By Yolanda Woodlee and Carol D. Leonnig
Washington Post Staff Writers
Wednesday, January 11, 2006
D.C. Council member Marion Barry tested positive for cocaine use in the fall in a drug test ordered by a court after he pleaded guilty to misdemeanor tax charges, according to two sources familiar with Barry's case.
Barry, who served four terms as mayor and was elected to the Ward 8 council seat in 2004, has since begun treatment for drug use, the sources said, but Barry's failure to pass the mandatory drug test puts him in legal jeopardy.
Because he violated the terms of his release, Barry, 69, faces an increased risk of serving the maximum 18 months behind bars -- rather than probation -- for his failure to file tax returns for six years. He is scheduled to be sentenced Feb. 8, but a federal judge could jail him or sanction him at any time.
Barry, interviewed last night in his Howard University Hospital room, where he's being treated for hypertension, said he did not deny accounts of his drug test and treatment but declined to discuss his case. "Write what you want to write," he told a Washington Post reporter. "That's my official quote. No more, no less."
Barry pleaded guilty Oct. 28 to the misdemeanor tax charges, and as a condition of being released on his own recognizance, he was required to undergo drug testing soon after, court records show. But, according to two sources close to Barry and an official familiar with his case, the court's probation office notified U.S. Magistrate Judge Deborah A. Robinson and prosecutors in or around November that Barry's test result was positive for drug use. Two of the three sources said the drug was cocaine. The sources asked not to be identified because a court case is pending.
Robinson has not revoked Barry's bond or ordered him jailed pending sentencing, as she could have because of the drug infraction, court records say. Nor did prosecutors seek to cancel their plea agreement with Barry, in which they had said they would not oppose his effort to seek probation at sentencing.
It's not unusual for defendants to fail drug tests and remain free while awaiting sentencing, court officials said. Judges sometimes will order them to undergo treatment or submit to more frequent testing.
Barry's attorney, Frederick D. Cooke Jr., sought for Barry to undergo drug treatment to show in the weeks before sentencing that his failed drug test was a relatively minor, one-time infraction of his release terms, according to a law enforcement source. The goal would be to avoid having Barry arrested for failing to comply with his release terms and to avoid tougher sentencing for the tax crimes.
The tax case involves Barry's failure to pay most of his federal and D.C. income taxes for six years after his fourth term as mayor ended in January 1999. Prosecutors said he received more than $530,000 in income over the next six years but did not document most of it. Barry's plea agreement also calls for him to make arrangements to resolve his tax debts.
Cooke declined to comment yesterday on Barry's status. Channing Phillips, spokesman for the U.S. Attorney's Office in the District, said yesterday that he would neither confirm nor deny that Barry had violated a condition of his release.
"We will decline to comment until we are back before the court since it is pending sentencing," Phillips said.
Barry was in the news last week when he held a news conference to describe an incident in which he was robbed in his kitchen Jan. 2 by two assailants who helped him carry groceries to his third-floor apartment in Southeast Washington. They pointed a gun at Barry's face and stole his wallet, which police said contained more than $200, his driver's license and two credit cards.
Drug problems and speculation about drug use have plagued Barry through much of the latter part of his 30-year political career. In 1990, during his third term as mayor, Barry was arrested at the Vista Hotel after being videotaped smoking crack, an image that for years has haunted him and the city he led.
Barry's arrest was followed by seven weeks in treatment centers in Florida and South Carolina. He repeatedly invoked God upon his return, in keeping, a spokesman said at the time, with his 12-step, faith-based treatment program.
After serving six months for cocaine possession in the Vista incident, Barry led a political comeback in 1992, winning a D.C. Council seat and then a fourth term as mayor two years later.
While preparing to run in 2002 for an at-large council seat, U.S. Park Police reported that they found a trace of marijuana and $5 worth of crack cocaine in Barry's Jaguar while he was parked at Buzzard Point in Southwest Washington. Police never charged Barry, who then scrapped his campaign plans. When he campaigned for a Ward 8 seat in 2004, he claimed in interviews that the Park Police planted the drugs in his car.
After he was reelected to a fourth term as mayor, Barry said in an interview with Post reporters and editors that he'd made "a remarkable recovery," responding to the criticism by some that he had returned to the rigorous job of mayor too soon. He denied having a relapse with drugs and alcohol.
Barry has had numerous health troubles recently. A cancer survivor, Barry has diabetes and high blood pressure and was hospitalized at least three times last year.
Still, the former mayor, when well, has kept a regular public schedule of council meetings and community events.
Barry was released in late October on his personal recognizance until sentencing under several conditions ordered by Robinson. He had to continue to live at his residence on Douglas Place SE, alert the court if he traveled outside the Washington area and follow instructions of his probation officer. He also had to submit to being fingerprinted, photographed and tested for drugs.
Under the plea deal, prosecutors reserved the right to scrap that agreement if Barry failed to comply with all the terms.
Judges have considerable discretion in deciding how to handle defendants who violate conditions of their release, court officials said, and they typically weigh the seriousness of the infraction in deciding whether to jail defendants. When defendants are sentenced, however, even minor violations are typically mentioned in open court and considered relevant in assessing the defendant's overall conduct.
Staff writer Robert E. Pierre contributed to this report.