FBI agent W. Joseph Astarita and several colleagues on the bureau's elite Hostage Rescue Team are under investigation for alleged "lack of candor'' in their statements after the shooting of refuge occupation leader Robert "LaVoy" Finicum in January 2016, according to a new court filing.
The federal agents are the subject of an ongoing administrative investigation and review by the U.S. Department of Justice's Office of the Inspector General, federal prosecutors noted in the document filed in court Wednesday.
Astarita was among FBI agents and state police officers trying to arrest leaders of the armed takeover of the Malheur National Wildlife Refuge as they drove off the bird sanctuary to a community meeting 100 miles away along remote U.S. 395.
Prosecutors had alleged that Astarita covered up that he fired at Finicum's truck after it swerved into a snowbank at a police roadblock off the highway on Jan. 26, 2016. They also alleged Astarita and his colleagues on the Hostage Rescue Team picked up and removed shell casings from the shooting scene.
One shot hit the roof of the truck's cab and shattered the rear driver's side window and the other missed entirely -- both distinctly audible on the video captured by rear seat passenger Shawna Cox.
In August, a jury acquitted Astarita of all federal charges.
While Justice Department officials had confirmed in the past that the agents would be investigated for alleged misconduct, the legal brief that prosecutors wrote mentions for the first time that the inquiry regards their alleged "lack of candor.''
Prosecutors made the notation in a footnote in their legal response to a motion by Astarita's lawyers governing whether certain documents from the Astarita trial should remain under the court's protective order.
At trial, the government prosecutors played for jurors the FBI's aerial infrared video that they said captured Hostage Rescue Team agents scouring the scene that night for evidence, bending down and looking under trucks and appearing to pick things up.
Each of the federal agents testified they were conducting searches for remnants of flash-bang grenades or for lost gear. They also testified that they didn't hear gunfire come from Astarita and didn't see him fire any shots that day.
Astarita took the witness stand and said he had never fired his gun on duty and didn't know the type of ammunition he loaded into his rifle the day of Finicum's stop.
With Astarita's acquittal, the mystery remains as to who fired twice after Finicum swerved into the snowbank, stepped from his truck with his hands in the air and shouted, "Go ahead and shoot me.''
Moments later, two state police SWAT officers shot and killed Finicum after he had walked away from his truck and was seen reaching into his inner left jacket pocket where police said he had a loaded 9mm Ruger pistol. The fatal shooting was ruled justified by the Deschutes County district attorney.
Investigators recovered only two shell casings of eight shots fired at the roadblock.
Finicum's family has a pending wrongful death lawsuit against the FBI, Oregon State Police, the U.S. Bureau of Land Management and others.
-- Maxine Bernstein
