The Central Oregon Major Incident Team released photos of evidence from the Jan. 26 shooting of militant leader Robert "LaVoy" Finicum.
Courtesy Central Oregon Major Incident Team
Newly released grand jury transcripts recount the actions of FBI agents on the ground in the minutes, hours and days after an occupier of the Malheur National Wildlife Refuge was shot and killed by law enforcement.
The testimony released Thursday includes statements from four FBI agents — identified by their initials T.S., B.M., I.M. and C.S. — all who were on the scene when Arizona rancher Robert "LaVoy" Finicum was shot and killed by two Oregon State Police SWAT team members at a traffic stop on a remote stretch of eastern Oregon road in 2016.
The transcripts are significant because they form the basis for the government's case against FBI special agent W. Joseph Astarita, who worked as a member of the elite hostage rescue team that coordinated the traffic stop.
Prosecutors allege Astarita fired his weapon twice at Finicum's truck and later failed to disclose those shots when questioned. Investigators ruled the shooting justified, but prosecutors have charged Astarita with several counts of making false statements to investigators and obstructing justice after the shooting.
Astarita — who still works for the FBI — has pleaded not guilty to the charges.
The grand jury testimony and other documents were included in the public court record after OPB and The Oregonian/OregonLive filed a legal motion challenging the government’s protective order in the case.
In the portions of the newly unsealed transcripts, none of the FBI agents testified they heard or saw Astarita fire his weapon.
But the special agent identified as I.M. told the grand jury on June 28, 2016 that Astarita stood out from his colleagues after the shooting. At the time, I.M. was asking other HRT members if they were OK and if anyone fired their weapon.
"And (Astarita) stood out because he said something to me," I.M. testified. "Everyone else kind of nodded or gave me a thumbs-up. He said something, I didn't catch it, and I said, 'What?' And he said, 'Hey, man, you don't got to ask me that, bro,' or, 'I'm good, bro, don't ask me that,' which is typical for Joe. He's just kind of a flippant guy."
I.M. testified he was "perturbed" because he had other things to do and moved on.
Agent C.S. testified to the grand jury about the same conversation between I.M. and Astarita.
"I interjected, 'Yeah, he can, and he needs to know if one of our guys shot, there is admin things that have to happen,'" C.S. said. "And by that, I mean, you know, the gun has to -- the gun that was used generally gets traded out for another weapon so that the agent isn't disarmed, but that weapon is segregated so that it can be examined later."
Assistant U.S. Attorney Pamala Holsinger asked what Astarita said.
"Then he said, 'No, bro, we're good,'" C.S. testified. "That's my recollection."
Special agent B.M. told the grand jury on the morning of March 1, 2017 that Astarita was standing in front of him when Finicum's truck went off the road and hit a snowbank.
"When that truck hit the snowbank and Finicum got out, did you hear any shots fire?" a federal prosecutor asked B.M.
"No. I do not recall hearing shots fired at that time. I do not recall hearing shots fired at that time. I heard shots from the vehicle that came initially around the bank, and then the next shots that I specially recalled were the ones when Mr. Finicum was engaged," B.M. replied.
B.M. testified he was wearing a noise dampening headset during the shooting. He was Astarita's direct supervisor on the scene and asked him and other HRT operators if they were OK and if any of them fired their weapons.
"And in terms of your inquiries, Joe Astarita told you he did not shoot his weapon?" a prosecutor asked.
"That's right," B.M. said. "He told me he did not fire his weapon."
"And in terms of protocol, you were his director supervisor on scene?" the prosecutor asked.
"Yes," B.M. replied. "I'm his direct -- I'm his team leader, so direct superior on scene --"
"And off scene, everywhere?" the prosecutor asked.
"Correct," B.M said.
"And so he's required, really, to be truthful with you, his supervisor, in that type of dynamic situation or any situation, frankly, I would imagine?" the prosecutor asked.
"Undoubtedly," B.M. responded.
Investigators say a total of eight shots were fired during the incident. But crime scene investigators did not recover eight shell casings at the scene.
According to court documents, FBI aerial surveillance footage shows what appears to be FBI members using their flashlights in the hour after the shooting searching the roadway in the dark.
During his testimony, B.M. told the grand jury he's "pretty certain" he saw a shell casing on the road.
Days after the shooting, B.M. again asked Astarita if he shot, this time at a makeshift headquarters the FBI established at the Burns airport during the 41-day occupation.
"I talked to Joe," B.M. said. "He was — we were in one of the tents. It was just the two of us. And I said — I told him the nature of the situation. I said, 'It looks like there's two rounds that have be unaccounted for or are unattributed at this time.' You know, 'Did you fire a weapon?'"
B.M. said Astarita responded, "'No, I didn't fire a weapon.'"
B.M. testified that it was a reasonable reply.
On Feb. 6, 2016, Oregon State Police questioned FBI HRT operators at the FBI command post in Burns. All were on the scene when Finicum was shot and killed.
The FBI HRT operators wanted to be interviewed as a group, according to a supplemental report released Thursday.
"They told me they wanted their attorney present on speaker phone, and they did not want to be asked any questions that they had previously been asked without being able to reference statements from their prior interviews," an OSP officer identified at "G" wrote in the report.
The interviews were not recorded. None of the FBI team members said they fired any rounds and none knew the brand of the ammunition they carry, the report states.
One of the HRT operators said he saw one spent bullet casing on the ground after the shooting.
"He could not remember what caliber or exactly where the casing was located," the report states.
None of the other agents said they saw any spent casings, the report states.
Astarita's trial is set for July in Portland.