Lawyers for a Gravette man charged in the US Capitol riots are using a new “civil disturbance” charge as their latest excuse to try to delay his inevitable trial, prosecutors wrote in a filed Saturday request of a federal court.
Richard “Bigo” Barnett is facing eight indictments in connection with the January 6, 2021 riots in Washington, DC.
A substitute indictment filed Dec. 21 in federal court in the District of Columbia added the eighth charge: “civil disorder” under 18 USC § 231(a)(3).
The new charges suggested that Barnett obstructed or otherwise interfered with a Metropolitan Police officer who was attempting to carry out his duties during a civil disorder.
In a motion for continuation or dismissal on Friday, Barnett’s attorneys said they had no knowledge of what those charges pertain to.
But another filing by federal prosecutors on Friday mentioned that Barnett “annoyed” police officers in the Capitol rotunda and “reached for and pointed out a stun gun” that “had exposed its sharp, electrified prongs.”
Barnett faces aggravated charges for entering the Capitol “with a deadly or dangerous weapon” — a ZAP Hike ‘n Strike walking stick that Barnett bought from the Bass Pro Shop in Rogers a week before the riot. Prosecutors say the stun gun was advertised as being capable of delivering a 950,000-volt shock.
Barnett’s attorneys argue that the replacement charges came too late, just days before Jan. 9, when Barnett’s trial is scheduled to begin in federal court in the District of Columbia. They say they need more time to prepare a defense against civil unrest charges. They are calling for the trial to be postponed by at least two months or for the replacement charge to be dismissed on the “vindictive charge”.
Prosecutors say the new charges will not affect the scope of the defendant’s conduct that will be brought to justice.
“No surprises here,” Assistant US Attorneys Alison B. Prout, Michael M. Gordon and Nathaniel K. Whitesel wrote in Saturday’s filing. “The defendant knows the full extent of his own conduct on January 6, 2021, as of January 6, 2021. … This is not a case where the government replaced the indictment to add a charge of entirely new or different conduct, or a similar behavior at another time. Therefore, the defendant’s trial preparations to date should have prepared him for the full extent of the conduct that will be at trial at his trial.”
Prosecutors say Barnett’s defense team has no viable theory of a vengeful prosecution.
In a footnote to the filing filed on Saturday, prosecutors wrote: “As this court understands, civil misdemeanor has a maximum statutory sentence of five years, while the defendant’s exposure without substantial analysis of penal measures is higher (20 years). the allegation of obstruction of an official procedure. It is evident that the addition of an allegation less than ‘vindictiveness’ could hardly suffice, especially if it adequately captures the actions of the accused.”
In another footnote, prosecutors indicated that they do not want the civil disorder charge to delay Barnett’s trial: “To the extent the court can identify genuine material disadvantages to the defendant resulting from the replacement charge. The Government would prefer, based on the defendant’s willingness offer…that the parties proceed to trial on all other charges and sever the post-trial civil misdemeanor charge. This would address the defendant’s alleged concerns about his surprise remove this additional charge entirely. Nevertheless, for the reasons set out above, the Government submits that such compensation is unnecessary and unjustified.”
Barnett’s attorneys have consistently asked for delays and missed deadlines, according to prosecutors.
“The history of the case is rife with repeated missed deadlines by the defendant and last-minute requests for extensions and continuations,” they wrote in Saturday’s filing. “Because the defendant does not indicate any specific prejudice that he would suffer if he went to trial on the current charges, his motion should be denied in its entirety.”
Barnett has a four-man defense team, according to prosecutors. Friday’s motion was signed by Carolyn A. Stewart, a relatively new addition to Barnett’s defense team, and Joseph D. McBride, who has represented him since April 2021.
In their Friday motion for continuation or dismissal, Stewart and McBride noted that a section of the replacing indictment had been “substantially edited,” altering it from the original indictment. This section, which relates to an indictment under 18 USC § 1512(c)(2), was amended to clarify that the Congressional process that Barnett attempted to obstruct, influence or obstruct required a “Certification of the Electoral College by Congress” was, as set forth in the Twelfth Amendment to the United States Constitution.”
The Capitol riot was an attempt by at least some people in the crowd to overturn the results of the 2020 presidential election and prevent Congress from counting the electoral vote for Joe Biden’s victory over then-President Donald Trump.
Barnett’s attorneys argue that changing the wording of the replacement indictment with respect to 18 USC § 1512(c)(2) also warrants a continuation of the case.
“That makes no sense,” prosecutors wrote in their file on Saturday. “This change limits the allegation rather, since it specifies exactly which official procedure the defendant is accused of having obstructed.”
US District Judge Christopher R. Cooper had not ruled on Barnett’s application early Saturday night.
Barnett is one of two Arkansans facing felony charges in connection with the US Capitol riots. The other is Peter Francis Stager, 43, of Conway, who is accused of hitting a police officer who was lying face down on the steps of the Capitol with a flagpole. A hearing is scheduled for Stager on February 16.
Three Arkansans have been charged with misdemeanor related to breaking into the Capitol. Robert Thomas Snow, 79, of Heber Springs, and Jon Thomas Mott, 39, of Yellville, pleaded guilty to parading, demonstrating, or picketing inside a Capitol building. Snow was sentenced to one year probation and 60 hours of community service. Mott’s sentencing is scheduled for March 8.
Burn Cline Machacek, 32, of Hindsville, was arrested December 19 and charged with the same four counts that Snow and Mott originally faced. His first appearance is scheduled for Tuesday via video conference call.
