Prosecutors: Toss Barnett’s bids for new trial, acquittal

WASHINGTON — Richard “Bigo” Barnett’s motions for a new trial or acquittal should be dismissed, prosecutors said in a federal court filing Sunday in the District of Columbia.

“While the defendant raises a litany of claims about the credibility of the evidence, the propriety of the jury instructions, the Court’s prior rulings, the testimony of witnesses, and other matters, all of his allegations and arguments are meritless,” they wrote. “Accordingly, the Court should deny both motions.”

Barnett, 62, of Gravette, “rehashes several arguments … that the Court already considered and rejected, both before and during trial,” according to Sunday’s filing.

On Jan. 23, after a twoweek trial, a federal court jury in the District of Columbia deliberated for two hours and seven minutes before finding Barnett guilty of all eight counts in connection with the U.S. Capitol riot on Jan. 6, 2021, in Washington, D.C.

“Because the government did not present evidence to prove every element for any count, where a rational, fair, and impartial jury could find guilt beyond a reasonable doubt, the Court should acquit on all counts,” Barnett’s attorneys wrote in their motion for acquittal. Prosecutors disagreed. “The defendant’s scattershot sufficiency-of-the-evidence arguments read like a closing argument, re-arguing credibility and inferences, and ignoring large swaths of evidence,” they wrote in their response on Sunday.

On Monday, Barnett’s attorneys filed a motion saying the government’s filing on Sunday should be dismissed because it was too long. According to Local Criminal Rule 47(e), responses must be kept to 45 pages, they argued. The government’s response on Sunday was 58 pages. And federal prosecutors should have filed two separate documents responding to the two motions filed by Barnett, his attorneys argued.

The government responded Monday by asking the judge to strike their Sunday filing as “erroneously filed.” They meant to file it as an attachment to a motion to exceed the page limit.

Prosecutors asked the court to allow them to file their 58-page omnibus opposition instead of two separate responses, each of 45 pages or less.

U.S. District Judge Christopher R. Cooper hadn’t ruled on their motion as of late Monday afternoon.

Barnett became well known after he posed for photos with his foot on a desk in then-House Speaker Nancy Pelosi’s office suite during the riot. He faced enhanced charges for taking a dangerous weapon — a ZAP Hike ’n Strike Walking Staff stun gun — into the Capitol that day.

“During his testimony, Barnett repeatedly undermined his credibility by providing farfetched excuses and contrived justifications for his actions,” wrote the prosecutors.

“Barnett claimed that he had dropped the Hike ’n Strike in the shower after demonstrating it the night of January 5, 2021, and that the Hike ’n Strike was also not functional on January 6, 2021, because he took the batteries out. …

“Overall, Barnett gave evasive testimony that was often inconsistent with his prior statements and/or the direct evidence in the case, including video and photographic evidence. When confronted with these inconsistencies on the stand, Barnett at times became combative, even talking over the Court and counsel, and he repeatedly deflected, chalking up the contradictions to ‘head trauma.’”

In his motion for acquittal, Barnett’s lawyers wrote that they were surprised when an FBI agent from Fayetteville — not an expert on the Hike ’n Strike — was allowed to demonstrate the device before the jury, causing a bright light and a loud clicking noise for five seconds “to misrepresent the non-dangerous item and to unfairly scare the jury with the sound.”

Barnett’s feigned surprise is “belied by the record,” the prosecutors wrote in Sunday’s filing.

They cite the court transcript, in which Cooper told Assistant U.S. Attorney Alison Prout after the Hike ’n Strike’s creator testified that he was “expecting a demo” of the device.

“We’ll be asking the Court’s indulgence for that later in our case,” Prout said.

“Okay. I f igured you would,” Cooper said.

Then Bradford Geyer, one of Barnett’s attorneys, told the court: “I had a feeling we’d be seeing it again, Your Honor.”

According to Sunday’s filing, in a bench conference with the judge during the trial, one of Barnett’s attorneys said they had video showing the Hike ’n Strike was like “getting bit by a horsefly.”

In their motion for a new trial, Barnett’s attorneys wrote that three FBI agents from Fayetteville, three police officers from Washington and Pelosi’s former executive assistant all “provided material testimony that was demonstrably false based on other available video evidence, publicly available information, common knowledge, and common sense.”

“Without evidence, the defendant baldly asserts that seven government witnesses all committed perjury on the stand,” the prosecutors wrote in Sunday’s filing. “These grave allegations are not just wholly unsupported but facially frivolous.”

They acknowledged that Emily Berret, Pelosi’s former staffer, misremembered whether she walked or drove to work at the Capitol on Jan. 6, 2021, and whether things were stolen from her office (other than an envelope that Barnett admitted taking).

But Berret “responded truthfully during cross-examination and properly acknowledged her faulty memory as to certain details, which a rational juror could have concluded were immaterial or insignificant and still credited her testimony on other more substantive matters,” according to the prosecutors.

Barnett, who remains free, faces a maximum penalty of 47 years in prison. Sentencing is scheduled for May 3.

Barnett