By Del Quentin Wilber
Washington Post Staff Writer
Saturday, May 23, 2009; B01
A federal judge ruled yesterday that D.C. Council member Marion Barry (D-Ward 8) violated the terms of his probation for tax offenses and extended his supervision for two more years.
The decision, which was expected, came after federal prosecutors abandoned their request that the former mayor be sent to jail for failing to file his 2007 tax returns on time.
In a statement, Barry said he was "delighted at the results of today's ruling."
"I thank God for sending me a fair judge who did not rush to a decision," he said. The former mayor said he will ask Attorney General Eric H. Holder Jr. to investigate federal prosecutors in the District because they "continue to harass and embarrass me."
Barry was sentenced to three years of probation in 2006 for failing to file tax returns. At the time, he admitted that he had not paid the bulk of the taxes on $500,000 he made from 1999 through 2004.
In February, federal prosecutors asked U.S. Magistrate Judge Deborah A. Robinson to revoke Barry's probation and send him to jail because he had not filed his 2007 tax documents. They alleged that Barry, who has not filed returns on time in eight of the past 10 years, was engaging in the same criminal conduct that had landed him in legal trouble originally.
Prosecutors were unsuccessful in their attempt to have Robinson revoke Barry's probation two years ago for similar reasons.
Barry has said he did not file his 2007 taxes because he was distracted by health problems. The 72-year-old is recovering from a kidney transplant.
At a hearing last month, federal prosecutors abandoned their jail request after learning that facilities would not be able to accommodate someone in Barry's medical condition.
Instead, they urged Robinson to put Barry on home detention for 30 days and to extend his probation for two years.
Citing a different probation violation, a U.S. probation official also recommended that Robinson extend Barry's supervision for a two-year period. The probation official said Barry had failed to comply with an order directing him to verify tax filings and payments with his office.
In an 18-page opinion, Robinson agreed with probation officials that Barry did not comply with that order. She extended his probation by two years but declined to put him on home detention.
Robinson chastised prosecutors for seeking to revoke Barry's probation on grounds similar to those the judge rejected two years ago. She wrote that prosecutors did not prove that Barry had "willfully" failed to file his tax returns, a key element of the offense.
The judge also criticized them for failing to call witnesses to prove their case. Prosecutors introduced documents that confirmed Barry was tardy in filing his returns but did not prove anything about his state of mind, she wrote.
"Plainly, willfulness is an element of the alleged new criminal conduct," she wrote. "The United States Attorney has, without explanation, failed to even attempt to prove it. No authority supports the proposition that the United States Attorney may allege that a probationer violated his conditions of probation by new criminal conduct and request a hearing on that ground, and, at the hearing, call no witnesses and maintain that he need not offer any evidence at all with respect to an element of the offense."
Channing Philips, a spokesman for the U.S. attorney's office, said prosecutors were reviewing the opinion and "strongly disagree with some of the court's characterizations and findings of fact."
He declined to comment further.
Barry filed his 2008 returns on time, his attorney has said. The former mayor owes the federal government about $275,000 in back taxes, interest and penalties.
The IRS has been taking $1,350 every two weeks from Barry's salary since late 2006. He owes the District an unspecified amount.