FBI agent acquitted of lying about shooting of militia member after Ore. standoff
By LEAH SOTTILE | The Washington Post | Published: August 10, 2018
PORTLAND, Ore. — An FBI agent was acquitted Friday of lying about firing at a militia leader who was killed in 2016 in an encounter related to a high-profile standoff with law enforcement officials at a federal wildlife refuge.
Joseph Astarita, a member of the FBI's elite Hostage Rescue Team, was the only federal or state officer charged in connection with the 41-day takeover at the Malheur National Wildlife Refuge in southeastern Oregon. It was a case of two fired shots, one bullet hole and a crime scene free of bullet casings, according to prosecutors, who alleged that Astarita lied about his actions during the confrontation that left Robert LaVoy Finicum dead in the snow beside a road.
Astarita, 41, who took the stand earlier this week, denied firing his weapon during the incident - or recalling much of anything about where he had been positioned at the scene.
"We strongly believe this case needed to be brought before the court and decided by a jury," said Billy Williams, U.S. attorney for the District of Oregon. "Our system of justice relies on the absolute integrity of law enforcement officials at all levels of government."
The jury of nine men and three women had been deliberating since Thursday afternoon.
"We are grateful to the men and women of the jury who saw through a case that never should have been brought," Astarita's defense attorneys said in a statement quoted by the Oregonian. "Joe Astarita is innocent, and it was our privilege and honor to represent him."
Finicum, an Arizona rancher, had traveled to the rural refuge in January 2016 to participate in the high-profile siege of the federal property. The takeover was a beacon for anti-government militias and members of the self-styled patriot movement - and the trial's outcome is likely to reignite emotions.
About three weeks into the siege, an informant alerted authorities that the occupation's leaders - Ammon Bundy, his brother Ryan Bundy, Finicum and several others - would be traveling to another county for a meeting. But before they arrived, Oregon State Police and members of the FBI team pulled over two vehicles. Four men surrendered at the stop, but Finicum goaded police to kill him.
"You want my blood on your hands? Get it done," he yelled at the officers surrounding his white truck, "because we got people to see and places to go." He then sped away, driving his white truck 75 mph toward a roadblock a mile ahead. Just before crashing into it, he veered left into a deep snowbank, crashing the vehicle there.
Finicum, 54, quickly opened the door and hopped out, yelling, "Go ahead and shoot me" at officers. He reached toward his jacket pocket, where officers later found a loaded 9mm handgun, and was shot. He died on the side of the road and has become something of a martyr to the movement.
Inside the truck, Shawna Cox, a Utah woman who had been at the core of the occupation, recorded the incident on her cellphone - and when she released that video, two shots could be heard just as Finicum jumped from the driver's seat. One pierced the vehicle's roof.
During closing arguments Thursday, Assistant U.S. Attorney Paul Maloney said Cox's video "changed everything" and proved that someone on the scene that day fired two shots that were not accounted for.
"It's important to remember that it's not about whether those shots were justified," Maloney said as Finicum's widow, Jeanette, listened in the gallery. The case instead was about Astarita's misleading investigators, Maloney said. Astarita faced three charges: two counts of making a false statement and one count of obstruction of justice over the shots prosecutors said he fired and did not disclose.
But even with two videos of the same shooting, there still was no exact way to tell who fired the shots. Much of the three-week trial was a battle of dueling experts arguing about the path of the bullet that pierced Finicum's truck - one that was difficult to pinpoint because it shattered a window upon entry.
That left investigators with only an exit point to determine where the shot originated. The truck was even towed into a loading dock at the federal courthouse in downtown Portland so the jury could understand how experts measured the trajectory of the bullet that struck it.
During the testimony, jurors heard about Astarita's extensive training to become a member of the Hostage Rescue Team and his 13 years of FBI service. But Maloney asked why a "super agent" such as Astarita could not recall where he was standing during the shooting.
"He recalls specific details about what he observed, but he can't tell you where he was when he made those observations," Maloney said Thursday, calling the two shots a "rookie reaction" by the newest team member on the scene that day, whose ego led him to lie about missing his mark.
When investigators later asked whether he had fired his weapon, Astarita's responses were memorable - and Maloney repeated them again and again to the jury: "You don't get to ask me that, bro," "Bro, you can't ask me that now" and "No, bro, we're good."
" 'No bro, we're good'?" Maloney said Thursday, facing the jury. "What does that mean?"
Both prosecution and defense agreed that seven shots were fired that day: three at Finicum's truck as it barreled toward the roadblock, two shots that struck Finicum and the two shots Astarita was accused of firing. Prosecutors say all bullet casings from the scene were missing; only two were found later with a metal detector.
Defense attorney David Angeli had emphasized a different version of events - one in which Oregon State Police SWAT "Officer #1" was the liar, not Astarita.
Until the trial, the identity of that officer - whose bullets struck Finicum - had been unknown. And it might have stayed that way, too, had another state police SWAT officer not slipped while on the witness stand and mentioned the officer's rank and last name. Patriot movement sympathizers, who were closely watching the trial, quickly began posting photographs of the officer on social media. "NEVER forget that name," one Oregon militia leader wrote.
Angeli homed in on statements made by Officer #1 about whether he was the one who fired the shots in question. "If Officer #1 had doubt," he told the jury, "you have to have doubt."
He also argued that Astarita, a firearms instructor, would not have fired the errant shots at the truck. The prosecution's 3-D renderings of the scene were "cartoons" and "camera magic," he said.
"No one saw [Astarita] shoot. No one heard him shoot," Angeli said, "because he didn't shoot and he had no motive to lie about it."
About a month after Finicum's death, the Deschutes County Sheriff's Office and local district attorneys determined that the state police officers' lethal response was justified.