Barry Escapes Jail Time On Probation Violation

Marion Barry said he was treated in an
Marion Barry said he was treated in an "embarrassing and humiliating" way by the U.S. attorney's office, which had sought to have him jailed. (Nikki Kahn - The Washington Post)
By Carol D. Leonnig and Yolanda Woodlee
Washington Post Staff Writers
Tuesday, March 13, 2007

A federal judge refused yesterday to put D.C. Council member Marion Barry in jail for violating his probation in a criminal tax case.

The ruling was a blow to federal prosecutors, who wanted Barry locked up for missing deadlines for filing federal and District tax returns for 2005. Sidestepping the issue on a technical point, U.S. Magistrate Judge Deborah A. Robinson rejected the prosecutors' request to revoke Barry's probation. She said it was up to the federal probation office -- not prosecutors -- to make the request.

Robinson said that she will not take further action or consider the probation violation "unless and until" the U.S. Probation Office brings it to her attention. Probation officials could not be reached for comment on the case.

Barry, 71, was sentenced by Robinson in March 2006 to three years' probation after he pleaded guilty to two misdemeanor tax charges. He could have been jailed for up to 18 months after admitting that he failed to file returns covering six years, 1999 to 2004. In giving him probation last year, Robinson ordered that he obey the law and file any outstanding tax returns.

Prosecutors first alerted Robinson in February that Barry had failed to file his 2005 tax returns on time. Barry (D-Ward 8) did not dispute the basic allegations the prosecutors made. It was only after they went to court that he filed the federal and local returns.

The U.S. attorney's office declined comment on the ruling. Prosecutors could appeal Robinson's decision. And the U.S. Probation Office still could alert the judge to Barry's failure to stick to his probation agreement -- thus prompting some review by the judge and putting him back in jeopardy.

In an interview yesterday, Barry said he was "delighted" about the new ruling and said he "thanks the judge for her fairness" in the tax matter. He added that he believes the handling of his case by the U.S. attorney's office was "embarrassing and humiliating" to him.

"Thousands of Americans have tax problems with the IRS, and they're not treated this way," Barry said. "It's a double standard, and the U.S. attorney ought to stop it."

Prosecutors had argued in court filings that they had no choice but to request that Barry lose his freedom because his failure to comply with the terms of his probation amounted to new crimes.

"It gives the government no pleasure to recommend that the defendant's probation be revoked and that a jail sentence be imposed," assistant U.S. attorneys Thomas Zeno and James Cooper wrote. But Barry, they said, "has not acted like a person who has been given the opportunity of probation and should not be treated like one. . . . The Court's patience should be at an end."

Prosecutors did not charge Barry with any new offenses, however, and Robinson made note of that in her decision.

This was the second time Barry has run afoul of court conditions in the midst of his federal tax case. In November 2005, a month after he pleaded guilty to the tax charges, he tested positive for cocaine and marijuana use, violating one of the judge's instructions for his release while he was awaiting sentencing.

Frederick D. Cooke Jr., Barry's attorney, said that Barry will file his 2006 tax returns today.

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