Defense files motion requesting the exclusion of expert reports and testimony in Astarita case

Katie Aguilera

Lawyers for FBI agent W. Joseph Astarita have filed a motion to exclude the expert reports and testimony of several witnesses for the prosecution in Astarita’s case.  Astarita is accused of firing two shots at Robert ‘LaVoy’ Finicum on January 26, 2016 and subsequently lying about it.   The two shots did not hit Finicum, but one struck the roof of Finicum’s truck.

The shooting occurred at a road block set up to stop and arrest leaders of the occupation of the Malheur National Wildlife Refuge as they traveled along Highway 395 to John Day, Oregon.  Finicum was shot and killed by Oregon State Police (OSP) officers at the road block after exiting his vehicle and appearing to reach for his pocket.  An investigation of the shooting concluded there were two shots fired during the stop that were unaccounted for.

The prosecution’s case against Astarita relies in large part on the 3D reconstructions and diagrams created by several expert witnesses that concluded only Astarita was in position to fire the two shots that are unaccounted for.

In the defense motion, filed April 4, 2018, it is argued, “because the government has no photographic, video, ballistic, or eyewitness proof that Special Agent Astarita fired his weapon, this assumption [of his firing the two shots] rests entirely on the proposed testimony of the so-called experts.”

The reason no such video exists is because the FBI Hostage Rescue Team requested the OSP officers not wear body cameras during the road block.  OSP officers normally wear body cameras when deployed.  Additionally, the shell casings from the two shots, as well as casings from some of the shots fired by OSP officers, were missing from the scene.

The defense goes on to question the accuracy of the experts’ conclusions, the expertise of the witnesses, and the methods used in their investigations.  It states, “the Court cannot allow experts to present conclusions on such important issues in a criminal trial without ample assurances of reliability.  The government and its purported experts have failed to provide such assurances here…”

Astarita has pleaded not guilty to three counts of making a false statement and two counts of obstruction of justice.  A hearing to determine what experts’ testimony will be allowed in the trial is scheduled for May 21, 2018.

FBI requested no body cameras the night Robert ‘Lavoy’ Finicum was shot and killed

Katie Aguilera

On January 26, 2016, Oregon State Police SWAT and the FBI Hostage Rescue Team (HRT) deployed together for the planned arrest of leaders of the occupation of the Malheur National Wildlife Refuge.  The plan called for an initial traffic stop on Oregon highway 395, with a road block farther down the highway in case either of the two vehicles the leaders were traveling in did not comply at the initial stop.

The driver of the vehicle Ammon Bundy was riding in complied at the initial stop and all occupants were taken into custody.  Robert Lavoy Finicum, who was driving the other vehicle, initially stopped, then, after Ryan Payne got out of the truck, took off towards the road block.  When he reached the road block, Finicum crashed his truck into the snow bank to avoid it.  After he exited his vehicle, Finicum was shot three times by OSP officers.

There have long been rumors that police and FBI involved in the shooting death of Finicum were ordered to turn off dash and body cameras.  It has now been confirmed that these rumors have some basis in fact.

In the investigation into the shooting death of Finicum, investigators determined that there were two shots fired that were unaccounted for.  FBI HRT operator W. Joseph Astarita has since been charged with lying about firing his rifle twice at Finicum at the road block.  Astarita has requested the charges be dismissed.

According to court documents filed February 2, 2018 by the prosecution in response to W. Joseph Astarita’s motion to dismiss the charges against him, Oregon State Police (OSP) officers, at the request of the FBI, did not wear body cameras on January 26, 2016 during the attempt to arrest occupation leaders.

A footnote in the 32-page response states:

“OSP SWAT troopers are ordinarily required to wear body cameras while deployed.  However, they did not wear the cameras while deployed with HRT–at HRT’s request.”

After the two shots that were unaccounted for were discovered, and it was also discovered that shell casings from those two shots as well as some of the shots fired by OSP officers were missing, a new investigation of the FBI HRT operators involved was opened.  The FBI operators were interviewed for a second time by OSP detectives, as described by the prosecution’s response to Astarita’s dismissal motion.

According to the document, “on February 6, 2016, two OSP detectives re-interviewed defendant, [Astarita], B.M., [Astarita’s immediate supervisor] and the HRT operative who was nearly struck by Finicum’s truck at the roadblock.  By then, the detectives knew that there were unaccounted-for shots and missing shell casings.  The HRT operators knew it as well. The HRT operators set conditions for the interview.  They were only willing to be interviewed if:  1) they were interviewed as a group, not individually; 2) the interview was not recorded; and 3) their lawyer could be present by speakerphone.  In addition, they would not answer any questions previously asked without being able to reference statements from prior interviews.” (Emphasis mine).

The response also argues that though Astarita has claimed he didn’t speak at this second interview, the OSP detectives have stated that he did.  The document states, “he spoke less than others who were present, and considerably less than he did during the first interview.  He did nothing to correct statements made on his behalf…These sorts of factual disagreements can only be resolved at trial, not in a pretrial motion to dismiss.”

It is inexplicable that the FBI would request that no body cameras be used during the arrest attempt, and it is also odd that OSP agreed to the request.  This only serves to raise suspicion as to the intentions of the officers involved.  The reasons behind this decision need to be made clear.

That a member of any law enforcement agency would lie about, and actively work to cover up, shots fired during an arrest attempt harms the credibility of, and trust in, all law enforcement.  Although it comes as no surprise that the FBI would attempt to cover up the shooting as they have a track record of such activity, when something like this happens, they must be held accountable.

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Family of Robert “Lavoy” Finicum files wrongful death lawsuit

Katie Aguilera

Two years after Robert “Lavoy” Finicum was shot and killed by Oregon State Police officers on Highway 395 in Harney County on January 26, 2016, the Finicum family has filed a wrongful death lawsuit against a slew of defendants.  These include the United States, FBI, BLM, Oregon State Police, Harney County, a number of officials from those agencies, the Center for Biological Diversity, and 100 ‘John Does,’ among others.

The lawsuit was filed Friday, January 26, 2018 by lawyers Lisa Ludwig and J. Morgan Philpot in US District court in Pendleton, Oregon.

The 48-page complaint states, “the murder of LaVoy was plainly unlawful under rights guaranteed by the United States Constitution and also…unlawful under other laws of the United States and the laws of the State of Oregon.  It was the result of a brutally deliberate course of action willfully set in place and caused by a small selection of county, state, and federal officials who are named as defendants in this lawsuit.  These defendants were mentally predisposed and committed to using excessive lethal force, to solve a political dispute.”

It goes on to describe the events that led to the shooting of Finicum on January 26, 2016, beginning with the Bunkerville, Nevada standoff in April, 2014.  It claims that Finicum was intentionally targeted because of his association with Cliven Bundy and family, his membership in the Church of Latter-day Saints, and his “political views and statements regarding land rights and federal government overreach—specifically, his consistent political activism and statements that were critical of the BLM.”

The complaint claims that law enforcement and the BLM deliberately mischaracterized Finicum as being a threat to law enforcement and government employees by willfully participating in the “spreading of false and maliciously inaccurate information.”  It goes on to state the BLM and FBI kept an active file on Finicum, and that “Defendant Love [Former BLM employee, Daniel P. Love] and other John Doe defendants fabricated information, edited, omitted, or reported misleading information from this file, and added misleading information to this file, for the purpose of intentionally creating the false impression that LaVoy Finicum was associated with militia and presented a risk of violence to law enforcement…”

This misinformation, according to the lawsuit, “contributed directly to the subsequent shooting death of LaVoy Finicum.”

Also in the complaint are details about the January 2, 2016 occupation of the Malheur National Wildlife Refuge in Harney County, Oregon by Finicum and others.  It states a meeting took place on January 2, 2016, between Ammon Bundy and others, discussing Bundy’s plan to move the protest to the Refuge in an attempt at “adverse possession.”  According to the complaint, this meeting was openly attended by a Harney County deputy sheriff.

The complaint alleges that the defendants worked to control the narrative in order to keep the adverse possession claim out of public discourse.  It states, “these defendants ignored legal advice and counsel that suggested that the appropriate course of action would be legal notice and possible trespass charge—by local law enforcement and local civil court actions.  These same defendants also ignored advice from local legal authorities, that no law had been broken by the attempted adverse possession.”

“Instead, Defendants…willfully decided to fight a public political battle, and demanded that the FBI, BLM, and DOJ take the lead and bring the occupation to a close by force.”

It goes on to point out that there were never any eviction notices or complaints of trespass during the occupation of the Refuge.  Also, that as of January 26, 2016, “there was no criminal complaint, no probable cause affidavit, no federal indictments, or any other formal proceeding to inform—let alone argue—that LaVoy Finicum or any other occupier was being accused of breaking the law.”  This includes the time of the initial January 26, 2016 traffic stop and subsequent roadblock, where Finicum was shot and killed.

The lawsuit claims that Oregon State Police and FBI agents executed a “deadman’s roadblock” in violation of police procedure and the Constitution on January 26, 2016.  It states, “the roadblock had been strategically placed so as to prevent it from being visible until impact was a near certainty for any vehicle traveling at posted speeds.”

The complaint also discusses the actions of FBI agent W. Joseph Astarita during the roadblock, who is currently facing charges for his alleged attempt to cover up the fact that he allegedly fired his weapon twice after Finicum crashed into the snowbank to avoid the roadblock.  It claims that one of these shots resulted in the wounding of Ryan Bundy, who still has a piece of metal in his shoulder that may or may not be a bullet or bullet fragment.

The shooting of Lavoy Finicum was ruled as justified by Oregon officials.  The officers involved stated that Finicum was reaching into his jacket pocket which they say they later found held a loaded pistol.  Video of the shooting shows Finicum exit his truck with his arms up, however, as he moves away from the truck he drops his arms twice, and before he is shot three times, he appears to reach for his side.

Early in the occupation of the Refuge, in an interview, Finicum had said, “I’m not going to end up in prison.  I would rather die than be caged.  And I’ve lived a good life.”

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Man Arrested After Attempting To Bomb BLM Facility in FBI Sting Operation

Yesterday, June 22, 2016, the Federal Bureau of Investigation arrested William Keebler in Nephi, Utah, after he allegedly attempted to detonate a fake bomb they had provided him with.  Keebler was present in Bunkerville, Nevada in 2014, at the Bundy ranch and apparently at the stand off between Bundy supporters and the BLM on April 12, 2014.  He is described as the leader of a citizen militia group, the Patriots Defense Force.

The felony complaint document states that Keebler was an associate of Lavoy Finicum, the Arizona rancher killed by law enforcement at a roadblock in Oregon during the occupation of the Malheur National Wildlife Refuge earlier this year.

According to the felony complaint, the FBI had had undercover officers inside the Patriots Defense Force, acting as members and participating in various training exercises with the militia group, for several months.  The felony complaint describes several meetings over that time period in which Keebler discussed “going on the offensive” and “gathering intelligence on potential targets.”  One such meeting is described as follows:

On March 19, 2016, Keebler organized and led an FTX [field training exercise] for the PDF militia group.  Keebler described the direction the PDF was going to focus on.  Keebler said the government had been allowed to harass people, but the repercussions were going to start.  Keebler had previously said the BLM was overreaching their authority to implement grazing restrictions on ranchers.  Keebler had opined the land belonged to “the people” and could be used responsibly at the American people’s discretion.  Keebler said the PDF was going to target BLM facilities in the “middle of nowhere.”  Keebler stated the PDF was going to sneak in and severely damage vehicles or buildings.  Keebler requested a PDF member/UCE [FBI undercover employees] who has explosive materials expertise, to build an explosive device that could disable a BLM vehicle or damage a building.  Keebler made it clear he didn’t plan on blowing people up for now, but he wanted his group to be prepared to escalate things, and take people out if necessary.

On May 14, 2016, Keebler announced to the group that they would target a BLM facility at Mount Trumbull, Arizona and requested two bombs be built by the UCE, one to place at the facility to be remotely detonated, and the other for use in case they were stopped by law enforcement on the way to or from the BLM facility.

According to the felony complaint, Keebler had previously scouted the Mount Trumbull facility in October, 2015, with Lavoy Finicum, accompanied by an FBI undercover employee who took pictures of the facility.

On June 21, 2016, one of these devices was “placed against the door of one of the BLM cabins in Mount Trumbull [Arizona].  After the device was placed against the door, Keebler was handed a remote detonation device.  Keebler then pushed the detonator button multiple times in order to remotely detonate the inert explosive.”  Keebler was arrested the following morning after he had returned to Utah.

This calls several things into question for me.  First of all, who placed the bomb next to the door of the BLM cabin?  Who handed the detonator to Keebler?  Was it entirely Keebler’s idea and decision to bomb a BLM facility?  It wouldn’t be the first time the FBI has stopped  a crime that they helped to plan.

One example that most of my fellow Oregonians probably remember is the case of Mohamed Osman Mohamud who was arrested in Portland, Oregon, in 2010 for attempting to detonate a fake car bomb at a Christmas tree lighting ceremony.  The FBI had provided him the bomb after encouraging the plot.

In a September 18, 2011 Los Angeles Times Op ed, Petra Bartosiewicz writes:

The government’s marquee post-9/11 terrorism investigations, including cases such as the Miami Seven, the Ft. Dix Six and last year’s Portland Christmas Tree Bomber, have not involved real attacks but, rather, have been sting operations involving plots invented by law enforcement. New York University’s Center on Law and Security, which tracks federal terrorism prosecutions, reports that since 2009, the FBI has escalated its use of stings in which a confidential informant or undercover officer approaches a suspect and “assists him in the planning of an attempted terror crime.”

The defendants in these plots, most of them male Muslim immigrants with no history of terrorism or violence, have become unwitting actors in a disturbing theatrical performance: The FBI scripts the plot and provides the weapons, along with money, cars and any other logistical support needed to carry out the “attack.”

She goes on to discuss the argument that only the “true bad guys will take the bait” in such sting operations by stating, “terrorism stings go much further than presenting a likely bad guy with a passing criminal opportunity. The operations last for months and sometimes years, with suspects offered all manner of enticements to participate in a plot they probably would never have come up with on their own.”

I suppose that we should all feel so much safer as the FBI is so effective at stopping their own plots.  Even though they were unable to stop Omar Mateen from killing 49 people in Orlando, Florida in spite of the fact that the gun dealership where Mateen requested a thousand rounds of ammunition and body armor reported concern about him to the FBI weeks before the shooting.  And this after Mateen had previously been on the terrorist watch list and under intense investigation in 2013-2014.

Even though they seem unable to stop armed wildlife refuge “take overs” in spite of their success, as demonstrated in this case with Keebler, at infiltrating groups associated with those who did occupy the Malheur refuge.  Clearly all the surveillance and infiltrating works wonders.

UPDATE, June 29th, 2016:  According to this Salt Lake Tribune article published today,  “Lavoy Finicum did not accompany Keebler when he scouted the BLM cabins in October 2015, as was alleged in the charging documents.”  The article also states that Keebler’s federal defender said in court:

“…undercover agents proposed the explosive types, drove Keebler to the location, placed the bomb, handed Keebler a remote trigger and told him to press the button three times.”