Barry's Tax Troubles May Not Be Over

Federal prosecutors have until Monday to decide whether to pursue jail time for D.C. Council member Marion Barry (D-Ward 8), at right.
Federal prosecutors have until Monday to decide whether to pursue jail time for D.C. Council member Marion Barry (D-Ward 8), at right. (By Nikki Kahn -- The Washington Post)
By Paul Duggan
Washington Post Staff Writer
Thursday, March 22, 2007

With a federal magistrate's decision last week not to revoke D.C. Council member Marion Barry's probation in a criminal tax case, it seemed the former mayor was in the clear, having thwarted an effort by prosecutors to put him behind bars.

But as is often the case with legal difficulties involving Barry (D-Ward 8), the situation remains uncertain -- meaning he isn't out of the woods yet.

As lawyer Frederick D. Cooke Jr. put it, chuckling ruefully about his 71-year-old client's tangles with law enforcement officials throughout his political career: "Oh, we're never past controversy. You don't know Mr. Barry well enough. We're never past it."

The question now is whether prosecutors in the tax case will give up trying to put Barry in jail or ask U.S. District Magistrate Judge Deborah A. Robinson to reconsider her March 12 decision. Or will they ask Robinson's boss, Chief Judge Thomas F. Hogan of U.S. District Court, to overrule her? Under court rules, the U.S. attorney's office has until Monday, 10 business days after Robinson's ruling, to decide.

What will prosecutors do?

"No comment," said Channing Phillips, a spokesman for the office.

Barry pleaded guilty in 2005 to misdemeanor charges based on his failure to file federal and D.C. income tax returns covering six years, from 1999 to 2004. He could have been jailed for as long as 18 months. Instead, in a plea bargain, he promised to pay his back taxes and file future returns on time, and Robinson placed him on supervised probation for three years.

Within weeks of being put on probation last March, however, Barry missed the April deadlines for filing his 2005 federal and local tax returns. The Internal Revenue Service gave him an extension until October, but he missed that deadline, too. He filed the returns only last month, after prosecutors James W. Cooper and Thomas E. Zeno cited the delinquencies in a motion asking Robinson to punish him.

"It gives the government no pleasure to recommend that the defendant's probation be revoked and that a jail sentence be imposed," Cooper and Zeno wrote. But they said it was the only way of "making clear to this defendant that he is not above the law."

Robinson's stated reason for rejecting the motion had nothing to do with her view of Barry's behavior. She denied it on procedural grounds, without a hearing, citing her interpretation of the rules on how such motions should be filed. And that has led lawyers familiar with the case to speculate that prosecutors will seek a reversal of her decision, to avoid being hampered by her interpretation of the rules in similar cases in the future.

In her seven-page decision, Robinson focused on Rule 32.1 of the Federal Rules of Criminal Procedure and Local Criminal Rule 32.1, which govern the handling of probation revocation matters. By her reading of the rules, Robinson said, a defendant's probation cannot be revoked at the request of the U.S. attorney's office alone. The motion must be filed by the probation officials who are monitoring the defendant, she said.

"While neither rule, by its terms, expressly provides that a probation revocation hearing may be scheduled only upon the request of the United States Probation Office," she wrote, "the long-standing practice in this Court is that such hearings are scheduled only at the request of the Probation Office, through the submission of a petition."

Robinson's interpretation of the rules is not binding on other magistrates and judges, lawyers said, so her ruling would not automatically hinder prosecutors in seeking probation revocations in future cases. But attorneys for those other defendants almost certainly would cite her decision in opposing revocations.

On the other hand, if the U.S. attorney's office appeals the decision to the chief judge, and he upholds Robinson, then the ruling would become binding in other cases.

"There's a risk for them either way," said one lawyer, referring to prosecutors.

So Barry -- who served six months in prison after being videotaped smoking crack in a 1990 FBI sting during his third term as mayor -- remains free, going about his council business. He has declined to comment on the revocation motion except to say that "your income tax should be between you and the IRS."

One solution for the U.S. attorney's office, lawyers noted, would be for Barry's probation officer to file a motion seeking to have him jailed based on the late tax filings.

But the chance of that happening also is unclear.

"I'm not going to make any statements about Mr. Barry's case," said the court's chief probation official, Gennine A. Hager. "None at all."

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