A Gravette man charged in connection with the Jan. 6, 2021, U.S. Capitol riot has rejected a plea bargain that would have required him to spend more than five years in prison.
Richard "Bigo" Barnett's attorney said the offer was "not reasonable."
"The offer is for 70 to 87 months," said Joseph McBride, referring to the sentencing guidelines. "We're talking about a 61-year-old man with no criminal history, who's never been charged with any violent act. He certainly wasn't violent that day by any stretch of the imagination."
So Barnett is rejecting the offer, said McBride.
The attorney made the comments during a video status hearing Tuesday with U.S. District Judge Christopher Cooper in the District of Columbia.
Barnett's trial is scheduled to begin Sept. 6.
Assistant U.S. Attorney Mary Dohrmann told Cooper that the offer would have required Barnett to plead guilty to 18 U.S.C. 1512(c)(2), Obstruction of an Official Proceeding, which is a felony. Six other charges against him would be dismissed at sentencing as part of the agreement.
Two of the charges that were to be dismissed regarded Barnett being in the Capitol with a "deadly or dangerous weapon," namely a ZAP Hike N Strike 950,000 Volt Stun Gun Walking Stick that Barnett purchased from the Bass Pro Shops in Rogers, according to prosecutors. FBI agents didn't recover the stun gun during a search of Barnett's home, although they found the packaging.
Barnett gained media attention after he posed for pictures with his foot on a desk in House Speaker Nancy Pelosi's office suite in the Capitol.
McBride told Cooper that there were "some issues" regarding the 18 U.S.C. 1512(c)(2) charge.
"Depending on which court you're in, the charges are either being dismissed or not," said McBride, apparently referring to U.S. District Judge Carl Nichols' ruling March 7 dismissing the charge in the case of Capitol riot defendant Garret Miller.
The text of 18 U.S.C. 1512(c)(2) reads, "Whoever corruptly ... obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both."
Nichols ruled that, in context, the law forbids only those obstructions of official proceedings in which a defendant has "taken some action with respect to a document, record, or other object," Roger Parloff, the former main legal correspondent at Fortune magazine, wrote for Lawfareblog.com.
"In other words, he ruled that the provision is, like many of its neighboring paragraphs in the U.S. Code, about spoliation of evidence -- not about riots or insurrections," wrote Parloff.
The charge "has become the single most important weapon in the government's arsenal in Capitol insurrection cases," wrote Parloff. Prosecutors have used it in more than 280 of the 750 Capitol riot cases.
"A phalanx of ten other judges on the same court, the U.S. District Court for the District of Columbia, had previously ruled the other way, blessing the government's use of the same charge under nearly identical circumstances," according to Parloff.
Cooper addressed McBride's concerns at the end of Tuesday's short hearing.
"As you know, the court has no role in your plea negotiations," Cooper told McBride. "It takes two to tango. Six of one or half dozen of the other. For me, I would be happy to take a plea, but I would also be happy to give you a fair trial.
"We just concluded one yesterday, as a matter of fact," said the judge. "We have several set throughout the spring, summer and now early fall. So I guess I will just sit back and wait for any motions, and unless I need a hearing on those motions, we will see you at the pretrial conference.
"And I'm sure you know, Mr. McBride, I have decided at least one 1512 motion, so I am among the judges who have weighed in. So I'm sure you'll take that into consideration."
"Of course, judge," said McBride.
In a Feb. 25 opinion, Cooper denied a motion to dismiss the 18 U.S.C. 1512(c)(2) charge against Jan. 6 defendants Thomas Robertson and Jacob Fracker.
"Defendants lodge three main arguments against count one of the indictment, but none has merit," Cooper wrote of 18 U.S.C. 1512(c)(2). "First, they assert that the charge is defective for failing to specify the precise official proceeding they are alleged to have obstructed. Second, they contend that the Joint Session of Congress to certify the electoral votes of the presidential election was not an 'official proceeding' under the statute. Third, defendants argue that the statute is unconstitutionally vague. ... These arguments have been rejected by other courts in this district over the last few months."
The Jan. 6 riot escalated from a "Stop the Steal" rally. Supporters of former President Donald Trump entered the Capitol and attempted to stop Congress from certifying the Electoral College vote indicating that Joe Biden had won the presidential election.
Four Arkansans have been charged in connection with the breach of the Capitol on Jan. 6, 2021. Besides Barnett, Peter Francis Stager, 42, of Conway also faces felony charges. Stager is accused of using a flag pole to beat a police officer who was down on the steps of the U.S. Capitol.
The other two Arkansans, Jon Thomas Mott, 39, of Yellville and Robert Thomas Snow, 78, of Heber Springs, were charged with misdemeanors.
On March 24, as part of a plea agreement, Snow pleaded guilty to one count of 40 U.S.C. § 5104(e)(2)(G) -- Parading, Demonstrating, or Picketing in a Capitol Building. His sentencing is scheduled for July 7.
Snow faces a maximum sentence of six months in jail, a $5,000 fine and five years of probation. He also has agreed to pay $500 in restitution.
All four Arkansas defendants initially pleaded innocent. None has gone to trial yet.