UPDATE (11:56 a.m. PST Sunday, Feb. 4) — Federal prosecutors outlined portions of their case in a court filing Friday against an FBI agent charged with lying about firing his weapon during a traffic stop that led to the arrests — and one death — of the leaders of the 2016 Malheur Wildlife Refuge occupation.
Prosecutors say W. Joseph Astarita, a member of the FBI’s elite hostage rescue team (HRT), fired his weapon twice at occupation spokesman Robert "LaVoy" Finicum on Jan. 26, 2016, after Finicum fled a traffic stop. Though the shots didn’t hit Finicum, the Arizona rancher was killed shortly after by three shots from Oregon State Police.
The court filing reveals OSP SWAT troopers, who would normally wear body cameras, didn't that night at the request of the FBI. The night of the shooting, two OSP detectives also questioned Astarita and other FBI HRT members, but the interviews were not recorded, at the request of the FBI, the court filing states.
The entire shooting was ruled justified, but investigators could not account for two shots that took place during the incident. In February 2016, the U.S. Department of Justice Office of the Inspector General opened an investigation. And on June 20, 2017, a federal grand jury returned an indictment against Astarita.
Astarita has been charged with three counts of making false statements to federal and state investigators, and two counts of obstruction of justice, according to court documents. He has pleaded not guilty to all charges and his attorneys have asked a judge to dismiss the case.
After fleeing the stop on Jan. 26, 2016, Finicum drove at 70 mph toward an FBI roadblock where he swerved into a snowbank and was eventually shot by OSP troopers.
Also riding in Finicum's truck was occupation co-leader Ryan Bundy as well as Shawna Cox and then 20-year-old singer, Victoria Sharp.
"It appears the first shot missed entirely; the second shot entered the truck from the roof, sending sparks into the cabin and blowing out the left rear passenger window next to Ryan Bundy," Assistant U.S. Attorneys Pamela Holsinger, Paul Maloney and Gary Sussman wrote in Friday's court filing. "Witness testimony, as well as the trajectory, audio, and video evidence, yield one conclusion: defendant fired those two shots."
Prosecutors say based on trajectory measurements taken from the bullet hole in the roof of Finicum's truck and Cox's video coupled with video from an FBI surveillance airplane that recorded the incident from above, investigators were able to determine where the bullet came from.
"The only potential sources for that shot were defendant and B.M." (The court filing states 'B.M.' was Astarita's immediate supervisor.)
Investigators didn't find spent rifle casings in the roadway "even though witnesses reported seeing them there," the government's court filing states.
The court filing states Astarita was asked several times whether he fired his weapon.
"At no point in the interview did defendant disclose that he had fired, nor did he mention that evidence, such as shell casings, had been removed from the scene," the three assistant U.S. attorneys wrote.
"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 court filing states. "Several operators later described looking for 'sensitive items,' such as flashbang bodies. The expended flashbang bodies were recovered at the scene by evidence technicians. All but two of the spent rifle casings, however — including some fired by the two OSP SWAT troopers — were never found."
Oral arguments are scheduled for later this month to determine how the case will move forward.