FBI agent indicted in Oregon refuge standoff shooting

[phill4paul]

Indicted just for making false statements? Not for firing on an individual attempting to surrender with his hands in the air? Thereby setting off a string of events that led to Finicum's murder.

PORTLAND, ORE.
An FBI agent has been indicted on accusations that he lied about firing at a rancher in 2016 when officers arrested leaders of an armed occupation of a federal wildlife refuge in rural Oregon.

Sources familiar with the case say the agent will face allegations of making a false statement with intent to obstruct justice, The Oregonian/OregonLive reported Tuesday (https://goo.gl/M1Mk3p).

The indictment stems from more than a yearlong investigation by the U.S. Justice Department inspector general. The agent will be identified when summoned to appear Wednesday in U.S. District Court in Portland.

Authorities moved in on Ammon Bundy and other leaders as they were driving in two vehicles from the Malheur National Wildlife Refuge to a meeting on Jan. 26, 2016.

The Deschutes County sheriff said that as Robert "LaVoy" Finicum left his truck, an FBI agent shot twice at Finicum, though none of the hostage team members said they discharged their firearms. The county sheriff's office was tasked with investigating the Finicum shooting.

The FBI agent's bullets didn't hit Finicum, 54, an Arizona rancher who was the spokesman for the takeover near Burns in Harney County.

State police troopers then shot Finicum three times after he emerged from his truck and reached for his inner jacket pocket, where police said he had a loaded 9mm handgun.

One bullet pierced his heart, an autopsy found.

The Oregon investigators determined that one agent fired at Finicum's pickup, hitting it in the roof and missing on the second shot. Federal law forbids "knowingly and willfully" making any false, fictitious or fraudulent statement or representation or concealing information.

Assistant U.S. Attorney Charles Gorder Jr. revealed in court papers last year that a grand jury was reviewing the FBI actions.

Less than two months after the shooting, the FBI acknowledged that a federal agent was under investigation for firing shots, and four other members of his FBI team were under investigation for covering up the gunshots. The status of the investigation into the other FBI team members is unclear.

It's not clear if the indicted agent is on leave or has been dismissed from the job. The hostage team is part of the FBI's Critical Incident Response Group, based out of Quantico, Virginia.

U.S. Attorney Billy J. Williams in Oregon has scheduled a news conference Wednesday afternoon at the federal courthouse. His spokesman, Kevin Sonoff, declined comment. Portland's FBI spokeswoman Jennifer Adams said she was unaware of the matter.

Read more here: http://www.miamiherald.com/news/nati...#storylink=cpy

[ChristianAnarchist]

Goons gonna goon. Then lie about gooning...

[phill4paul]

A former FBI agent accused of lying about firing two shots at Robert "LaVoy" Finicum faces a five-count indictment, charging him with three counts of making a false statement and two counts of obstruction of justice.

W. Joseph Astarita was to make his first appearance Wednesday in U.S. District Court in Portland on the indictment. He served as a member of an FBI Hostage Rescue Team based in Virginia.

Astarita "falsely stated he had not fired his weapon during the attempted arrest of Robert La Voy Finicum, when he knew then and there that he had fired his weapon,'' the indictment says.

Astarita is accused of lying to three supervisory FBI agents, concealing from investigators that he fired his weapon and failing to alert the FBI's Shooting Incident Response team about what he did.

"Defendant acted with the intent to hinder, delay and prevent the communication of information from the Oregon State Police to the Federal Bureau of Investigation relating to the possible commission of a federal offense,'' the indictment says.

The indictment stems from a more than yearlong investigation by the inspector general of the U.S. Department of Justice.

The federal criminal indictment will likely cast a shadow on the elite, highly trained FBI Hostage Rescue Team and fuel Finicum supporters and groups criticizing government control of public land.

Waco and Ruby Ridge: Past FBI armed siege fiascos
Waco and Ruby Ridge: Past FBI armed siege fiascos
The indictment of an FBI agent in the roadblock confrontation where Oregon standoff spokesman Robert "LaVoy" Finicum died follows high-profile FBI fiascos involving its handling of armed sieges.

Astarita is accused of firing twice at Finicum at a police roadblock in Harney County after Finicum sped away from a state police stop in January 2016 during the occupation of the Malheur National Wildlife Refuge.

Justice Department Inspector General Michael Horowitz led the investigation. Oregon's U.S. Attorney Billy J. Williams has scheduled a news conference in his office after Astarita's court appearance.

The federal agent's bullets didn't hit Finicum, 54, an Arizona rancher who was one of the leaders of the Jan. 2 takeover of the federal bird sanctuary near Burns. Moments later, state troopers shot Finicum three times after he emerged from his white truck at the roadblock and reached for his inner jacket pocket, where police said he had a loaded 9mm handgun. Bullets struck him in the back and one pierced his heart, an autopsy found.

The FBI and state police moved in on Ammon Bundy and other key figures as they were driving from the refuge to a community meeting in John Day on Jan. 26, 2016. Finicum, the occupation spokesman, evaded the police stop on U.S. 395, sped off and swerved his truck into a snowbank to avoid an FBI and state police roadblock further down the rural road.

As he emerged from the truck, two shots were fired from an FBI agent with the Hostage Rescue Team, though none of the team members admitted to discharging their firearms, Deschutes County Sheriff Shane Nelson alleged.

Oregon investigators concluded that one agent fired twice at the truck, hitting it in the roof and missing on the second shot. A state trooper later described to investigators seeing two rifle casings in the area where the agents were posted. Detectives investigating didn't find the casings, police reports indicated.

The indictment follows two federal trials against refuge occupiers accused of conspiring to impede U.S. Fish and Wildlife Service and U.S. Bureau of Land Management employees from doing their work through intimidation, threat or force. Ammon Bundy, his older brother Ryan Bundy and five other defendants were acquitted of conspiracy and weapon charges last fall. Two other co-defendants were found guilty of conspiracy after a trial this year. Others were found guilty of misdemeanor charges, such as trespass. Eleven other refuge occupiers pleaded guilty to the federal conspiracy charge.

"The Finicum family applauds the U.S. Department of Justice for doing this. Nobody is above the law,'' said Brian Claypool, the lawyer for widow Jeanette Finicum and her family, on Wednesday. "The fact that the U.S. Department of Justice stepped in and investigated one of their own and said 'you can't obstruct justice, you're not above the law' sends a very positive message. This is about upholding public trust and preserving the integrity of any investigation involving a death at the hands of law enforcement.''

The Finicum family has put the Oregon State Police and the U.S. government on notice of an intent to file a civil claim alleging excessive force in Finicum's death. The federal government asked for supplemental information, which was provided, Claypool said Wednesday. No lawsuit has been filed yet, but the agent's indictment will only serve to support the civil case, Claypool said.

Claypool said he believes that the agent didn't admit shooting at Finicum when he did because the timing of the shots weren't justified. When Finicum crashed into the snowbank at the roadblock, he "was not posing a risk of serious harm,'' and the shots only escalated the situation, Claypool argued.

It was unclear immediately whether any action has been taken involving the four other members of the FBI Hostage Rescue Team who were being investigated for covering up the two gunshots fired by an agent.

During the Bundys' and co-defendants' trials, defense lawyers urged the judge to compel the government to turn over the investigative records regarding the FBI's alleged misconduct. But U.S. District Judge Anna J. Brown said the FBI's actions weren't relevant to the conspiracy, weapons and other charges against Bundy and co-defendants.

When the investigation into the FBI's actions was announced last year, the possibility that a member of the FBI's elite Hostage Rescue Team allegedly failed to disclose two gunshots fired seemed inconceivable to former FBI agents and criminal justice experts. That the bullets missed their apparent target drew even more disbelief.

"Here you have one of the best trained units in the FBI. They're only supposed to shoot when there's an active threat. You would hope they would be accurate in doing so,'' Michael German, a 16-year veteran of the FBI who now serves as a national security expert and fellow at the Brennan Center for Justice in New York University's School of Law, told The Oregonian/OregonLive in March 2016.

"In the FBI, the most important thing is to tell the truth,'' said Danny Coulson, who served as special agent in charge of the FBI in Oregon from 1988 to 1991 before becoming the agency's deputy assistant director in charge of terrorism operations. Coulson was the first commander of the FBI's Hostage Rescue Team and was a deputy FBI director during the bloody 1992 shootout in Ruby Ridge, Idaho. He now runs a security consulting business in Texas.

-- Maxine Bernstein

mbernstein@oregonian.com
503-221-8212
@maxoregonian

http://www.oregonlive.com/oregon-sta..._connecti.html


Video for reference. He was clearly exiting the vehicle with his hands in the air when the shot crashed through the roof and window.

This is what set off a chain of events that, ultimately, led to his murder.

[NorthCarolinaLiberty]

Video for reference. He was clearly exiting the vehicle with his hands in the air when the shot crashed through the roof and window.

This is what set off a chain of events that, ultimately, led to his murder.

Video is definitely worth a look. I would say "wow," but nobody should be surprised by this any more.

[Occam's Banana]

Indicted just for making false statements? Not for firing on an individual attempting to surrender with his hands in the air? Thereby setting off a string of events that led to Finicum's murder.

"Just-Us"

[phill4paul]

"Just-Us"

Seems I remember a lot of cases of when cops arrest perpetrator of a crime they are charged for murder if the cops kill someone else. This seems the case here for me. If the FBI agents actions led to the death of a surrendering LaVoy Finicum then he should be charged with murder.

But, some animals........

[ChristianAnarchist]

Goons....

[Occam's Banana]

Seems I remember a lot of cases of when cops arrest perpetrator of a crime they are charged for murder if the cops kill someone else. This seems the case here for me. If the FBI agents actions led to the death of a surrendering LaVoy Finicum then he should be charged with murder.

But, some animals........

Some of the FBI agents responsible for the murder of Vicki Weaver had "letters of censure" added to their personnel files by Louis Freeh (who was then director of the FBI). Lon Horiuchi (the actual shooter) was not among them.

(And IIRC, Freeh himself had been similarly censured at one point - for losing an agency cell phone ...)

[Schifference]

His statement was a split second life and death decision. He just needs some additional training and a vacation.

[squarepusher]

wow, honestly when this went down, I didn't have much support for this guy, he seems like a wild guy who had a death wish. However, after reading this new article today, and then I found this, it appears the FBI may have shot him with a foam bullet to his chest in order for him to lower his hands and reach for his chest, giving them reason to shoot him becasue he was "going for his gun"

[Pericles]

Interesting, but anything coming out of a rifle barrel at anywhere from 500 to 2000 feet per second, can't be that soft.

[Anti Federalist]

Shooting at Robert Lavoy Finicum and Lying About It is Business as Usual for the Feds

http://reason.com/archives/2017/07/0...inicum-and-lyi

His colleagues having escaped consequences again and again, Special Agent W. Joseph Astarita might be asking why he’s been singled out.

J.D. Tuccille | July 4, 2017

EMAIL SHARE PRINT

Last week saw the indictment of FBI Special Agent W. Joseph Astarita for lying about shots he'd fired during the January 26, 2016 killing of Robert Lavoy Finicum. The Oregonian noted that the prosecution of FBI agents for their official conduct is almost unheard of. The unusual charges were "devastating" to the FBI, commented Danny Coulson, a former head of the bureau's Oregon office.

Well, maybe the indictment is so devastating because federal agents are rarely punished for brutal and dishonest behavior.

Interestingly, Coulson created and led the FBI's Hostage Rescue Team—the elite force to which Astarita belongs—during the bloody 1992 Ruby Ridge fiasco. He escaped prosecution for his conduct during that mess—for which the federal government paid out over $3 million in damages to survivors—though he spent two years on paid leave (read: vacation). Several other agents were disciplined, though the only official criminally punished for Ruby Ridge was E. Michael Kahoe, who destroyed an internal FBI report critical of the agents' conduct during the high-profile standoff. Anybody further up the food chain, Coulson included, was protected by a review process intended "to create scapegoats and false impressions," according to Eugene F. Glenn, the FBI commander at the scene, who publicly broke rank with his colleagues when he believed he was being set up to take a fall. So Coulson knows well that the rarity of prosecutions of federal agents can't be taken as an endorsement of their behavior—arguably, it could be interpreted as quite the opposite.

Prosecutions might be rarer still—which is to say, Astarita might be walking free and unconcerned today—if one Oregon sheriff hadn't become thoroughly bent out of shape over federal conduct during last year's Malheur National Wildlife Refuge standoff and then in its aftermath.

Deschutes County Sheriff Shane Nelson took on the investigation of the lethal confrontation resulting from what was, to all appearances, an ambush of armed Malheur protesters traveling to a public meeting to discuss their opposition to the treatment of local ranchers in particular, and to federal control of western lands in general. Specifically, Nelson tried to account for the eight shots fired in the incident—six by Oregon state troopers (including those that killed Finicum), none by the protesters, and two by… huh. Because the FBI agents on the scene all denied firing two shots at Finicum (and missing) as he exited his truck.

Nelson and his investigators quickly concluded that Astarita had fired the shots, and that he and his colleagues lied about it for reasons of their own.

"The actions of the FBI HRT in this case damage the integrity of the entire law enforcement profession, which makes me both disappointed and angry," Sheriff Nelson said after the indictment was announced.

Nelson became even angrier when he presented his findings to FBI officials and they did…nothing.

"I was disappointed when I recently heard FBI HRT agents, associated with this case, were not placed on administrative leave after the briefing by our investigators to FBI Administration. Today's indictment will ensure that the Defendant and, hopefully other culpable FBI HRT members, will be held accountable through the justice process."

Nelson isn't exactly an antigovernment radical. He signed off on the killing of Finicum, saying, "Of the eight shots fired, the six fired by the Oregon State Police were justified and, in fact, necessary."

But the sheriff isn't on board with federal agents taking random shots that may well have inflamed the situation. That's a theory quickly embraced by the Malheur protesters and their allies. Finicum's widow, Jeanette, "said Astarita's early shots may have contributed to the firing of the fatal gunshots moments later by two state police troopers who killed her husband," reports The Oregonian. Unsurprisingly, she plans to sue.

Sheriff Nelson voices serious discontent with the FBI's conduct during and after the shooting of Finicum, but knowledge of the bureau's handling of the Ruby Ridge incident might have prepared him for disappointment. So might some familiarity with the federal government's handling of other incidents, such as the 1993 disaster at the Branch Davidian compound in Waco, Texas, during which more than 80 people died.

FBI agents escaped official discipline for their conduct at Waco, but not criticism. Rather than shred an inconvenient internal report, the bureau and its allies produced an exculpatory public "review" that the New York Times promptly labeled a "whitewash." The newspaper's editorial board went on to note, "The report describes a litany of errors and blunders. Why, then, does it assign no blame?"

By contrast, the Bureau of Alcohol and Tobacco and Firearms fired two agents who led the initial raid and siege to which the FBI joined its efforts when matters went lethally wrong. Chuck Sarabyn and Phillip Chojinacki lost their jobs over accusations of "poor judgment and lying to investigators" (a pattern with federal law enforcement agents, it would seem). Then again, we're talking about a federal agency; one year later, Sarabyn and Chojinacki were rehired with full back pay and benefits.

Years later, the Times again called out the FBI, asking "why the F.B.I. failed for six years to tell anyone, including Congress and the Attorney General herself, that it had used incendiary tear-gas canisters near the end of the siege—an important point, given the lethal fire in which the standoff ended. Soon, Assistant U.S. Attorney Bill Johnston, the prosecutor who belatedly revealed the use of those canisters, faced charges of concealing evidence. Texas Monthly reported that he was being hung out to dry so the consequences would reach no further through the ranks of federal officials because he was "the only guy who doesn't have friends in Washington."

If you're asking yourself why Astarita and company would have concealed the shots he fired during an incident that resulted in state police killing Finicum anyway, perhaps the answer is that lying and concealing information seems to be the bureau's go-to response.

The FBI almost screwed up what should have been the slam-dunk prosecution of Timothy McVeigh for the bombing of the Alfred P. Murrah federal building in Oklahoma City (a crime largely motivated, it's worth remembering, by McVeigh's outrage over federal misconduct at Ruby Ridge and Waco). Despite minimal doubt about his guilt (McVeigh wanted to plead "necessity") the FBI couldn't help putting its thumb on the scale. The bureau's crime lab was caught reaching "scientifically unsound" conclusions that were "biased in favor of the prosecution" according to the Justice Department's Inspector General. Then McVeigh's execution was delayed when it was discovered that federal officials concealed hundreds of documents from his defense attorneys.

Frederic Whitehurst, the whistleblower who revealed the FBI crime lab's shenanigans in not just that high-profile case, but many others, was targeted by his superiors for retaliation for his troubles. He ultimately walked away with a $1.16 million settlement.

[phill4paul]

Shooting at Robert Lavoy Finicum and Lying About It is Business as Usual for the Feds

http://reason.com/archives/2017/07/0...inicum-and-lyi

His colleagues having escaped consequences again and again, Special Agent W. Joseph Astarita might be asking why he’s been singled out.

J.D. Tuccille | July 4, 2017

EMAIL SHARE PRINT

Last week saw the indictment of FBI Special Agent W. Joseph Astarita for lying about shots he'd fired during the January 26, 2016 killing of Robert Lavoy Finicum. The Oregonian noted that the prosecution of FBI agents for their official conduct is almost unheard of. The unusual charges were "devastating" to the FBI, commented Danny Coulson, a former head of the bureau's Oregon office.

Well, maybe the indictment is so devastating because federal agents are rarely punished for brutal and dishonest behavior.

Interestingly, Coulson created and led the FBI's Hostage Rescue Team—the elite force to which Astarita belongs—during the bloody 1992 Ruby Ridge fiasco. He escaped prosecution for his conduct during that mess—for which the federal government paid out over $3 million in damages to survivors—though he spent two years on paid leave (read: vacation). Several other agents were disciplined, though the only official criminally punished for Ruby Ridge was E. Michael Kahoe, who destroyed an internal FBI report critical of the agents' conduct during the high-profile standoff. Anybody further up the food chain, Coulson included, was protected by a review process intended "to create scapegoats and false impressions," according to Eugene F. Glenn, the FBI commander at the scene, who publicly broke rank with his colleagues when he believed he was being set up to take a fall. So Coulson knows well that the rarity of prosecutions of federal agents can't be taken as an endorsement of their behavior—arguably, it could be interpreted as quite the opposite.

Prosecutions might be rarer still—which is to say, Astarita might be walking free and unconcerned today—if one Oregon sheriff hadn't become thoroughly bent out of shape over federal conduct during last year's Malheur National Wildlife Refuge standoff and then in its aftermath.

Deschutes County Sheriff Shane Nelson took on the investigation of the lethal confrontation resulting from what was, to all appearances, an ambush of armed Malheur protesters traveling to a public meeting to discuss their opposition to the treatment of local ranchers in particular, and to federal control of western lands in general. Specifically, Nelson tried to account for the eight shots fired in the incident—six by Oregon state troopers (including those that killed Finicum), none by the protesters, and two by… huh. Because the FBI agents on the scene all denied firing two shots at Finicum (and missing) as he exited his truck.

Nelson and his investigators quickly concluded that Astarita had fired the shots, and that he and his colleagues lied about it for reasons of their own.

"The actions of the FBI HRT in this case damage the integrity of the entire law enforcement profession, which makes me both disappointed and angry," Sheriff Nelson said after the indictment was announced.

Nelson became even angrier when he presented his findings to FBI officials and they did…nothing.

"I was disappointed when I recently heard FBI HRT agents, associated with this case, were not placed on administrative leave after the briefing by our investigators to FBI Administration. Today's indictment will ensure that the Defendant and, hopefully other culpable FBI HRT members, will be held accountable through the justice process."

Nelson isn't exactly an antigovernment radical. He signed off on the killing of Finicum, saying, "Of the eight shots fired, the six fired by the Oregon State Police were justified and, in fact, necessary."

But the sheriff isn't on board with federal agents taking random shots that may well have inflamed the situation. That's a theory quickly embraced by the Malheur protesters and their allies. Finicum's widow, Jeanette, "said Astarita's early shots may have contributed to the firing of the fatal gunshots moments later by two state police troopers who killed her husband," reports The Oregonian. Unsurprisingly, she plans to sue.

Sheriff Nelson voices serious discontent with the FBI's conduct during and after the shooting of Finicum, but knowledge of the bureau's handling of the Ruby Ridge incident might have prepared him for disappointment. So might some familiarity with the federal government's handling of other incidents, such as the 1993 disaster at the Branch Davidian compound in Waco, Texas, during which more than 80 people died.

FBI agents escaped official discipline for their conduct at Waco, but not criticism. Rather than shred an inconvenient internal report, the bureau and its allies produced an exculpatory public "review" that the New York Times promptly labeled a "whitewash." The newspaper's editorial board went on to note, "The report describes a litany of errors and blunders. Why, then, does it assign no blame?"

By contrast, the Bureau of Alcohol and Tobacco and Firearms fired two agents who led the initial raid and siege to which the FBI joined its efforts when matters went lethally wrong. Chuck Sarabyn and Phillip Chojinacki lost their jobs over accusations of "poor judgment and lying to investigators" (a pattern with federal law enforcement agents, it would seem). Then again, we're talking about a federal agency; one year later, Sarabyn and Chojinacki were rehired with full back pay and benefits.

Years later, the Times again called out the FBI, asking "why the F.B.I. failed for six years to tell anyone, including Congress and the Attorney General herself, that it had used incendiary tear-gas canisters near the end of the siege—an important point, given the lethal fire in which the standoff ended. Soon, Assistant U.S. Attorney Bill Johnston, the prosecutor who belatedly revealed the use of those canisters, faced charges of concealing evidence. Texas Monthly reported that he was being hung out to dry so the consequences would reach no further through the ranks of federal officials because he was "the only guy who doesn't have friends in Washington."

If you're asking yourself why Astarita and company would have concealed the shots he fired during an incident that resulted in state police killing Finicum anyway, perhaps the answer is that lying and concealing information seems to be the bureau's go-to response.

The FBI almost screwed up what should have been the slam-dunk prosecution of Timothy McVeigh for the bombing of the Alfred P. Murrah federal building in Oklahoma City (a crime largely motivated, it's worth remembering, by McVeigh's outrage over federal misconduct at Ruby Ridge and Waco). Despite minimal doubt about his guilt (McVeigh wanted to plead "necessity") the FBI couldn't help putting its thumb on the scale. The bureau's crime lab was caught reaching "scientifically unsound" conclusions that were "biased in favor of the prosecution" according to the Justice Department's Inspector General. Then McVeigh's execution was delayed when it was discovered that federal officials concealed hundreds of documents from his defense attorneys.

Frederic Whitehurst, the whistleblower who revealed the FBI crime lab's shenanigans in not just that high-profile case, but many others, was targeted by his superiors for retaliation for his troubles. He ultimately walked away with a $1.16 million settlement.

Thanks. Good read....

[phill4paul]

But the sheriff isn't on board with federal agents taking random shots that may well have inflamed the situation.

This. All of this. Finicum was exiting his videos with his hands up when he came under fire. He was surrendering and those two shots caused him to go into fight/flight mode.
Those two shots, though they did not hit him, caused the death of LaVoy Finicum.
And the HRT are either piss poor shooters or they intentionally caused an action/reaction scenario wherein the State Troopers did the dirty work for them.

[phill4paul]

LaVoy Finicum shooting: Defense says case against FBI agent based on 'junk science'

Defense lawyers for the FBI agent accused of lying about firing shots at the truck of Oregon standoff spokesman Robert "LaVoy" Finicum are requesting dismissal of the case, arguing that it's based on a faulty computer animation of the shooting and not witnesses, video or ballistics.

In a motion filed in federal court Friday, lawyers for FBI Agent W. Joseph Astarita contend the government's computer animation is unreliable.

"The government's case rests entirely on a computer animation manufactured by a daisy chain of so-called experts nearly two years after the underlying shooting incident,'' defense lawyer David Angeli wrote in his motion. "In short, it is junk science.''

Astarita was indicted in June and has pleaded not guilty to three counts of making a false statement and two counts of obstruction of justice. He is accused of hiding from Oregon investigators that he fired his rifle on Jan. 26, 2016, and lying to the FBI about his shots.

Federal prosecutors hired a specialist to do a 3D depiction of two shots allegedly fired by Astarita at Finicum's truck. Toby Terpstra, senior forensic animator at the Colorado-based company Kineticorp, is among nine government experts disclosed by prosecutors in their case.

The experts have relied on the syncing of audio as well as two videos, one from the cellphone of a backseat passenger taken inside Finicum's truck and one from an FBI surveillance plane overhead. They've worked to recreate the scene in 3D through photogrammetry, using coordinate measurements from photographs and videos.

Astarita's defense lawyers are assembling their own team of experts to counter the government's case at a hearing in May.

The agent's lawyers also Friday urged the court to at least dismiss four of the five charges against Astarita, saying the agent shouldn't face five separate allegations for "telling one alleged lie.''

He shouldn't be accused of obstruction of justice, for example, for "failing to speak'' in one follow-up February 2016 interview with Oregon state police, his lawyers said.

Allowing the five separate counts would "prejudice the jury against (him) by creating the impression of more criminal activity on his part than in fact may have been present,'' the defense motion says.

The shooting came as state police and FBI agents stopped key figures of the armed occupation of the Malheur National Wildlife Refuge after they left the bird sanctuary to travel to a community meeting in John Day. Finicum drove away from the police stop and crashed his truck into a snowbank at a roadblock before getting out of his truck.

Astarita's bullets didn't hit Finicum, 54, Oregon investigators said. They concluded that Astarita fired twice at the truck, hitting the roof and missing on the second shot.

Seconds later, state troopers shot Finicum three times after he stepped away from his pickup and reached for his inner jacket pocket, where police later said he had a loaded 9mm handgun. Bullets struck him in the back and one pierced his heart, an autopsy found.

The government's animation "purports to illustrate that Special Agent Astarita was the most likely person to have fired one or two shots that missed'' Finicum, according to the defense motion.

During the course of the investigation into Finicum's death, the Tri-County Major Incident Team determined state police fired six shots, including the three that hit Finicum and three at his truck as he sped toward the roadblock.

The team, after examining bullet damage to the roof of Finicum's truck and reviewing video footage taken by passenger Shawna Cox, questioned if someone had fired two additional shots, according to the motion.

The team of investigators contacted the U.S. Attorney's Office in late February 2016 about the two other shots, and the federal prosecutor's office informed the FBI, the motion said.

On Feb. 20, 2016, the FBI sent a shooting incident response team to Oregon to investigate if any of the gunshots in question could have been fired by any of the five FBI agents at the scene. Members of the U.S. Attorney's Office and U.S. Department of Justice's Office of the Inspector General also joined the inquiry.

Astarita, who was a member of the FBI's Hostage Rescue Team, is accused of telling two different FBI supervisors on the night of Jan. 26, 2016, that he hadn't fired any gunshots. Later that night, state police detectives interviewed the five FBI agents and none said they had discharged their weapons, the motion says.

Astarita was interviewed a second time by state police on Feb. 6, 2016, this time with two other FBI agents who were also present at the shooting scene. All three agents were then represented jointly by a lawyer, and state police were told the agents wouldn't answer any questions they'd already had been asked, according to Astarita's lawyers.

Astarita didn't speak at all during this February interview.

Sometime between Jan. 26, 2016, and Feb. 6, 2016, Astarita was asked by another FBI supervisory agent if he had fired his rifle that night, and he said no.

The motion contains redactions related to grand jury testimony, and a vague reference to Astarita's "alleged retort'' to someone, which his lawyers argue can't be construed as a lie.

A trial is set for July 24.

-- Maxine Bernstein

mbernstein@oregonian.com
503-221-8212
@maxoregonian

http://www.oregonlive.com/oregon-sta...g_defense.html