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Update:  On June 28, 2017, a  Federal Grand Jury Indictment was returned in Portland against one, lone, FBI HRT member stemming from HRT involvement in the LaVoy Finicum shooting.  The agent was charged with lying and obstructing.  Our initial review finds that the indictment is weak, duplicitous and relying on Oregon law enforcement officers as witnesses for multiple counts, (all signs of trouble for a successful prosecution).   We also find it interesting that only one agent is charged in the case.  If several HRT agents conspired, why aren't they all charged? Did the government provide immunity to the others?  Providing immunity and obtaining confessions is the only way we see a successful case for the government in a legitimate venue.  

We will follow-up with an article about that immunity question, the glaring Garrity issues and the potential for a jury to be impartial when polluted by the press and their rush to judgment, including that the Grand Jury was polluted by the public press conference "trial" by the local sheriff.  If the FBI HRT agent lied and others covered it up, and if the agents admit to that, we feel it's the end of the HRT as we know it.  As we pointed out in our article, the facts in the case, without confession by the HRT agents, will never justify a conviction.    And until we see proof in court of law, and not in a press conference, we will loudly proclaim, "Innocent Until Proven Guilty"!

 

Our prior article and reporting is below:

THE FINICUM SHOOTING

FBI HRT agents: Innocent until proven guilty!

FBI Executive Management's silence is deafening in the face of Deschutes County, Oregon Sheriff Shane Nelson's reckless, public claims about HRT.  The Sheriff might eventually be proven correct, but below we use his own investigative documents to prove he is far from having provided enough evidence to support his sensational accusations.    The Sheriff's declarations are premature.  His negligence in making such inflammatory statements, while he admits the investigation is ongoing, throws fuel onto a fire, endangering the lives of many law enforcement officials!   And the gutless bureaucrats at FBIHQ should loudly stand-up for their FBI personnel and publicly rebut the Sheriff's overreach.  

Deschutes County Sheriff Shane Nelson called a press conference and condemned FBI agents for concealing that they fired rounds during the Finicum shooting.  He also said agents lied about it later when questioned.  At the same press conference the Sheriff admitted that the shooting investigation is ongoing!  Perhaps the Sheriff should borrow a copy of the U.S. Constitution from one of the protestors and read the part about Due Process!   The Sheriff initially released 360 hand-selected investigative documents and later he selectively released another 170 pages, all directly related to the shooting.   But he held back hundreds of other pages of documents, recordings and photos citing an ongoing investigation of the shooting!  We've never heard of a partial document dump in a criminal case which is ongoing!  The big turn in the initial phase of the shooting inquiry was when a video surfaced taken by Shawna Cox, a rear-seat passenger in Finicum's vehicle.  It showed a truck window shattering during the incident, apparently from a gunshot that had first entered through Finicum's roof.  This roof entering bullet and another the Sheriff claims was fired have been termed the "mystery shots" by the press.   At the press conference the Sheriff gave his mid-investigation verdict that HRT was responsible for the mystery shots.  His exact words were: 

What? No, Sheriff!  Cox's video DOES NOT confirm HRT fired the round that entered the roof and shattered the rear window.   The video confirms a round was fired but absolutely nothing about WHO fired it.

What? No, Sheriff!  Cox's video DOES NOT confirm HRT fired the round that entered the roof and shattered the rear window.   The video confirms a round was fired but absolutely nothing about WHO fired it.

The Cox video does not show an HRT agent firing rounds!  The Sheriff is wrong in this statement.  And as we show below, he released no other convincing evidence in his hand-picked document dump to support his claims that FBI agents fired rounds. 

AN ALL-AMERICAN HERO

A shining moment did pierce the battle fog that day as Finicum wrecked his vehicle, almost getting past the HRT roadblock.  An Oregon State Police SWAT officer demonstrated he was an all-American hero.  He was the first person trying to rescue an HRT operator who was believed to have been run-over by Finicum and pinned under the truck when it crashed.  As the chaos quickly unfolded, the Oregon SWAT officer also recognized that a fellow Oregon officer, trapped alone in the tree-line, couldn't defend himself with his handgun from an advancing Finicum due to a severe crossfire situation with the FBI's HRT.  While most others are seen on video running and diving for cover, that lone Oregon SWAT officer moved away from cover into the open and exposed himself to both Finicum and a kill zone on the left side of Finicum's vehicle.  On treacherous terrain with a raised rifle, he moved quickly, eliminated his own crossfire situation with the stranded fellow officer and then shot Finicum an instant before Finicum tried to kill the officer near the tree line.   It's a refrain all too familiar to FBI brick agents.  Great cops on the street who overcome terrible plans and arrogant leadership.  A second Oregon officer also shot Finicum, hitting him one time after firing from a further distant position of cover.

From Officer #1's deposition.

From Officer #1's deposition.

The heroic Oregon SWAT officer is designated "Officer #1" in the Finicum shooting investigation document dump by the Sheriff's Office.  The Oregon officer trapped in the tree line was designated "Officer #3".  We've conducted an exhaustive review of information released about the shooting.  Officer #1's role is as crucial in the shooting investigation as it was in the actual shooting.  He was questioned twice.  The deposition from his first statement was released.  After the discovery of the Cox video, he was brought back a second time and interrogated as to whether he fired the mystery shot(s) rather than HRT.  But his second statement was limited to just a brief summary in the Sheriff's document dump.  It isn't even clear if Officer #1 was deposed for that second statement or if the released summary is the only evidence documenting it.  

OFFICER #3

Officer #3 was in a perfect position to see who fired the mystery shot(s) into Finicum's roof.  He was on an elevated piece of ground about twenty-feet west of Finicum's crashed truck.  He was looking east, directly at HRT and Oregon officers who were pointing rifles in Officer #3's direction.   He would have had his full attention in the direction of the mystery shot as he was facing potential incoming .223 and .308 rounds.   But Officer #3 didn't see who fired shots at Finicum as he aggressively leaped out of his truck.  Officer #3 could not say that it was HRT firing the mystery round.  In fact, he testified he didn't know who fired any of the other rounds at the truck, not just the mystery round.   And Officer #3 seems to be quite a little shutterbug too. He snapped numerous cell phone camera photos at the scene including an unusual request five days after the shooting where he asked to have access to Finicum's truck while it was impounded in evidence.  Unbelievably Officer #3 was granted access to Finicum's vehicle by a Sheriff's investigator and he took cell phone pictures of the truck on his personal camera.  When word got out that he had taken the photos, Officer #3 was challenged by investigators for not previously disclosing a group of cell phone photos he took of the FBI HRT white-board used during the arrest briefing, photos at the shooting scene immediately after the incident and the photos of Finicum's truck while stored in evidence.  His response is below:

HERO OFFICER, BUT BAD WITNESS

Although Officer #1 is a hero, on the other hand, he isn't a very compelling witness.  He wasn't sure how many rounds he fired at Finicum's truck!  He answered, "several, a few, a couple, more than one".   That's incredible in light of the Sheriff's allegations against HRT.  Officer #1 said, " I don't recall" shooting while moving ( a prerequisite if he, instead of HRT, fired the mystery roof round).  Testifying, "I don't recall" is devastating to the Sheriff's claims and certainly doesn't give the Sheriff the type of evidence he needs to make public accusations against HRT!  Plus, Officer #1 claims to have loaded his thirty-round rifle magazine with only twenty-nine rounds.  What?  So if he had topped-off his mag to full capacity then there would be one more round to account for?  Maybe this isn't such a big mystery after all!  Officer #1 never answered during his deposition if loading 29 rounds into a 30 round mag is his standard practice for all Ops.  He wasn't asked on what day or at what time he loaded his magazine for this Op or why he clearly remembers that it had only 29 rounds.   Officer #1 testified that he carries his rifle with the chamber empty and then charges it when he gets on scene.  (Yeah, most of us carry our rifles that way).  But it doesn't begin to explain why you load your mag with only 29 rounds!  Officer #1 turned in his two backup rifle mags at 10pm the evening of the shooting,  about six-hours after the incident.  A report released indicates that about six-hours after the incident, two back-up rifle mags were seized from Officer #1, each with 29 rounds.  Officer #1's primary handgun mag when seized was fully loaded, plus he had one in the chamber.  Officer #1 testified that his main weapon for the incident was his rifle and that his handgun was backup.  So, his main gun was not fully loaded but his back-up gun was.  Seventeen days after the shooting the Sheriff brought Officer #1 back in for a second interrogation and grilled him about whether he fired the mystery shots!  We think a big reason why, was because there was room in his rifle for,  "one, possibly two additional rounds"!  Does that phrase sound familiar?  How can the Sheriff so publicly and emphatically accuse FBI HRT operators of firing the mystery rounds when he is interrogating Officer #1 about being responsible for firing them?   The Sheriff was widely quoted as saying that “of particular concern to all of us” was that the FBI Agents “did not disclose their shots to investigators.”  Outrageous!

 Seventeen days after the shooting, Officer #1 is interrogated about firing the mystery rounds.  His first deposition was recorded  four days after the shooting and released. But the above summary by the investigator conducting the second interrogation was the only thing released regarding the second statement. 

 Seventeen days after the shooting, Officer #1 is interrogated about firing the mystery rounds.  His first deposition was recorded  four days after the shooting and released. But the above summary by the investigator conducting the second interrogation was the only thing released regarding the second statement. 

Wow! From Officer #1's first deposition. He has no idea how many shots he fired at Finicum's truck.  

Wow! From Officer #1's first deposition. He has no idea how many shots he fired at Finicum's truck.  

Video, witnesses and his own statement all show Officer #1 in the general area of the mystery shot(s).

Video, witnesses and his own statement all show Officer #1 in the general area of the mystery shot(s).

Officer #1 believes Finicum is about to ram his vehicle through HRT's roadblock and cause death or serious injury.  The Sheriff released a drawing of a trajectory for the mystery shot with a "cone of error" that had an HRT operator within it, but he released none of the supporting documentation so that the calculation "errors" in the cone or the trajectory angles could be examined.

Officer #1 believes Finicum is about to ram his vehicle through HRT's roadblock and cause death or serious injury.  The Sheriff released a drawing of a trajectory for the mystery shot with a "cone of error" that had an HRT operator within it, but he released none of the supporting documentation so that the calculation "errors" in the cone or the trajectory angles could be examined.

Officer #1 claims to have loaded his thirty-round rifle magazine with only twenty-nine rounds.  He wasn't asked when he had loaded his magazine for that Op or why he so clearly remembers that it had only 29 rounds.   Being able to testify that it was only 29 rounds is critical now. The two backup mags he turned in six-hours after the shooting each contained 29 rounds.  (Note: it's possible the stenographer made a mistake recording this portion of the statement.  Although there is a "Palmer" Ordinance LLC near Oregon in Washington State, the magazine Officer #1 was testifying about could have been a "polymer" mag, not a "Palmer "mag as recorded by the stenographer. Polymer mags are widely sold including one customized  by Noveske, the maker of Officer #1's duty rifle that day).

Officer #1 claims to have loaded his thirty-round rifle magazine with only twenty-nine rounds.  He wasn't asked when he had loaded his magazine for that Op or why he so clearly remembers that it had only 29 rounds.   Being able to testify that it was only 29 rounds is critical now. The two backup mags he turned in six-hours after the shooting each contained 29 rounds.  (Note: it's possible the stenographer made a mistake recording this portion of the statement.  Although there is a "Palmer" Ordinance LLC near Oregon in Washington State, the magazine Officer #1 was testifying about could have been a "polymer" mag, not a "Palmer "mag as recorded by the stenographer. Polymer mags are widely sold including one customized  by Noveske, the maker of Officer #1's duty rifle that day).

Officer #1 says he loaded only 29 rounds in his 30 round magazine.  His 24 recovered .223 rounds (above), plus 2 fired at Finicum ,plus three fired into the truck (excluding the mystery roof round) is how investigators accounted for his 29 rounds.   (the TAC-10 rifle above belongs to Officer #2, the other officer who shot Finicum).  Left: a polymer 30-round PMAG customized by Noveske.

Officer #1 says he loaded only 29 rounds in his 30 round magazine.  His 24 recovered .223 rounds (above), plus 2 fired at Finicum ,plus three fired into the truck (excluding the mystery roof round) is how investigators accounted for his 29 rounds.   (the TAC-10 rifle above belongs to Officer #2, the other officer who shot Finicum). 

Left: a polymer 30-round PMAG customized by Noveske.

BACKUP MAGS FOR OFFICER #1's RIFLE:

Officer #1's two,  thirty -round backup rifle mags, collected six-hours after the shooting are logged in with 29 rounds in each.  Officer#1's handgun mag was loaded to full capacity plus he had an extra round in the chamber.  The handgun fifteen-round backup mag was only loaded with 14 rounds .  Officer #1 wasn't questioned about a habit of not topping off his duty rifle mags. 

Officer #1's two,  thirty -round backup rifle mags, collected six-hours after the shooting are logged in with 29 rounds in each.  Officer#1's handgun mag was loaded to full capacity plus he had an extra round in the chamber.  The handgun fifteen-round backup mag was only loaded with 14 rounds .  Officer #1 wasn't questioned about a habit of not topping off his duty rifle mags. 

THE COX VIDEO

Part of the evidence of the, "one, and possibly, two additional shots" comes from a video taken by Shawna Cox, a rear seat passenger riding in Finicum's vehicle that day.   The fact that investigators are unclear about the number of shots fired by the HRT operator points to a fundamental flaw in the Sheriff's allegations.  Anytime the word "possible" is used by law enforcement, for example, "one, possibly two additional shots", it is a hedge and an admission that they don't know exactly what happened.  At least not yet.  But something which is incontrovertible is that Cox's video clearly shows the left rear passenger window immediately shattering as Finicum exits the driver's seat, after getting his truck stuck along the side of the HRT roadblock.

Finicum raises and drops his hands as he aggressively exits the truck.

Finicum raises and drops his hands as he aggressively exits the truck.

A split second later the rear seat, driver side window shatters from a round that had entered the roof from the right side of the truck. At no point does this video show who fired this round as claimed by the Sheriff during his press conference.

A split second later the rear seat, driver side window shatters from a round that had entered the roof from the right side of the truck. At no point does this video show who fired this round as claimed by the Sheriff during his press conference.

KICKING CASINGS AROUND, DRIVING PATROL CARS THROUGH THE SCENE BEFORE TECHS ARRIVED

Another Oregon officer testified that he could have easily kicked 40mm gas shell casings all over the scene during the chaotic confrontation.  That's exactly where spent rifle casings would be located too.  So seeing mystery rifle shell casing(s) at a specific position and claiming that position is exactly where casings fell, unmolested after being ejected from a gun, becomes problematic.  Importantly, a very short time after the shooting, an HRT roadblock vehicle was moved by Oregon authorities from the southbound lane to let marked police vehicles drive through the shooting scene.  HRT is being accused of removing mystery shell casings.  Could the spinning wheels on one of the vehicles driving through the scene have disturbed the mystery casing or spit it out into the snow? 

To believe the Sheriff's allegations you need to at least believe:

-That an FBI HRT member would deny firing rounds when he knows he was standing next to several Oregon officers and at least four other HRT operators, who could have witnessed it plus that two airplanes circling overhead didn't have video of you firing;

-That knowing Ryan Bundy, who was sitting precisely where you allegedly shot a round, was wounded, likely shot and being transported via ambulance and that your bullet fragments might be found in him; 

-That your fired bullets could be matched to your rifle if they are found lodged anywhere at this crime scene which you know is about to be examined with a 3D computerized, laser-mapping Station that is a world-class bullet hunting beast; 

-And most importantly, that multiple HRT operators would conspire to remove spent shell casings from the crime scene after they saw Oregon officials taking cellphone photos of the scene which could show those casings had been present; all while knowing that an FBI plane which likely had night vision and FLIR capabilities was still overhead filming.

That's an incredible set of allegations!!   If the Sheriff is correct, and this extensive criminal conspiracy did occur, then it could mark the end for HRT and long jail terms for FBI agents. Those are high-stakes the Sheriff has put on the table.  But for now, it's too much to believe without the Sheriff providing better evidence than what he has selectively released.  Where are the cell phone photos witnesses said they thought officers had taken before crime scene technicians arrived?  Are there spent rifle casings in those photos?  What are the angles of the roof round and is there a scientifically defendable shot trajectory for that roof bullet? Who is leaking from the investigation to the press?   Where is the HRT flashlight hunting video?  Has anyone from the FBI come forward and changed their original statement?   If you are so sure HRT fired the mystery rounds, why did you interrogate Officer #1 a second time for being responsible?  How can you emphatically claim HRT fired rounds while admitting you don't know for sure how many rounds they fired?  Isn't that the same as saying you don't know whether a round was fired, but if it was, then HRT did it? 

Portland FBI Special Agent-in-Charge (SAC), Gregory Bretzing said during a recent press conference about the shooting that  ..." one, and possibly two, additional shots were fired by law enforcement."  The use of the phrase, "law enforcement" by Bretzing, rather than, "FBI" to refer to the mystery shots was subtle but we view it as significant.    In the FBI's only weak defense of HRT, Bretzing said that “the question of who fired these shots has not been resolved" and The New York Times reported that "(unnamed) FBI Officials were not convinced that the shots had come from one of their agents."   Bretzing worked to distance his career from adverse inferences related to the Sheriff's allegations by announcing that upon being told about the mystery shots, "I immediately contacted our (FBI) Inspection Division, which notified the United States Department of Justice’s Office of Inspector General which is currently investigating (the FBI agents involved in) this matter."   The blockbuster allegations against HRT stand in stark contrast to a January 28 press conference about the Finicum shooting where Bretzing preachingly declared, "We know there are various versions of what occurred during this event: most inaccurate, some inflammatory. To that end, we want to do what we can to lay out an honest and unfiltered view of what happened and how it happened." And now that Portland FBI SAC Bretzing has done the one thing that FBI executives do well, which is calling  FBIHQ, justice demands that DOJ give a full, public release of all facts so that the Sheriff in Deschutes County can either prove his press conference statements or apologize.   

THE ALLEGED BRASS CASINGS

Other evidence being touted against HRT in the press is that an Oregon trooper says he remembers seeing two brass casings lying on the road near where HRT operators were standing.  Those two alleged brass casings were never found at the scene by investigators. We wonder if Officer #3 took cell phone photos of them.  Also, Oregon officials allege they have an FBI video of an HRT Operator bending over and picking something up near the spot on the road where the brass casings were reported as being seen.   That's very damning information but if you have video that is clear enough to see that kind of detail, and you say publicly that it exists, why not release it?  The press is widely reporting that the brass color shells are important because Oregon State Police only use aluminum/nickel casings.       

The expended shell casings from Officer #1's rifle were .223 REM rounds, with what appears to be a 64 grain bullet.

The expended shell casings from Officer #1's rifle were .223 REM rounds, with what appears to be a 64 grain bullet.

The press is widely reporting the Oregon State Police (OSP) only use nickel-plated ammunition, so seeing expended brass casings at the scene would be significant.  The Sheriff didn't release photos in his selective document dump of the ammo or casings taken as evidence from officers that day.  The inventory report above indicates OSP uses Remington Speer .223 rounds with at least 64 grain bullets.  (We noted Speer seems to also sell brass casings for law enforcement use in a .223 Remington round with a 64 grain bullet, in addition to selling .223 REM rounds with nickel-plated casings).   

The press is widely reporting the Oregon State Police (OSP) only use nickel-plated ammunition, so seeing expended brass casings at the scene would be significant.  The Sheriff didn't release photos in his selective document dump of the ammo or casings taken as evidence from officers that day.  The inventory report above indicates OSP uses Remington Speer .223 rounds with at least 64 grain bullets.  (We noted Speer seems to also sell brass casings for law enforcement use in a .223 Remington round with a 64 grain bullet, in addition to selling .223 REM rounds with nickel-plated casings).   

SHERIFF'S GARRITY DISCLOSURES COULD WRECK A DOJ CASE

We question the circumstances surrounding how HRT's sworn statements about the shooting were taken.  Were they protected by Garrity?  Most likely yes, unless HRT hasn't learned a damn thing from previous operations gone wrong.  Garrity is the U.S. Supreme Court case that protects an officer's compelled statement from being used against them in any criminal proceeding.  We at the Underground have worked plenty of police corruption investigations.  When investigating a law enforcement officer, we've seen agents and federal prosecutors routinely bungle Garrity issues. The Sheriff disclosed he had shown all of his evidence to the DOJ IG and FBIHQ Inspectors who are now in charge of investigating the HRT agents!  Several DOJ and FBI executives attended the press conference when the Sheriff made his accusations and they heard him say that HRT officers denied responsibility for taking any shots.  Those denials by HRT agents should be protected by Garrity.  If HRT sworn statements were protected by Garrity, then the Sheriff, FBI Inspection Executives and DOJ lawyers all committed a grave error.  Now, criminal investigators could have the burden of proving that nothing they learned during their criminal investigation grew out of any of the Garrity protected statements that the Sheriff blabbed during his press conference or in his private briefings.  More amateur-hour.  

IT WAS A CAMERA, NOT A CELL PHONE!

The press repeatedly refers to Cox's video as being from a cell phone (even some of the investigating officers make this mistake).  But a cursory exam of the forensic reports in the document dump reveals the video came from a Sanyo digital camera, not a cell phone.  We know it's a small point, but it's an easy fact to get correct.  So when the press publishes stories full of bluster about their investigative acumen, complete with cartoon reenactments and "cones of error", while loudly condemning HRT personnel for having committed multiple felonies, they could, at least, get the basic facts correct.   

Inventory report from Digital Forensic examiner.

Inventory report from Digital Forensic examiner.

This is  a Sanyo E2100 camera similar to the one used by Cox.

This is  a Sanyo E2100 camera similar to the one used by Cox.

WHERE ARE THE BULLETS FROM THE MYSTERY SHOT(S)?

The Finicum shooting scene has been turned into a shrine.  If HRT did shoot twice, then somewhere lodged at the scene, there could still be two bullets.  

As the snow melts, an army of metal detector wielding conspiracy theorists will probably scour the area for those mystery rounds. What are the chances that one of them will call a press conference to claim falsely that they found those bullets?  We'd guess about 100%.

The released documents show an intense additional search conducted on Finicum's rear passenger door for HRT bullet fragments:

The Sheriff has publicly accused HRT of firing a bullet that he can't find. Amazing.

The Sheriff has publicly accused HRT of firing a bullet that he can't find. Amazing.

Conclusion

We don't claim to know what happened at the Finicum shooting, other than that the documents the Sheriff selectively released do not prove his press conference indictment of the FBI's HRT.  The Sheriff will surely dribble out more documents and we will update this story appropriately.  Perhaps HRT did fire rounds, lie about it and steal spent casings from the scene, but we will wait for the investigation to be complete, review all the facts, and then decide.  

But until then, we suggest FBIHQ show some leadership and join us in reminding the Sheriff, "Innocent until proven guilty"!!!

Holding FBI Management Accountable Through Transparency