updated 3/13/2007 7:08:42 PM ET 2007-03-13T23:08:42

A federal judge rejected a request by prosecutors to send former District of Columbia Mayor Marion Barry to jail for violating his probation in a criminal tax case.

U.S. Magistrate Judge Deborah A. Robinson said Monday that it was up to the federal probation office — not prosecutors — to make the request.

The probation office declined to comment on the case Tuesday. The U.S. attorney's office, which could appeal Robinson's decision, also declined comment.

Barry, 71 and now on the District of Columbia Council, pleaded guilty in 2005 to misdemeanor charges for failing to file tax returns from 1999 to 2004. As part of his plea bargain, he agreed to file future federal and local tax returns annually.

Prosecutors now charge that Barry missed deadlines for filing federal and D.C. tax returns for 2005. They argued in court filings that Barry "has not acted like a person who has been given the opportunity of probation and should not be treated like one."

Barry, who filed the 2005 returns last month after prosecutors went to court, told The Washington Post he was "delighted" with Monday's ruling. He said the handling of his case by the U.S. attorney's office was "embarrassing and humiliating."

"Thousands of Americans have tax problems with the IRS, and they're not treated this way," Barry said. "It's a double standard, and the U.S. attorney ought to stop it."

Barry served four terms as mayor. In his third term, he was videotaped in 1990 in a hotel room smoking crack cocaine in an FBI sting. He served a six-month prison sentence and in 1994 regained the mayor's office for another four-year term. The misdemeanor charges did required Barry to give up his seat on the city council.

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