- The Washington Times - Tuesday, February 7, 2006

Federal prosecutors say D.C. Council member Marion Barry deserves to be “prosecuted and punished” and faces 12 to 18 months in prison for failing to file income-tax returns under federal sentencing guidelines.

In addition, Mr. Barry “has not filed his delinquent tax returns; nor has he submitted drafts of those returns,” prosecutors yesterday said in a memo to U.S. Magistrate Judge Deborah A. Robinson.

Mr. Barry, the former four-term D.C. mayor, pleaded guilty last year to misdemeanor tax charges for failing to file federal and local returns on more than $500,000 in income from 1999 to 2004. He is scheduled to be sentenced tomorrow in U.S. District Court in the District.

Under a plea deal with Mr. Barry, prosecutors said they will take no position on his expected request for probation.

But in the memo to Judge Robinson, Assistant U.S. Attorneys James W. Cooper and Thomas E. Zeno said the federal “government is unable to abide by its promises regarding sentencing unless and until defendant Barry satisfies this obligation of the plea agreement.”

The prosecutors noted that Mr. Barry had agreed to file all delinquent returns and arrange for payment of all taxes and penalties to the Internal Revenue Service, the D.C. Office of Tax and Revenue and any other required tax authority.

They also pointed out that a pre-sentence investigation report in the case has calculated a sentencing guideline of 12 to 18 months in prison, based on the offense and Mr. Barry’s criminal history. The Ward 8 Democrat served six months in prison after his arrest in 1990 following an FBI sting that caught the former mayor smoking crack cocaine.

“The government agrees this calculation is accurate,” prosecutors say in the memo.

Mr. Barry’s attorney, Frederick D. Cooke Jr., declined to comment, saying neither he nor his client want to discuss the case before appearing in court.

Attempts to reach Mr. Barry were unsuccessful.

In the memo, prosecutors say Mr. Barry, 69, tested positive for cocaine and marijuana use Nov. 17 and warn of “sanctions, such as revocation of release,” if Mr. Barry tests positive again.

Federal judges are expected, but not required, to abide by sentencing guidelines, according to Randall Eliason, former chief of the public corruption unit in the U.S. Attorney’s Office.

“Judges are expected to follow the guidelines unless they’ve got a good reason not to,” he said. “It’s going to be up to Barry to give the judge some reason why the sentencing guidelines shouldn’t be followed.”

Disclosures that Mr. Barry has tested positive for drugs and failed to file his returns “certainly won’t help his case,” Mr. Eliason added.

Prosecutors say Mr. Barry’s failure to file tax returns reflects “a conscious decision, not an oversight.”

“A longtime elected official who has been responsible for spending public funds collected from District of Columbia taxpayers, Barry chose not to file his own tax returns …,” the memo states.

Yet prosecutors also say there is no evidence that Mr. Barry tried to conceal his income or evade paying taxes.

“Further, defendant Barry accepted responsibility for his conduct and promptly agreed to plead guilty when he was approached by law enforcement,” prosecutors say.

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