An FBI agent lied about firing two shots at one of the leaders of the 2016 armed occupation at the Malheur National Wildlife Refuge, moments before Oregon State Police shot the man in the heart, the government said in opening arguments at the agent’s trial Wednesday.
Three weeks after dozens of heavily armed ranchers and militiamen took over a bird sanctuary in the remote southeast corner of Oregon and said they were ready to die to defend it, the FBI got a tip.
An informant told them the occupation’s leaders planned to visit neighboring Grant County, where Sheriff Glenn Palmer supported their cause. The informant told authorities two cars would carry Ammon Bundy and a handful of other occupation leaders through the frigid winter over a deserted two-lane highway to John Day, Oregon, on Jan. 26, 2016.
The FBI, Oregon State Police and the Harney County Sheriff hatched a plan. They chose a forested stretch of the highway in the middle of a canyon and set up a traffic stop. They planned to arrest the leaders and hopefully end the occupation peacefully, according to testimony Wednesday by the FBI agent in charge of Oregon at the time, Greg Bretzing.
The plan went partly right. The jeep driven by government informant Mark McDonnell stopped at the traffic stop on U.S. Highway 395. Police arrested McDonnell’s passengers – Ammon Bundy and Bundy’s bodyguard, Brian Cavalier.
The second vehicle, a truck driven by LaVoy Finicum, idled at the roadblock for four minutes. One occupant, militia leader Ryan Payne, stepped out of the truck with his hands up. He was arrested. Inside, Finicum, Ryan Bundy, Shawna Cox and teenage singer Victoria Sharp discussed what to do.
“Gun it!” Cox yelled, and Finicum sped off. A mile down the road, authorities had set up a roadblock. There were three trucks parked in the road, with a row of tire spikes in front. Agents said they heard the truck accelerate as it approached.
“Hold on!” Finicum yelled to his passengers, before ramming the truck into the snowbank beside the roadblock. He leapt out and hopped through the deep drifts, yelling “You’re gonna have to shot me!”
Moments later, Finicum was dead. Eight shots had been fired. Three hit Finicum, one piercing his heart. An investigation later cleared the Oregon State Police officers who shot him, finding their use of deadly force was justified.
But two other shots were never accounted for. None of the agents and officers present at the roadblock admitted to firing them. That’s why W. Joseph Astarita, a member of the FBI’s elite Hostage Rescue Team, faces federal felony charges of making false statements and obstructing justice.
His trial began Wednesday and is expected to last one month.
The two shots in question were fired at Finicum’s truck, as it barreled toward the roadblock and appeared to those on the ground to be headed toward an FBI agent. One shot missed the truck, while the other burst through the top of the cab and shattered a rear window on exit.
The government claims Astarita was the only person who could have fired those shots, but he denied doing so. Immediately after the incident, his boss asked if he had fired any shots.
“You don’t gotta ask me that, bro,” he answered.
Assistant U.S. Attorney Gary Sussman told the jury Wednesday that forensic modeling would show Astarita was the only person within the trajectory of the shots, while FBI drone footage would show that he or a member of his team had picked up his shell casings to cover up the shooting and that he acted strangely after the incident.
“One guy,” Sussman said. “Only one guy stood in just the right spot with his rifle shoulder and aimed right at Finicum’s truck. Only one guy was so amped up afterward that a supervisor had to tell him to calm down. Only one guy refused to answer the simple question: ‘Did you shoot your gun?’ That guy is a member of the FBI Hostage Rescue Team. That guy is Joseph Astarita.”
Astarita’s lawyer Robert Cary called the government’s modeling “completely unreliable” – based not on fact but on “subjective opinion.” He said Astarita, a highly trained sniper, would not have missed his target at 25 feet away. Cary pointed the finger instead at one of the two Oregon State Police officers who fired the shots that killed Finicum.
Astarita sat with his team of lawyers, calmly taking notes. In the packed gallery sat Finicum’s widow Jeanette Finicum and her lawyer J. Morgan Philpot, who is representing her in a wrongful death lawsuit against Astarita and the government. Philpot was part of the legal team that secured acquittals for Ammon and Ryan Bundy in the trial that followed the Malheur occupation.
Philpot busily took notes during opening statements Wednesday. But Sussman told the jury that this case was completely different from the wrongful death suit.
“This case is not about whether the Finicum shooting was justified,” Sussman said. “This case is about integrity – without which a law enforcement officer is nothing and has nothing.”