Prosecutors say witness testimony, audio and video evidence, plus bullet trajectory analysis yielded one conclusion:
FBI agent W. Joseph Astarita lied about firing two shots at the truck of refuge occupation spokesman Robert “LaVoy” Finicum in 2016 after he swerved into a snowbank.
The information is detailed in a 32-page government response to Astarita’s motion to dismiss the federal indictment against him. He’s pleaded not guilty to three counts of making false statements and two counts of obstruction of justice. Astarita’s lawyer claimed the indictment was based on “junk science.”
The government response also reveals that Oregon State Police SWAT troopers at the scene, ordinarily required to wear body cameras, didn’t that day at the request of the FBI. The FBI did obtain video from FBI surveillance planes flying above the scene.
State police detectives also normally record interviews of officers who might be involved in a shooting, but they didn’t that night when questioning the FBI Hostage Rescue Team members, again at the FBI’s request. A follow-up interview with the hostage team members also came with unusual conditions, prosecutors note.
Astarita fired after Finicum’s truck swerved into a snowbank at a roadblock and then stepped out of his pickup, investigators said. Astarita’s first rifle shot missed Finicum’s truck entirely and the second entered Finicum’s truck from the roof, “sending sparks into the cabin and blowing out the left rear passenger window next to Ryan Bundy,” according to federal prosecutors. Finicum wasn’t struck.
On cellphone video taken by passenger Shawna Cox, Ryan Bundy, crouched in the back seat, could be heard saying, “I got hit, too,” according to the government filing.
The shooting came as the FBI and state police moved to arrest the leaders of the armed occupation of the Malheur National Wildlife Refuge as they drove to a meeting in John Day on Jan. 26, 2016.
The bullet that entered the top of the truck came from the right side, slightly to the rear of the truck, and its path could have come only from Astarita or his immediate supervisor, according to Deschutes County Sheriff’s Office detectives, who investigated the shooting. The supervisor, identified as B.M., was eliminated as the source, but the government response doesn’t say how.
Another FBI supervisor, identified by the initials “I.M.,” responded to the scene to find out if any of the hostage team agents had fired their weapons.
I.M. asked Astarita if he had fired his rifle. Astarita’s response was “markedly different” than the other team members but he “clearly communicated” that he hadn’t fired his rifle, prosecutors wrote.
Astarita apparently responded with an angry retort, questioning I.M’s authority to ask, and another hostage team member told Astarita that he needed to respond, the court filing says. Astarita’s lawyer has argued that his client’s remark was unresponsive and can’t be construed as a false statement.
Three other members of the FBI hostage rescue team who were at the roadblock on U.S. 395 also said they hadn’t taken any shots, according to prosecutors.
As a result, “evidence that would otherwise have been gathered and preserved was not,” Astarita’s weapon wasn’t seized, examined or secured and an FBI shooting investigation wasn’t initiated, prosecutors wrote.
Astarita’s second response to B.M., his immediate FBI supervisor, was “direct and unequivocal” that he had not fired his rifle, prosecutors noted.
The FBI ceded the shooting investigation to local authorities, thinking none of the federal agents present had fired their weapons.