A Review of the September 2005 Shooting Incident Involving
the Federal Bureau of Investigation and Filiberto Ojeda Ríos

August 2006
Office of the Inspector General

Chapter One:

I.   Background

This report sets forth the results of an investigation by the Office of the Inspector General (OIG) of the circumstances surrounding the attempted arrest of Filiberto Ojeda Ríos (Ojeda) near Hormigueros, Puerto Rico, on September 23, 2005. Ojeda is one of the founders and leaders of the Ejército Popular Boricua, also known as the “Macheteros” (Cane-Cutters). The Macheteros advocate an armed struggle against the United States Government to achieve independence for Puerto Rico, and have claimed responsibility for various crimes in pursuit of that cause, including four murders, bomb attacks on federal facilities in Puerto Rico, and the 1983 robbery of over $7 million from a Wells Fargo facility in Hartford, Connecticut.

In 1985, the Federal Bureau of Investigation (FBI) arrested Ojeda in Puerto Rico in connection with the Wells Fargo robbery. Ojeda fired shots at the FBI agents during his 1985 arrest, wounding one of them. Ojeda was released on bond pending his trial in Connecticut for the robbery, and he became a fugitive on September 23, 1990. In July 1992, Ojeda was tried in absentia and found guilty on 14 counts related to the robbery, fined $600,000, and sentenced to 55 years in prison.

Ojeda was a fugitive for 15 years. He made periodic public statements during that time reiterating the goals of the Macheteros. In September 2005, following an intensive investigation, the San Juan Division of the FBI (San Juan FBI) tracked Ojeda to a residence in a rural location in Hormigueros, Puerto Rico. The San Juan FBI sought the assistance of the FBI Hostage Rescue Team (HRT), a specialized unit of agents headquartered in Quantico, Virginia, to confirm Ojeda’s presence in Hormigueros and to conduct the arrest operation.

Agents from the HRT and the San Juan FBI attempted to enter Ojeda’s residence to arrest him at 4:28 p.m. on the afternoon of September 23, 2005. The operation resulted in a brief but intense exchange of gunfire between Ojeda and the FBI agents. Three FBI agents were shot and one was seriously wounded. Ojeda was not hit during this exchange. The agents did not enter the house or complete the arrest. The gunfight was followed by a standoff lasting 1½ hours, during which Ojeda’s wife surrendered and FBI agents engaged in a dialog with Ojeda. At 6:08 p.m., an HRT agent saw Ojeda through a window and fired three shots at him. Agents heard Ojeda cry out and fall.

The FBI did not move immediately to enter the house after the three shots were fired because of the concerns that there might be a second gunman in the house and the possibility that Ojeda was not disabled. At 6:49 p.m., the agents detonated an explosive charge in order to open a gated doorway to the residence; they looked into the hallway behind the gate but saw nothing. At 7:41 p.m., the agents at the scene reported that they were ready to enter the house. At 8:05 p.m., however, the Assistant Director for the FBI’s Counterterrorism Division in Washington, D.C., informed the San Juan FBI that no entry of the residence should be attempted until FBI Headquarters gave approval to an entry plan. Meanwhile, a team of fresh agents from HRT was sent from Virginia to Puerto Rico to relieve the agents at the scene.

The FBI did not attempt to enter the residence that night. At 12:30 p.m. the next day, the FBI entered the residence and found Ojeda on the floor, dead from a single bullet wound that had pierced his right lung. A cocked and loaded pistol was on the floor next to him.

Ojeda’s death produced a strong reaction in Puerto Rico. Demonstrations against the operation occurred at several locations. The FBI was criticized in the media and by elected officials for attempting to arrest Ojeda on September 23, which is a holiday of great significance to the Puerto Rican independence movement. The FBI’s critics also questioned the need for the agents to assault Ojeda’s residence with heavy firepower in order to apprehend Ojeda. In addition, the FBI was criticized for failing to enter the residence for nearly a day after Ojeda was shot. Some people alleged that the FBI came to the residence with the intention of killing Ojeda and that the agents purposely let him bleed to death after he was wounded. Several Puerto Rican law enforcement and government officials also criticized the FBI for a lack of coordination and communication with them and with the public during the arrest operation.

On September 26, FBI Director Robert Mueller requested that the OIG conduct an investigation to determine the facts and circumstances of the Ojeda shooting incident and to make recommendations regarding what actions, if any, the FBI should take in connection with it. Subsequently, the FBI and the United States Attorney General received several written requests for an independent investigation of the circumstances of Ojeda’s death, including formal requests from United States Representatives José E. Serrano, Nydia Velazquez, Luis Guitierrez, and Charles Rangel, from Puerto Rico Governor Aníbal Acevedo Vilá, and from the House of Representatives of the Commonwealth of Puerto Rico.

The OIG initiated this investigation immediately after receiving Director Mueller’s request. The objectives of the OIG’s review were to investigate the facts relating to the incident and (1) to determine whether the FBI agents involved in the operation complied with the Department of Justice’s Deadly Force Policy; (2) to assess the FBI’s decision to conduct an emergency daylight assault of the Ojeda residence in light of other potential options for apprehending Ojeda; (3) to assess the FBI’s planning for and conduct of negotiations with Ojeda during the standoff; (4) to determine the reasons for the delay between the time Ojeda was shot on September 23 and the time the FBI entered the residence on September 24; and (5) to evaluate communications between the FBI, the Commonwealth of Puerto Rico, and the public regarding the operation. As the investigation proceeded, the OIG identified several additional important issues that are addressed in this report, including an examination of the causes and consequences of the delivery of the HRT team by helicopter to the wrong landing zone and anonymous allegations that the FBI had bypassed numerous opportunities to arrest Ojeda under circumstances less likely to result in violence.

II.   Methodology of the OIG Review

In the course of our review, the OIG interviewed over 60 individuals. In Washington, D.C., the OIG interviewed personnel from the FBI Counterterrorism Division and agents who were involved in the operation from the Critical Incident Response Group (CIRG) in Quantico, Virginia. These interviews included all of the agents from the HRT who discharged their weapons or otherwise participated in the assault on Ojeda’s residence, as well as agents from CIRG’s Operations and Training Unit, Tactical Helicopter Unit, and Crisis Negotiation Unit who participated in or had knowledge of the operation.11

OIG investigators traveled to Puerto Rico several times to interview personnel from the San Juan FBI, including the Special Agent in Charge (SAC), who commanded the operation, and over 20 other agents from the San Juan FBI who were involved in the Ojeda investigation or arrest operation. While in Puerto Rico, the OIG investigators interviewed officials from the government of the Commonwealth of Puerto Rico, including Attorney General Roberto J. Sánchez Ramos, Chief Prosecuting Attorney Pedro G. Goyco Amador, Superintendent Pedro A. Toledo Dávila of the Police of Puerto Rico (POPR), and other current and former officers of the POPR with knowledge relevant to the OIG investigation. We also spoke with Humberto S. Garcia, the United States Attorney for the District of Puerto Rico, and members of the Puerto Rico U.S. Attorney’s Office who were involved in the Ojeda matter.

The OIG attempted to contact persons living in the area near the Ojeda residence who had been quoted in the media on matters suggesting that they may have witnessed some aspect of the operation. In connection with this effort, OIG investigators spoke with several persons living in the area near the Ojeda residence. However, several neighbors declined or did not respond to the OIG’s request for an interview.

The OIG reviewed the reports of the Instituto de Ciencias Forenses (the Puerto Rico Institute of Forensic Sciences), which took responsibility for processing the incident scene and conducting relevant forensic studies, including the autopsy, bullet and shell casing analyses, trajectory analysis, shooting reconstruction, and blood pattern analysis. The OIG conducted three lengthy interviews of Dr. Pio R. Rechani López, Executive Director of the Puerto Rico Institute of Forensic Sciences, along with other scientists from the Institute, regarding their forensic analyses. The OIG acknowledges the cooperation of Attorney General Sánchez and Dr. Rechani in making the forensic reports and scientists available to us.

The OIG also consulted with the U.S. Department of Defense Armed Forces Institute of Pathology, Office of the Armed Forces Medical Examiner (OAFME), regarding how long Ojeda survived after being shot. The OAFME provided a written report on this issue and responded to questions from the OIG.

In the course of this investigation, the OIG obtained and reviewed thousands of pages of documents generated by the FBI and the U.S. Attorney’s Office relating to the Ojeda matter, including draft and final Operations Plans and Orders, investigative files, court filings, photographs, logs, intelligence reports, text messages, and relevant FBI policies, procedures, and training manuals.

In addition, the OIG recruited the following three experts in tactical police operations to provide expert input and guidance on the FBI’s tactical decisions in the Ojeda operation and the agents’ compliance with the DOJ Deadly Force Policy.

  1. Ronald M. McCarthy is a former Field Supervisor for the Los Angeles Police Department Tactical Unit. He was appointed by the United States Attorney General to the U.S. Department of Justice Waco review committee, and has testified before the United States Congress as an expert in police special operations. He has also testified as an expert witness in numerous court proceedings regarding law enforcement topics including deadly force, use of special weapons and tactics, and counterterrorism tactics.
  2. Michael S. Foreman is the former Chief of the Sheriff’s Office for Orange County, Florida. Mr. Foreman has 24 years of experience in the field of special weapons and tactics as a team leader and SWAT commander. He has been a consultant, lecturer, and trainer for law enforcement agencies and police academies in North and South America and Europe. He has provided expert testimony and conducted independent reviews regarding law enforcement matters, with an emphasis on tactical issues.
  3. Gary Van Horn is the Assistant Director in the Office of Law Enforcement and Security at the Department of the Interior and has over 30 years of law enforcement experience. He served for over 23 years with the United States Park Police in Washington, D.C., where he held command positions and served as the National Law Enforcement Specialist for the National Park Service. After retiring as a Major in 2002, he joined the Department of the Interior where he provides oversight and guidance for its law enforcement and security programs. He is also an instructor at the Federal Law Enforcement Training Center in Glynco, Georgia, and previously served as a law enforcement expert for the National Institute of Justice’s Technical Assistance and Support Program.12

The OIG investigative team also included Special Agents who have had significant relevant experience in tactical operations with other law enforcement organizations in conditions of difficult terrain, including jungle operations.

The OIG was unable to interview some witnesses and obtain some potentially relevant written materials.

  • Ojeda’s widow, Elma Beatríz Rosado Barbosa, was present at the residence during the initial stages of the operation. Her attorney declined our request that she be interviewed by the OIG. He also declined our request for access to the Ojeda residence. The Police of Puerto Rico had returned control of the residence to Rosado before the OIG investigation began.

  • A written statement regarding the incident was submitted to the Puerto Rico Department of Justice on behalf of Rosado. Attorney General Sánchez declined to share this statement with the OIG, citing Rosado’s right to confidentiality and the fact that her attorneys did not respond to his request for permission to share the statement with the OIG.

  • Attorney General Sánchez told the OIG that he commissioned an expert report regarding the survivability of Ojeda’s wound. Attorney General Sánchez declined to share this report with the OIG.

  • According to media reports, the POPR, or the Puerto Rico Department of Justice, obtained statements from approximately 40 witnesses, most or all of whom lived in the neighborhood near the Ojeda residence. Citing confidentiality concerns, the requirements of Commonwealth law, and the refusal of the FBI to provide certain information subpoenaed by the Commonwealth, Attorney General Sánchez declined to provide any of the witness’s written statements, to identify the witnesses to the OIG, or to seek the consent of the witnesses to release their names or statements to the OIG.13

  • A Commission of the Bar Association of Puerto Rico conducted an investigation of the Ojeda shooting incident and allegations of violations of civil rights in connection with the incident. According to media accounts, the Commission interviewed over 20 witnesses as part of its investigation, and many of these witnesses gave testimony during a public hearing held on December 16 and 17, 2005. The OIG made a formal written request for a copy of any transcripts, written testimony, or witness statements from the Commission, as well as a copy of any videotape of the public hearing. A representative of the Bar Association made statements to the media suggesting that it would cooperate with the OIG, but the OIG did not receive a response to our written request or to several telephone calls to the Bar Association.

Although the information we were unable to obtain might have been useful to the OIG’s investigation, we believe that our findings and conclusions were not materially affected by our inability to obtain this material. With the exception of Rosado, we have no reason to believe that any of the individuals whose identity or statements have not been provided to the OIG were eyewitnesses to events at the Ojeda residence or would have shed additional light on the facts related to the FBI’s actions.

III.   Organization of the OIG Report

This report is divided into 11 chapters, including this Introduction. Chapter Two sets forth the historical background regarding Ojeda and the Macheteros and details the FBI’s planning for the Ojeda arrest operation. Chapter Three sets forth a detailed chronology of events in the Ojeda surveillance and arrest operation. Chapter Four details the findings of the Puerto Rico Institute of Forensic Sciences relevant to this report.

Chapter Five evaluates whether the FBI agents complied with the Department of Justice Deadly Force Policy in connection with both the initial gunfire exchange and the shots that resulted in Ojeda’s death. Chapter Six assesses the FBI’s decision to conduct an emergency daylight assault on the residence on the afternoon of September 23. Chapter Seven examines the reasons for the delay between the time Ojeda was wounded and the time the FBI entered the Ojeda residence. Chapter Eight contains an evaluation of the FBI’s planning for and execution of negotiations with Ojeda during the standoff at his residence.

In Chapter Nine, we address additional miscellaneous issues, including: (a) communications between the FBI, the Commonwealth of Puerto Rico, and the public with respect to the Ojeda operation; (b) allegations that the FBI was aware of Ojeda’s whereabouts substantially in advance of September 2005, but bypassed opportunities to arrest him in circumstances less likely to lead to violence; and (c) the causes and consequences of the failure of the FBI helicopters to deliver the arrest team to the right landing zone.

In Chapter Ten, we provide recommendations stemming from our review of the FBI operation to arrest Ojeda. Chapter Eleven summarizes our conclusions.

  1. On the advice of their counsel, most of the CIRG agents interviewed by the OIG declined to sign the written affidavits memorializing their oral statements. However, each of these agents reviewed the affidavit prepared by the OIG for accuracy and provided corrections if they thought the draft affidavit was inaccurate.

  2. Although the OIG’s conclusions were aided by the opinions and information provided by these experts, the conclusions in this report are the OIG’s alone, are based on all of the information obtained by the OIG, and should not be attributed to the experts, except where specifically stated in this report. The OIG is grateful for the voluntary assistance provided by the three experts.

  3. The FBI made the decision to decline to provide Attorney General Sánchez access to FBI agents in connection with the Commonwealth of Puerto Rico ’s investigation of the incident. The OIG took no position on the dispute between the FBI and the Commonwealth regarding the production of materials relevant to the Commonwealth’s investigation.

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