An attorney for D.C. Council member Marion Barry is urging a federal judge to uphold a recent ruling that has kept his client and former mayor out of prison.
The lawyer, Frederick D. Cooke Jr., formally asked Chief Judge Thomas F. Hogan on Friday to uphold the ruling after prosecutors attempted to get it overturned so Mr. Barry’s probation for failure to file his income taxes would be revoked and he would go to prison.
The ruling, made last month by U.S. Magistrate Judge Deborah Robinson, does not address the merits of the prosecutors’ argument that Mr. Barry, Ward 8 Democrat, had voided the plea deal by not filing annual tax returns after the deal was reached.
Instead, she said only the U.S. Probation Office, not prosecutors, could notify her about probation violations.
The prosecutors in the March 22 appeal said that Judge Robinson was “plain wrong” and that Mr. Barry, 71, should go to prison for ignoring the plea deal on misdemeanor criminal tax charges.
“The magistrate judge simply is wrong in advancing the novel legal theory that the United States attorney lacks authority to revoke probation,” argued Assistant U.S. Attorneys Thomas E. Zeno and James W. Cooper.
Mr. Cooke also said in a court memo Friday that the appeal was “highly unusual” and agreed with Judge Robinson’s assertion that the U.S. Attorney’s Office overstepped its authority.
“The Congress left that authority with the court and with its agent, the U.S. Probation Office,” he wrote. “It is very significant that there is no statute or rule that even tangentially authorizes or obligates the United States attorney to file a motion to revoke probation for an alleged probation violation.”
Judge Hogan has not stated when he will rule on the appeal. But if he overturns Judge Robinson’s decision, Mr. Barry, D.C. mayor for 16 years, could return to prison.
Mr. Barry, 71, has accused federal prosecutors of unfairly targeting him. And last month, his office issued a statement stating Mr. Barry was “ecstatic upon hearing the news” of Judge Robinson’s ruling.
“I urge the U.S. Attorney’s Office to start being fair and treat me as other American citizens,” Mr. Barry said.
Prosecutors want Judge Hogan to overturn Judge Robinson’s ruling and order her to reconsider the motion to revoke Mr. Barry’s probation “on the merits,” according to court records.
In their original motion seeking to revoke the probation, the prosecutors argued that Mr. Barry had not filed his taxes even after pleading guilty to not filing his 2005 tax returns. They say he should go to prison for a year.
“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,” Mr. Cooper and Mr. Zeno wrote. “He in no way deserves further leniency.”
Prosecutors made their first request Feb. 1 to revoke Mr. Barry’s probation.
Mr. Cooke has argued that Mr. Barry thought he was complying with the terms of his probation because the IRS has been garnishing his D.C. Council paychecks.
Mr. Barry served six months in prison after his 1990 arrest on cocaine charges.