WASHINGTON -- An Arkansas man accused of breaching the U.S. Capitol on Jan. 6 will be allowed to return to his home in Gravette pending trial.
U.S. District Judge Christopher R. Cooper of the District of Columbia said Tuesday that he was prepared to grant a motion allowing the release of Richard "Bigo" Barnett, 60.
The judge's order will include "specific conditions of release," he said, including "home detention except for approved purposes, location monitoring by GPS, surrender of the defendant's passport and an order not to obtain another, no travel outside of 50 miles without previous approval of the Pretrial Services Agency, no association with anyone associated in any way with the events of Jan. 6, and no possession of any firearm or other dangerous weapon, including, obviously, stun guns."
Prosecutors had argued that Barnett should remain behind bars, pending trial, portraying him as a threat to the community.
But Cooper was unswayed.
"The burden faced by the government, clear and convincing evidence, has just not been met in this case, in my view," he said.
Barnett is accused of entering the Capitol with a 950,000-volt stun gun and being photographed with his feet on a desk in one of House Speaker Nancy Pelosi's offices.
Afterward, he is accused of bragging about his actions, reportedly telling a reporter, "I left her a note on her desk that says, 'Nancy, Bigo was here, you b----.'"
He was arrested on Jan. 8, surrendering to authorities shortly after his return to Arkansas.
Barnett was initially charged with knowingly entering or remaining in a restricted building or grounds without lawful authority; violent entry and disorderly conduct on Capitol grounds; and theft of public money, property or records.
If convicted on those counts, he would face a maximum of one year's imprisonment.
Given the charges, Barnett's ties to the community and other factors, federal Chief Magistrate Judge Erin Wiedemann planned to place him under house arrest.
Federal prosecutors objected on Jan. 15, persuading Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia to intervene.
After another weekend in jail in Fayetteville, Barnett was taken into the custody of U.S. marshals and transported to the nation's capital.
In late January, a grand jury indicted Barnett on seven counts, including entering a restricted building with a "deadly or dangerous weapon."
The most serious counts could result in imprisonment of up to 20 years.
While more than 300 people are awaiting trial in the attack on the Capitol, most are not locked up.
During a March pretrial status conference hearing, Barnett complained about his lengthy detention.
"They're letting everybody else out," he said, later adding, "I need help. I need help."
In a court filing posted Monday, Barnett's attorney, Joseph D. McBride, urged that his client be released.
Among other things, he accused federal prosecutors of misrepresenting the note left in Pelosi's office.
The message hadn't used the word "b---- at all, he said. Rather, it referred to the House speaker as a "biatd."
"On information and belief, the 'd' was meant to be two letters, 'c' and 'h' with the 'c' connected to an 'h' to spell the word 'biatch,' which is a slang and less offensive word for 'b----," McBride argued in his court filing.
During Tuesday's hearing, McBride blamed the crowd -- not Barnett -- for his client's presence in the building on Jan. 6.
"Mr. Barnett was pushed into the entry of the Capitol under a tidal wave of people," he said. "That is not even voluntary entry. That is somebody, a 60-year-old man, who is being swept up in a throng of people."
Cooper rejected that argument, noting that it was illegal to either enter or remain in the building.
"Even if I were to accept your version of the events, that he was just sucked in by some force to the Capitol, no one forced him to stay there, did he?" Cooper asked.
"Yes, judge. Yes, your honor. That's true. We concede that," McBride answered.
After listening to both sides, Cooper announced his decision.
"Jan. 6 was a criminal effort to undermine one of the essential pillars of our democracy -- the peaceful transfer of power. And it was perpetrated by people who were sold and who willingly bought a bill of goods about the election being stolen without any proof whatsoever and plenty of evidence to the contrary. And it was deadly serious. It caused the death of five people, and many more almost certainly would have died if not for the quick intervention by law enforcement to evacuate lawmakers and their overall restraint towards the rioters," he said.
"But the D.C. circuit has instructed that the overall purpose or the inherent dangerousness of what happened on Jan. 6 is not a permissible consideration in deciding whether the government has met its statutory burden of showing, by clear and convincing evidence, that Mr. Barnett is a danger to the community and therefore should be detained pending trial," he said.
Citing federal statutes and a recent ruling by the U.S. Court of Appeals for the District of Columbia Circuit, Cooper said Tuesday that Barnett was entitled to release.
In United States v. Munchel, the court considered whether two other reported Jan. 6 insurrectionists, Eric Munchel and his mother, Lisa Eisenhart, could be detained while awaiting trial.
Munchel reportedly had been photographed in the Senate chambers carrying plastic restraints; prosecutors said he also was carrying a Taser. His mother had also reportedly been photographed inside.
Both were allowed to return to their homes after the court's March 26 ruling.
The Munchel case makes clear that release pending trial is the presumption "and that detention is the exception," Cooper said.
In order to keep Barnett detained, "the court must clearly identify a concrete, articulable threat to the community," he said. "It is not enough that the defendant participated in the Jan. 6 events."
What occurred that day was a "one-off confluence of events that provided a unique opportunity to obstruct the electoral count," Cooper said, summarizing the appeals court opinion. "Illegally entering the Capitol that day says little to nothing about the risk of a defendant doing likewise in the future."
During the hearing, Cooper asked about discovery and about the possibility of the case being settled before trial.
"The government has initiated plea discussions with defense," Assistant U.S. Attorney Mary L. Dohrmann replied.
While no deal has been offered, Dohrmann mentioned a potential sentencing range between 70 and 87 months.
Barnett faces these charges:
• 18 U.S.C. 1512(c)(2) and 18 U.S.C. 2; obstruction of an official proceeding and aiding and abetting.
• 18 U.S.C. 1752(a)(1) and (b)(1)(A); entering and remaining in a restricted building or grounds with a deadly or dangerous weapon.
• 18 U.S.C. 1752(a)(2) and (b)(1)(A); disorderly and disruptive conduct in a restricted building or grounds with a deadly or dangerous weapon.
• 40 U.S.C. 5104(e)(2)(C); entering and remaining in certain rooms in a Capitol building.
• 40 U.S.C. 5104(e)(2)(D); disorderly conduct in a Capitol building.
• 40 U.S.C. 5104(e)(2)(G); parading, demonstrating or picketing in a Capitol building.
• 18 U.S.C. 641; theft of government property (an envelope).