Defense: If FBI agent had fired, he wouldn’t have missed

FILE- This Jan. 26, 2016., file photo taken from an FBI video shows Robert "LaVoy" Finicum, center, after he was fatally shot by police near Burns, Ore. A federal prosecutor revealed in court documents Thursday, June 23, 2016, that the investigation of FBI agents involved in the traffic stop that led to the killing of Finicum is before a grand jury. (FBI via AP, file)

PORTLAND, Ore. (AP) — FBI special agent W. Joseph Astarita is one of the FBI’s best shooters, and he knows when to shoot and when not to shoot, his defense attorney told jurors Wednesday.

Standing within easy striking distance of Robert “LaVoy” Finicum, a militia leader who had come close to killing his fellow agent, Astarita decided to hold fire, the attorney, Robert Cary, said during his opening statement in a case that has become an unlikely footnote to the armed takeover of the Malheur National Wildlife Refuge in early 2016.

“If he had shot, he would not have missed,” Cary said.

Astarita, 41, is charged with making false statements and obstruction of justice after repeatedly telling investigators he did not fire two shots that missed Finicum, an Arizona rancher who served as spokesman for the Ammon Bundy-led group that seized the refuge in southeastern Oregon.

The errant shots came as Finicum left his pickup while authorities tried to arrest leaders of the takeover. Oregon State Police fatally shot Finicum seconds later.

The shooting was deemed legally justified, and Assistant U.S. Attorney Gary Sussman told jurors in his opening that the case is about not whether Astarita was right or wrong to fire. It’s about integrity, “without which a law enforcement officer is nothing and has nothing,” he said.

If you shoot, you own your shots,” Sussman said.

Sussman portrayed Astarita as a relatively inexperienced member of an elite FBI unit, and the only member of law enforcement who was in position to fire the shots in question.

“Only one guy stood in just the right spot,” he said. “Only one guy stood with his rifle shouldered, aimed right at Robert “LaVoy” Finicum’s truck.”

Finicum and the occupiers seized the refuge on Jan. 2, 2016, to protest the imprisonment of two Oregon ranchers who had set fires. President Donald Trump recently pardoned those men, Dwight and Steven Hammond.

On Jan. 26, the FBI learned that Bundy, Finicum and other key figures were leaving the refuge in two vehicles to meet with a sheriff sympathetic to their cause.

Police stopped the vehicles, and several people surrendered, including Ammon Bundy. But Finicum fled at more than 70 mph with Bundy’s brother Ryan and several others.

Roughly a mile down the road, Finicum swerved to avoid a roadblock, nearly hit an FBI agent and careened into a snowbank. Three shots, none fired by Astarita, hit the pickup during the chaos.

The two mystery gunshots rang out as Finicum emerged from his pickup and yelled, “Go ahead and shoot me!

One bullet missed everything and was never recovered. The other struck the pickup and shattered a window. A fragment, possibly from the bullet, went into Ryan Bundy’s shoulder. The potential evidence remains embedded.

“He won’t give it to us, and we just can’t go in and take it,” Sussman said.

Shortly after the errant shots, two state troopers killed Finicum as he ran from the truck and reached toward a pocket where he kept a loaded gun.

Cary, the defense lawyer, stressed to jurors that no eyewitnesses saw Astarita fire his weapon and no such video exists. He also said there is no ballistic evidence linking a bullet to the Astarita’s rifle.

He said two other members of law enforcement were in range to fire the rounds in question. He said an Oregon State Police trooper who killed Finicum — “the guy who aggressively followed Finicum into the snow and shot him dead” — likely fired them.

Finicum’s widow, Jeanette Finicum, attended the opening day of trial, taking notes in the gallery. Also there was Shawna Cox, an occupier who was in Finicum’s truck at the time of the shooting. Her video of the incident is expected to be seen by jurors.

The trial is expected to last several weeks.

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