Prosecutors Want Barry to Do Time
Memo Says Ex-Mayor Broke Law by Missing Tax Deadlines

By Paul Duggan
Washington Post Staff Writer
Thursday, March 8, 2007

Federal prosecutors filed a court document yesterday seeking jail time for D.C. Council member Marion Barry, alleging that Barry, who was spared incarceration last year in a criminal tax case, "has not acted like a person who has been given the opportunity of probation, and should not be treated like one."

Charging that Barry (D-Ward 8) violated his probation by missing deadlines for filing federal and District tax returns for 2005, the U.S. attorney's office says in a strongly worded legal memo that Barry "should be sentenced to a period of incarceration" as a way of "making clear to this defendant that he is not above the law."

Barry pleaded guilty in 2005 to misdemeanor charges based on his failure to file returns covering 1999 to 2004. He could have been jailed for as much as 18 months. Instead, he was placed on supervised probation for three years.

"It gives the government no pleasure to recommend that the defendant's probation be revoked and that a jail sentence be imposed," prosecutors said in a memo to U.S. District Magistrate Judge Deborah A. Robinson, who put Barry on probation last March. By not filing 2005 federal and D.C. tax returns on time, prosecutors say, the former mayor committed two new crimes, although no charges have been filed against him.

Standing on the front steps of the John A. Wilson Building yesterday, Barry, who turned 71 this week, said he was unaware of the government's memo.

Barry left office as mayor in January 1999, after his fourth term, and joined the council in January 2005. During that six-year hiatus from office, he made more than $530,000 but filed no tax returns documenting the income.

As for why he failed to file returns on time for 2005, Barry had no comment. He referred questions about the case to his attorney, Frederick D. Cooke Jr., who did not return a phone message left at his office yesterday.

"In this country, your income tax should be between you and the IRS," said Barry, who is in a dispute with federal authorities over how much he owes in back taxes for 1999 through 2004.

The court papers came a month after prosecutors first sought to revoke Barry's probation. This marks the first time the U.S. attorney's office has called for jail time for Barry in the case. No date has been set for a hearing.

If the move succeeds, it would not be Barry's first time behind bars. After he was targeted by an FBI sting and famously videotaped smoking crack in 1990, during his third term as mayor, he served six months in prison, then returned to elective politics.

"Marion Barry began his public career as a leader in the civil rights movement during the 1960s, and he has continued to serve the public as an elected official, including four terms as mayor," the prosecution's memo states. "He is a man of substance and talent, and he should have used these gifts to avoid these latest violations of federal and local laws."

As part of his plea bargain, Barry agreed to file future federal and local tax returns annually. He was sentenced to probation March 9, not long before the April 15 deadline for filing federal taxes for 2005 and the April 18 deadline for D.C. taxes. Prosecutors said the IRS gave Barry an extension until Oct. 15 after he asked for more time. They said he did not seek additional time to file D.C. taxes.

Barry, who was paid almost $93,000 as a council member in 2005, filed neither return on time. After authorities asked for his probation to be revoked Feb. 1, Barry filed an IRS return Feb. 9 and a local one the next day. Responding to the government's motion last month, Cooke said that his client owed "small outstanding balances on each return" and that he planned to "pay those balances in full shortly."

In their memo yesterday, prosecutors made it clear that they think the belatedly filed returns amounted to too little, too late.

"It is not the court's job, the probation officer's job, the prosecutor's job, or even the taxing authorities' job to remind this sitting public official to file his tax returns," the memo states. "Defendant offers no reason whatsoever for his commission of these new crimes. He advances no argument in mitigation. Nor can he."

Prosecutors say, "If, after being granted leniency for failing to meet his most basic obligation of citizenship . . . for six years, the defendant receives no punishment for doing the same thing for a seventh year in a row, it is difficult to see why any other citizen would conform her conduct to the dictates of the law."

Staff writer Nikita Stewart contributed to this report.