By Del Quentin Wilber
Washington Post Staff Writer
Tuesday, February 10, 2009; A01
For the second time in two years, frustrated federal prosecutors took aim at Marion Barry's chronic failure to file his tax returns and urged a judge to put him in jail.
The move by authorities is the latest act in a long-running tug of war between authorities and the D.C. Council member over his tax status. In all, prosecutors say, Barry has failed to file his returns on time in eight of the past nine years.
Yesterday, they urged a federal judge to revoke Barry's probation for tax offenses just weeks before it expires.
Barry, 72, in the past has called such legal efforts "frivolous" and has said his tax problems are a "personal matter."
But prosecutors, who failed in a similar effort to have Barry jailed two years ago, don't see it that way.
"The defendant's conduct regarding tax year 2007 is indefensible," wrote Assistant U.S. Attorney Thomas A. Zeno in a motion filed in U.S. District Court. "It is not acceptable for any citizen to shirk a basic civil duty, let alone a former mayor and current city councilman who has been responsible in the past and continues to be responsible for spending public funds collected from District of Columbia taxpayers."
Barry's office issued a statement last night saying he hasn't seen the prosecutor's motion. "I don't have any idea as to what the motion says," he said. "I'm busy doing my work on the Council helping people get jobs and find affordable housing."
Legal experts said Barry (D-Ward 8) is in serious legal jeopardy this time around, especially because the judge let him off the hook in 2007 under similar circumstances.
"He puts the judge in a very difficult spot," said David Schertler, a former federal prosecutor. "Many judges are willing to give a defendant a chance if there is a question about it being a misunderstanding. But it would be hard to argue that now. It's amazing, really. It's hard to know what [Barry] is thinking."
Schertler said Barry could expect to be sentenced to several months in jail. He might earn some leniency if he files his returns in the next few days, Schertler said.
If U.S. Magistrate Judge Deborah A. Robinson does not send Barry to jail, Zeno requested she hold a hearing during which Barry could explain his conduct.
Prosecutors might request a two-year extension of the council member's probation if he does not get jail time, Zeno wrote.
Prosecutors don't usually have to pursue tax offenders for continuing to break tax laws because such repeat violations are rare.
"There are severe consequences for violating the tax laws," said Nathan Hochman, a former top Justice Department tax prosecutor. "The likelihood of going to jail for committing the same exact crime goes up dramatically" when repeat offenders go before the same judge.
Ironically, Barry might be due a tax refund, because the D.C. government withholds a portion of his $92,530 salary, according to sources familiar with the matter.
In their favor this time around, prosecutors have cobbled together a lengthy history of what they have called Barry's "recalcitrant" attitude toward his tax duty.
Barry pleaded guilty in 2005 to not filing federal or D.C. returns from 1999 through 2004, a period when he was not in public office. He also admitted that he did not pay the bulk of his taxes on more than $500,000 he earned during those years.
Even then, he annoyed authorities and Robinson by not promptly filing tax returns or arranging to pay his tax debt, the size of which has not been publicly disclosed. An irritated Robinson was forced to delay Barry's sentencing for a month until those matters were cleaned up. Then she gave him three years of probation.
Prosecutors returned to court less than a year later when it became apparent that the council member had not filed his 2005 return even in the midst of the legal drama. They asked Robinson to revoke Barry's probation and send him to jail.
Robinson at first declined to grant prosecutors a hearing, but she was reversed by U.S. District Chief Judge Thomas F. Hogan. Later, Robinson ruled that prosecutors did not prove the former mayor had intentionally violated the tax code.
In court papers filed yesterday, prosecutors said Barry is "well aware" that he must comply with tax laws.
"The court's patience should be at an end," prosecutors wrote.
To bolster their case, they wrote, Barry told probation agents that he had filed paperwork to get an extension to file his returns in October -- just as he was being granted permission to leave the country for a vacation in Jamaica.
A month later, prosecutors wrote, Barry "promised" that he would file his returns in two weeks. They said he missed that deadline, too.