- The Washington Times - Thursday, April 26, 2007

The District’s chief federal judge yesterday overturned an earlier court ruling and ordered a magistrate judge to consider sending D.C. Council member Marion Barry to prison for failing to file his taxes.

The ruling by Chief Judge Thomas F. Hogan reverses an opinion last month by U.S. Magistrate Judge Deborah A. Robinson that appeared to keep Mr. Barry out of prison.

At issue is whether the court should consider a motion by prosecutors to revoke Mr. Barry’s probation for a parole violation after his 2005 guilty plea for failing to file tax returns.

Judge Robinson refused to consider the motion, ruling that the request to revoke probation should be left up to the probation office, not prosecutors.

But Judge Hogan yesterday disagreed, ordering Judge Robinson to consider the government’s petition to revoke Mr. Barry’s probation “on its merits.” In a six-page ruling, he called Judge Robinson’s concerns “misplaced.”

“While the United States Attorney may exercise discretion in deciding whether to move for revocation of probation, it is the court that decides whether to grant the motion,” Judge Hogan wrote.

The ruling puts Mr. Barry’s fate in question yet again, after he appeared to have avoided the prospect of prison time with Judge Robinson’s initial ruling.

Mr. Barry’s office issued a statement after Judge Robinson’s ruling saying the four-term mayor was “ecstatic upon hearing the news.” He also has accused prosecutors of targeting him.

However, prosecutors, who want a prison term of one year for Mr. Barry, then asked Judge Hogan to overturn Judge Robinson’s ruling. It’s not clear how soon Judge Robinson will make a second ruling in the case.

Prosecutors first sought to revoke Mr. Barry’s probation in February. They said that even after Mr. Barry pleaded guilty to not filing his taxes, he did not make arrangements to pay taxes on more than $500,000 in income.

“Eleven months have passed since the defendant received a lenient sentence of probation, and he inexplicably has failed to do the first thing he was required to do as a condition of his probation, obey the tax laws by filing his tax returns as required,” wrote Assistant U.S. Attorneys Thomas Zeno and James Cooper. “He in no way deserves further leniency.”

Meanwhile, Mr. Barry’s defense attorney, Frederick Cooke, earlier this month asked Judge Hogan to reject the prosecutors’ appeal. He called the government’s appeal “highly unusual” and said prosecutors were overstepping their authority.

“The Congress left that authority with the court and with its agent, the U.S. Probation Office,” he wrote of the motion to revoke Mr. Barry’s probation

But Judge Hogan disagreed in his ruling yesterday, saying the courts have given the U.S. Attorney’s Office the authority to request revocation of a defendant’s probation.

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