Barry to defend tax lapse in court

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D.C. Council member Marion Barry's most serious legal problem remains unresolved, despite his acquittal in D.C. Superior Court on drunken-driving charges last week.

The former four-term mayor is scheduled to appear Thursday in federal court in the District to argue why he should not be incarcerated for up to a year for failing to file taxes on time.

According to recently filed pleadings, the U.S. Attorney's Office will rely on affidavits from two tax agents and Mr. Barry's own words to make its case the Ward 8 Democrat has been violating his parole.

Mr. Barry is on probation for a 2005 misdemeanor criminal-tax violation. Prosecutors want to revoke Mr. Barry's probation, saying he continued to break the law by failing to file his 2005 D.C. and federal income taxes.

"It is well established the government may seek to revoke a defendant's probation when the defendant has committed a new offense, regardless of whether that offense has been charged as a separate crime," Assistant U.S. Attorney Thomas E. Zeno argued in a pleading filed June 14.

Defense attorney Frederick Cooke has not filed pleadings in the case since Thomas F. Hogan, the District's chief judge, upheld an appeal filed by prosecutors and ordered a federal magistrate to consider whether to put Mr. Barry behind bars.

Randall Eliason, a former assistant U.S. attorney who prosecuted white-collar crimes in the District, said the question may ultimately come down to whether the U.S. Probation Office thinks Mr. Barry deserves to go to prison.

"I think the judge will want to question [office officials] to find where they stand," Mr. Eliason said.

A spokeswoman for the office yesterday declined to comment, saying officials likely wouldn't disclose information about their position until the hearing Thursday.

Among the documents prosecutors filed last week in anticipation of the hearing was a 25-page transcript of Mr. Barry's sentencing in March 2006.

During the hearing, Mr. Barry apologized to U.S. Magistrate Deborah Robinson, saying "there is no excuse and no reason that anyone ought to be able to give as to why you do not file and pay the appropriate federal and District taxes."

Mr. Cooke has argued that prosecutors overstepped their authority in seeking to put Mr. Barry in prison. He says the probation office, not the government, usually seeks to revoke a defendant's probation.

In addition, Mr. Cooke has argued Mr. Barry thought he was complying with the terms of his probation because the Internal Revenue Service has been garnishing his D.C. Council paychecks.

Judge Robinson agreed. In March, she threw out the prosecutors' motion to revoke Mr. Barry's probation. But on an appeal filed by the government, Judge Hogan later reversed Judge Robinson's decision and remanded the case to her.

Mr. Barry served six months in prison after his 1990 arrest on cocaine charges. Last week, he was acquitted of the drunken-driving charges, after a 2006 traffic stop near the White House.

Secret Service agents said Mr. Barry drove through a red light and they smelled alcohol after pulling over his car. But a judge said a breath test showed Mr. Barry only had a blood-alcohol level of .02, below the legal limit of .08.