The case against indicted FBI agent W. Joseph Astarita rests on officer accountability, a federal prosecutor told jurors Wednesday.
Astarita stands accused of falsely denying that he fired two shots at the truck of Robert “LaVoy” Finicum, the spokesman for the 2016 armed takeover of the Malheur National Wildlife Refuge in southeastern Oregon.
“This case is about integrity, without which a law enforcement officer is nothing,” Assistant U.S. Attorney Gary Sussman said from a lectern in front of the jury box. He quoted the FBI’s motto of “Fidelity, Bravery, Integrity.”
“If integrity means anything, it means ‘if you shoot, you own your shots,”’ Sussman said.
Astarita had joined the FBI’s elite Hostage Rescue Team eight months before the disputed gunshots on Jan. 26, 2016. He was a “relatively inexperienced” and “largely untested” agent who wouldn’t acknowledge what he’d done that day, Sussman said.
The agent’s repeated denials and the alleged attempts by Astarita and other agents to remove shell casings from the scene altered the course of the investigation, the prosecutor said.
The confrontation came as the FBI and state police arrested leaders of the occupation. One of the disputed shots went through the roof of Finicum’s truck and shattered the rear passenger window and the other bullet went astray as Finicum left the pickup. Moments later, state troopers fatally shot Finicum as he reached into his jacket where investigators said he had a loaded handgun.
Astarita’s face was contorted afterward and he was “so loud and so amped up” that a superior had to calm him down, the prosecutor said.
“Only one guy stood in just the right spot. Only one guy stood with his rifle shouldered, aimed right at Robert “LaVoy” Finicum’s pickup. Only one guy fired two shots in rapid succession,” Sussman said.
Astarita, 41, has pleaded not guilty to two counts of making a false statement, alleging he lied to his immediate FBI supervisor “B.M.” at the scene and another FBI supervisor days later, and one count of obstruction of justice during his initial interview with two Oregon state police detectives the night Finicum was killed.
The shooting happened on a remote stretch of U.S. 395 off the wildlife refuge. Finicum, 54, had fled a police stop and then swerved into a snowbank to avoid a roadblock down the highway.
Astarita’s lawyer Robert Cary countered the government’s presentation, telling jurors that the agent is one of the FBI’s “best shooters” who got on the super-selective Hostage Rescue Team in 2015, his second attempt.
Astarita has never fired his weapon in his 17 years with the bureau and knows when to shoot and when not to, Cary said.
“If he had shot,” Cary said, “he would not have missed.”
Not one officer but three officers could have fired the unaccounted-for shots, the defense attorney said. He suggested that Astarita, the agent’s immediate boss, and an Oregon State Police SWAT officer, identified in court only as “Officer 1,” could have fired the shots but that “Officer 1” was the most likely shooter.
Cary also described “Officer 1” as “the guy who aggressively followed Finicum into the snow and shot him dead while FBI operators retreated behind their vehicles.”
The government has no eyewitnesses and no ballistic evidence, he said. The aerial FBI video of the shooting scene also “doesn’t show anything” that would link Astarita to the disputed shots, he said.
Jurors will see audio and video taken by Shawna Cox, a passenger in Finicum’s truck, that government experts synchronized with aerial video from two FBI planes and hear from experts whose analyses determined the path of the bullet that hit the pickup, Sussman said.
Cary told jurors the government’s experts used “unreliable techniques” that aren’t science but subjective opinions.
Astarita was with Hostage Rescue Team members and “Officer 1” from the state police at the roadblock.
When Finicum sped off from the initial stop, another state police officer radioed to “Officer 1” and said, “We’re going to have to shoot LaVoy Finicum,” according to Cary.
While Astarita tried to get a sight on Finicum as his truck raced toward the officers, he ultimately couldn’t and didn’t fire any shots, his lawyer said.
In contrast, “Officer 1” fired three bad shots, striking the front grill, radiator and driver’s side mirror of the truck as it headed toward the roadblock, Cary said. The shots also were taken from behind the FBI agents, which isn’t appropriate, he added.
At the time of the disputed shots, another state police trooper will testify that he locked eyes with Astarita, and didn’t see him fire, Cary told jurors.
After Finicum was shot and killed, officers had the other passengers of Finicum’s truck step out one by one. Once Ryan Bundy was handcuffed, Astarita walked up to him, knocked his cowboy hat off his head and looked down at Bundy’s shoulder, according to Sussman.
“Why? He was trying to figure out if his shots hit Ryan Bundy,” Sussman said.
A number of Oregon State Police officers at the scene noticed shell casings in plain view on the ground, but six were missing after an examination of the scene. Aerial FBI video showed the Hostage Rescue Team agents looking around for things on the ground, one getting down on his belly and another picking something up, Sussman said.
The prosecutor argued there was no tactical reason for the agents to be examining the ground.
Astarita’s lawyer said his client was clearly “hyped up” after the shooting because he feared one of his FBI teammates had been hit by Finicum’s truck.
After Finicum was killed, the FBI agents did as they have been trained and checked for any lost “sensitive items,” such as live ammunition or pins or objects from flash-bang grenades used during the arrests, according to Astarita’s lawyer.
Sussman noted, though, that all three flash-bang grenades used were recovered after the FBI Hostage Rescue agents left the scene.
After both sides finished their opening statements, the government called its first witness — Greg Bretzing, Oregon’s FBI special agent in charge at the time of the Finicum shooting, and presented its first exhibit, the “Malheur Wildlife Refuge Militia Operation Vehicle Interdiction Plan.”
Bretzing said he approved the arrest operation of the refuge occupation leaders. It was developed by the FBI Hostage Rescue Team and state police.
— Maxine Bernstein