A lawyer for Mayor Marion Barry yesterday dropped a request for a retrial on the one cocaine possession charge on which the mayor was convicted, and the judge said he will sentence Barry next Friday, as had been scheduled previously.
Barry defense lawyer R. Kenneth Mundy also asserted before U.S. District Judge Thomas Penfield Jackson that the government is still investigating Barry for possible criminal charges, and that the risk of further prosecution is the reason Barry is refusing to talk with probation officials about any past drug use.
Sources familiar with the U.S. Attorney's Office said there is no ongoing investigation of the mayor.
The investigation of Barry ended, sources said, on Sept. 17, when Stephens's office announced it will not seek to retry Barry. Until then, sources said, police investigators and FBI agents continued to locate and prepare potential witnesses against Barry in the event that the judge ordered that Barry be retried.
Outside the courtroom, Mundy said it was Barry who decided to drop the motion for a new trial on the possession count on which he was convicted on Aug. 10. "He said he just wanted to let it rest," Mundy said. Barry was not in court yesterday.
Yesterday's court hearing was supposed to center on a pre-sentence report prepared by federal probation officers. Mundy, however, told Jackson that he had received the report only three days ago and was not prepared to respond to it.
Assistant U.S. Attorney Richard W. Roberts did not respond to Mundy's assertion that the government is continuing its investigation of Barry. A spokesman for Stephens's office declined to comment.
After the hearing yesterday, Mundy said that Barry is still the target of a federal investigation into possible violations relating to drugs and government contracts.
The charge on which Barry was convicted related to his taking drugs with an old friend, Doris Crenshaw. He was acquitted on a second possession charge, and the jury deadlocked on the remaining 12 charges, including three felony counts of perjury. Prosecutors have said they will not seek a retrial on those charges.
Although Mundy said he was entitled under federal court rules to additional time, and urged Jackson to postpone Barry's sentencing, Jackson said he will impose Barry's sentence next Friday, 11 days before the Nov. 6 election in which Barry is seeking an at-large seat on the D.C. Council.
In asking Jackson for more time to mount a challenge to the pre-sentence report, Mundy said he "completely" disagrees with the report, which he said called for a more severe sentence based on Barry's obstruction of justice and failure to accept responsibility.
Under federal law and sentencing guidelines, Barry could receive up to a year in prison. Although it is rare for first-time drug offenders to receive prison terms for a drug possession conviction, Stephens is expected to file a memorandum next week asking that Jackson impose the maximum sentence.
In any event, federal law gives Jackson discretion to impose a sentence of up to six months without an appeal. If Jackson imposes a sentence of more than six months, Barry could appeal the sentence only if he could prove the judge lacked justification under the guidelines.
At this point, the pre-sentence report would become important, because under federal sentencing guidelines a judge can take into consideration Barry's alleged lack of remorse or failure to accept responsibility. In addition, the guidelines would allow Jackson to take into consideration Barry's alleged obstruction of a federal investigation, when he told a grand jury that he was not aware of drug use by former D.C. government employee Charles Lewis.
The report is made available only to Barry, the judge and the U.S. Attorney's Office.
Sources said that Stephens's office virtually abandoned an investigation of Barry on possible government contract violations early this year, when the first drug indictment against Barry was returned.
At that time, the grand jury investigating Barry had issued a subpoena seeking all District contract documents involving eight Barry friends.
According to sources, the District government has not fully complied with that subpoena, but prosecutors have not insisted that they do so.
Barry had sought a new trial on the grounds that the jury was subjected to improper external influence.
Mundy's motion cited what he said were two examples of such influence, both reported originally by The Washington Post in August. The Post said a deputy U.S. marshal guarding the jurors had told one juror that an alternate juror would have voted "guilty, guilty, guilty." The Post also said several jurors witnessed an unsuccessful sting operation at their Prince George's County hotel in which police attempted to arrest drug suspect Brian Lee Tribble.
Prosecutors opposed the request, saying that Mundy had offered no legal support for the new trial and that the irregularities, even if they occurred, did not mean the mayor's trial was unfair.
Mundy said he has not yet decided whether to appeal the conviction.