FBI agent W. Joseph Astarita, 40, faces a five-count indictment on Wednesday, June 28, 2017,at Mark O. Hatfield Courthouse in Portland. Astarita is charged with three counts of making a false statement and two counts of obstruction of justice after firing two shots at Oregon standoff spokesman Robert “LaVoy” Finicum in January 2016. Sketch by Deb Marble/Special to The Oregonian/OregonLive
Other members of the FBI’s Hostage Rescue Team involved in the stop of refuge occupation spokesman Robert “LaVoy” Finicum testified before a federal grand jury that returned an indictment against their colleague, Agent W. Joseph Astarita.
Prosecutors have asked the court for permission to share transcripts of the agents’ testimony with a nationally recognized ballistics and trajectory expert who they may call as a witness at trial.
Astarita is accused of firing two shots at Finicum or his truck and then lying about it. The shots didn’t hurt Finicum. State police fatally shot Finicum a short time later. Finicum appeared to be reaching for a gun at the time, investigator said. He had a loaded gun in his inside jacket pocket, they said.
The government’s case against Astarita rests on videos taken by an FBI airplane flying overhead and cellphone video from Shawna Cox, a passenger in Finicum’s truck, as well as ballistics and trajectory evidence developed by the state police crime lab and the Deschutes County Sheriff’s Office, the prosecutors said in a recent court filing.
“The central issue in this case is whether defendant fired two rounds at Finicum or Finicum’s truck then lied about doing so to both the FBI and to Oregon State Police detectives who were investigating Finicum’s death,” Assistant U.S. Attorney Gary Sussman wrote in a motion seeking the grand jury transcript disclosure.
On Monday, U.S. District Judge Robert A. Jones granted the request. Prosecutors noted that their expert, who wasn’t named in court papers, has agreed to abide by the court’s protective order prohibiting sharing of the information.
“The expert needs all statements by witnesses to the shooting in order to properly conduct his trajectory analysis,” Sussman wrote.
“This investigation is still ongoing as to evidence missing,” said Assistant U.S. Attorney Pam Holsinger, chief of the criminal division in the Oregon U.S. Attorney’s office. “Eight shots were fired. Six shell casings in roadway are all gone.”
Astarita, who continues to work for the FBI in an administrative role, was indicted in late June and has pleaded not guilty to three counts of making a false statement and two counts of obstruction of justice.
He is accused of concealing from Oregon investigators that he fired his rifle and lying to three supervisory FBI agents about his shots.
Last month, one of Astarita’s lawyers told a judge that no one reported that they saw or heard Astarita fire and no direct evidence existed linking any bullet or shell casing to Astarita’s rifle. Prosecutors countered that the investigation was continuing and revealed for the first time that not only are shell casings from Astarita’s alleged shots missing, but so are shell casings from some of the Oregon State Police shots fired at the Jan. 26, 2016, roadblock.
David Angeli, one of four criminal defense lawyers retained by Astarita, signaled that his client likely will challenge the forensic analysis and “modeling” done by the Deschutes County Sheriff’s Office, which was tasked with investigating the Finicum shooting.
In March 2016, the Deschutes County Sheriff’s Office and FBI announced that an FBI agent was suspected of firing twice at Finicum and may have gotten help from four other FBI agents in covering up afterward. No other agent has been charged in the case.