A piece of metal lodged in Malheur occupation leader Ryan Bundy’s shoulder could be a key piece of evidence in the case against an FBI agent accused of misconduct in a shooting.
During the Jan. 26, 2016 traffic stop outside of Burns, Oregon, that left occupation spokesman Robert "LaVoy" Finicum dead, Bundy was also wounded in the shoulder. He was riding in the back seat of Finicum's truck at the time.
Bundy was acquitted in Oregon for his role in the occupation of the refuge. He's awaiting trial for his role in a 2014 standoff with federal agents in Nevada.
During a Thursday hearing in U.S. District Court in downtown Portland, federal prosecutors said they want the “metal object” removed from Bundy's arm and analyzed.
It’s unclear whether the material is a bullet fragment, part of Finicum’s pickup truck or something else.
Following the shooting, Bundy was treated at an emergency room in Bend, a source with knowledge of the case said. The source disclosed details on the condition of anonymity.
The object has been X-rayed several times, the source said. It’s also been reviewed by at least one surgeon, who reportedly didn’t remove it because it was not medically necessarily to do so.
Prosecutors say W. Joseph Astarita, a member of the FBI’s elite Hostage Rescue Team, fired his gun twice at Finicum’s truck, but lied about it later.
Astarita and his attorneys dispute that account. So prosecutors want to link the metal object in Bundy's arm to the FBI agent's firearm.
Astarita is charged with two counts obstruction of justice and three counts making false statements to state and federal investigations. He has pleaded not guilty.
Astarita has requested a trial by jury, which is scheduled Feb. 28, 2018, before U.S. District Court Judge Robert Jones.
After Finicum's shooting, prosecutors opened an investigation into the use of force incident.
At a press conference in March 2016, investigators said there were eight shots taken at Finicum’s truck as he approached a roadblock staffed with FBI agents and Oregon State Police.
The shooting and Finicum's death were deemed a justified use of force. But only six shots were accounted for at the time.
The U.S. Department of Justice Office of the Inspector General opened an investigation into the other two shots, which resulted in the charges against Astarita.
Assistant U.S. Attorney Pamala Holsinger said in court Thursday that the investigation remains open. Six shell casings have never been recovered.
Astarita waived his right to appear in court Thursday.
But one of his defense attorneys, David Angeli, said they weren't aware of any direct evidence linking Astarita to the two shots the government said he fired.
“We’re not aware of any evidence of anyone seeing or hearing our client actually shoot,” Angeli said. “We’re not aware of any evidence that he ever told anyone that he shot. We’re not aware of any ballistic evidence tying any bullet or shell casing to his rifle.”
Two people with knowledge of the case, described an aerial video of the crime scene taken after Finicum was killed. The sources spoke on condition of anonymity because they weren’t authorized to speak on the record.
After Finicum was shot, five FBI HRT agents reportedly volunteered to stay and guard the crime scene, one source said.
In the video, at least two of the agents can be seen searching the pavement with the flashlights attached to their rifles, the source said.
“You see all five of the HRT members have a meeting and immediately thereafter it appears that four of them go look to make sure no one is approaching," the source said. "One of them goes, bends over, obviously picks something up off the pavement where the missing rifle brass should have been."
The unidentified agent then “moved a few feet over, bent over and picked up a second item off the pavement," the source said.
Crimes scenes like this are not meant to be touched so that investigators can document it “so that everything can be put into a 3-D diagram,” the source said.
Another source described the same video and events. While it’s difficult to see individuals, the second source said, it’s clear they are FBI HRT agents.
“It doesn’t look good, I’ll tell you that,” the source said.
Details of the video were first reported by The Oregonian and have since been confirmed by OPB.
Angeli, the defense attorney, said Thursday the trial centers around expert testimony.
He said it appears the government’s case will turn on modeling of the shooting done by a deputy or deputies at the Deschutes County Sheriff’s Office.
Angeli indicated the defense may challenge whether the deputy, or deputies, were qualified to do that kind of work.
Federal prosecutors are scheduled to turn over the rest of their discovery by Sep. 15.