Attorneys for a Gravette man charged in the U.S. Capitol riot have asked that his January trial be postponed by two months or that a superseding indictment filed Dec. 21 be dismissed.
The superseding indictment added a new charge, "civil disorder" under 18 U.S.C. § 231(a)(3), against Richard "Bigo" Barnett,.
He now faces eight charges in connection with the riot in Washington, D.C., on Jan. 6, 2021. Barnett, 62, gained worldwide attention after posing for photos with his foot on a desk in House Speaker Nancy Pelosi's office suite.
In a filing Friday in federal court in the District of Columbia, Barnett's attorneys said they didn't have time to prepare to defend their client against a new felony charge filed so close to the trial, which is scheduled to begin Jan. 9 in Washington.
Regarding the new charge, the superseding indictment indicated that Barnett impeded or otherwise interfered with a Metropolitan Police officer who was trying to perform his duties during a civil disorder.
According to a motion filed by federal prosecutors on Friday, Barnett was "antagonizing" police officers in the Capitol Rotunda during the riot and at one point he "reached for and displayed his energy weapon, which had its sharp, electrified prongs exposed."
A ZAP Hike 'n Strike Hiking Staff that Barnett purchased at Bass Pro Shop in Rogers a week before the riot has been an issue in the case. In court filings, prosecutors say the stun gun was a dangerous or deadly weapon advertised as being capable of delivering a 950,000-volt shock.
Investigators found packaging for the stun gun at Barnett's residence, but there's no indication from court filings and hearings that the weapon itself has been recovered. In court filings, prosecutors say it's visible in Barnett's belt in photos of him sitting at the desk in Pelosi's office suite.
Barnett's attorneys note that a section of the superseding indictment was "materially edited," changing it from the original indictment. That section, which refers to a charge under 18 U.S.C. § 1512(c)(2), was changed to specify that the congressional proceeding Barnett attempted to obstruct, influence or impede was "Congress' certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States."
The Capitol riot was an attempt by at least some people in the crowd to overturn the results of the 2020 presidential election and stop Congress from counting the electoral votes for Joe Biden's win over then-President Donald Trump.
U.S. District Judge Christopher R. Cooper has extended some of the pretrial filing deadlines, but Barnett's attorneys say they don't have time to prepare for the trial because of the superseding indictment.
"This honorable Court allowed for some short extensions of time for production, but the defense has not had time to prepare a holistic set of inputs under the full weight of the added Civil Disorder charge and the substantial change to the existing § 1512 (c)(2) charge," they wrote. "Now having had some days to partially assess the new indictment's effect on our existing defense strategy and the needed preparation time, the defense states that it cannot adequately be ready to defend at trial on January 9, 2023 even with superhuman efforts."
They request a continuance of at least 60 days from Jan. 9 or, alternatively, that the court dismiss the superseding indictment under Federal Rules of Criminal Procedure Rule 48(b) for delay in bringing the charge to the grand jury.
According to their motion for continuance or dismissal, Barnett's attorneys say they have been preparing to defend their client against the initial charges over the past 23 months.
"Defense efforts included going through more than a thousand files and 98+ gigabytes of data specific to Mr. Barnett in the government-provided discovery; and conducting countless hours of video review and gathering its own evidence, witnesses, and experts ..." they wrote. "A twenty-three-month-old defense strategy is now moot, as it was developed under the lens of the seven-count indictment."
The defense needs time to submit a motion to dismiss the civil disorder charge if the court doesn't do so by dismissing the indictment, according to Barnett's attorneys.
"If counting chronological days that include Christmas Eve, Christmas Day, New Year's Eve, New Year's Day, and the two federal holidays, the superseding indictment allowed seventeen days before trial to prepare to defend against an entirely new charge and to adjust the defense strategy as needed, including identifying and preparing witnesses and exhibits," they wrote. "Translated to business days, the time allowed was nine days."
The filing of the superseding indictment has disrupted the defense's preparation for trial, according to Barnett's attorneys.
"The defense has lost a week and counting due to reassessing and responding," they wrote. "Even if the Civil Disorder Count One were dismissed outright, the defense cannot time travel into the past and regain the time to be ready for trial on January 9, 2023. The government, and the government alone, wholly disrupted and impaired our efforts and caused us to spend precious time trying to incorporate the additional charge and substantial changes from the superseding indictment into the remaining pretrial production."
The defense motion was submitted by Carolyn A. Stewart of Plant City, Fla., a new addition to Barnett's legal team, and Joseph D. McBride of New York City, who has represented Barnett since April 2021. McBride has been dealing with some health problems recently.
Cooper hadn't ruled on the motion as of early Friday evening.
Barnett is one of two Arkansans who face felony charges in connection with the U.S. Capitol riot. The other is Peter Francis Stager, 43, of Conway, who is accused of using a flagpole to beat a police officer who was face down on the steps of the Capitol. A plea hearing is scheduled for Stager on Feb. 16.
Three Arkansans were charged with misdemeanor counts regarding the Capitol breach. Robert Thomas Snow, 79, of Heber Springs and Jon Thomas Mott, 39, of Yellville both pleaded guilty to one count of parading, demonstrating, or picketing in a Capitol building. Snow was sentenced to one year of probation and 60 hours of community service. Mott's sentencing is scheduled for March 8.
Brennen Cline Machacek, 32, of Hindsville, was arrested Dec. 19 and charged with the same four counts that Snow and Mott initially faced. His initial appearance is scheduled for Tuesday via video teleconference.