A federal judge Monday threw out two of the five charges against an FBI agent accused of covering up that he fired two rifle shots at the truck of Oregon refuge occupation spokesman Robert “LaVoy” Finicum at a roadblock in January 2016.
U.S. District Judge Robert E. Jones struck one count of making a false statement and one count of obstruction of justice against W. Joseph Astarita.
The agent still faces three charges a week before his trial is scheduled to start: two other counts of making a false statement and one other count of obstruction of justice.
The disputed gunshots came as Finicum emerged from his pickup as police moved in to arrest the leaders of the armed takeover of the Malheur National Wildlife Refuge in southeastern Oregon.
Astarita, a member of the FBI’s elite Hostage Rescue Team, is accused of falsely denying he fired one bullet that went through the truck’s roof and another that went astray, investigators said. Astarita has pleaded not guilty to all charges.
Moments later, two state troopers fatally shot Finicum as he was reaching inside his jacket. Investigators said he had a loaded handgun in an inner pocket.
Jones dismissed Count 2, alleging Astarita made a false statement by giving a snide response at the shooting scene to a FBI supervisory special agent who asked him if he was OK and “Did you shoot?” Astarita replied, “You don’t got to ask me that, bro” or “You know you can’t ask me that right now, ” according to prosecutors.
The judge ruled that Astarita’s flippant remark didn’t constitute a false statement.
The judge also dismissed Count 5, an allegation stemming from a Feb. 6, 2016, second interview by state police of all the FBI Hostage Rescue Team agents who had been at the shooting scene. The FBI had demanded that the team members be interviewed as a group, that the interview not be recorded and that investigators not repeat questions previously asked. State police obliged.
When asked if any of the agents had fired shots on Jan. 26, 2016, supervisory FBI special agent, only identified as “B.M.,” responded that none of them had fired shots. Astarita’s silence at the interview can’t be construed as obstruction of justice, the judge found.
Prosecutors will argue in the trial next week that forensic evidence, as well as audio and video recordings, will yield one conclusion: Astarita fired the disputed shots at Finicum’s truck and then lied to FBI supervisors and state police investigators.
“Only defendant was squarely in position, with his rifle shouldered and pointing toward Finicum’s truck, when those shots were fired,” Assistant U.S. Attorneys Gary Sussman and Paul Maloney wrote in a trial brief.
Astarita’s lawyers will counter that the government’s case is based on weak circumstantial evidence and unreliable forensic analyses riddled with errors. They’ll argue that the shots could have come from a number of other officers, in particular a state police SWAT officer who fired five other bullets that day, including two that later struck and killed Finicum.
“The government has no eyewitness who will testify that they saw Special Agent Astarita shoot. The government has no video recordings showing that Astarita shot. And the government has no ballistics evidence matching a bullet to Special Agent Astarita’s firearm,” defense lawyers wrote in their trial brief.
The case will largely pit the credibility of local law enforcement investigators against that of the Hostage Rescue Team agents, defense lawyers said.
Of 300 jurors summoned, 118 will be available for jury selection. They’ll be asked to answer a written questionnaire at 8 a.m. next Tuesday before attorneys question potential jurors in court. The trial is anticipated to last four weeks.
Deschutes County sheriff’s investigators will drive Finicum’s truck into the federal courthouse sally port at some point during the trial so jurors can view it and watch a government expert show how he used his so-called “rocker point” bullet trajectory analysis to determine where the disputed gunshots came from.
Astarita is listed as a potential defense witness, but his lawyers said they haven’t decided whether to call him. “It will be his decision at the end of the day,” defense lawyer David Angeli told the judge during Monday’s pretrial hearing.
Astarita joined the Hostage Rescue Team in April 2015, about eight months before the shooting, after serving on the New York FBI SWAT team, according to his lawyers. He has never fired his gun while on duty, his lawyers said.
“He is one of the nation’s most elite, well-trained and disciplined shooters,” his team of lawyers wrote in court papers. “He would not have fired in these circumstances. And if he had, he would not have missed. Special Agent Astarita is innocent.”
The government also disclosed one of the potential motives for Astarita to have allegedly covered up his gunshots: It’s against FBI policy to shoot into a vehicle, other than firing at an armed suspect or the driver of a vehicle, Maloney said.
Astarita’s discovery at the scene that Ryan Bundy, a rear passenger in Finicum’s truck, had reported getting hit during the shooting may have prompted the agent to try to hide evidence of his shots, recognizing that he had injured someone in the truck, Maloney said. A metal fragment remains in Bundy’s shoulder, and prosecutors will be allowed to show jurors one photo of his bloody wound.
The judge also ruled on what evidence can or can’t be presented to a jury.
Last month, the judge ruled that prosecutors couldn’t use a 3D computer model produced by one of their expert witnesses that pinpointed where prosecutors suspect the agent was standing when he’s accused of firing at Finicum’s truck. The judge concluded then that the expert’s presentation was based on “fuzzy smudges” from an aerial FBI video and couldn’t accurately support the placement of the agent at the scene.
Since that ruling, prosecutors had their expert, Toby Terpstra, produce a revised model, which Astarita’s lawyers argued was still not admissible. The image still presented the officers’ alleged positions at the time of the shooting, but with arms, legs and heads removed from the figures.
“Taking their arms off and removing the legs of some people does not solve the problem,” defense lawyer Tyler Francis argued.
Maloney said the revised model is meant to help jurors understand the scene. “It’s going to be used to demonstrate the movement of the individuals at or near the time Mr. Finicum got out of his truck,” he said.
The judge reiterated that prosecutors must show the FBI’s fuzzy aerial overhead image to witnesses and ask them to place themselves or other officers at the scene, without using their expert’s animation of the scene. “It will not come in as Terpstra saying this is x, y and z. Is that clear?” the judge said.
In a separate ruling, the judge ordered that a state trooper who didn’t fire shots but was at the scene can testify about what he saw and heard but can’t provide his opinion that he believed it was a fellow state police SWAT officer, identified as “Officer 1,” who likely fired the shots at Finicum’s truck, not Astarita.
“It confuses the issues,” the judge ruled. “I’m not going to allow a lay opinion.”
The judge will allow information that shell casings were missing from the scene and that an FBI aerial video caught Hostage Rescue Team agents walking around the shooting scene, looking at the ground and under trucks and some agents picking things up.
Prosecutors objected to defense attempts to show jurors multiple videos on heroic actions of other Hostage Rescue Team officers, including some rappelling down a waterfall, calling them prejudicial and irrelevant. The judge agreed, and the defense agreed to curtail those exhibits.
The defense had hoped to call a criminology professor to testify that law enforcement officers often experience “sensory distortions” in a shooting and sometimes officers can’t recount how many times they fired shots or that they fired their weapon at all.
The judge said the professor’s testimony won’t be allowed unless Astarita was to testify that he had no memory of firing shots.
The names of the two state police officers who fired and struck Finicum, killing him, won’t be used at trial. They will only be identified as “Officer 1,” and “Officer 2.” Astarita’s lawyers had argued for the officers to be identified, noting state police and the U.S. Marshall’s Office have provided “no evidence of any specific, current, credible threats.” But the judge ordered the names withheld, citing concerns about militia threats.