5,000, making D'Souza's total excess contribution $20,000, hardly a sum that would turn a United States Senate race in New York.

Let's do the math.

4 divided by 29 is .138.

Two years is 730 days.

730 times .138 is 100.7.

Even assuming D'Souza's behavior was as culpable as Whittemore's, a prison sentence of more than 101 days would be excessive.

Further, D'Souza was not as culpable as Whittemore.

First, unlike Whittemore, D'Souza is not a lawyer.

Second, unlike Whittemore, D'Souza is not a lobbyist.

Third, D'Souza was not trying to buy political influence, as Whittemore appeared to be.

Fourth, unlike Whittemore, D'Souza was not familiar with the requirements with respect to making political contributions, never having made one before conributing to the Long campaign.

Fifth, unlike Whittemore, D'Souza chose to negotiate a plea, admit guilt and waive his right to a trial. (D'Souza believes that he was selectively prosecuted for political reasons, asserted that as a defense and pleaded guilty shortly after Judge Berman ruled that he had not presented any evidence supporting his claim.)

Accordingly, in D'Souza's case, a prison sentence that is more than a small fraction of 10 months and a fine that is more than a small fraction of $100,000 would be excessive and it would appear that D'Souza's political views influenced his sentence.

An excessive sentence would undermine confidence in the administration of justice and appear to violate the judicial oath to "administer justice without respect to persons" (28 U.S.C. Section 453).

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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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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