TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Saturday, May 23, 2009

Judge Refuses to Revoke Marion Barry's Probation for Continued Failure to File Tax Returns After U.S. Attorney Fails to Call Any Witnesses at Hearing

I previously blogged Marion Barry Owes $277k in Back Taxes; Government Seeks Revocation of His Probation (March 30, 2009):

In a scathing pretrial memorandum, U.S. Attorney Jeffrey A. Taylor alleges that former D.C. Mayor (and current D.C. Council member) Marion Barry owes more than $277,000 in unpaid federal taxes, penalties, and interest. In addition, the memorandum alleges that Barry did not file his 2007 tax return until February 17, 2009, four months after the due date (with the automatic four-month extension), and it showed additional taxes owed of $6,512. The U.S. Attorney is seeking revocation of Barry's three-year probation on his guilty plea to failing to file his federal and D.C. tax returns for 1999-2004.

In a bizarre twist, the U.S. Attorney failed to call a single witness at the hearing, and the district court on Friday rejected the request to revoke Barry's probation.  United States v. Barry, No. 05-0556M (D.C. D.C. May 22, 2009):

Defendant advised, as context for the violations alleged by the United States Attorney and the United States Probation Office, that issues regarding his health "left [him] unable to fully focus on the task of submitting his tax returns." ...

The United States Attorney also suggested that Defendants' health concerns did not prevent him from "vacation[ing] in Jamaica [in September, 2008]," running a "successful campaign ... for re-election [in November 2008,] or "work[ing] as a member of the Council of the District of Columbia." ...

In this district, probation revocation proceedings are almost invariably initiated by the United States Probation Office. ... The only exception to this general rule has been in this action, in which ... the United States Attorney -- in the absence of a request by the United States Probation Office -- has moved to revoke this Defendant's term of probation. ... 

[A]t the April 16 hearing, the United States Attorney elected not to call a single witness in an effort to prove the new criminal conduct....

Upon consideration of the evidence offered by the United States Attorney at the hearing, the court finds that the United States Attorney failed even to atempt to demonstrate, by the facile preponderance standard, that Defendant's failure to timely file his 2007 tax returns was willful. ...

Plainly, willfulness is an element of the alleged new criminal conduct.  The United States Attorney has, without explanation, failed to even attempt to prove it.  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 reuest 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.

A spokesman for the U.S. Attorney's office "strongly disagreed with some of the court's characterizations and findings of fact."  Barry has called for an investigation into the U.S. Attorney's conduct of the case.

http://taxprof.typepad.com/taxprof_blog/2009/05/us-attorney-fails.html

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