- The Washington Times - Wednesday, March 7, 2007

Federal prosecutors asked a judge yesterday to send D.C. Council member Marion Barry to prison for one year because he has balked at paying his taxes even while on probation in a criminal tax case.

Saying Mr. Barry still hasn’t filed tax returns on time for the seventh year in a row, Assistant U.S. Attorneys James W. Cooper and Thomas E. Zeno argued the longtime elected official “has not acted like a person who has been given the opportunity of probation, and he should not be treated like one.”

“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.”

The prosecutors also told U.S. Magistrate Judge Deborah A. Robinson in the memo that they “take no joy” in asking Mr. Barry, Ward 8 Democrat, to be sent to prison, noting his years of elected service, including four terms as D.C. mayor, and his civil rights activism.

“He is a man of substance and talent, and he should have used these gifts to avoid these latest violations of federal and local criminal laws,” the prosecutors wrote.

Yesterday’s request marks the first time prosecutors specifically requested that Mr. Barry be incarcerated.

A spokesman for Mr. Barry said yesterday the council member had no comment on the tax case.

Prosecutors argued that Mr. Barry deserves to go to prison not only because he committed crimes by not filing his 2005tax returns, but also to let others know he is not above the law.

“If, after being granted leniency for failing to meet his most basic obligation of citizenship filing and paying his own taxes on a taxpayer funded salary for six years, the defendant receives no punishment for doing the same thing for a seventh year in a row, it is difficult to see why any other citizen would conform conduct to the dictates of the law,” Mr. Zeno argued.

The prosecutors’ request comes days Barry defense attorney Frederick D. Cooke Jr. filed papers saying the council member has filed his overdue 2005 tax returns.

In a memo to Judge Robinson, Mr. Cooke said Mr. Barry’s plea deal did not obligate the former mayor to accept a payment arrangement with the Internal Revenue Service. He also said Mr. Barry had “small outstanding balances” on the tax returns.

But Mr. Zeno said that argument “falls flat” because it fails to explain why Mr. Barry committed two crimes not filing his federal or D.C. tax returns and doing that while on probation.

Prosecutors first requested on Feb. 1 to revoke Mr. Barry’s probation after he pleaded guilty to misdemeanor charges of failing to file his taxes in 2005.

Mr. Cooke also 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.

In March 2006, Mr. Barry apologized in court for not paying his taxes, saying it embarrassed “the citizens of our city and our country.”

“There is no excuse and no reason that anyone ought to be able to give us as to why you would not file and pay the appropriate federal and District taxes,” Mr. Barry told Judge Robinson. “And therefore I will not even try to attempt to make an excuse or a reason.”

Mr. Barry, who served six months in prison in 1990 for cocaine charges, faced a maximum of 18 months in prison before Judge Robinson sentenced him to probation last year.

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