Barry Won't Go to Prison For Late Taxes, Judge Rules

Prosecutors Claimed Action Was Willful

A federal judge ruled yesterday that prosecutors failed to prove that D.C. Council member Marion Barry "intentionally" and "willfully" failed to file his 2005 tax returns in violation of the probation he received for a tax conviction.

U.S. Magistrate Judge Deborah Robinson said Barry's action could have been an innocent mistake, so there was no cause to revoke his probation and order him to prison.

Prosecutors had contended that Barry (D-Ward 8) had used up the court's good graces when he violated the conditions of his probation on a tax conviction.

Barry, who served four terms as the District's mayor, said he was pleased with the judge's decision.

"It's good to have a good God, a good lawyer and a good judge, and that's what I had in this case," Barry, 71, said as he left the courthouse. "Hopefully, they won't bring these kinds of frivolous cases again."

It was the second time in two weeks that the former mayor had emerged victorious from a courthouse in a criminal case. He was acquitted last week in D.C. Superior Court of drunken driving and other charges stemming from an incident last year in which he was pulled over by Secret Service agents near the White House.

Robinson had sentenced Barry in March 2006 to three years' probation after he pleaded guilty to two misdemeanor charges and admitted that he failed to file six years of federal and local tax returns. One of the judge's conditions for granting leniency was that Barry file his overdue tax returns and not commit other crimes.

In January, prosecutors in the U.S. attorney's office alerted the judge that Barry had failed to file his 2005 local and federal tax returns, which had been due in October. The government argthat Barry had committed another crime and should serve the one-year prison sentence recommended under federal guidelines.

Responding to prosecutors' filings, Robinson initially refused to consider revoking Barry's probation and ruled in March that prosecutors had overstepped their authority in suggesting Barry should go to jail for violating the terms of his probation. But prosecutors appealed, and U.S. District Chief Judge Thomas F. Hogan overruled his fellow judge, concluding that the government was legally entitled to bring probation violations to Robinson's attention.

Barry's attorney, Frederick Cooke, gave no defense of Barry's failure to file the 2005 returns on time and said "the burden is entirely on the government" to show that Barry had "willfully" ignored his legal duty to file them. He stressed to Robinson that Barry had filed the 2005 returns this year and is in compliance with his probation.

Assistant U.S. Attorney Thomas Zeno told the judge that Barry was well aware of his legal duty to file the returns -- and still did not. Barry was on high alert about the consequences, Zeno said. He had admitted that he broke the law in failing to do so six previous times and acknowledged that there was "no excuse" for his crime.

But Robinson said Barry's knowledge of his duty wasn't enough to show he intended to shirk his duty.

Channing Phillips, a spokesman and principal deputy at the U.S. attorney's office, said yesterday that the prosecution was disappointed in the judge's decision.

"We respectfully disagree with the court's finding, as we believe, given the record in this case, that there was more than sufficient evidence that Mr. Barry willfully failed to file his tax returns," Phillips said.

In his third term as mayor, Barry was videotaped in 1990 in a hotel room smoking crack cocaine in an FBI sting and served a six-month prison sentence. In 1994, he was reelected mayor for another four-year term.