By Del Quentin Wilber
Washington Post Staff Writer
Friday, April 17, 2009; B01
Federal prosecutors yesterday backed off a request that D.C. Council member Marion Barry be sent to jail for violating his probation on tax offenses.
Instead, Barry (D-Ward 8) should be put on home confinement for 30 days and his probation should be extended for two years, Assistant U.S. Attorney Thomas Zeno said during a court hearing.
Zeno originally had asked U.S. Magistrate Judge Deborah A. Robinson to send Barry to jail or put him in a halfway house because he had not filed his 2007 tax returns in a timely manner. Barry was sentenced to three years of probation in 2006 for failing to file tax returns.
But Robinson said she wanted to know whether two facilities under consideration for Barry had proper medical care. Barry recently had a kidney transplant, and his attorney said the former mayor has been hospitalized three times since the surgery.
During a break, probation officials learned that the jail and halfway house did not have on-site medical personnel. Zeno then amended his request. Robinson said she would issue a written order in the case.
Barry, wearing a gray suit and pink tie, sat at the defense table and shot smiles at a dozen supporters in the courtroom, including the woman who gave him one of her kidneys.
After the hearing, Barry said he was not surprised that prosecutors backed off their earlier request. "They can read the tea leaves," he said, declining to elaborate. He apparently was referring to Robinson's tough questioning of Zeno and a recommendation by probation officials that he not serve jail time. They asked Robinson to extend Barry's probation for two years.
The prosecutors "make it appear that I'm a scofflaw," Barry said outside the D.C. federal courthouse. "Just because I'm a public official doesn't mean I lose my rights as an American citizen."
Barry said his health was improving, but he was having trouble regaining strength in his legs because he has spent so much time in bed.
It is the second time in two years that federal prosecutors have asked Robinson to revoke Barry's probation. She rejected the earlier request, made in 2007 because Barry was late filing his 2005 returns, and seemed unreceptive to Zeno's arguments that Barry was flouting tax laws.
Robinson peppered Zeno with questions about his facts and grew upset when he cited an appeals court decision he had not mentioned in an earlier filing.
In court papers, federal prosecutors have expressed frustration with Barry because he had not filed tax returns on time in eight of nine years.
But Barry's attorney, Frederick D. Cooke Jr., argued that the former mayor should be released from his probation. At most, Cooke said, his probation should be extended another year.
He said Barry did not try to avoid his tax responsibilities and had been overwhelmed by health problems. He is current in all of his tax filings, Cooke said.
Barry was sentenced in 2006 to three years of probation for not submitting federal and D.C. tax returns. He admitted that he had not paid the bulk of the taxes on $500,000 he made from 1999 through 2004.
Barry did not file his 2007 returns until after prosecutors filed court papers in February seeking to have his probation revoked. Barry owes the federal government about $275,000 in back taxes, interest and penalties. The IRS has been taking $1,350 every two weeks from his salary since late 2006.
He also had been paying the D.C. government $350 a month to pay back an undisclosed amount in taxes, interest and penalties. He did not make those payments during a recent six-month stretch, prosecutors say.
Cooke said that Barry reached a new agreement with the District and that city officials have begun garnishing his paychecks for an undisclosed amount of back taxes. Barry paid his recent six-month D.C. tax debt and his federal and D.C. taxes for 2008, 2007 and 2006, Cooke said.
Federal authorities believe Barry still owes tax money from 2007 and 2006, Cooke said. Barry owes a relatively small amount in back taxes from 2005, Cooke said.