BY MAXINE BERNSTEIN The Oregonian/OregonLive June 28, 2017
An indictment accusing an FBI agent of lying to hide that he fired two shots at Robert “LaVoy” Finicum and missed caps an 18-month investigation that began with Oregon sheriff’s detectives who followed “where the evidence led,” their commander said Wednesday.
Deschutes County Sheriff Shane Nelson credited his investigators for their tenaciousness and said he was “disappointed and angry” that the FBI agent’s alleged deceit and actions “damage the integrity of the entire law enforcement profession.”
The sheriff also revealed that FBI leaders, told of his department’s findings more than a year ago, didn’t put the agent or four of his colleagues on leave. They were all members of a Hostage Rescue Team assigned to help arrest the leaders of the armed takeover of the Malheur National Wildlife Refuge.
The indictment of W. Joseph Astarita, 40, of New York casts a shadow on the highly trained team.
“The Hostage Rescue Team is among the most elite units in the bureau and the idea that someone could be engaged in a firearm discharge in such a high-profile case and then allegedly withhold information is an extraordinary and serious charge,” said Brian Levin, a former New York Police officer who has worked closely with the FBI and now is director of California State University’s Center for the Study of Hate and Extremism. “It’s extraordinarily disappointing.”
The indictment also will almost certainly fuel Finicum supporters and others fighting government control of public land.
“I’m encouraged. I’m thrilled that the grand jury came back with this finding,” said Finicum’s widow, Jeannette Finicum. Her husband was an Arizona rancher who served as the occupation’s primary spokesman, known for the distinctive cowboy hat and earmuffs he wore during the winter siege.
She said Astarita’s early shots may have contributed to the firing of the fatal gunshots moments later by two state police troopers who killed her husband on Jan. 26, 2016. She has given notice to the FBI that she intends to file a civil lawsuit claiming excessive force in her husband’s death.
Astarita, wearing a dark gray pinstriped suit, white shirt and red-and-blue striped tie, showed no emotion as he sat beside his lawyer in a packed federal courtroom with extra security posted throughout the Mark O. Hatfield Courthouse.
Defense lawyer Alison Clark entered not guilty pleas on Astarita’s behalf to the five-count indictment unsealed Wednesday. It charges Astarita with three counts of making false statements and two counts of obstruction of justice.
U.S. Magistrate Judge Janice M. Stewart set a trial date for Aug. 29. Assistant U.S. Attorney Pamala Holsinger estimated a trial would last one week. Astarita made no statements during the two-minute hearing.
The indictment says Astarita “falsely stated he had not fired his weapon during the attempted arrest of Robert LaVoy Finicum, when he knew then and there that he had fired his weapon.”
Between Jan. 26, 2016 and Feb. 6, 2016, Astarita is accused of concealing from Oregon investigators that he fired his weapon and lying to three supervisory FBI agents about his shots, which avoided a required call to the FBI’s Shooting Incident Response Team to investigate.
“Defendant acted with the intent to hinder, delay and prevent the communication of information from the Oregon State Police to the Federal Bureau of Investigation relating to the possible commission of a federal offense,” the indictment says.
Astarita will remain out of custody pending trial. Federal prosecutors referred repeatedly to Astarita as an FBI special agent but they and an FBI spokesman declined to say whether Astarita has been placed on leave or reassigned.
Astarita is accused of firing twice at Finicum as Finicum emerged from his white Dodge truck after swerving into a snowbank to avoid a roadblock on U.S. 395 in Harney County. Finicum had just sped away from state police and FBI agents who stopped occupation leaders traveling in a two-car convoy earlier on the highway. He nearly struck another FBI agent when he crashed at the roadblock, police said.
Astarita’s bullets didn’t hit Finicum, 54. The sheriff’s investigators concluded that Astarita fired twice at the truck, hitting it in the roof and missing on the second shot.
Seconds later, state troopers shot Finicum three times after he stepped away from his pickup and reached for his inner jacket pocket, where police said he had a loaded 9mm handgun. Bullets struck him in the back and one pierced his heart, an autopsy found.
Oregon’s U.S. Attorney Billy J. Williams was adamant that the FBI agent’s indictment hasn’t tainted the state troopers’ decision to shot Finicum.
“Special Agent Astarita’s alleged actions that led to this investigation and indictment do not, in any way, call into question the findings” of Deschutes County investigators into the Oregon State Police officers’ use of deadly force, Williams said. “OSP’s actions were justified and necessary in protecting officer safety.”
Justice Department Inspector General Michael Horowitz, working with the Deschutes County Major Incident Team, investigated the FBI team’s actions.
Sheriff Nelson criticized the FBI for failing to place Astarita and the other Hostage Rescue Team agents on paid leave when he and investigators traveled to FBI headquarters over a year ago. They briefed the FBI’s then-Deputy Director Andrew McCabe, now acting director, about their findings and the FBI’s potential criminal liability.
“Today’s indictment will ensure that the defendant and hopefully any other HRT members will be held accountable through the justice process,” Nelson said.
He applauded the U.S. Attorney’s Office for its attention to the case. “They took their time and got it right,” he said.
The FBI and state police moved in on Ammon Bundy and other key occupation figures as they were driving from the refuge to a community meeting about 100 miles away in John Day.
None of the Hostage Rescue Team members admitted to discharging their guns during the confrontation, Nelson said last year in announcing the investigation’s results. A state trooper later described to investigators seeing two rifle casings in the area where the FBI agents were posted. But detectives who arrived later at the scene to investigate didn’t find the casings, police reports indicated.
The indictment follows two federal trials against refuge occupiers accused of conspiring to impede U.S. Fish and Wildlife Service and U.S. Bureau of Land Management employees from doing their work through intimidation, threat or force during the takeover. The occupation began Jan. 2, 2016, and lasted 41 days.
Its leaders said they were there to support two Harney County ranchers ordered back to prison to serve out terms for setting fire to public land. They also protested federal management of the refuge and wanted to turn it over to local control.
Ammon Bundy, his older brother Ryan Bundy and five other defendants were acquitted of conspiracy and weapon charges last fall. Two other defendants were found guilty of conspiracy after a trial this year. Others were found guilty of misdemeanor charges, including trespass. Eleven other refuge occupiers pleaded guilty to the federal conspiracy charge.
The indictment drew praise from Brian Claypool, the Finicum family’s lawyer, who said he believes that the agent didn’t admit to the shooting because at the time Finicum “was not posing a risk of serious harm” and the shots escalated the situation.
“This is about upholding public trust and preserving the integrity of any investigation involving a death at the hands of law enforcement,” he said.
It’s unclear if any of the other members of the Hostage Rescue Team will face sanction. While Oregon’s U.S. attorney wouldn’t comment, the Deschutes County sheriff said his office is working with the inspector general on a continuing investigation. He referred to his investigators’ focus on “subsequent discerning actions” of some other members of the FBI’s Hostage Rescue Team after Astarita’s gunshots.
Travis Hampton, Oregon State Police superintendent, said he was discouraged by the FBI agent’s alleged actions, but they don’t represent the FBI or the hundreds of others who were involved in the arrests of the occupation leaders.
When the investigation was announced last year, criminal justice experts said they were stunned that an FBI agent might lie about firing his gun. That the bullets missed their apparent target drew even more disbelief.
The FBI’s deadly force policy is the same as Oregon’s. Agents can use deadly force if they believe they or someone else are at risk of death or serious injury. They’re also trained to consider a moving vehicle as a potential “deadly weapon” and to stop it by incapacitating the driver.
Danny Coulson, who led the FBI office in Oregon from 1988 to 1991, called the federal charges “devastating.”
A conviction for making false statements could bring up to five years in prison; a conviction for obstruction of justice could bring up to a 20-year sentence.
The FBI likely will do its own administrative inquiry, said Coulson, the first commander of the FBI’s Hostage Rescue Team and an FBI deputy director during the bloody 1992 shootout in Ruby Ridge, Idaho. He now runs a security consulting business in Texas.
“It’s a very serious thing. Let’s let the criminal justice system play out,” he said. “Nobody’s above the law.”