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Judge throws out 2 charges against FBI agent accused of denying he shot at Finicum's truck

FILE - This photo taken from an FBI video shows Robert "LaVoy" Finicum after he was fatally shot by police Tuesday, Jan. 26, 2016 near Burns, Ore. On Tuesday, March 8, 2016, authorities said police were justified in killing Finicum. (FBI via AP, file)

PORTLAND, Ore. (AP) - A federal judge has thrown out two of the five charges against an FBI agent who allegedly lied about firing two rifle shots at the pickup of an Oregon refuge occupation spokesman at a roadblock in January 2016.

The Oregonian/OregonLive reports U.S. District Judge Robert E. Jones on Monday struck one count of making a false statement and one count of obstruction of justice against W. Joseph Astarita.

In a trial set to start next week, Astarita still faces two counts of making a false statement and one count of obstruction of justice in the incident in which he allegedly fired two errant shots at the truck driven by Robert "LaVoy" Finicum.

Astarita has pleaded not guilty.

Finicum was a spokesman for the Ammon Bundy-led group that took over the Malheur National Wildlife Refuge to oppose federal control of land in the western U.S. The disputed gunshots came as he emerged from his pickup as police moved in to arrest the leaders of the armed occupation.

Astarita, a member of the FBI's elite Hostage Rescue Team, is accused of falsely denying he fired one bullet that went through the pickup's roof and another that went astray, investigators said.

Moments later, two state troopers fatally shot Finicum.

Prosecutors say forensic evidence, as well as audio and video recordings, will prove that Astarita fired the errant shots and then lied to FBI supervisors and state police investigators.

Astarita's lawyers counter that the government's case is based on weak circumstantial evidence.

"The government has no eyewitness who will testify that they saw Special Agent Astarita shoot. The government has no video recordings showing that Astarita shot. And the government has no ballistics evidence matching a bullet to Special Agent Astarita's firearm," defense lawyers wrote in their trial brief.

The judge dismissed a count that alleged Astarita made a false statement by giving a snide response at the shooting scene to a FBI supervisory special agent. The judge ruled that the remark didn't constitute a false statement.

The judge also dismissed an allegation stemming from a group interview of FBI agents who had been at the shooting scene. When asked by state police if any of the agents had fired shots, a supervisory FBI special agent responded that none of them had.

Astarita's silence at the group interview can't be construed as obstruction of justice, the judge ruled.

___

Information from: The Oregonian/OregonLive, http://www.oregonlive.com

Copyright 2018 The Associated Press

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