Regular Drug Testing Urged for Barry

Prosecutors Seek Conditions if Ex-Mayor Gets Probation

Federal prosecutors recommended yesterday that D.C. Council member Marion Barry be required to submit to regular drug testing -- and stay drug-free -- to avoid prison time when he is sentenced tomorrow for misdemeanor tax offenses.

Barry, a former four-term mayor of the District, tested positive for using cocaine and marijuana when he took a court-required drug test Nov. 17, the prosecutors said yesterday in court filings. Barry took the test nearly three weeks after he pleaded guilty to two misdemeanors for failing to file his income tax returns for six years.

The Washington Post reported last month that Barry's drug test turned up cocaine in his bloodstream, but the court filing is the first to reveal the test also found marijuana.

The evidence that Barry's former drug problems have resurfaced jeopardizes the council member's hope that a federal judge will let him avoid prison time and release him on probation. U.S. Magistrate Judge Deborah A. Robinson is scheduled to decide on Barry's punishment at a hearing tomorrow.

Barry, 69, faces a maximum possible penalty of 18 months in prison and a $100,000 fine, but under a plea agreement reached in October, prosecutors in the U.S. attorney's office agreed not to take a position on Barry's effort to seek probation instead of prison.

Linda Greene, a spokeswoman for Barry, said: "The council member will have no comment, on the advice of legal counsel."

Barry admitted to failing to file federal and District income tax returns from 1999 to 2004 -- from the time he stepped down as mayor until after he was elected to the Ward 8 council seat.

Prosecutors have told Robinson in their court filing that they plan to stand by the plea agreement but must take a position on the conditions Barry should have to meet if he is released on probation. At a minimum, Barry should be required to undergo regular drug testing and show the court that he is drug-free, they said.

"Should defendant Barry be unsuccessful in his future drug testing, sanctions, such as revocation of release, may be warranted," lead Assistant U.S. Attorneys Thomas E. Zeno and James W. Cooper wrote.

The government also warned yesterday that there could be a major wrinkle that would make them withdraw its deal with Barry, which could lead to a possible recommendation that Barry serve jail time.

Prosecutors wrote that "The best information available to the government indicates that as of this date," Barry had failed to deliver on a key part of his plea agreement: to file his delinquent tax returns.

"The government is unable to abide by its promises regarding sentencing unless and until defendant Barry satisfies this obligation of the plea agreement," Zeno and Cooper wrote.