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

Following the law enforcement clear of the residence on September 24, the Instituto de Ciencas Forenses de Puerto Rico (the Puerto Rico Institute of Forensic Sciences) assumed the lead role in processing the scene and conducting the forensic analyses relevant to the Ojeda matter.74 One reason that the FBI deferred to the Institute was to avoid allegations that the FBI had manipulated the scene. Members of the San Juan FBI Evidence Response Team (ERT) monitored the Institute’s processing and documentation of the scene, assisted in making measurements, and made suggestions to the Institute personnel. However, the FBI did not participate in generating any of the forensic reports related to the scene. Dr. Pio R. Rechani López, Executive Director of the Institute, also told the OIG that the Institute found no evidence that the scene had been manipulated or tampered with by the FBI. Since late October 2005, the Puerto Rico Forensic Institute has made several findings and generated forensic reports regarding the Ojeda crime scene. Much of the material prepared by the Institute was shared with the OIG for this investigation, and scientists from the Institute met with OIG investigators on three occasions to describe their findings in more detail and to answer questions. The findings of the Forensic Institute relevant to the issues addressed in this report are summarized below. I.   Findings on the Scene The Institute prepared a report of Findings on the Scene. Among other things, the report stated that a Browning 9 mm pistol was found on the floor of the residence near Ojeda’s body. The pistol was loaded to capacity, with 13 unfired bullets inside its magazine and one in the chamber, indicating that it had been re-loaded. The pistol hammer was found cocked. Subsequent examination of the pistol revealed that it had been modified to fire in both automatic and semi-automatic mode. There were 107 spent shell casings from .223 caliber bullets and 19 spent casings from 9 mm bullets found at the scene. II.   Autopsy The Puerto Rico Institute of Forensic Sciences conducted the autopsy of Ojeda. According to the Autopsy Report, Ojeda died of a single gunshot wound that entered his body just below his right clavicle, perforated the right lung, and exited the middle of his back on the right side. There were no other wounds. The bullet was recovered from inside the “flak jacket” vest Ojeda was wearing. The autopsy report did not specify a time of death. Dr. Francisco Cortés, the Forensic Pathologist who performed the autopsy, told the OIG that based on the size of the wound and reasonable assumptions about Ojeda’s heart rate and blood pressure, he estimated that Ojeda expired from loss of blood approximately 15 to 30 minutes after being shot. He opined that Ojeda could have survived the wound if he had received immediate first aid and surgical care. However, Dr. Cortés noted that he does not treat live patients, so that his views on the survivability of Ojeda’s wounds and his estimate of the length of time that Ojeda might have survived were based on his experience as a pathologist and on his review of the medical literature. 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.75 Based on its review of the autopsy records and other pertinent materials, the OAFME concluded that the wound from the bullet was not immediately fatal, but that it was not possible to determine exactly how long Ojeda would have survived. When the OIG inquired whether Ojeda could have survived longer than two hours, the Medical Examiner responded that it was unlikely. III.   Bullet and Shell Casing Examinations The Puerto Rico Institute of Forensic Sciences conducted microscopic comparisons of bullets and bullet fragments recovered from the scene with bullets fired from Ojeda’s pistol and from the carbines discharged by the HRT agents during the operation. The Institute determined that the .223 caliber bullet recovered from inside Ojeda’s vest was fired from an M4 carbine bearing serial no. W034332, which according to the HRT was the carbine used by Brian. The other .223 bullet fragments found at the scene were too deformed for the Institute to match them to a particular weapon. The Institute determined that the 9 mm bullets recovered from Frank’s abdomen and from his helmet were fired from Ojeda’s Browning pistol. The Institute also determined that eight other bullet fragments found at various locations at the scene were fired from Ojeda’s pistol. We were unable to determine the locations where these fragments were found from the reports provided by the Institute. The Institute conducted microscopic comparisons of 107 shell casings from .223 bullets that were found on the outside of the residence with sample casings from bullets fired by M4 carbines used by the HRT agents. Based on distinctive marks left on the casings by the firing pins, the Institute was able to match all 107 shell casings to particular HRT weapons.76 Table 1 reports these results for each weapon matched to a shell casing found at the scene. For comparison purposes, the table also provides the estimate given by the agents during their interviews of the number of rounds they fired. The Institute also provided sketches indicating the location where .223 casings matched to each weapon were found at the scene. This information is summarized in Table 1. For comparison purposes, we have also summarized each agent’s statement regarding his location at the time he discharged his weapon in the last column of the Table. The OIG did not find any significant discrepancies between the locations reported by the Institute and the statements provided by the agents, particularly in light of the fact that when the shell casings were ejected from the M4 carbines they would not necessarily have landed in the precise location where the agent was firing. In addition, the agents reported firing many rounds from locations on the narrow paved porch. These casings were particularly likely to have bounced off the porch or otherwise have been moved during the operation as agents moved around the residence. A total of 19 shell casings were found on the floor inside the residence. The Institute determined that all of these casings were from 9 mm bullets fired from Ojeda’s pistol. Because Ojeda did not leave the house during the incident, all of the spent casings from the rounds he fired should have been found in the interior of the residence. We therefore concluded that Ojeda fired a total of 19 rounds during the gunfight. TABLE 1 Comparison of Shell Casing Evidence as Described by Forensic Laboratory with Agent Statements M4 Carbine Serial Number Agent Name Number of shell casings matched Agent’s estimate of rounds fired Location of shell casings matched to this weapon Agent’s statement of location when rounds fired WO34332 Brian 4 11-13 Bank and pavement near retaining wall Bank and behind retaining wall WO34222 Don 54 56 Bank and pavement near gazebo Porch near gated doorway and kitchen window WO34351 Scott 11 12-14 Bank, pavement near gazebo Porch near kitchen window WO32819 Tom 8 10 Bank and low wall Porch near front door 8207452 Ken 10 10-12 Bank Bank WO34315 Frank 7 “several” Bank below kitchen window Porch below kitchen window WO32487 Eric 8 5-10 Bank and low wall Low wall WO34429 Doug 3 3-5 Bank Bank W349993 George 2 0 Pavement near gazebo Did not recall firing IV.   Trajectory Analysis The Forensic Institute identified 111 bullet holes and 76 bullet impacts in various areas of the residence. The Institute estimated the bullet trajectories for many of these holes and impacts. The Institute’s estimates were constructed without the benefit of the witness statements given to the OIG by the FBI agents. However, the OIG found that the location of the holes and impacts as reflected in Institute sketches and crime scene photographs, together with the Institute’s trajectory analysis, were consistent with the FBI agents’ statements in many important respects. There were a large number of bullet holes and impacts in the back and sides of the narrow hallway behind the gated doorway. These holes and impacts were consistent with Don’s description of the rounds he fired into the hallway during an exchange of gunfire with Ojeda, when Don saw a pistol being “goose necked” out the kitchen door. There were six impacts in the interior walls of the narrow hallway near the gated doorway that were consistent with rounds being fired from inside the hallway toward the front of the house. We found that these impacts were consistent with Don’s description of shots being fired toward him from inside the kitchen door. The shots were poorly aimed, probably as a result of Ojeda firing them without sighting his target, by “goose necking” his pistol. There were approximately 12 bullet holes in the left side of the refrigerator indicating trajectories through the kitchen window at an acute angle to the side of the house. The OIG concluded that these trajectories were consistent with Don’s description of the rounds he fired into the window during an exchange of fire with Ojeda, and with Brian’s description of the three rounds he fired from the perimeter. Several of the holes entering the side of the refrigerator corresponded to exit holes in the front of the refrigerator. The Forensic Institute analyzed three of these trajectories in its shooting reconstruction, described below. There were a large number of bullet holes in the frame and lattices of the kitchen window. The Forensic Institute identified several holes indicating a trajectory from the inside out, reflecting rounds fired out the window by Ojeda. The Institute found a larger number of holes indicating a trajectory from the outside in, from a variety of angles that appear to correspond generally to the locations that the FBI agents stated they fired from.77 There were several holes and impacts in the interior of the residence that were consistent with shots fired through the kitchen window that traveled diagonally across the interior of the residence toward the Green side or the Black/Green corner, including one that exited a window on the Green side and struck a ladder in the yard. The location and trajectory of some of these shots suggested that they were among those fired by Don into the kitchen window. The Institute determined that two of these impacts represented the termination points for two of the rounds fired by Brian from the perimeter. There were nine impacts in the kitchen ceiling and five over the kitchen cabinets opposite the kitchen window. The OIG concluded that these impacts were consistent with shots fired upward into the kitchen window, possibly from an elevation below the window. These shots may have been fired by Frank from his position on the porch underneath the window or by other agents positioned on the bank below the porch. There were five holes or impacts in the interior of the kitchen, in the wall to the right of the kitchen door. These impacts appeared to be consistent with rounds being fired into the kitchen window from a location on the porch near the front door, which was the location from which Tom said he fired. There were a number of holes and impacts in parts of the balcony, gazebo structure, and exterior of the house. The Forensic Institute found that some of these holes and impacts originated from the direction of the residence and a larger number from outside the residence toward it, from below upward. The OIG concluded that the former impacts were consistent with rounds fired by Ojeda and the latter impacts were consistent with rounds fired toward the kitchen window from positions on the bank below it, as described by several agents. The OIG found only one set of trajectory estimates by the Forensic Institute that clearly conflicted with the statements provided by the FBI agents. Several agents reported perceiving shots from inside the house coming through the front door. The Institute found, however, that there were three holes in the front door from rounds fired from a location outside the door and from below (from down the cinder block steps), not from inside the house. The Institute also found three impacts in the living room ceiling that corresponded to the holes in the door and confirmed the upward trajectory. In Chapter Five we describe our analysis of these shots. V.   Shooting Reconstruction The Forensic Institute also produced a written report titled “Reconstruction of a Shooting,” and personnel from the Institute provided additional information regarding their conclusions during an interview with the OIG. The Institute concluded that the round that struck Ojeda was one of three shots that originated from a location near the retaining wall at the right side of the house, at a distance of approximately 19 feet. The Institute found that the three rounds passed through the kitchen window, penetrated the left side of the refrigerator, and exited the front of the refrigerator. Two of the shots presented impacts or final penetrations within the residence, while the third (the round that struck Ojeda) did not. The third trajectory exited the refrigerator at hole I-85 at a height of 49 inches, which the Institute found to coincide with the position of the bullet wound on Ojeda’s body, assuming a crouched position. From these facts, the Institute concluded that Ojeda was behind the refrigerator when he was struck by the shot, and that he was most likely in a position about one step away from the refrigerator toward the living room at the moment of impact. The Institute’s reconstruction of the shooting was based entirely on the forensic evidence, without any knowledge of the statements provided by the FBI agents. VI.   Blood Patterns The Puerto Rico Institute of Forensic Sciences conducted a blood pattern analysis, which it described in a written report. The Institute also provided the OIG with additional information regarding this analysis. The Institute found that Ojeda’s flak vest prevented an immediate spatter of blood at the location where Ojeda was wounded. The Institute concluded that Ojeda took one or two steps toward the front door before falling to the floor, with his head near the door. Two large pools of blood formed, one near Ojeda’s head coming from the wound near his shoulder, and the other near the bottom of his vest further away from the door. The blood pattern report concluded that the front door was closed at the time the blood was flowing but that the slope of the floor and the pattern of blood were consistent with a slow movement toward the door, forming a flow on the front step. As shown in Figure 10 (a photograph taken after the FBI entered at 12:35 p.m. on September 24 but before Ojeda’s body was moved to check for explosives), there was a flow of blood down the front step making a stain on the floor of the balcony porch. Institute personnel told the OIG that the bloodstain on the front step was greatly increased when Ojeda’s body was turned over and pulled out the front door onto the porch in order to check for explosive devices. The much larger and more obvious stain was reflected in later photographs (e.g., Figure 11) and in photographs published in some Puerto Rico newspapers. Footnotes The Puerto Rico Institute of Forensic Sciences is a component of the Puerto Rico Department of Justice, and its Director reports to Puerto Rico Attorney General Sánchez. The OAFME is a component of the Armed Forces Institute of Pathology, a Department of Defense agency specializing in pathology consultation, education, and research. Two of the shells were not initially matched to any of the weapons carried by the eight agents who recalled firing during the operation. The Institute subsequently matched these shells to a weapon that the FBI told us was carried by SA George, who did not originally report that he had fired his weapon. After learning of these results in May 2005, the OIG requested a follow-up interview of George, but his attorney told the OIG that no further voluntary interviews would be provided. The trajectories and impact points of these two rounds are unknown, although neither round struck Ojeda. Ron McCarthy, who is one of the OIG’s experts regarding shooting investigations, told the OIG that it is not unusual for an individual agent present during an intense and stressful shooting incident that involves many agents firing their weapons to fail to recall that he fired his weapon. The number of holes in the frame and lattices of the kitchen window is likely considerably smaller than the total number of rounds that were fired through the window, because some shots shattered the glass and left no holes, and other shots likely passed through the window without striking any part of it, especially after the glass was shattered. Ojeda was positioned close to the window and may have been able to aim his weapon between the glass slats, firing without striking the frame or lattices.