Case 3:17-cr JO Document 141 Filed 07/11/18 Page 1 of 36

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1 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 1 of 36 DAVID H. ANGELI, OSB No david@angelilaw.com TYLER P. FRANCIS, OSB No tyler@angelilaw.com ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 Portland, OR Telephone: (503) Facsimile: (503) ROBERT M. CARY, DC Bar No (pro hac vice) rcary@wc.com MEGHAN A. FERGUSON, DC Bar No (pro hac vice) mferguson@wc.com WILLIAMS & CONNOLLY LLP th Street NW Washington, DC Telephone: (202) Facsimile: (202) Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION UNITED STATES OF AMERICA, Case No. 3:17-cr JO vs. Plaintiff, DEFENDANT S TRIAL MEMORANDUM W. JOSEPH ASTARITA, Defendant.

2 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 2 of 36 TABLE OF CONTENTS I. FACTUAL SUMMARY...1 II. ELEMENTS OF THE OFFENSES...3 A. Counts 1 through 3: 18 U.S.C B. Counts 4 and 5: 18 U.S.C. 1512(b)(3)...4 III. LEGAL AND EVIDENTIARY ISSUES...5 A. Disputed jury instructions...5 B. Motions in Limine Government s Motions in Limine Defendant s Motions in Limine...7 C. The Government s Forensic Evidence Mr. Terpstra s Modeling Deputy Turpen s Placement of People...10 D. The Defense s Treatment of State Law Enforcement Witnesses...11 E. Lifting of the Protective Order and The Use of Pseudonyms...13 F. Jury Questionnaire...15 G. Expert on Law Enforcement Officers Memories after Shootings H. Narrowing the Indictment Multiplicitous Charges Dismissal of Count I. Trial Exhibits Admissibility of Ryan Bundy s medical records Admissibility of Police Reports Pursuant to Rule 803(8) The admissibility of HRT training photographs...28 IV. PROCEDURAL MATTERS...29 V. STIPULATIONS...29 A. Procedural Stipulations...30 B. Evidentiary Stipulations...30 ii

3 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 3 of 36 TABLE OF AUTHORITIES Page(s) Cases Baines v. Walgreen Co., No , 2017 WL (7th Cir. July 12, 2017)...24 Brodit v. Cambra, 350 F.3d 985 (9th Cir. 2003)...20 Chrysler v. City of W. Covina, 165 F.3d 915, 1998 WL (9th Cir. 1998) (unpublished)...24 Clark v. Ricketts, 958 F.2d 851 (9th Cir. 1991)...14 Gebhard v. United States, 422 F.2d 281 (9th Cir. 1970)...22 Rosales Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981)...18 Smith v. Illinois, 390 U.S. 129 (1968)...14 United States v. Bighead, 128 F.3d 1329 (9th Cir. 1997) (per curiam)...20 United States v. Bond, 784 F.3d 582 (9th Cir. 2015) (en banc) (Kozinski, J., concurring)...25 United States v. Bryant, 461 F.2d 912 (6th Cir. 1972)...12 United States v. Clarridge, 811 F. Supp. 697 (D.D.C. 1992)...21 United States v. Gaudin, 515 U.S. 506 (1995)...25 United States v. Gullett, 713 F.2d 1203 (6th Cir. 1983)...23 United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997)...23 iii

4 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 4 of 36 United States v. Jones, 722 F.2d 528 (9th Cir. 1983)...18 United States v. Lyons, 472 F.3d 1055 (9th Cir. 2007)...4 United States v. Marquardt, 786 F.2d 771 (7th Cir. 1986)...23 United States v. Nation, 543 Fed. Appx. 677 (9th Cir. 2013)...20 United States v. Olsowy, 836 F.2d 439 (9th Cir. 1987)...22 United States v. Orellana-Blanco, 294 F.3d 1143 (9th Cir. 2002)...28 United States v. Ramos-Cruz, 667 F.3d 487 (4th Cir. 2012)...14, 15 United States v. Salas-Camacho, 859 F.2d 788 (9th Cir. 1988)...22 United States v. Salemme, 16-cr ADB, 2018 WL (D. Mass. June 1, 2018)...14 United States v. Serv. Deli Inc., 151 F.3d 938 (9th Cir. 1998)...24 United States v. Stewart, 420 F.3d 1007 (9th Cir. 2005)...22 United States v. Tsui, 646 F.2d 365 (9th Cir. 1981)...12 Williams v. United States, 458 U.S. 279 (1982)...24 Statutes 18 U.S.C. 1515(3) U.S.C U.S.C , 4, 5, 6 18 U.S.C. 1001(a)...23 iv

5 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 5 of U.S.C , 6 18 U.S.C. 1512(b)(3)...4, 5 18 U.S.C. 1515(3) U.S.C. 1515(3)(B)...6 Other Authorities Fed. R. Crim. P. 17(b)...30 Fed. R. Evid. 401, 402, and , 30 Fed. R. Evid ,12 Fed. R. Evid Fed. R. Crim. P Fed. R. Evid. 803 (8)...27, 28 v

6 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 6 of 36 Defendant W. Joseph Astarita, by and through his counsel, respectfully submits the following trial memorandum in this case. I. FACTUAL SUMMARY It is undisputed that two Oregon State Police Officers shot and killed an armed militia leader on January 26, 2016, near Burns, Oregon. It is also undisputed that one of those two Oregon State Police Officers ( Officer 1 ) was the first to fire, striking the militia leader s vehicle three times before firing two fatal shots moments later. There is no claim that Special Agent Astarita fired the shots that struck LaVoy Finicum. The only factual issues in dispute are whether Special Agent Astarita discharged his firearm (and missed) and then lied when he denied doing so. 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. Rather, the government s case is based entirely on unreliable forensic opinions and weak circumstantial evidence. The government s forensic opinions, which purport to produce a cone of probability as to the likely source of the shots in question, are based on unproven methodologies that have not been scientifically validated and which fail to account for numerous sources of error. After a week-long evidentiary hearing, the Court excluded the most egregious opinion testimony offered by the government but ruled that the jury would be allowed to consider the rest, subject to rigorous cross-examination by the defense and contrary expert testimony. The defense is confident that the jury will reject the opinions offered by the government s witnesses, which are utterly unreliable. For example, the technique employed by the government s first bullet trajectory witness to estimate the flight of the bullet in question was rejected as unreliable by the PAGE 1 DEFENDANT S TRIAL MEMORANDUM

7 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 7 of 36 government s second trajectory witness. The second trajectory witness used a different technique which relies entirely on the subjective feel of the examiner and does not appear anywhere in the scientific literature that involved holding the 1-centimeter tip of a trajectory rod in place with a magnet and duct tape. Proper forensic science presented by the defense will demonstrate that there were a number of law enforcement officers who could have fired the shots in question. All have denied that they did so, which is not remarkable in a situation like this. Research shows that law enforcement officers who discharge their weapons under life-threatening circumstances often do not accurately recall how many shots they fired. Sometimes they cannot recall whether they fired at all. As for circumstantial evidence, investigators failed to recover some of the shell casings that were observed on the road shortly after the shots were fired. The government apparently intends to rely on a nighttime infrared video showing FBI agents inspecting the ground, to suggest some sort of conspiracy among those agents to pick up and dispose of the shell casings. But the evidence will show that the shell casings that were initially observed on the scene were gone while it was still daylight well before that nighttime video while vehicles and foot traffic were traversing what was an entirely unsecure scene, and while the Oregon State Police shooters were still present. Furthermore, every FBI Hostage Rescue Team agent who testifies including those at the highest levels of the chain of command will testify unequivocally that the sensitive item check captured on the video a short time later (i.e., after the shell casings had already gone missing) was standard operating procedure. Finally, the two shell casings that were recovered from the snow in the days that followed the incident were both forensically traced to Officer 1 s rifle. PAGE 2 DEFENDANT S TRIAL MEMORANDUM

8 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 8 of 36 The other primary circumstantial evidence cited by the government is its contention that Officer 1, who began the shooting and ultimately fired two of the fatal shots, was not a likely source of the two shots in question because he believes that his ammunition was accounted for, i.e., that his round count added up. But there is no record whatsoever of how much ammunition Officer 1 loaded into his rifle before the shooting. None. On this point, the government has nothing more than the officer s belief as to what he probably loaded into his rifle. But tests done on the magazine recovered from Officer 1 s rifle confirmed that the magazine was capable of holding enough rounds for the officer to have fired the five shots that have clearly been attributed to him, plus the two in question in this case. That may be why the officer, upon learning of evidence that those two rounds had been fired, admittedly believed that it might have been possible for him to have fired. Special Agent Astarita has never discharged his firearm in the line of duty, either as a member of the Hostage Rescue Team, as a member of the FBI s New York SWAT team, or as a line FBI agent. He was chosen for the Hostage Rescue Team after a grueling selection process and went on to complete many months of the most rigorous training imaginable. In the end, he joined the best of the best: the FBI s Hostage Rescue Team. He is one of the nation s most elite, well-trained, and disciplined shooters. He would not have fired in these circumstances. And if he had, he would not have missed. Special Agent Astarita is innocent. II. ELEMENTS OF THE OFFENSES A. Counts 1 through 3: 18 U.S.C The government has charged Special Agent Astarita with three counts of making a false statement to a government agency. Each of these counts is based on Special Agent Astarita allegedly stating that he did not fire his weapon during the attempted arrest of Finicum when he PAGE 3 DEFENDANT S TRIAL MEMORANDUM

9 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 9 of 36 knew then and there that he had fired his weapon. The only difference between the three counts is the recipient of the information and the date on which the statement was purportedly made. To sustain a charge under 18 U.S.C the government must prove beyond a reasonable doubt: (1) The defendant made a false statement in a matter within the jurisdiction of the Federal Bureau of Investigation; (2) The defendant acted willfully; that is, the defendant acted deliberately and with knowledge at the time of making the statement both that the statement was untrue and that his or her conduct was unlawful; and (3) The statement was material to the activities or decisions of the Federal Bureau of Investigation; that is, it had the natural tendency to influence, or was capable of influencing, the agency s decisions or activities. 18 U.S.C. 1001; Ninth Circuit Model Criminal Jury Instruction For each count, the jury must unanimously agree on the specific statement made, that that statement was false, and that the defendant knew the statement was false at the time he made the statement. United States v. Lyons, 472 F.3d 1055, 1068 (9th Cir. 2007). B. Counts 4 and 5: 18 U.S.C. 1512(b)(3) In Counts 4 and 5, the government has charged Astarita with obstruction of justice under 18 U.S.C. 1512(b)(3). To sustain a charge under 18 U.S.C. 1512(b)(3), the government must prove beyond a reasonable doubt that Astarita: (1) engaged in misleading conduct toward another person; (2) acted knowingly, that is that the defendant acted deliberately and with knowledge at the time of making the statement that the statement was untrue or concealed a material fact; (3) acted with the intent to hinder, delay, or prevent the communication of truthful information to a federal law enforcement official or judge of the United States; and (4) such truthful information related to the commission or possible commission of a federal offense. PAGE 4 DEFENDANT S TRIAL MEMORANDUM

10 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 10 of U.S.C. 1512(b)(3). Misleading conduct is defined as: knowingly making a false statement or intentionally omitting material information from a statement and thereby causing a portion of the statement to be misleading. 18 U.S.C. 1515(3). 1 As is clear from the statutory language of 18 U.S.C. 1515(3), complete silence, rather than making a statement with omissions, cannot constitute misleading conduct under 18 U.S.C. 1512(b)(3). III. LEGAL AND EVIDENTIARY ISSUES A. Disputed jury instructions On July 10, 2018, the parties conferred regarding jury instructions. The parties came to agreement on most instructions and have submitted a set of Joint Proposed Jury Instructions. The following issues regarding jury instructions remain, as indicated in the Defendant s Proposed Jury Instructions: The defendant proposes the Court give Model Criminal Jury Instructions 2.11 and 4.3 regarding Other Acts of Defendant. The government disagrees with the defendant s description of the anticipated evidence. The defendant has submitted an instruction regarding Specific Unanimity for Counts 1, 2, and 3 (18 U.S.C. 1001). The commentary to Model Criminal Jury Instruction 8.73 specifically states that an instruction informing the jury that they must specifically agree on the allegedly false statement is proper when there is evidence of various statements. The defendant submits that such an instruction is appropriate here because there have been differing renditions of the various statements alleged in indictment. The parties agree on the elements of 18 U.S.C The defense requests, however, that the Court include the definition of knowingly in the statement of the elements, as is done in the model instruction for 18 U.S.C (There is no model instruction for 18 U.S.C. 1512, but if there were, the authors of the 1 18 U.S.C. 1515(3) provides additional definitions of misleading conduct. None of those, however, are at issue in this case. Thus, for clarity, here and in defendant s proposed jury instructions, only these two definitions are referenced. PAGE 5 DEFENDANT S TRIAL MEMORANDUM

11 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 11 of 36 model instruction would presumably have included the knowingly element in the instruction as they did for the 1001 instruction.) The parties mostly agree on the definition of misleading conduct for the purposes of 18 U.S.C The defendant s instruction differs from the government s in two ways. First, the government omits the words by such statement from the end of the definition of misleading conduct in 18 U.S.C. 1515(3)(B), thus implying that a defendant might be guilty of a violation merely by intentionally concealing a material fact, even if he did not speak at all. The defendant s proposed instruction includes the words that are part of the statutory definition. The defendant also includes a statement that silence (i.e., making no statement at all) is not sufficient to constitute misleading conduct as defined by 18 U.S.C. 1515(3)(B). Because the statutory language defining misleading conduct is clear that some statement is necessary, this is an accurate description of the law, will assist the jury in understanding the instruction, and is thus a proper instruction. The defendant proposes an instruction defining false statement consistent with the pattern jury instructions from other circuits (which do not conflict in any way with Ninth Circuit law). The defendant proposes his own instruction for element 4 of obstruction of justice, commission or possible commission of a federal offense. The defendant s proposed instruction excludes the government s proposed first sentence which oversimplifies what would constitute a possible violation of 18 U.S.C If the Court is inclined to disagree with any of these points, the defendant asks that the Court hear oral argument before charging the jury. B. Motions in Limine 1. Government s Motions in Limine The government has filed 2 motions in limine, both of which have been fully briefed and are disputed by the defense: Government s First Motion in Limine: Exclude opinion testimony of Detective Wes Murphy of the Bend Police Department regarding the cause of the depression under Finicum s truck s left rear tire. Government s Second Motion in Limine: Exclude opinion testimony of OSP Officer 3 that Officer 1, not the defendant, fired the shot in question, and that he told investigators this at the beginning of the investigation. PAGE 6 DEFENDANT S TRIAL MEMORANDUM

12 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 12 of Defendant s Motions in Limine The defense filed 10 motions in limine. In its response to the defendant s motions in limine, the government agreed that it would not seek to admit the anonymous fax that was the basis for Defendant s Eighth Motion in Limine. The following 9 motions in limine are still in dispute: Defendant s First Motion in Limine: Evidence and argument regarding the unrecovered shell casings should be excluded because such evidence and argument is not relevant, and any slight probative value is significantly outweighed by the danger of unfair prejudice and confusion. This motion is fully in dispute. Defendant s Second Motion in Limine: Evidence that the defense contacted Michael Haag should be excluded because such evidence is not relevant. The government has indicated it would only raise this issue in re-direct if Mr. Haag s credentials were challenged on cross-examination. The defense contends it should be completely excluded. Defendant s Third Motion in Limine: Evidence that Frank Piazza has previously been retained by Williams & Connolly LLP should be excluded because such evidence and argument are not relevant. The government has indicated it would only raise this issue in re-direct if Mr. Piazza s credentials were challenged on cross-examination. The defense contends it should be completely excluded. Defendant s Fourth Motion in Limine: Testimony by Jeff Smith or Catalin Grigoras should be excluded because such testimony would invade the province of the jury and would be unnecessarily cumulative. This motion is fully in dispute. Defendant s Fifth Motion in Limine: Witnesses not present on the scene should be prohibited from narrating or providing commentary regarding the content of photos and videos because such testimony is duplicative of the photos and videos themselves and would impinge on the role of the jury. This motion is fully in dispute. Defendant s Sixth Motion in Limine: The government should be precluded from eliciting testimony that Special Agent Astarita was in a shooting stance because such testimony PAGE 7 DEFENDANT S TRIAL MEMORANDUM

13 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 13 of 36 and argument would be unduly prejudicial, speculative, lacks foundation, and invades the exclusive province of the jury. This motion is fully in dispute. Defendant s Seventh Motion in Limine: Evidence that Special Agent Astarita wished to be represented during his second interview and requested that he not be asked questions he previously answered without being permitted to review his prior statements should be excluded because it is irrelevant and unduly prejudicial. The government agrees in its response that it will not elicit testimony that Special Agent Astarita requested to be and was represented at his second interview. Whether the government may elicit testimony that he refused to answer questions he had previously been asked without being permitted to review his prior statement is still at issue. Defendant s Ninth Motion in Limine: Evidence of missing text messages and s from various HRT agents should be excluded because such evidence is not relevant and any minimal relevance is substantially outweighed by the danger of unfair prejudice and confusion to the jury. This motion is fully in dispute. Defendant s Tenth Motion in Limine: The parties and the Court should refrain from referring to any witness as an expert. The government agrees that the Court should not refer to any witness as an expert. It is in dispute whether the parties may refer to witnesses as experts. C. The Government s Forensic Evidence The defense respectfully disagrees with the Court s June 11, 2018 ruling on its Daubert motion and wishes to preserve its objection for appeal. The defense will renew its objections at the appropriate time during trial. 1. Mr. Terpstra s Modeling At a minimum, the defense expects the government to respect, and the Court to enforce, the Court s ruling with regard to Mr. Terpstra s modeling. On Friday, July 6th, the government produced a supplemental report from computer animator Toby Terpstra. This report purports to describe the efforts made by Mr. Terpstra to bring his computer animation into compliance with the Court s June 11, 2018 Opinion and Order. PAGE 8 DEFENDANT S TRIAL MEMORANDUM

14 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 14 of 36 Despite the Court s ruling barring the government from using Mr. Terpstra s model as substantive evidence to establish the positions of the individuals, Mr. Terpstra s supplemental report states the following Conclusions that the government presumably will attempt to elicit at trial: Kineticorp s computer model is a fair and dimensionally accurate representation of the shooting incident, including the incident site, Mr. Finicum s vehicle, the three vehicles used in creating the roadblock, trajectories placed by Mr. Haag, and the locations of both the vehicles and the involved parties. Based on the trajectory analysis performed by Mr. Haag, the video, and audio analysis performed by Mr. Piazza, and the computer modeling and photogrammetric analysis performed by Kineticorp, HRT Special Agent Astarita s position is within the likely point of origin for the shot associated with Impact W. Based on the same analyses, no other HRT agents or OSP troopers were in a position consistent with bullet defect and trajectory "W" at the time of impact "W". WJA (emphasis added). The government also apparently intends to introduce into evidence numerous exhibits showing the precise positions of various individuals in Mr. Terpstra s model. (See, e.g. proposed Government Exhibit nos ) This proposed testimony and other evidence flies in the face of the Court s Order, which specifically stated that the government ha[d] failed to meet its burden to demonstrate that Mr. Terpstra s animation model should be admitted in full at trial. Daubert Opinion and Order at 24. Specifically, the Court held that the fuzzy smudges of the individuals in question were of such poor quality that [it was] unconvinced that this methodology could accurately place the location of the individuals and the positions in which they are posed in the model. Id. at 25. The Court concluded that the government [would] not be permitted to demonstrate Terpstra s model to the jury unless it proves useful to illustrate the testimony of eyewitnesses who may be called to identify the positions of people or vehicles at the time of the shooting. Id. PAGE 9 DEFENDANT S TRIAL MEMORANDUM

15 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 15 of 36 Whether or not the eyewitnesses can place various individuals into a diagram of the scene with any degree of precision remains to be seen. The government has already attempted this exercise on previous occasions for example, by asking Supervisory Special Agent B.M. during his grand jury testimony to circle his approximate position on a printout from the FBI Video. See WJA 6937 and WJA 17. The Court s ruling clearly contemplates that the eyewitnesses can place themselves, to whatever degree of accuracy they feel comfortable. What cannot be allowed is for Mr. Terpstra and the government to simply ignore the Court s ruling and have Mr. Terpstra place the various individuals into his model using camera matching or otherwise suggest those individuals position with any greater degree of certainty than the witnesses themselves can offer in their testimony. And yet, this is precisely what Mr. Terpstra apparently intends to do place the individuals into his model, and then present the result to the jury as an accurate representation of where the various operators were standing, all with the imprimatur of expert testimony. The Court should tightly control the presentation of this evidence to the jury in order to prevent the government from sneaking in through the back door what the Court has declined to allow through the front. 2. Deputy Turpen s Placement of People As noted above, the Court held that the fuzzy smudges of the individuals in question were of such poor quality that [it was] unconvinced that [Mr. Terpstra s] methodology could accurately place the location of the individuals and the positions in which they are posed in the model. Daubert Opinion and Order at 25. Deputy Turpen indisputably also relied on the fuzzy smudges from the overhead FBI video and nothing more when placing the PAGE 10 DEFENDANT S TRIAL MEMORANDUM

16 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 16 of 36 individuals in his diagrams. 2 The defense is sensitive to the Court s undoubted reluctance to reopen the Daubert issues. In this instance, however, in light of the importance of the placement of the individuals in the diagrams, we respectfully request that the Court direct that the placement of individuals be treated consistently in the Turpen and Terpstra models, i.e., that individuals may be displayed in those models only if, and to the extent, that eyewitness testimony is able to place them. D. The Defense s Treatment of State Law Enforcement Witnesses Federal Rule of Evidence 611(c) permits a party to ask leading questions on direct examination 3 when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. An adverse party or a witness identified with an adverse party is considered hostile as a matter of law and can be interrogated by leading questions without any showing of hostility in fact. Fed. R. Evid. 611, Advisory Committee Notes (Notes of Committee on the Judiciary, Senate Report No ). In a criminal case, a witness can be considered identified with an adverse party when the witness identifies with the government. Id. (Notes of Committee on the Judiciary, House Report No ) ( [I]n criminal cases a defendant may be entitled to call witnesses identified with the government, in which event the Committee believed the defendant should be permitted to inquire with leading questions. ). This presumption of adversity applies to government agents and witnesses closely identified with the interests of the government, such 2 See Tr. of Proceedings before the Hon. Robert E. Jones (May 23, 2018) at 495:17 498:18. 3 As noted below, the defense is requesting that the witnesses, to the extent possible, only be called once. Thus, if the Court agrees with this request, the defense makes the request to treat state law enforcement witnesses as hostile either on direct examination by the defense or when the defense must go beyond the scope-of direct examination on cross-examination. PAGE 11 DEFENDANT S TRIAL MEMORANDUM

17 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 17 of 36 as a complaining witness. United States v. Bryant, 461 F.2d 912, (6th Cir. 1972) (cited with approval by the Ninth Circuit in United States v. Tsui, 646 F.2d 365, 368 (9th Cir. 1981)). Here, the witnesses identified with the government include members of the Oregon State Police, the Deschutes County Sheriff s Office, and the Department of Justice s Office of Inspector General, as each of those agencies has been identified as members of the prosecution team for purposes of this case. The close identification of these witnesses with the government is further evidenced by the joint news conference held by the United States Attorney for the District of Oregon, the Superintendent of the Oregon State Police, the Deschutes County Sheriff, and a representative from the Office of Inspector General on the day Special Agent Astarita was indicted, and the press release issued by the Deschutes County Sheriff s Office that same day. See Press Conference Sheriff Nelson, June 28, 2017, 4 Because the state and local law enforcement officers in this case are hostile as a matter of law, i.e., they closely identify with the interests of the government, the defense requests permission to question them using leading questions on direct examination pursuant to Fed. R. Evid. 611(c)(2). 4 Furthermore, the defense has contacted each of the Oregon State Police and Deschutes County Sheriff s Office witnesses attempting to arrange an interview. To date, none of these witnesses have agreed to meet with defense counsel. See 1 McCormick On Evid. 6 (7th ed.) (a witness s actual hostility can be manifested by, inter alia, refusing to meet with opposing counsel before trial) (citing Capra & Greenberg, The Form of the Question 67, 69, 72 (2014)). PAGE 12 DEFENDANT S TRIAL MEMORANDUM

18 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 18 of 36 E. Lifting of the Protective Order and The Use of Pseudonyms On July 11, 2018, the Court granted the government s motion to amend the protective order. While the defendant agreed that the protective order needed to be modified in advance of trial, he disagrees with the government as to the scope of that amendment. The government requested that the protections remain in place for 3 individuals Supervisory Special Agent B.M., Officer 1, and Officer 2. The defense has agreed that Supervisory Special Agent B.M. may continue to be referred to by initials because revealing his identity in open court would raise concerns related to his other law enforcement and national security responsibilities. The defense disagrees that the circumstances warrant continuing protection for any other law enforcement personnel, particularly in light of the importance of the testimony and credibility of Officers 1 and 2. The Court, in an to the parties dated July 5, 2018, stated: I consider the militia to be a current threat and the shooters will be identified only as Officer 1 and Officer 2 and the other 5 by initials only. Because no motion was before the Court on this issue at that time, the defense raises it again here (and will do so orally at the pre-trial conference) to ensure the record is clear. At the outset of this case a year ago, the government moved for a protective order because public disclosure of the names and other identifying information of these officers and agents could result in threats to their safety, as well as undue attention from the public and the media, which would be detrimental to ongoing law enforcement and operations and 5 Based on conversations in chambers and the ultimate amendment of the protective order, we understand the other to be Supervisory Special Agent B.M. PAGE 13 DEFENDANT S TRIAL MEMORANDUM

19 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 19 of 36 investigations. ECF No. 14. At that time, the defense agreed to the protective order to expedite discovery. The agreement did not extend to conducting the trial using pseudonyms. The Supreme Court has held that asking a witness who he is and where he lives 6 is at the very heart of a criminal defendant s Sixth Amendment right to confrontation. Smith v. Illinois, 390 U.S. 129, 132 (1968). Hiding the identity of witnesses also infringes on a defendant s Sixth Amendment right to a public trial if it is not narrowly tailored to meet the government s interest. See United States v. Salemme, 16-cr ADB, 2018 WL , *3 (D. Mass. June 1, 2018). Although this rule is not absolute, when the government seeks to abrogate these rights due to personal safety concerns for the witness, the government bears the burden of demonstrating the threat to the witness is actual and not the result of conjecture. United States v. Ramos-Cruz, 667 F.3d 487 (4th Cir. 2012) (finding that the evidence presented to the district court met the required specificity but holding that a general threat such as anyone who testifies against MS-13 is in danger would not be sufficient); Clark v. Ricketts, 958 F.2d 851 (9th Cir. 1991) (holding that use of a pseudonym was appropriate when the government made a specific showing that threats had been made against the witness and that the witness was a DEA informant who had ongoing cases). Here, the government has conceded that it cannot point to any recent credible threats against Officers 1 and 2. The government has indicated that it has inquired of the U.S. Marshal and the Oregon State Police about recent credible threats and none have been reported. Even in cases where credible threats can be substantiated, at least one court of appeals has suggested that a court must weigh the seriousness of the threat against the importance of the 6 The defense has no intention of asking any witness where they live. PAGE 14 DEFENDANT S TRIAL MEMORANDUM

20 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 20 of 36 testimony. The more critical the testimony is to the government s case, the higher the bar is for permitting anonymity. See Ramos-Cruz, 667 F.3d at 501 (considering the fact that the protected witness s testimony was limited to background information about MS-13 and that [t]hey proffered no evidence directly involving [defendant] or his activities in finding no abuse of discretion in the district court s decision to permit the witness to testify under a pseudonym). Officers 1 and 2, as the Court is aware, fired the fatal shots. As recounted above in Section I, Officer 1 is also the individual most likely to have fired Rounds 4 and 5, the shots at issue in this case. As such, his testimony and credibility will be central to the trial. Because there is no evidence of any specific, current, credible threat and the testimony of Officers 1 and 2 is critical to the case, Special Agent Astarita should be permitted to use their real names in front of the jury. To permit otherwise would not only violate his Sixth Amendment rights but would also unfairly suggest to the jury that these officers are worthy of protection while Special Agent Astarita is not. F. Jury Questionnaire This case presents some extraordinary challenges to selecting a fair and impartial jury. Just yesterday, the underlying occupation of the Malheur National Wildlife Refuge and the death of Finicum was catapulted back into the national media when President Trump pardoned Dwight and Steve Hammond, whose criminal activities sparked the occupation. 7 This media attention included indisputably false, but potentially extremely prejudicial, information about this case and the defendant: During the standoff at the refuge, FBI Agent W. Joseph Astarita allegedly shot 7 Elizabeth Landers, Trump pardons ranchers whose case sparked Bundy takeover of Oregon refuge, CNN (July 10, 2018), PAGE 15 DEFENDANT S TRIAL MEMORANDUM

21 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 21 of 36 rancher Robert LaVoy Finicum when officers arrested leaders of the occupation. 8 Of course, there has never been a shred of evidence nor any suggestion whatsoever by the government that Special Agent Astarita shot Mr. Finicum. The specific allegations against Special Agent Astarita have also received extensive local media coverage, including a widely disseminated press conference during which a local law enforcement official proclaimed Astarita guilty before the grand jury had even heard from its first witness. Law enforcement repeated that allegation a couple of days later in an interview with the Oregonian, citing an elaborate computer analysis. 9 Even though that analysis has been largely discredited, and despite numerous written protests from the defense regarding improper pretrial publicity, the news conference 10 and other improper commentary by law enforcement, including the references to the elaborate computer analysis, are still posted on the internet. 11 Indeed, as recently as four weeks ago, law enforcement was still commenting to the 8 Andrew O Reilly, Trump pardons ranchers whose arrests led to armed occupation of wildlife refuge, Fox News (July 10, 2018 at 9:48 a.m.), Due to the vigilance of the defense team, this article has since been corrected, but the misinformation was posted for at least nine hours. 9 Les Zaitz, Bullet Hole on LaVoy Finicum s Truck Traced to Elite FBI Team, Oregonian, Mar. 8, 2016, See, e.g., Les Zaitz, Bullet Casings Disappear from LaVoy Finicum Shooting Scene, Sources Say, Oregonian, Mar. 15, 2016, (citing law enforcement sources who described in detail a ballistic trajectory analysis that purportedly traced the [bullet s] path back toward where two FBI agents were standing at the time the shot was fired, and including diagram that looks remarkably similar to the diagram prepared by the Deschutes County Sheriff s Office during its investigation); Conrad Wilson, Prosecutors Want Possible Bullet From Ryan Bundy s Arm As Evidence, Oregonian, Aug. 3, 2017, PAGE 16 DEFENDANT S TRIAL MEMORANDUM

22 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 22 of 36 press about the subject matter of this case, including factual issues that are not alleged anywhere in the indictment. 12 Additionally, this trial will largely pit the credibility of local law enforcement against the credibility of FBI agents, which makes for a uniquely challenging jury selection process. This is particularly true at a time when public attacks against the FBI some made by the President of the United States himself have been in the news on a nearly daily basis. 13 And as if that were not bad enough, the internet is full of utter falsehoods about the FBI s involvement in this case, including the one posted on Fox News just yesterday. See supra note 6. Even more egregiously, one news broadcast available on the internet falsely claims that the FBI shot the militia leader nine times and that the FBI planted a gun on him. 14 No fair-minded person who knows the real facts would think that these stories are true, but they are out there on the internet and threaten to poison potential jurors who may have accessed such materials or who may be tempted to do so. The confluence of these factors the extensive media attention this case has received, the false information in the public domain, and the steady drumbeat of direct attacks on the FBI in current political discourse make a thorough voir dire process critical in exposing biases in arm-evidence-prosecution/ (quoting [t]wo people with knowledge of the case who described an aerial video of the crime scene that purported to show HRT agents who had volunteered to stay and guard the crime scene, look[ed] to make sure no one [was] approaching, and pick[ed] something up off the pavement where the missing rifle brass should have been. ). 12 See Maxine Bernstein, Lawyers for indicted FBI agent suggest a state trooper may have fired shots in question, The Oregonian (June 14, 2018) 13 See, e.g., Adam Edelman, Spygate : Trump ramps up attacks on FBI, Russia probe, NBC News (May 23, 2018), 14 See PAGE 17 DEFENDANT S TRIAL MEMORANDUM

23 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 23 of 36 potential jurors to ensure Special Agent Astarita receives the impartial jury to which he is constitutionally entitled. See Rosales Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) ( Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. ) The Ninth Circuit has recognized that specific voir dire questioning is necessary when the case involves... matters concerning which the local community or the population at large is commonly known to harbor strong feelings that may stop short of presumptive bias in law yet significantly skew deliberations in fact. United States v. Jones, 722 F.2d 528, 530 (9th Cir. 1983). That is precisely the case here given the current political climate. That is why both the government and the defense sought to use a jury questionnaire and worked hard to craft and present to the Court a joint questionnaire acceptable to both parties. Research has shown that a jury questionnaire is the best way to learn what people know about a case and to expose biases. Jurors are far more candid when responding to questionnaires or questions posed by attorneys than when answering questions posed by judges. See Gregory E. Mize & Paula Hannaford-Agor, Jury Trial Innovations Across American: How We Are Teaching and Learning from Each Other, 1 J. Ct. Innovation 189, 208 (2008). When responding to judges, potential jurors are more likely to give what they perceive to be socially desirable answers. Id. A jury questionnaire that permits potential jurors to privately express themselves on these hot-button political issues is essential in this extraordinary case. Accordingly, the defense respectfully requests that the Court revisit this issue. G. Expert on Law Enforcement Officers Memories after Shootings. On June 28, 2018, the defense disclosed to the government its intention to call Dr. David Klinger as an expert on perception and memory in officer-involved shootings. The government objected to this disclosure as untimely. On July 3, 2018, the defense provided the Court with an PAGE 18 DEFENDANT S TRIAL MEMORANDUM

24 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 24 of 36 explanation for why the disclosure was not untimely and why such testimony is appropriate and necessary in this case. We reiterate here the defense s position on the propriety of Dr. Klinger s testimony. It is very important to the defense to be able to demonstrate that the law enforcement officers who denied shooting may not be lying. To summarize, Dr. Klinger is a professor of Criminology and Criminal Justice at the University of Missouri. Dr. Klinger will testify regarding the results of his research showing that law enforcement officers frequently experience one or more of the following sensory distortions during shooting incidents: (1) tunnel vision; (2) heightened visual detail; (3) hearing sounds as louder than normal ( auditory acuity ); (4) hearing sounds as softer than normal or not hearing them at all ( auditory blunting ); (5) experiencing time as passing in slow motion; and (6) experiencing time as passing in fast motion. He will also testify that his research showed that police officers are often unaware of how many rounds they fire during officer-involved shooting events; that the accuracy of officers recall of the number of shots they fired tends to decrease as the number of shots they fired increases; and that several of the officers that Dr. Klinger interviewed in connection with his 2001 study could not even recall firing their guns. Dr. Klinger will discuss his research in the context of the facts of this case. Dr. Klinger s testimony is an important piece of Special Agent Astarita s defense. Three individuals were within the general area from which the government contends rounds 4 and 5 came. All three individuals deny taking those shots. Special Agent Astarita is entitled to explain to the jury that it is possible (and how it is possible) that each of those three individuals might sincerely believe that he did not fire rounds 4 and 5, even though one of them almost certainly did. PAGE 19 DEFENDANT S TRIAL MEMORANDUM

25 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 25 of 36 To be clear: the defense does not offer Dr. Klinger in an attempt to prove that any particular individual experienced sensory distortions during the shooting incident at issue in this case or to prove that any particular police officer has formed an honest (but incorrect) belief about the number of rounds he fired. Rather, the defense believes it is necessary to explain these phenomena to a jury that may be unfamiliar with their existence, despite the fact that they are commonly observed in shooting incidents. This type of expert testimony is routinely allowed. See United States v. Bighead, 128 F.3d 1329 (9th Cir. 1997) (per curiam) (holding that expert s testimony about typical characteristics of sexual abuse victims was admissible, despite the fact that expert did not testify about the facts of the particular case, or about the particular victim, whom she had never examined); United States v. Nation, 543 Fed. Appx. 677 (9th Cir. 2013) (district court did not abuse its discretion in admitting testimony of government expert regarding scientific studies about general characteristics of child abuse victims); Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir. 2003) (upholding admission of expert testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS) commonly experienced by sexually abused children and explaining that [u]nder the CSAAS analysis, inconsistencies in the child s accounts of abuse do not necessarily mean that the child is lying ). Special Agent Astarita s right under the Fifth Amendment to due process, his right under the Sixth Amendment to effective assistance of counsel, and basic fairness mandate that he be allowed to present a complete defense, including the testimony of Dr. Klinger. H. Narrowing the Indictment This Court should not permit the government to irretrievably prejudice the jury by charging Special Agent Astarita with five crimes because he denied firing his weapon. Where there is only one alleged lie and one alleged consequence, there is only one crime as a matter of law. Additionally, Count 2 fails to allege a false statement and thus should be dismissed on that PAGE 20 DEFENDANT S TRIAL MEMORANDUM

26 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 26 of 36 independent ground. These matters of narrowing the indictment should be taken up before the jury is empaneled to avoid any prejudice. 15 A Rule 29 motion would be too late to serve that purpose. If the jury hears at the beginning of the trial that Special Agent Astarita was charged with five crimes and the Court narrows it to one mid-trial, the jury may improperly assume that the Court believes the remaining charge is meritorious. Because the defense seeks to narrow the indictment on purely legal grounds, it is appropriate for the Court to decide the issue before the beginning of trial. 1. Multiplicitous Charges Artificially multiplying the number of charges in order to prime the jury for a compromise verdict is a forbidden prosecutorial tactic that threatens the integrity of the jury system. See United States v. Clarridge, 811 F. Supp. 697, 702 (D.D.C. 1992) ( When an indictment charges numerous offenses arising from the same conduct it may falsely suggest to the jury that a defendant has committed not one but several crimes. Once such a message is conveyed to the jury, the risk increases that the jury will be diverted from a careful analysis of the conduct at issue. Compromise verdicts or assumptions that, with so many charges pending the defendant must be guilty on at least some of them, pose significant threats to the proper functioning of the jury system. ) (citations and quotations omitted). In order to prevent such prejudice here, the Court should order the government before trial to elect only one of the charges against Special Agent Astarita. Each of the law enforcement officers who questioned Special Agent Astarita after the Finicum shooting was acting with the same objective: to determine whether he shot. He gave no 15 The defense does not challenge the government s ability to put on evidence of each instance they allege Special Agent Astarita made a purportedly false statement. Rather, the defense challenges the government s charging of these utterances as separate crimes. PAGE 21 DEFENDANT S TRIAL MEMORANDUM

27 Case 3:17-cr JO Document 141 Filed 07/11/18 Page 27 of 36 confession in response to those questions because he never shot. Assuming (counterfactually) that Special Agent Astarita did fire his weapon, then he harmed the government only with his first denial. 16 His second, third, fourth, and fifth denials were merely expected exculpatory statements that added no further harm to the government s investigation. The multiplicity rule exists to protect criminal defendants against overzealous investigators and prosecutors seeking to pile on charges. See United States v. Stewart, 420 F.3d 1007, 1013 (9th Cir. 2005); Gebhard v. United States, 422 F.2d 281, 290 (9th Cir. 1970). To prevent the government from piling on criminal lying charges, the Ninth Circuit requires that the exchanges underlying each count must separately impair the government. See United States v. Stewart, 420 F.3d 1007, (9th Cir. 2005); United States v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir. 1988); United States v. Olsowy, 836 F.2d 439, 443 (9th Cir. 1987). The separate impairment requirement originated in the perjury context and has subsequently been extended to other criminal lying statutes. The same animating concern of preventing investigative abuse and overzealous prosecution applies regardless of the statute used. If Special Agent Astarita told five different lies to questioners with five different duties and objectives, and if those lies resulted in five different kinds of harm, then the government could properly charge him with five crimes. But those are not the facts here. Each of the five exchanges charged in the indictment are functionally equivalent: Special Agent Astarita either denied firing his weapon or failed to disclose that he did so. Three of the five exchanges (Counts 1, 2, and 4) occurred within a 6-hour window on the day of the shooting incident, and 16 The only cognizable harm that resulted from Special Agent Astarita s alleged lie is the FBI s failure to initiate it standard agent-involved shooting protocol immediately after the shooting. PAGE 22 DEFENDANT S TRIAL MEMORANDUM