A Gravette man found guilty of eight charges in the U.S. Capitol riot should be acquitted for several reasons, his lawyer wrote in a federal court filing Monday night in the District of Columbia.
Richard "Bigo" Barnett didn't enter the Capitol of his own volition, didn't impede police officers and didn't disrupt Congress' certification of Joe Biden's electoral victory in the 2020 presidential election, wrote Jonathan Gross of Baltimore, Barnett's attorney.
"Perhaps the 'riot' writ large 'contributed to the disruption,' but the question is whether Mr. Barnett's entrance into the building 'obstructed the official proceedings' ..." wrote Gross. "The evidence showed that he was not the cause that the proceeding ceased, and he was not the reason it did not resume. No evidence showed that he obstructed it so he should be acquitted."
The proceeding did resume, and Congress certified Biden as the winner of the election.
After a two-week trial in January, a jury in Washington, D.C., deliberated for two hours and seven minutes before finding Barnett guilty on all eight charges against him. Barnett faced enhanced charges for carrying a stun gun into the Capitol on Jan. 6, 2021, although he testified it wasn't working, possibly because he dropped it in the shower the night before.
Barnett, who faces a maximum penalty of 47 years in prison, is scheduled to be sentenced on May 3.
On Feb. 5, Barnett's four-person legal team filed motions for acquittal or a new trial. Federal prosecutors filed a response on March 5.
"The defendant rehashes several arguments ... that the Court already considered and rejected, both before and during trial," prosecutors wrote in the response.
Gross' brief filed Monday night was a reply to the government's response.
Since March 9, the other three members of Barnett's legal team have filed motions to withdraw from his case, leaving Gross to handle Barnett's post-trial legal filings and possible appeal.
U.S. District Judge Christopher R. Cooper has scheduled a hearing for Monday on the motions to withdraw.
In a filing in a different case, Gross wrote that he has a background in constitutional law but has never practiced criminal law before.
In Monday's filing, Gross wrote that "the Government made several misrepresentations of the trial evidence" in Barnett's case.
"The Government states that Richard Barnett 'prepared to take action to prevent' Joe Biden from becoming president, and on January 6 he followed through on this preparation," wrote Gross. "No evidence showed this."
Gross wrote that the government failed to find a "smoking gun Facebook post to show intent," but they did find a picture of a pickup truck with a Trump flag on someone else's Facebook page that prompted Barnett to click the "like" button.
"The Government ... points to social media posts where Mr. Barnett seems to be preparing for violence," wrote Gross.
"Yet the Government never alleged, much as they would have liked to, that Mr. Barnett committed any violence on January 6. All of this 'evidence' is therefore irrelevant and does not support any charge."
Barnett was swept into the Capitol by the crowd, wrote Gross.
"Mr. Barnett is clearly shown on video being pushed into the building and yelling, 'We have no choice! We have no choice!'" according to Gross' court filing.
Barnett entered the office suite of House Speaker Nancy Pelosi and posed for photos with his foot on a desk.
"The Government also describes Mr. Barnett and others as 'rioters,' when the evidence shows that there was no rioting in the office suites, and, on the contrary, all of the so-called 'rioters' including Mr. Barnett, followed the instructions [of] two female police officers without any resistance," wrote Gross.
Video presented during the trial did show that, when one of those officers told Barnett he needed to get out, he responded by saying, "You need to get off Communism is what you need to do. You're an atheist."
"The Government cites as evidence of wrongdoing that he made statements to the officer while complying with her directives," wrote Gross.
"It is a constitutional right to speak to police officers, not evidence of wrongdoing."
The most significant mischaracterization made by the prosecutors, wrote Gross, is when they said Barnett "joined a mob confronting a line of officers" in the Capitol rotunda.
"This is false," wrote Gross. "The video shows protesters peacefully meandering in the Rotunda. Mr. Barnett was not given any instructions to leave the Capitol, in fact, later, it was shown on video that he had to get special permission to leave the Capitol."
Other video, presented at trial by the government, showed Barnett in the face of Metropolitan Police Officer Terrence Craig, yelling that he wanted an officer to go to Pelosi's office and retrieve an American flag on a 10-pound metal pole that he had left there.
Craig testified in the trial that Barnett "was in my face and threatening me."
Among the eight charges Barnett was found guilty of was interfering with a police officer (Craig) during a civil disorder, 18 U.S. Code Section 231(a)(3).
In Monday's filing, Gross noted that the civil disorder charge has been used 204 times against Jan. 6 defendants, but zero times against Black Lives Matter protesters, "when they burned the District of Columbia for a few weeks in the summer of 2020."
"The government continues to this day to hunt down and arrest new January 6 defendants and charge them with Section 231(a)(3)," he wrote. "There is no comparable ongoing investigation to hunt down Black Lives Matter protesters for the same crime."
Barnett spent about 30 minutes in the Capitol, according to court filings and testimony.
But he arrived late and left early, wrote Gross.
"The argument put before the jury at Mr. Barnett's trial was that Mr. Barnett could not have obstructed the official proceeding because he entered the building after the proceeding had been obstructed, he exited the building minutes later, and according to the Government's own witnesses, it would have been impossible for the proceeding to resume until long after Mr. Barnett had left the building, indeed the District," wrote Gross.