A federal judge in Portland declined Monday to dismiss any of the five counts against a special agent. FBI Special Agent W. Joseph Astarita is charged with lying about firing his gun during the 2016 Malheur Occupation.
“I find there’s not enough evidence at this time to justify dismissal of any counts,” U.S. District Court Judge Robert Jones said, noting there was no appeals court ruling to look to for guidance.
“It’s clear to me that these motions are premature,” Jones ruled from the bench. “I have no evidence before me. I have no witness who has testified under oath and been cross-examined under oath.”
Astarita has been charged with three counts of lying to investigators and two counts of obstruction of justice. He’s pleaded not guilty.
During oral arguments Monday, the defense asked Jones to dismiss four of the five counts, while federal prosecutors fought to keep their five-count indictment intact.
Federal prosecutors say Astarita fired his gun twice at Malheur occupation spokesman LaVoy Finicum on Jan. 26, 2016, as Finicum drove directly towards an FBI roadblock in his Dodge pickup truck. The two bullets missed Finicum, but one hit his truck, breaking the rear back window. Finicum was killed by Oregon State Police during the incident. The entire shooting was ruled justified.
Prosecutors say Astarita, a member of the FBI’s elite Hostage Rescue Team, was asked whether he fired his weapon, but alleges he lied about it multiple times to different FBI HRT supervisors at different points in the investigation.
Meghan Ferguson, one of Astarita’s four defense attorneys, argued in court Monday that the government has “piled up” its charges and that they all stem from the same alleged lie. Ferguson argued the government’s investigation into the shooting wasn’t impeded beyond the single alleged lie.
Jones asked Ferguson: “At this point why not wait for trial? If nothing develops, I dismiss that charge before the jury.” Ferguson responded that a jury is biased against a defendant facing multiple counts, believing he must be guilty of at least one or some of them, she responded.
Later, Jones turned his questioning to federal prosecutors.
In court, Assistant U.S. Attorney Gary Sussman said, “somebody fired those two rounds.”
Sussman ticked through the three alleged lies used to support three separate felony charges and described an escalation in the level of deception to increasingly senior FBI HRT supervisors.
But Jones saw the first two examples of Astartia’s alleged lies as “weak” examples. He then noted the third alleged lie to a high-ranking FBI HRT supervisor appeared clear to understand and present during trial.
“The defendant told different lies at different times to three different FBI supervisors,” Sussman said, “at different points in the investigation.”
“If you’ve got solid evidence, why are you muddying up the waters?” Jones asked. “Why are you proceeding with such weak evidence when you have such strong evidence?”
Sussman argued the jury needed to, “hear the whole story.” Jones said they would, just not as charges.
More than once, Jones asked Sussman where was the evidence he had to support the charges.
“As I sit here right now, I have not heard one witness say anything,” Jones said.
Sussman responded that there wasn’t any yet, so Jones couldn’t dismiss any of the counts.
“You can’t do it and you shouldn’t do it,” Sussman said. “Nobody should expect an FBI agent … to lie during an officer-involved shooting,” he concluded. “That’s not a reasonable expectation.”
In May, Jones will hear arguments about what types of evidence jurors will hear.
The case turns on expert testimony and the government’s ability to essentially recreate the scene of the shooting to make their case. The defense plans to challenge prosecutors’ ability to accurately do that.