A federal judge will hear arguments Monday morning in Portland about whether to dismiss some of the charges against an elite FBI agent.
W. Joseph Astarita, a member of the FBI’s Hostage Rescue Team, is accused of lying to investigators about firing his weapon during the 2016 occupation of the Malheur National Wildlife Refuge.
Federal prosecutors argue Astarita fired his gun at a vehicle driven by occupation spokesman LaVoy Finicum. The bullets missed Finicum, but hit his truck, according to investigators.
Finicum was shot and killed by Oregon State Police at the same roadblock. The entire shooting was ruled to be justified.
But federal prosecutors
, including lying to investigators and obstruction of justice.
Astarita's defense will argue in court Monday that four of the five charges should be dismissed on the grounds that prosecutors are essentially charging the same alleged lie multiple times.
"This Court should not permit the government to prejudice the jury by charging Special Agent Astarita with five crimes because he repeatedly denied firing his weapon," Portland defense attorney David Angeli wrote in a Feb. 16 court filing.
"Where there is only one alleged lie with one alleged consequence, there is only one crime as a matter of law," Angeli wrote. "Artificially multiplying the number of charges against a defendant to prime the jury for a compromise verdict is a forbidden prosecutorial tactic."
In a previous court filing leading up to Monday's hearing, the government revealed that Oregon State Police SWAT troopers who would normally wear body cameras didn't that night at the request of the FBI.
Oregon State Police detectives questioned Astarita on Jan. 26, 2016 — the night of the shooting — but the interviews were not recorded, also at the request of the FBI, according to court documents filed by the government.
The defense has noted in its court filings that federal prosecutors don't have witnesses or ballistics, and argues the government's case is based on "junk science."
But in court filings, the government argues that two different video angles and trajectory measurements taken from Finicum's truck show Astarita indeed fired his weapon and, prosecutors say, lied about it later.
“After the shooting, HRT operators can be seen on the FBI plane’s video footage walking around the shooting scene, looking at the ground and the area under the trucks used to form the roadblock,” the government's Feb. 2 court filing states. “All but two of the spent rifle casings, however — including some fired by the two OSP SWAT troopers — were never found.”