FBI agent Joseph Astarita, a 40-year-old Hostage Rescue Team member, was indicted this week and faces a five-count indictment, charging him with three counts of making a false statement and two counts of obstruction of justice.
He is accused of lying to cover up his role in the shooting death of “LaVoy” Finicum, a militia leader, in Oregon last year.
W. Joseph Astarita, 40, dressed in a dark pinstriped suit, white dress shirt and red-and-blue striped tie, made his first appearance on the indictment Wednesday in a packed federal courtroom, with heightened security inside and in the corridors of the Mark O. Hatfield Courthouse, Oregon Live reports.
A lawyer standing beside Astarita entered not guilty pleas on his behalf to all charges. Astarita will remain out of custody pending trial.
Astarita is accused of firing twice at Finicum but missing him as Finicum emerged from his white truck after swerving into a snowbank to avoid a law enforcement roadblock on U.S. 395 in Harney County.
Finicum had sped away from a state police and FBI stop moments earlier as authorities tried to arrest leaders of the Malheur National Wildlife Refuge occupation on Jan. 26, 2016. As he crashed in the snow, Finicum’s truck nearly struck another FBI agent, police said.
The indictment says Astarita, who served as a member of the elite FBI Hostage Rescue Team, “falsely stated he had not fired his weapon during the attempted arrest of Robert LaVoy Finicum, when he knew then and there that he had fired his weapon.”
Astarita is accused of lying to three supervisory FBI agents, concealing from Oregon investigators that he fired his weapon and failing to alert the FBI’s Shooting Incident Response Team about his shooting as required.
“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 criminal indictment stems from an 18-month-long investigation by the inspector general of the U.S. Department of Justice.
Defense lawyer Alison Clark represented Astarita during the two-minute hearing but told the court that Astarita expects to obtain his own local attorney. U.S. Magistrate Judge Janice M. Stewart set a trial date for Aug. 29. Assistant U.S. Attorney Pamala Holsinger estimated a trial would last a week.
The indictment will likely cast a shadow on the highly trained FBI Hostage Rescue Team and fuel Finicum supporters and groups fighting government control of public land.
Justice Department Inspector General Michael Horowitz, working with the Deschutes County Major Incident Team, conducted the investigation. A Deschutes County sheriff’s detective who was involved in the investigation attended the court hearing.
Oregon’s U.S. Attorney Billy J. Williams held a news conference after the hearing, standing with Deschutes County Sheriff Shane Nelson, Oregon State Police Superintendent Travis Hampton, Special Agent-in-Charge Michael Tompkins of the Office of the Inspector General and Holsinger, the U.S. Attorney’s Office chief criminal prosecutor.
Williams said Astarita’s alleged actions don’t call into question earlier investigation findings that Oregon State Police were justified in using deadly force against Finicum.
Sheriff Nelson credited his investigators for “going where the evidence led” and discovering the the FBI shots. Nelson, though, said he was “disappointed and angry” that the FBI Hostage Rescue Team’s actions “damage the integrity of the entire law enforcement profession.”
The sheriff also criticized the FBI for failing to place the agent and his fellow Hostage Rescue Team members on paid leave after he and investigators traveled to FBI headquarters over a year ago. They briefed the FBI’s then-Deputy Director Andrew McCabe, now acting director, about their findings and potential criminal liability, he said.
“Today’s indictment will ensure that the defendant and hopefully any other HRT members will be held accountable through the justice process,” Nelson said.
The FBI 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 had moved in on Ammon Bundy and other key occupation figures as they were driving from the refuge to a community meeting about 100 miles away in John Day.
Oregon investigators concluded that Astarita fired twice at the truck, hitting it in the roof and missing on the second shot. A state trooper later described seeing two rifle casings in the area where the FBI agents were posted. But detectives who arrived later at the scene to investigate didn’t find the casings, police reports indicated. None of the members of the Hostage Rescue Team acknowledged the shooting, the investigators said.
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.
“I’m encouraged. I’m thrilled that the grand jury came back with this finding,” said Finicum’s widow, Jeannette Finicum.
But she said she also has concerns about the lack of charges for the other four FBI agents at the scene with Astarita. She said she listened to the U.S. attorney’s press conference and agrees that the agent should be considered innocent until proven guilty. She said she wished that same standard would apply to the Bundys and others, who have been incarcerated for more than a year awaiting trial in Nevada.
“The Finicum family applauds the U.S. Department of Justice for doing this. Nobody is above the law,” said their lawyer, Brian Claypool. “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 Oregon State Police and the U.S. government on notice of its intent to file a civil claim alleging excessive force in Finicum’s death. 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 wasn’t justified. When Finicum crashed into the snowbank, he “was not posing a risk of serious harm” and the shots escalated the situation, Claypool said.
Other law enforcement experts privately questioned whether the agent didn’t admit he fired shots because he missed his target.
During the occupation trials, defense lawyers urged the judge to compel the government to turn over investigative records of 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 Ammon Bundy and the others.
On Wednesday, federal officials wouldn’t say whether Astarita is still working for the FBI or has been placed on leave or if any action has been taken against the other members of his FBI Hostage Rescue Team at the scene of the Finicum stop and shooting. An FBI spokeswoman also declined any comment.
Hampton, the Oregon state police superintendent, said he was discouraged that the FBI agent’s actions may diminish law enforcement’s reputation. He said the actions, however, don’t represent the FBI or hundreds of others involved in the arrests of the occupation leaders.
When the investigation of the FBI’s actions was announced last year, former FBI agents and criminal justice experts said they were stunned that an agent might lie about firing his gun. 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,” said 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.
“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.
A conviction for making false statements can result in a sentence of up to five years in prison. A conviction for obstruction of justice can lead to a sentence of up to 20 years, according to federal prosecutors.