- The Washington Times - Saturday, May 23, 2009

A federal judge on Friday ordered an extension of D.C. Council member Marion Barry’s probation for tax offenses but declined to comply with prosecutors’ requests that the former mayor be kept under electronic surveillance and home confinement.

Mr. Barry, Ward 8 Democrat, appeared in U.S. District Court last month after prosecutors said he violated the terms of his 2006 probation by failing to file his 2007 tax returns on time.

The government initially sought to incarcerate Mr. Barry, 73, but later dropped the request and asked that the council member’s probation be extended, that he be placed under stricter surveillance measures and have a curfew on nights and weekends.

In her ruling Friday, U.S. Magistrate Judge Deborah A. Robinson ordered a two-year probation extension for Mr. Barry but was critical of the prosecution.

The judge noted that assistant U.S. Attorney Thomas Zeno did not call any witnesses during the April hearing and called “disingenuous” the prosecution’s argument that it was not necessary to consider whether Mr. Barry willfully filed his returns late.

The same judge in 2007 also ruled that prosecutors - who then sought to have Mr. Barry’s probation revoked for not filing his 2005 taxes on time - hadn’t proved beyond a preponderance of the evidence that the former mayor “willfully” failed to do so.

“No authority supports the proposition that the United States Attorney may allege that a probationer violated his conditions of probation by new criminal conduct and request a hearing on that ground, and, at the hearing, call no witnesses and maintain that he need not offer any evidence at all with respect to an element of the offenses,” Judge Robinson wrote in her Friday ruling.

Mr. Barry was sentenced to three years’ probation in 2006 after pleading guilty to not filing 2000 tax returns and acknowledging he did not file taxes from 1999 through 2004.

The judge’s ruling concurred with a recommendation by Mr. Barry’s probation officer, who the judge noted said that Mr. Barry failed to provide verification of his filing and payment obligations by a February deadline.

The council member said Friday he was “delighted at the results” of the ruling.

“I thank God for sending me a fair judge who did not rush to a decision, but instead, took into account every aspect of this case,” Mr. Barry said.

He also called on Attorney General Eric H. Holder Jr. to investigate the U.S. Attorney’s Office of the District for continuing “to harass and embarrass me through motions and legal documents.”

He noted this was the second time Judge Robinson “soundly rebuked them,” and said he is current with all his tax bills and agreements.

“Hopefully, this is the last time that we have to go down this road,” Mr. Barry said.

• Gary Emerling can be reached at gemerling@washingtontimes.com.

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