Attorneys for Richard "Bigo" Barnett were blindsided by an "eleventh hour surprise superseding indictment" that included an additional felony charge against him, according to a motion filed late Thursday in federal court in the District of Columbia.
Barnett, 62, of Gravette, was already facing seven charges in connection with the U.S. Capitol riot on Jan. 6, 2021. Among other things, he is accused of taking a deadly weapon, a stun gun, into the Capitol during the riot.
Barnett gained worldwide attention after posing for photos with his foot propped on a desk in House Speaker Nancy Pelosi's office suite during the riot.
Barnett's trial is scheduled to begin Jan. 9 in federal court in Washington, D.C.
The new charge is "civil disorder," in violation of 18 U.S.C. § 231(a)(3).
The new grand jury indictment, filed Wednesday, indicates Barnett impeded or otherwise interfered with a Metropolitan Police officer who was trying to perform his duties during a civil disorder.
"The defense team will need to revisit all government exhibits with a new lens," Barnett's attorneys wrote in Thursday's filing. "The defense was not making any preparations for the many months prior to today to defend against civil disorder."
It's short notice and short on details, they wrote.
"With less than three weeks until trial start, the government added a new felony charge with no accompanying discovery or grand jury testimony or evidence, and no opportunity for the defense to prepare any motions or a defense against the new charge," according to the motion from Barnett's lawyers.
They noted that, in a filing on Monday, federal prosecutors "insinuated that it might add a new charge to the indictment" almost two years after the initial indictment.
"The government did not clearly inform this Court that it was definitively acting to change the case such that the defense had no time to prepare a defense for a new felony charge or submit any related motions in limine," according to Barnett's attorneys.
Two new attorneys have joined Barnett's defense team this week: Bradford L. Geyer of Cinnaminson, N.J., and Carolyn A. Stewart of Plant City, Fla. Based on previous court filings and hearings, Barnett's regular attorney, Joseph D. McBride of New York City, has had some medical issues.
The grand jury that issued the superseding indictment was sworn on Sept. 15. The grand jury that indicted Barnett the first time was sworn on Jan. 8, 2021, and its indictment was entered in the court file on Feb. 2, 2021. There were no additional charges filed against Barnett in between those two grand jury indictments.
According to Thursday's filing from Barnett's attorneys, the new charge against him was "brought to the grand jury after being notified that additional trial attorneys were going to defend Mr. Barnett."
"The government provided no discovery or material to support the new charge," they wrote. "The specifics to defend against, outside the statute language, are not listed in the indictment."
In Thursday's filing, Stewart and McBride wrote that the government has deleted discovery from the USAfx website before they've had the opportunity to review it. USAfx is a secure, cloud-based file sharing platform used by federal prosecutors and defense attorneys in Jan. 6 cases to share discovery information.
In legal matters, discovery is "the formal process of exchanging information between the parties about the witnesses and evidence they'll present at trial," according to the American Bar Association.
"The government deletes all discovery in folders at sixty days after posting," Barnett's attorneys wrote of USAfx. "There may be fine print, but no warning email goes out."
Assistant U.S. attorneys also have filed a "flawed motion to compel the defense to provide exhibits that are not required at this time," according to Stewart and McBride.
In Thursday's filing, Barnett's attorneys asked U.S. District Judge Christopher R. Cooper to order government attorneys to "repopulate" discovery that was deleted from USAfx. They also asked the judge to extend some of the late-December, pre-trial deadlines until Jan. 3.
"Because the government added a new felony charge within three weeks of trial, and on the date of one deadline, and a week before the next deadline (with Christmas holiday in between), the defense has good cause to request a reasonable extension of time," wrote Barnett's attorneys.
Cooper hadn't ruled on the motion as of late Friday afternoon.
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 only 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 Monday and charged with the same four counts that Snow and Mott initially faced. His initial appearance is scheduled for Tuesday via video teleconference.