FBI agent denies taking shots, picking up shell casings at Finicum shooting scene

PORTLAND — After three weeks of listening to his boss, his fellow Hostage Rescue Team agents and Oregon State Police officers describe his demeanor and actions on Jan. 26, 2016, FBI agent W. Joseph Astarita Wednesday gave his own account.

In a steady voice, he flatly denied several times that he fired his Colt AR-15 rifle that day, said he never picked up any shell casings from the scene, didn’t hear any gunshots and didn’t know who had shot and killed refuge occupation spokesman Robert “LaVoy” Finicum.

“I had no indication I had fired. I didn’t hear it, feel it, see it that day,” said Astarita, dressed in a blue suit, white shirt and red tie.

The agent, accused of lying to conceal that he fired two shots at Finicum’s truck, is fighting to hold on to the only job he’s ever wanted since he was in eighth grade.

He spent nearly five hours testifying during his second day on the witness stand in his trial in U.S. District Court in Portland, charged with making false statements and obstruction of justice in the aftermath of the armed occupation of the Malheur National Wildlife Refuge.

No one has acknowledged firing the two disputed shots at Finicum. They came when Finicum stepped out of his truck after swerving into a snowbank at a roadblock on U.S. 395 in Harney County as the FBI and state police moved to arrest the occupation’s leaders. One hit the roof of Finicum’s truck and the other missed.

Prosecutors and Oregon investigators say Astarita took the shots. Moments later, two state police SWAT officers fatally shot Finicum after he reached into his jacket where he had a loaded handgun, police said.

Of the oath he took to become an FBI agent 13 years ago, Astarita told jurors, “It means everything to me. That’s my world. I’ve dedicated my life to it. That’s my character. My honor.”

After Astarita’s testimony concluded, the defense rested. Prosecutors briefly recalled their 3D animation expert in a short rebuttal. Jury instructions and closing arguments will begin Thursday.

Astarita said he didn’t fire his rifle when Finicum got out of his truck because he was concerned about potential crossfire, spotting a state trooper in the treeline behind Finicum’s truck.

He repeatedly said he couldn’t identify any of the officers who were caught on FBI videos walking around the shooting scene, scouring the ground and bending under trucks after Finicum was killed. Prosecutors contend those were FBI Hostage Rescue Team agents.

And Astarita confirmed earlier trial testimony that he wasn’t sure what ammunition he had loaded into his rifle, saying he didn’t remember which service rounds he was using from a ballistics research facility that provides them to team agents.

“You’re a very smooth and polished witness, sir?” Assistant U.S. Attorney Gary Sussman began in his cross-examination, asking Astarita how many times he’s testified in court. Astarita said this was his third time.

The courtroom was packed for the cross-examination, with other prosecutors, defense lawyers, court staff and interested spectators filing in.

‘I BELIEVE THAT’S MY POSITION’

Sussman pointed out that Astarita, as a member of the elite FBI Hostage Rescue Team and a firearms instructor, was trained in “situational awareness,” taught to know where he and his teammates are in a critical incident. He asked Astarita to square that training with his inability to remember where he was standing exactly when the disputed shots occurred.

Astarita told investigators in February he didn’t know his location. On Wednesday, he again said he still didn’t have an independent memory of where he was standing. Only after having viewed the FBI’s aerial videos multiple times, he said he was generally west of the front bumper of a state police truck in the middle of the roadblock.

Sussman showed Astarita screenshots of a blue-circled spot where Astarita’s boss, a supervisory FBI agent identified in court only as B.M., had placed him at the moment Finicum stepped from his truck. The circle put Astarita directly beside the open passenger door of that state police truck and within a trajectory cone created by government experts showing the path and source of the bullet that hit the roof of Finicum’s truck.

Astarita said, “That’s where he believed I was.”

Sussman also showed Astarita the aerial FBI camera image of that moment and asked him to point to his figure in the image.

“I believe that’s my position, yes,” Astarita said, acknowledging the dark figure beside the open passenger door. “I don’t have an independent recollection of where I was at that time,” he added.

Sussman asked Astarita to mark his position on a screenshot image of the roadblock scene, and he placed himself just barely outside the bullet trajectory cone overlaid on the photo.

Sussman then grilled Astarita about the unusual remark he made to a supervisor at the scene who asked him if he had fired any shots and descriptions by other officers that he was unusually “amped up” at the scene.

Sussman also asked Astarita about others’ testimony that he knocked off the cowboy hat of Ryan Bundy, a passenger in Finicum’s truck, and allegations that Astarita and his FBI team colleagues were caught scouring the shooting scene, presumably looking for shell casings, that night.

‘GET DOWN, THEY’RE SHOOTING’

Astarita had arrived in Burns in early January 2016. He was posted at the roadblock on U.S. 395, about a mile north of where state police and FBI agents planned to stop the occupation leaders traveling in a Jeep and Finicum’s truck on their way to a community meeting in John Day.

Astarita said his initial role was to “man the roadblock,” standing on a small ladder behind the front hood of an FBI rental truck that formed part of a V in the northbound lane. Agent John Neidert was on a ladder behind the hood of the other FBI rental truck in the southbound lane.

Finicum had sped away from the police stop. Astarita said he saw Finicum’s truck traveling rapidly, “closing ground on us.”

He said he rested his rifle on the hood of the truck in front of him, tried to get a sight on the driver’s side of Finicum’s pickup to see if he “could apply effective fire on that driver.” But he couldn’t see inside the cab and took no shots, he said. Soon, he heard a supervisor command, “Bail out! Bail out! Bail out!”

Astarita got off the ladder, heard somebody say, “Get down! They’re shooting!” and ran to the east side of the road. He saw Neidert run to the west side as Finicum’s truck swerved into a snowbank on the west side.

“I saw the truck come through the snow. I saw John disappear,” he said. “At that point, I thought John was dead.”

Astarita said he immediately started moving to help Neidert. He remembered seeing Neidert’s head pop out of the snowbank and saw him shaking off the snow, and recalled the tremendous sense of relief he felt.

“I began scanning my sector for threats,” Astarita said. He was beside the state police truck in the middle of the road at this point, he said. “I saw motion on the driver’s side and I saw Mr. Finicum was exiting,” Astarita said, referring to Finicum’s truck in the snowbank.

He said he spotted Oregon State Police officer Joey Pollard in his backdrop and worried about crossfire.

“Did you fire your weapon at that moment?” defense lawyer Robert Cary asked.

“No, I did not,” Astarita responded.

“Did you fire your weapon at all that day?” Cary continued.

“No, I did not,” Astarita said.

‘I DID NOT’ HEAR SHOTS

During cross-examination, Sussman had Astarita step off the stand and demonstrate holding his own rifle at a low-ready position, and then moving to a firing position.

Once handed the rifle, Astarita hesitated, and said, “Can I just ask why the safety’s off?” The prosecutor looked flummoxed, and had Astarita restore the safety.

At the moment Finicum stepped from his truck, Sussman asked Astarita if his rifle was shouldered and pointed at the truck. Astarita said it was.

As Finicum walked farther from his truck, Astarita said he tried to get Neidert , himself and his boss B.M. behind the state police car for better cover. He recalled seeing Finicum reach with his right hand into his left inner pocket and Finicum “go down.”

“Do you recall hearing any shots at the roadblock that day?” Cary asked.

“I do not,” Astarita said, adding later he was wearing noise-canceling headphones attached to his helmet.

“Did you see who shot him?” Cary asked.

“I did not,” Astarita aid.

The attention of FBI agents and police officers at the scene then turned to the passengers still in Finicum’s truck, he said.

He said he threw one flash-bang device at Finicum’s truck as a distraction so those still in the truck wouldn’t get ” a line of sight” to shoot one of the officers. He said he also gave loud commands for the remaining occupants to exit with their hands up.

Questioned by Sussman, he acknowledged that an FBI supervisor may have told him to “quiet down.”

‘I DON’T REMEMBER THAT’ STATEMENT

He also said he was using loud commands to organize the state SWAT and FBI agents huddled on the driver’s side of the state police truck in the middle of the roadblock to provide cover while keeping an eye on the remaining occupants of Finicum’s truck.

Astarita said he said he didn’t knock off Ryan Bundy’s cowboy hat at the scene. It had fallen in the street during Bundy’s arrest as he lay prone against the road, he said. Because the hat was getting in the way of officers’ attempts to handcuff Bundy’s hands behind his back, Astarita said he tossed it “Frisbee-style” in the snow. A state police officer previously testified that he couldn’t understand why Astarita had walked up and knocked Bundy’s hat off unprovoked.

Asked why he was seen walking up to Bundy’s right side later as Bundy remained kneeling on the highway, Astarita said, “I was looking at Mr. Bundy’s cuffs.” Prosecutors have suggested that Astarita wanted to inspect whether Bundy had been injured by the gunshot that hit the roof of Finicum’s truck.

Asked by Cary if he was aware Bundy had been injured, Astarita said, “I did hear out there that Mr. Bundy had a cut.”

Lawyers from both sides asked Astarita to explain his unusual statement to FBI supervisory agent Ian McConnell at the scene when McConnell asked if Astarita was OK and had taken any shots. McConnell testified that Astarita responded with a flippant remark.

Astarita said he couldn’t remember the exact words he used, but something like, “Don’t ask me, I don’t know.”

“I could tell Ian was a bit confused about my answer,” Astarita said, and when McConnell asked him again if he had shot, he said he told him he had not.

Sussman, in cross examination, delved deeper. “Actually you said, ‘You don’t got to ask me that bro.”’

“I don’t remember that,” Astarita said.

Astarita explained that he thought McConnell was asking him if he knew who had fired shots, and he hadn’t. “I thought I was directly answering him,” Astarita said. “I was telling him I didn’t know.”

Sussman asked Astarita about his statement to another FBI agent at the scene asking him if he saw anything on the ground. Astarita said he was referring to any sensitive items or lost gear. But, Sussman pointed out, Astarita used the word “anything.”

The defense lawyer and prosecutor played back the FBI infrared aerial video, which captured officers scouring the scene that night. Greg Bretzing, the Oregon FBI’s special agent in charge then, testified that the video was concerning.

After stopping several frames, Cary asked Astarita if he could identify the figures.

“No, I cannot,” Astarita said.

“Did you pick up any .308 rifle casings?” Cary asked.

“I did not,” Astarita said.

“Did you pick up any .223 rifle casings?” Cary asked.

“I did not,” the agent said.

‘I CAN’T TELL WHO THAT IS’

Sussman noted that Astarita had picked up a magazine of ammunition at the scene with one or two rounds that had slipped out. The prosecutor asked if Astarita reported his finding to any investigator.

Astarita said he didn’t speak with any investigators but did ask other agents and officers if it belonged to them. “It was a sensitive item and I seized it,” he said. “That was our SOP (standard operating procedure).”

Sussman suggested that Astarita, B.M. and Neidert were the agents mulling around the shooting scene, huddled at one point in front of Finicum’s truck.

“I can’t tell who that is but it could be,” Astarita said.

Asked if there was any tactical reason for examining the area around Finicum’s truck, he said: “I can’t think of one,” other than maybe officers who used less-lethal munitions checking how effective their rounds were.

Astarita said he, Neitert and B.M. were among those doing a second check for sensitive items later that evening. Sussman asked if they were looking under trucks. “Potentially; I don’t recall looking under vehicles,” Astarita said.

Asked if he remembered telling a colleague after the shooting that he had saved Neidert, Astarita explained that he was teasing Neidert that he “bailed the wrong way” and he had to come rescue him. Neidert testified that Astarita never rescued him.

The night of the shooting, Astarita was interviewed by state police detectives but they didn’t ask him whether he had fired his gun, he said.

Astarita confirmed that he later told his immediate boss, agent B.M., and a more senior FBI commander, Tim Swanson, that he hadn’t shot either.

In their 10-person tent back at the tactical operations center a day or two later, he recalled learning that investigators had concerns about unaccounted-for rounds. Astarita said he and B.M. separately checked their rifles and magazines “to see if there was any indication we shot.” They checked their own rifles simultaneously, he said. He didn’t describe what he found, but said he usually fully loads his 30-round magazine.

Astarita said he placed no restrictions on a second group interview held with state police detectives in February. Prior testimony revealed agent B.M. did, demanding an unrecorded group interview, highly unusual in an officer-involved shooting case.

Sussman finally pointed out that Astarita nor the other members of his Hostage Rescue Team wrote their own reports about their roles at the shooting scene. Instead, Astarita said, they met at the command center, and someone from the FBI who wasn’t present at the shooting scene wrote a communal “302,” FBI parlance for a basic bureau report.

Prosecutors contend Astarita is the only one who could have taken the disputed shots, based on FBI aerial surveillance videos, Astarita’s unusual remarks to his superiors after the shooting and forensic analysis tracing the bullet back to his position by the open passenger door of the state police truck.

Astarita’s lawyers have argued the government’s forensic experts erred and the bullet trajectory analysis can’t pinpoint one particular shooter, but places Astarita and two others as potential shooters. One of the other potential shooters is the state police SWAT officer who shot five times that day, including two of the three shots that hit Finicum.

If convicted, Astarita could face up to 20 years of prison — five years each for two counts of making a false statement and up to 10 years for obstruction of justice.