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 Three:
Chronology of Events in the Surveillance and Arrest Operation

In this Chapter, the OIG sets forth a detailed chronology of events in the execution of the Ojeda surveillance and arrest operation during September 21-24, 2005. Figure 5 is a timeline of significant events during the operation.

I.   Surveillance on September 21-22

A team of six HRT sniper-observers was inserted at 10:20 p.m. on Wednesday, September 21, at a roadside location approximately 800-1000 yards from Site 1. The sniper-observers included SAs Peter (the sniper-observer team leader), Paul (the radio operator), Eric, Gary, Bruce, and Dan.29 They carried surveillance equipment, communications equipment, weapons, and food and water for several days. The terrain included extremely steep inclines and dense vegetation, and the sniper-observers needed several hours to reach locations near the target residences.

The sniper-observers used land-based radio equipment, including earpieces and transmitters, to communicate with one another. In addition, they carried equipment for satellite voice and text communications with the TOC.

The sniper-observers reached a clearing near Site 2 in the pre-dawn hours of Thursday, September 22. Two sniper-observers determined that Site 2 was under construction and appeared to be unoccupied. Two others walked down the steep road running adjacent to Site 1 and made a brief examination of Site 1. They were unable to find a location that would enable the sniper-observers to observe the residence or the gate at the entrance to the driveway without risking compromise. The sniper-observer team located what appeared to be an old, abandoned foot trail leading off the road and into the vegetation. The team withdrew to a position of cover down the trail, where it established a Mission Support Site approximately 200-250 meters from the Site 1 residence. According to the TOC Log, by 6:17 a.m. on September 22, all six sniper-observers had withdrawn to the Mission Support Site.

II.   Issuance of the Search Warrant

During the morning of September 22, 2005, the United States Attorney’s Office in Puerto Rico filed an application in the United States District Court for the District of Puerto Rico for a search warrant for Site 1, together with a motion to keep the application under seal. The application and motion were granted by Chief Judge José Antonio Fusté at 12:00 noon that same day. The warrant required the FBI to conduct the search between September 22 and September 26.30

The warrant authorized the FBI to execute the search at any hour of the day or night for evidence of violations of several criminal statutes.31 The provision for a day or night search was based on several considerations set forth in the affidavit filed with the application: (1) the greater likelihood that Ojeda would be observed at night; (2) the need to limit the possibility of Ojeda leaving Site 1 after he was observed but before the search was executed; and (3) the security concern that a daylight approach of the residence would place the arrest team at risk. The warrant also granted the FBI an exception to the so-called knock and announce requirement in light of Ojeda’s previously demonstrated propensity for violence when confronted by law enforcement.

III.   Surveillance on September 22-23

During daylight hours on September 22, the sniper-observers rested at the Mission Support Site and took rotating security shifts at a checkpoint approximately 30 meters up the trail toward the road. At approximately 12:30 p.m., the San Juan FBI Special Operations Group (SOG) observed Rosado at a location near the residence in her vehicle, a Red 4-Runner. The agents observed Rosado engage in what they believed were obvious countersurveillance techniques while driving. By 1:15 p.m., the SOG reported that Rosado had returned to Site 1.

Based on Rosado’s activities on September 22 and other information developed during the investigation, the FBI command post suspected Ojeda and Rosado might depart between 2:00-3:00 a.m. the next morning (September 23) to attend El Grito de Lares festival activities. At 4:00 p.m. on September 22, the TOC transmitted a text message to the sniper-observers advising them of that prediction and authorizing the sniper-observers to make an arrest if Ojeda departed the residence.

Figure 5: Ojeda Operation Timeline

[Image Not Available Electronically]

At 5:56 p.m., the TOC transmitted another text message to the sniper-observers stating:

Be advised, per our most recent communications with the SJ field office, the search warrant has been signed to expire 2400 26 September; however, none can be executed without the sighting of an elderly male subject, leaving, entering, in or around the target. If a male is seen leaving at night or early am, it can be assumed that it is the subject. You are being advised that while compromise is still a concern, ID of a male is paramount for warrant execution. Feasibility of a deliberate assault rests on these observations.

As noted above, the search warrant was made contingent on the identification of Ojeda at the residence, but it did not provide that any elderly male subject could be assumed to be Ojeda. Fraticelli told the OIG that he instructed HRT that if an elderly male was seen at the residence during late night hours they could assume it was Ojeda, based on intelligence obtained by the San Juan FBI that Ojeda and his wife were still together as husband and wife.

At approximately 9:00-10:00 p.m. on September 22, four sniper-observers left the Mission Support Site to resume surveillance of Site 1. Two of these four sniper-observers took positions near the driveway gate at Site 1 to be in position to arrest Ojeda if he attempted to depart the residence by car.

The other two sniper-observers, Peter and Gary, conducted reconnaissance around the perimeter of Site 1, trying to find a location that would permit daylight surveillance of the residence without risking compromise. They worked their way up toward the White side of the residence from down the hill, but encountered a chain-link fence that appeared to surround the house. Peter maintained a position near the fence on the White side, while Gary worked his way along the fence toward the Green side of the residence to gather intelligence about the physical features of the house and grounds.

As Gary moved along the Green side of the fence toward the Black side of the residence, two dogs began barking excitedly. Gary told the OIG he believed that the dogs had detected his presence. Lights came on inside the residence and at a neighboring residence behind Gary on the Green side. Gary froze in order to evade detection. Peter moved down the hill away from the house.

Gary told the OIG that when he peeked up, he saw a woman on the porch and heard her talking to a man who was in the yard inside the Green side fence, with a flashlight. The man walked to within approximately 20 feet of where Gary was hiding, but apparently did not see Gary. Gary described the man as elderly, with white hair and a medium build, which Gary said met the description of Ojeda provided by the San Juan FBI. Gary stated that he could not see the man’s face clearly. Based on the San Juan FBI description and his presence with the woman previously identified as Rosado, Gary concluded the man was Ojeda. After the couple returned to the residence, Gary attempted to back away from the residence, and the dogs began barking again. Once again, the man and woman came outside with a flashlight and then went back into the house.

Gary stated that he attempted to communicate with the other sniper-observers by his headset radio, but discovered that he seemed to be in a dead spot. He was able to hear transmissions from the other sniper-observers but could respond only by clicking or “squelching” his radio on and off. In this way, by answering questions posed to him by Peter, Gary communicated the fact that he had identified an elderly male subject. According to the TOC Log, this information was relayed back to the TOC at 11:43 p.m. on September 22. The TOC instructed the sniper-observers that the SAC had authorized them to arrest Ojeda if he came outside the house.

IV.   Deliberations Regarding a Course of Action on September 23

According to the TOC Log, between 1:00 a.m. and 5:00 a.m. on September 23, there were several communications between the sniper-observers and the TOC regarding a course of action in light of the identification of an elderly male fitting Ojeda’s general description and the barking dog incident. The sniper-observers recommended to the TOC that a deliberate assault on the residence to arrest Ojeda be conducted that same morning. Some of the sniper-observers expressed concern that they might already be compromised as a result of the barking dog incident. According to the TOC Log, the sniper-observers told the TOC at 3:43 a.m. that this had been a “significant event.” The sniper-observers also told the TOC that they could not cover escape routes and could not maintain daylight surveillance to monitor movement from the house by foot or vehicle without being compromised. The sniper-observers advised the TOC that Ojeda or his neighbors would notice that the vegetation around the house had been disturbed when daylight arrived.

Fraticelli and other agents from the San Juan FBI were initially persuaded that an arrest operation should be undertaken that morning because of concern that the sniper-observers had been detected and Ojeda would flee. HRT Deputy Commander Steve and the HRT Master Breacher became concerned, however, that the available information regarding the house was inadequate to assure a successful breach of the door by explosive charge without killing or injuring the occupants.

Fraticelli ultimately decided not to order an assault on the residence for that morning. Fraticelli said he based his decision on Steve’s assessment of the risks to the occupants. In addition, Fraticelli was still hopeful that Ojeda would depart the residence by car later that morning to attend the El Grito de Lares celebration, and that he could be apprehended by the Quick Reaction Force at that time.

At 4:47 a.m., the TOC instructed the sniper-observers to fall back to the Mission Support Site. Steve and Fraticelli decided to rely on the SOG to detect any attempt by Ojeda to depart from Site 1 by car, and to rely on the Quick Reaction Force to arrest Ojeda in a car stop if that took place. They doubled the size of the Quick Reaction Force team on duty between 6:00 a.m. and approximately 10:00 a.m. from three vehicles to six, using both squads from HRT together with SWAT Team agents from the San Juan FBI. In addition, the San Juan FBI assigned the entire SOG and four agents from the Domestic Terrorism squad to achieve complete surveillance coverage at all potential vehicle exit routes. However, the FBI did not observe Ojeda again that morning.

V.   The Plan for a Pre-dawn Arrest Operation on September 24

At 7:23 a.m. on September 23, the TOC transmitted a text message to the sniper-observers at the Mission Support Site requesting more detailed information regarding the target residence, including descriptive information regarding the exterior and recommended points of entry. SA Gary responded in a detailed text message sent at 8:34 a.m. in which he described the residence but noted that: “The house is obscured by foliage/canopy, so observation of white side access points from the perimeter fence is very poor.” He noted that because the Black and Red sides abutted a steep hillside and bluff, the assaulters would only have to deal with the White and Green sides. The message recommended entering on the Green side through a large window that the sniper-observers described as a “7 ft. high by 4 ft wide glass paned window with no reinforcements.” The message also stated that “there appears to be a large glass window/door on the white/red corner.”32 No explicit recommendation for an approach route was stated in the message, but Gary described an easily breached gate in the perimeter fence toward the Green/Black corner and suggested “you can hop down the Black/Green corner of the wrap around porch to enter [the] house.”

Based on this information, Fraticelli and Steve discussed options for arresting Ojeda. Fraticelli told the OIG that at this stage two options were discussed: surrounding the residence and calling Ojeda out, or conducting a stealthy, “deliberate” assault on the residence in the pre-dawn hours of September 24. As noted above, Fraticelli had previously expressed his strong preference to avoid a barricaded suspect scenario because of the difficulty of controlling crowds of Macheteros sympathizers. Other witnesses said they did not recall any discussion of the “surround and call-out” option at this stage, and stated that Fraticelli had already made clear that he wanted to avoid this option.

Fraticelli and the HRT personnel agreed to conduct the deliberate pre-dawn assault. Therefore, at approximately 10:00 a.m., all of the HRT assaulters were recalled from their positions on the Quick Reaction Force in order to rest and prepare for the assault the next morning before dawn. Agents from the San Juan FBI SWAT Team assumed Quick Reaction Force responsibilities. The details of the plan were developed by Steve and the Operations and Training Unit agents, with input from other HRT personnel.

The HRT plan called for the sniper-observers to move forward at 10:00 p.m. on September 23 to confirm the subject’s presence at the house. The assault would be executed by 3:00 a.m. The assault units would approach the residence in darkened vehicles, dismount downhill of the target, link up with the sniper-observers at the front gate, and use bolt cutters to enter the driveway gate if necessary. The assault units would approach the White side of the house, proceed through the front yard, and advance up onto the porch. The Red Squad would breach the residence at the large window or door at the Red/White corner, and the Gold Squad would breach the house at the large window on the Green side. The sniper-observers would cover the perimeter around the residence and agents from the San Juan FBI SWAT would be assigned to “clear” the area under the house (which the sniper-observers had described as supported by stilts on the White side).

The plan was a “hasty deliberate assault with rolling green,” which meant that once the assault units were on the property they would advance quickly to the two breach points. In a standard deliberate assault, the breaches would be coordinated and would be executed only after a countdown initiated by the commander from the TOC after the units confirmed they were in position. “Rolling green” meant that the agents would breach the residences on their own initiative after they reached the breach points. Because the FBI had a “no-knock” search warrant, HRT did not plan to announce itself before breaching.

The breaches would be accomplished either mechanically with a Halligan tool33 or breaching shotgun, or with a small explosive charge known as a “slap charge.” If neither breach was successful, the HRT Master Breacher would use an explosive charge to breach the front door. After the breach, the agents would conduct a rapid room-to-room maneuver, called a “clear,” until the subject was captured.34 This clear would be “unbriefed” because the floor plan was unknown. FBI vehicles would be positioned just below the gate for a quick departure with the subject after the arrest.

By the late morning on September 23 the planning for the assault was substantially complete and the planners met with the Red Squad Supervisor and the Team Leaders from the Red and Gold assault teams to review it and finalize details.

VI.   The Compromise of the Sniper-Observers

At approximately 2:30 p.m. on September 23, the sniper-observers were at the Mission Support Site, in the woods. Paul was on security duty at the checkpoint up the foot trail toward the road. According to Paul, a vehicle drove up the road past Site 1 and stopped near the trailhead leading toward the Mission Support Site. (See Figure 3.) A second vehicle arrived several minutes later and the doors of the vehicles opened. Paul stated that he was able to hear people talking in Spanish, but could not understand what was being said because he does not speak the language. Other sniper-observers who were positioned further away from the road also told the OIG that they heard vehicles and voices, but they could not make out what was said.

Paul moved into position to observe what the speakers were doing, and saw one person gesturing with his hands and pointing at the ground and toward the trailhead. He could not see the second person, but heard two voices. Paul then heard a third vehicle arrive, but he was not sure if anyone got out.

Paul returned to the Mission Support Site and reported to the sniper-observer team leader Peter and the other sniper-observers what he had observed. The sniper-observers became concerned that the person gesturing toward the trailhead had detected evidence that the sniper-observers had used the trail. Paul told us that this concern was heightened by the fact that the barking dog incident had occurred the night before and by the belief that the local population included Macheteros sympathizers.

According to the TOC Log, Peter informed the TOC by radio at 2:36 p.m. that a vehicle had pulled up near the Mission Support Site, possibly compromising the sniper-observers. Shortly thereafter Peter reported to the TOC that three vehicles were near the Mission Support Site. Several sniper-observers told us they subsequently heard one vehicle go back down the hill toward Site 1 and another vehicle go up the hill toward Site 2.

According to the TOC Log, at 2:48 p.m. Peter recommended to the TOC that the Quick Reaction Force “get here ASAP and hit the house.” Peter and the other sniper-observers confirmed to the OIG that they urged the TOC to adopt this course of action. Several of the sniper-observers told the OIG that their primary concern was that Ojeda would receive warning of their presence and would escape from Site 1 and return underground. They stated that this latest incident, taken together with the barking dog incident of the night before, gave them great concern that the operation had been compromised. They also told the OIG they were concerned that the compromise might lead to a confrontation between the sniper-observers and Macheteros sympathizers believed to be living in the area.

At 2:53 p.m. the TOC received a report from the San Juan FBI SOG confirming that a green SUV was seen near Site 2, with people walking around nearby.

At the time the sniper-observers reported the incident near the Mission Support Site, the TOC was being staffed by OTU agents Kevin and Andy,35 who had begun preparing a written “fragmentary order” for the deliberate pre-dawn assault being planned for September 24.36 Steve, Fraticelli, and OTU agent Jason37 were advised of the reported compromise and came to the TOC between approximately 3:00 and 3:20 p.m. They questioned the sniper-observers by radio regarding the incident, and inquired whether the sniper-observers felt they were in danger and whether they could evacuate the area without further compromise so the pre-dawn deliberate assault could proceed as planned. Peter responded that the sniper-observers were definitely compromised. According to the TOC Log, Peter told the TOC that the vehicle occupants had looked at the trailhead and it was “obvious” to the occupants that someone (the sniper-observers) had used the foot trail. Peter also reported that the only exit route for the sniper-observers by foot was the way they had come in, and that they did not have sufficient water to make that trip.

VII.   Deliberations Regarding a Post-Compromise Course of Action

Entries on the TOC Log indicate that preparations for an emergency daylight assault via helicopter were begun almost immediately after the sniper-observers recommended that action to the TOC at 2:48 p.m. Deliberations regarding this course of action continued, however, until Fraticelli made the final decision at approximately 3:45 p.m. to conduct the day-time assault on Site 1 to arrest Ojeda.

Fraticelli described for the OIG the deliberations leading to that decision. He stated that the option of extracting the sniper-observers by vehicle was rejected because there was no practical means of extracting them without driving very close to the residence, thereby alerting Ojeda to the FBI’s presence.

Fraticelli also told the OIG that when the sniper-observers reported they were compromised he proposed to Steve that the FBI surround the residence to prevent Ojeda from escaping, and then call him out. Fraticelli stated that although he did not want to get into an extended barricaded subject scenario, he felt that the FBI would lose the element of surprise in a daytime assault.

According to Fraticelli, Steve told him it would be feasible to go ahead immediately with the arrest plan that HRT had devised for the pre-dawn hours of September 24, using 2 teams totaling about 12 agents, most of who would be transported to the scene by helicopter. Fraticelli told the OIG, however, that he was concerned that Ojeda would hear the helicopters and be prepared for the assault. Fraticelli said that Steve told him that the helicopters would come in low so that Ojeda would not see them coming or hear them until very late. The agents would “fast rope” to the ground and assault the residence to arrest Ojeda. Fraticelli said that Steve reminded him that the 1985 arrest had shown that Ojeda would not surrender easily if surrounded and that he would use the time to prepare for violent resistance.

Fraticelli told the OIG that after the discussion with Steve he became convinced that an immediate assault on the house was the best option. He said he felt that HRT was expert at this kind of operation.

However, Steve and the OTU agents who participated in the deliberations provided accounts of the deliberations that differed in part from the account provided by Fraticelli. Steve told the OIG that no consideration was given to any option other than a direct assault on the house, such as surrounding the house and calling for the subject’s surrender. Steve told us that he did not think there was a stealthy way to surround the house, and that surrounding the house would create a potential hostage situation with Rosado. He stated that even with a helicopter insertion, he believed the HRT would have enough of an element of surprise to complete the operation without a gunfight or injury.

OTU agent Jason told the OIG that he did not recall whether there was any discussion of the option of surrounding the house as an alternative to conducting a daylight assault. Jason stated that because Fraticelli had been unequivocal about wanting to avoid a barricaded subject scenario, there was no discussion at that stage of bringing a negotiator to the scene. OTU agent Andy told us that surrounding the residence instead of conducting an emergency assault was not considered to be an option, because Fraticelli had already indicated that he wanted to avoid a barricaded subject situation. OTU agent Kevin also stated that Fraticelli had expressed concern about avoiding a barricaded subject scenario, and that the planners were concerned with the difficulty of establishing an adequate perimeter in an area believed to be populated by Macheteros sympathizers.

VIII.   Preparations for the Daylight Assault

The HRT Squad Leader (Doug) began to marshal the Red and Gold assault teams to prepare for the operation. Doug utilized the original plan for the nighttime assault, with both teams approaching the house on the White side. As previously planned, the Red team would breach the window or door at the Red/White corner, the Gold team would breach the window on the Green side, and both teams would move toward the center of the house, clearing rooms and arresting Ojeda.

The primary difference from the plan for the nighttime assault was that the assault teams would be transported to the scene by helicopter. Ray, the Unit Chief for the Tactical Helicopter Unit, quickly devised an emergency aviation assault plan for transporting 10 HRT assaulters in 2 helicopters to a banana field immediately downhill of Site 1.38 Ray planned to find the banana field using GPS coordinates for Site 1 that had been provided to him in advance of the operation, and by visual recognition from an aerial photograph (Figure 3) that had also been provided to him by the San Juan FBI. He estimated that the trip from their location near Aguadilla to the banana field would take about 11 minutes. In order to minimize the amount of time the helicopters would be heard in advance of the assault, the plan was to approach the target from the south, flying very low at an altitude of 200-300 feet above the trees. The sniper-observers had reported that they did not recommend that the helicopters attempt to land in the banana field, so Ray made preparations to rope drop the HRT assault teams.

As the emergency assault plan took shape, the TOC gave instructions to the San Juan FBI SWAT units who were at that time stationed in vehicles a few minutes away from Site 1 in their capacity as the Quick Reaction Force. The TOC instructed two agents from the San Juan FBI SWAT Team to link up with HRT assaulters at the banana field and to assist in the assault. The remainder of the Quick Reaction Force was assigned to secure Site 2 when the HRT assaulters arrived to address any threat posed by the persons at or near Site 2, including those who had been seen or heard near the footpath to the Mission Support Site. Units from the San Juan FBI SOG were assigned to cover two choke points on roads near the target to prevent vehicles from entering or exiting. Numerous other SWAT and SOG agents from the San Juan FBI were summoned to assist at the scene. Fraticelli also directed two San Juan FBI negotiators to report to the scene in case they were needed, along with an ASAC who was also a negotiator.

The sniper-observers made plans to move toward Site 1 when the HRT assaulters approached, with two sniper-observers taking positions near the Green/Black corner of the residence, and the rest at a position uphill of the residence near the road leading toward Site 2.

The HRT assaulters prepared for the operation by putting on flight suits, standard issue body armor bearing “FBI” identifiers, helmets, boots, and gloves. They were equipped with radio headsets that permitted communications among the assaulters and the sniper-observers. The agents also carried “flash bangs,” which are non-lethal grenades used for creating diversions or disorienting subjects. The agents responsible for breaching the residence carried Halligan tools, breaching shotguns, and small explosive “slap charges.”

Each assaulter carried an HRT-issued .223 caliber M4 carbine shoulder weapon and a .45 caliber sidearm. Each assaulter determined for himself the quantity of ammunition to carry. The HRT M4 carbines were equipped with a selector switch enabling them to fire in either semi-automatic or fully automatic mode.39

Shortly before 4:00 p.m., Doug briefed the assaulters on the tarmac near Aguadilla before they boarded the two HRT helicopters. He reviewed the assault plan that had been developed for the deliberate assault originally planned for pre-dawn hours of September 24, including the “stack” or order in which the agents would proceed toward the house, and the functions they would perform during the assault. The HRT assaulters had originally planned to rehearse the assault during the afternoon of September 23, but were unable to do so before the emergency assault was ordered.

All of the HRT assaulters told the OIG that they were aware that the DOJ Deadly Force Policy would be in effect during the operation.

IX.   Transportation to the Target

Fraticelli stated that he made the final “go” decision for the emergency assault at approximately 3:45 or 4:00 p.m. on September 23. Ten HRT assaulters boarded the two HRT helicopters: seven on the larger Bell 412 and three on the smaller McDonnell Douglas 530. The Bell 412 was piloted by Ray, Unit Chief for the Tactical Helicopter Unit, and by SSA Dale.40 The McDonnell Douglas 530 was piloted by SSAs Todd and Robert.41 The Bell 412 served as the lead helicopter.

The helicopters departed from Aguadilla at approximately 4:00 p.m. As the helicopters neared the target area, two sniper-observers moved down the hill to meet the assaulters near the banana field and directed them to the house, and two sniper-observers moved toward the residence at the Black/Green side to cover potential routes of escape. Vehicles from the San Juan FBI SOG and the San Juan FBI SWAT Team (the Quick Reaction Force) moved to a position on the road leading toward Site 1 at a location near the banana field. One San Juan FBI SWAT agent, Ron,42 got out of a vehicle and awaited HRT near the driveway gate. The other SWAT agents moved up the hill to Site 2, where they took one person who was in the yard into temporary custody.

Ray, who was piloting the Bell 412, told the OIG that as he was approaching the GPS coordinates he had been given for Site 1 from the south, he passed over an open area that ended approximately 1/10 of a mile south of the target coordinates, but he could not see the target residence. He sought assistance from the sniper-observers on the radio but did not hear anything. Robert, who was piloting the McDonnell Douglas 530, also described the open area and also said he was unable to see the target residence. Ray stated that he did not want to fly over the target residence, so shortly after passing over the edge of the open area he made a clockwise turn back toward it. The McDonnell Douglas 530 made a similar turn.

Robert told the OIG that the Bell 412 radioed the McDonnell Douglas 530 requesting help, and that Robert responded by stating that the open area they had passed over had to be the landing zone. Ray told us that his co-pilot, Dale, said “I think that was it,” referring to the open area they had passed over.

On the ground, the sniper-observers heard the helicopters as they approached but realized they were not arriving at the banana field landing zone. Paul, the HRT agent responsible for communications, told the OIG that he attempted to make contact with the helicopters as they approached the location, but was unable to because the UHF antenna he had on his radio was not sufficient for transmission to the helicopters, and he did not have a longer VHF antenna. Sniper-observer Eric also said he attempted unsuccessfully to radio the helicopters. Sniper-observer Bruce went to mark the banana field with a landing panel, but the helicopters never arrived at that landing zone.

Instead, the helicopters executed a rope drop of the assaulters over the open area, which was on a steep slope.43 At 4:20 p.m., Ray reported to the TOC that the first group of assaulters was on the ground. The second group, from the smaller helicopter, was dropped immediately thereafter. Within a minute, the sniper-observers reported to the TOC that the helicopters were not at the banana field.

On the ground, the 10 HRT assaulters realized that they were not at the banana field landing zone. They moved quickly up a steep hill to a road. On the road, the assaulters encountered an agent from the San Juan FBI SOG, who was wearing his FBI raid jacket and manning a “choke point” in a Dodge Durango SUV. The assaulters got into the Durango or climbed on its running boards and rear bumper, and the agent drove them quickly to Site 1.

X.   The Assault on Site 1

At 4:28 p.m., the Durango carrying the 10 HRT assaulters arrived at Site 1. As the Durango arrived, three sniper-observers (Peter, Eric, and Bruce) and an agent from the San Juan FBI (Ron) were positioned near the driveway gate. Two other sniper-observers (Gary and Dan) were covering potential escape routes from positions outside the fence near the Black/Green corner of the residence. As these two moved closer to the house they were detected by dogs inside the fence, which began barking loudly. A sixth sniper-observer (Paul) was positioned on the road above Site 1, relaying information about the operation to the TOC by satellite radio. As the Durango approached, Eric moved forward to open the driveway gate, but the San Juan FBI agent drove the vehicle through the gate toward the house without stopping. Moments later Bill, an HRT assaulter who had fallen off the back of the Durango on the way up the hill, ran into the yard and joined the other assaulters.44 Ron also followed the vehicle into the yard in order to join up with the assaulters. The three sniper-observers at the gate followed the assaulters into the yard and took positions of cover.

In Subsection B below we discuss the events during the assault and exchange of gunfire at Site 1. It is important to understand that these events occurred very quickly, over a period of as little as 2-3 minutes. However, in order to understand the rapid sequence of these events it is necessary to appreciate the features and layout of the property, which we describe first in Subsection A.

  1. Features and Layout of Site 1
  2. The driveway into Site 1 led into an open yard on the White side of the residence. Figure 6 (a photograph taken after a great deal of foliage had been removed) shows important features on the front of the house (the White side). There was a low concrete wall in the yard with a break in the middle, opening to a set of rough cinderblock steps. The steps led up a steep embankment to a narrow, open balcony porch running along the White side of the house. In the yard to the right of the low cement wall was a garden shed with an entrance facing away from the house, toward the driveway. The second story of the shed was a covered gazebo accessible from the porch. To the right of the gazebo and along the Red side of the house there was a very steep hillside sloping up toward the road. There was a low retaining wall along this slope.

    FIGURE 6
    Selected Features on Front (White) Side of Residence (Foliage Removed)

    Figure 6 (Photo of front side of residence with foliage removed). Important features are labeled.

    FIGURE 7
    3-D Diagram of Interior of the Residence

    Figure 7 (3-D Diagram of interior of the residence). Important features are labeled.

    FIGURE 8
    View of the Front of the Residence (Before Foliage Removed)

    Figure 8 (Photo of front of residence before foliage was removed).

    The front door of the house was located in the center of the White side, at the top of the steps. On each side of the front door were “ Miami windows” with slatted panes. The window to the left of the front door (facing from the outside) opened into the living room; the window to the right opened into the kitchen (the “kitchen window”). Further down the porch to the right, near the White/Red corner of the residence, was a doorway covered by a locked wooden gate (the “gated doorway”). The gated doorway led into a narrow hallway running from the front of the house to the back. Inside the hallway on the left side was another door leading into the kitchen (the “kitchen door”). To the right of the gated doorway, somewhat around the corner of the house, was a small exterior alcove. Figure 7 is a three dimensional diagram of the interior of the residence showing many of these features. It also illustrates the relationship between the gated doorway leading into a narrow hallway and the kitchen door inside the hallway.

    At the time of the operation, the front of the house was obscured by heavy vegetation, including shrubs and tree limbs. Figure 8 shows the front of the house before this vegetation was removed, as it would have appeared to the FBI agents when they approached.

  3. The Exchange of Gunfire
  4. At approximately 4:28 p.m. the Durango pulled into the yard and stopped a short distance from the low cement wall. Several HRT assaulters told the OIG that they thought they heard small arms semi-automatic gunfire from the house even before the Durango stopped.45

    Sniper-observer Gary, who was covering the Black-Green corner of the house, threw a non-lethal “flash-bang” grenade toward the house as a diversionary tactic as the vehicle approached the house. It frightened a large dog, which ran from the Green side around to the front of the house. Gary and Dan (who was positioned near Gary) told the OIG that the flash bang detonated shortly before any gunfire was exchanged. Other HRT agents also stated that they heard the flash bang, which is extremely loud and which agents can easily distinguish from gunfire. Some of them told the OIG that they thought that they heard gunfire from the house before they heard the flash bang, however.

    According to several media accounts, Ojeda’s wife, Rosado, claimed that the FBI agents fired first. However, Rosado declined to be interviewed for this investigation. As we explain in detail in Chapter Five, we concluded, based on the evidence and the testimony, that Ojeda fired at the agents first.

    As noted above, the assault plan called for the Gold Team assaulters (Bill, Tom, Alan, George and Ken46) to enter through a window on the Green side and the Red Team assaulters (Doug, Scott, Don, Frank, and Brian47) to enter through a window or door believed to be located near the Red/White corner (which turned out to be the gated doorway). The HRT assaulters jumped off the Durango and moved toward the house to conduct the assault in accordance with this plan. They were joined by Ron from the San Juan FBI SWAT. The San Juan FBI agent who was driving the Durango backed it away from the low cement wall toward the driveway gate.

    Several assaulters told us they perceived small arms fire coming from the kitchen window as they approached the house. They moved through the gap in the low cement wall up the cinder block steps. The large dog that had been frightened by Gary ’s flash bang came running toward the steps and Scott shot it to prevent an attack on another agent. The dog fell to the base of the embankment near the gap in the wall.

    Frank and Don reached the porch and moved to the gated doorway. Tom also reached the porch and took a position to the left of the front door. Seconds later, Brian followed the other agents onto the porch and began looking for a breaching point on the right side. The remaining assaulters took various positions on the steps and the embankment to each side of them but did not proceed forward because of the gunfire from the house.

    Frank prepared to break open the locked wooden gate at the door near the Red/White corner with a breaching shotgun. Frank told the OIG that in order to get a proper angle for using the breaching shotgun effectively, he had to step away from the wall of the house to a position directly in front of the lock on the wooden gate to the door. At that moment, Frank noticed that someone had “goose necked” a pistol from the kitchen door on the left interior side of the hallway. Frank said he heard several shots and felt three separate impacts on his ballistic vest that he perceived to be gunshots fired from the pistol.

    Frank moved to a position of cover on the porch to the left of the gated door and began to check himself for wounds. Frank said he heard several more gunshots originating from inside the house. After finding no wounds, Frank crawled on the front porch to a position below the kitchen window. Brian told the OIG that he saw ricochet shots near Frank, as if Frank was a target while he was down on the porch. A forensic examination of Frank’s helmet after the incident revealed that it had been struck from behind by a 9 mm bullet that was fired from Ojeda’s pistol. Frank told the OIG he believed that he received the shot while he was crouched below the kitchen window. Frank later determined that he was hit four times during the gunfire exchange: two non-penetrating shots in his ballistic vest, one penetrating shot in his abdomen, and one non-penetrating shot in his helmet.

    Don, who was also positioned near the gated doorway, told the OIG that he saw an arm holding a handgun extend out from a door inside the hallway, fire approximately three shots, and then retreat.48 Don stated that the gunman repeated this action approximately three times. Don returned semi-automatic fire into the hallway with his M4 carbine after each occasion, firing a total of approximately 28 rounds, or one magazine. Don said he also recalled hearing gunshots originating from the kitchen window to his left, which led him to believe that there was more than one subject firing at the FBI.

    Don told the OIG that he saw Frank on the porch squatting against the wall. Frank said he had been hit. Don then stood up at the kitchen window and saw a dark figure standing on the other side. This dark figure immediately began firing rounds at Don through the slatted window. Don said that two rounds passed by his head on the left and one round passed by his head on the right. Don immediately returned semi-automatic fire from his M4 at the gunman, firing approximately 28 rounds through the kitchen window.

    At this point, Brian was on the porch near the front door. When Brian heard Frank say he was hit, Brian ran down the porch toward him. Brian told the OIG that as he ran down the porch he was struck by a round on his left side (the side facing the kitchen window) in the Kevlar portion of his armor vest. He stated that after the shot he fell over the porch railing and onto the slope below. Brian said the blow was painful and he initially thought he had been wounded. In fact, the bullet left a large bruise in Brian’s side but did not penetrate the vest. Brian later examined his armor and realized he had also been struck on the chest plate by a different shot.

    Brian took cover on the embankment below the porch. He told the OIG he saw George crouched under the window to the right of the front door. Brian said he saw a gun inside the window over George’s head. Someone was firing the gun without aiming it, “goose-necking” the gun out the window while keeping his head below the window. Brian yelled “get your head down” at George and fired at the window, aiming high so as to avoid hitting George.49 The gun in the window was pulled back, the firing from the house stopped temporarily, and George retreated down the embankment. Firing resumed from the window and Brian fired again at the window.50 Frank was still down on the porch.

    Several HRT agents told the OIG that at this point in the exchange they saw or heard a burst of automatic gunfire coming from inside the kitchen window. At this point Frank was crouching on the porch below the kitchen window. Frank said he saw the muzzle flash of the weapon firing over his head. Several HRT agents also told the OIG that they saw glass from the kitchen window shatter outward as result of the automatic fire. At least one HRT agent said he saw vegetation being impacted by the automatic fire. George told the OIG that at the moment the automatic gunfire began he was running along the embankment below the porch toward Frank, and that, in response to the burst of gunfire, he dove for cover below the concrete outcropping situated just below the porch. A forensic examination of George’s helmet revealed that it was struck by a bullet of indeterminate caliber in the battery case on the left side, which would have been the side facing the kitchen window as George moved toward Frank. George stated he believed he was hit in the helmet during the burst of automatic fire from the kitchen window.

    Frank told the OIG that immediately after the first burst of automatic fire above his head subsided, he raised his M4 carbine up to the window and fired several rounds into the house. During his interview, Frank said he did not see anyone in the house when he fired because he was unable to safely raise his head to a level where he could see through the window. He later added that his purpose in firing into the kitchen window was to attempt to eliminate the threat of additional gunfire from the subject. Frank stated that immediately after he fired, a second burst of gunfire came from the window. Several other HRT agents also told the OIG that they recalled multiple bursts of automatic gunfire from the kitchen window.

    A total of eight HRT agents told the OIG that they returned fire at the kitchen window from various positions during the exchange of fire. The statements of Frank, Don, and Brian are described above. In addition, Ken said he fired 10 to 12 rounds at the muzzle flashes he saw in the kitchen window, shooting from a location on the embankment below the porch, to the right of the front door. Doug said he fired three to five rounds at the window from his position near the gap in the low concrete wall. Tom said that after seeing automatic gunfire from the kitchen window, he fired approximately 10 rounds toward the window from a standing position on the porch near the front door. Scott stated that in response to the burst of automatic fire he returned fire at the kitchen window with approximately 12 to14 rounds from a position on the embankment below the porch near the kitchen window. Eric (one of the sniper-observers) said that after the second burst of automatic gunfire from the kitchen window, he fired 5 to 10 rounds from a position behind the low concrete wall, aimed at the muzzle flashes he saw.

    Six agents at the scene told the OIG that near the end of the gunfire exchange they perceived that several shots were fired from inside the house through the front door, making holes in the door and shattering the wood. One agent stated that he thought that he observed these rounds hit the dirt near the cinder block steps. Three holes in the exterior of the front door of the residence are apparent in photographs taken after the incident. However, according to the Puerto Rico Institute of Forensic Science, these holes were made by shots originating from outside into the residence, and the trajectories of these shots correspond to impacts in the ceiling inside the residence.51

    Many of the agents interviewed by the OIG reported that during the exchange of gunfire they perceived that at least two different weapons were being fired from inside the residence, possibly by two different subjects. The perception of the agents that there might be two subjects firing different weapons was reported to the TOC and recorded in the TOC Log about a half hour after the firing subsided. Several factors were cited to the OIG as the basis for this belief: 1) several agents reported that they heard both automatic and semi-automatic fire from inside the residence, leading them to believe that two different guns were being fired; 2) agents reported that early in the exchange shots were fired both out the kitchen window and out the hallway toward the gated door, leading some agents to believe that there might be two different subjects; and 3) as noted above, six agents misperceived semi-automatic fire coming through the front door of the residence at a moment simultaneous or nearly simultaneous with the bursts of automatic gunfire coming from the kitchen window.

    According to the TOC Log, the initial exchange of gunfire subsided at 4:30 p.m., about two minutes after it began. At this point, Frank and Tom were still on the porch. Scott and Don had taken cover in an alcove near the Red/White corner, out of any line of fire from the kitchen window or the hallway behind the gated door. The other HRT assaulters and Ron from the San Juan FBI were in various locations on the embankment below the porch or behind the low concrete wall at the base of the bank.

    At this point, Frank began experiencing severe pain in his abdomen from the bullet wound, and he reported that he was hurt. Other agents threw flash-bang grenades onto the porch as a diversion and George assisted Frank off the porch onto the embankment below it. Additional flash-bangs were detonated and Tom got off the porch. George attempted to search Frank for wounds but initially could not find any. Because they were still exposed on the embankment, George and Frank moved down the embankment and behind the low cement wall, to the right of the gap. Other HRT agents also moved off the embankment into positions of better cover. George resumed his examination of Frank and discovered a wound in the abdomen. George called out that Frank needed to be evacuated.

XI.   The Evacuation of the Wounded Agent

As Frank was being helped down the embankment, the agent who was driving the Durango turned it around and backed it up toward the residence, close to the low concrete wall. Two agents assisted Frank into the rear of the vehicle. Bruce, who was an emergency medical technician, got into the vehicle to provide first aid to Frank. At approximately 4:40 p.m., the Durango left Site 1 to transport Frank to a hospital in Mayagüez. At approximately 5:50 p.m., Frank was airlifted by a U.S. Customs Service helicopter to a hospital in San Juan for abdominal surgery. The round that struck Frank damaged his small intestine.

By 9:45 p.m., Frank was out of surgery. A portion of his small intestine was surgically removed. Frank has since recovered and rejoined HRT.

XII.   The Standoff

  1. The Surrender of Elma Beatríz Rosado Barbosa
  2. At approximately 4:48 p.m., a few minutes after Frank was evacuated from the scene, Ojeda’s wife, Elma Beatríz Rosado Barbosa (Rosado), surrendered to the FBI. San Juan FBI SWAT agent Ron – who speaks and understands Spanish – told the OIG that somebody inside the residence yelled in Spanish, “someone is coming out.”52 The front door of the residence opened and Rosado emerged with her hands empty and extended in front of her. Alan, who was at the top of the cinder block steps, told the OIG that he observed someone else’s hands behind Rosado guide her out and then shut the door. Alan said Rosado appeared nervous but not panicked, and initially walked toward the Green side of the residence. Alan told her she could not go that way, grabbed her, and moved her back down the steps to Ken. Ken then placed her face down behind the concrete wall in front of the residence and handcuffed her.

    Ron questioned Rosado in Spanish and asked her to help the agents talk to her husband. He also asked her how many people and weapons were in the residence, whether there were explosives, and if anyone was injured. Ron said that Rosado did not respond. Rodger, a San Juan FBI negotiator and native Spanish speaker, also attempted to communicate with Rosado by asking her name and whether anyone other than Ojeda was in the residence.53 He told us that Rosado remained silent and did not answer his questions.

    Fraticelli told the OIG that he ordered Rosado taken to FBI office space in a General Services Administration facility. He also instructed that a hood be placed over her head during part of the transport so she would not learn the location of a facility housing FBI assets. Rosado was removed from the scene at 5:46 p.m. She was ultimately transported to the Metropolitan Detention Center in Guaynabo, Puerto Rico.54

  3. Communications between the FBI and Ojeda
  4. Ron told the OIG that after his unsuccessful attempt to talk to Rosado he began talking to Ojeda in Spanish. From behind the low cement wall below the residence, Ron yelled for Ojeda to exit the residence with his hands raised. Ojeda asked who everybody was, to which Ron responded, “the FBI.” Ojeda responded that the agents were criminals, imperialists, colonialists, and the mafia. Ron repeated that it was the FBI and asked Ojeda whether he was injured. Ojeda stated that he wanted to talk to the press. Ron told Ojeda that the press was not coming. Ojeda refused to tell Ron whether anyone else was in the house and said that he would only talk to a particular reporter, Jesus Dávila.55 Ron told him that Dávila was not coming and again asked Ojeda whether he was injured. Ojeda responded, “I’m here.”

    Ojeda continued to refuse to surrender and began speaking in revolutionary slogans that, according to Ron, sounded like a rehearsed speech. A radio could be heard playing in the residence. Ron asked Ojeda whether they could speak by telephone, but Ojeda said he did not have one. Ron estimated that he continued trying to talk Ojeda out of the residence for 30 minutes. According to Ron, during this time, Ojeda stated in Spanish, “I know you are the FBI,” and words to the effect of, “you know what I want, shut up.”

    The San Juan FBI had sent two certified crisis negotiators to the scene, SAs Larry and Rodger, as well as an ASAC who was also a negotiator.56 Larry told us that he was able to hear from his location on the hill above the house that Ron was trying to communicate with Ojeda. At some point, Larry got word that HRT asked for a negotiator. Larry told us it is standard practice to use two negotiators when talking to a subject – one to engage the subject and the other to keep focus. Here, however, he was told HRT requested only one. Rodger, a Spanish speaker who Larry said was well-versed in Puerto Rican culture, was sent to the Ojeda residence.

    Rodger arrived at the residence at approximately 5:30 p.m. and took a position near a window inside the garden shed below the gazebo. (See Figure 6.) Rodger told the OIG that he called out to Ojeda by his first name, but did not get a response. Ron, who had not moved from his position, told Rodger to call Ojeda “Señor” because he had previously responded to that when Ron addressed him that way. Rodger told Ron that if he already had contact with Ojeda, he should try again.

    Rodger joined Ron’s calls to Ojeda, and Ojeda eventually responded. According to Rodger, Ojeda stated, “Traigan al periodista Jesus Dávila,” which translated meant, “Bring the journalist Jesus Dávila.” Rodger asked Ojeda why he wanted Dávila brought, but Ojeda did not respond. Rodger asked a second time, but Ojeda only said, “Traigan a Jesus Dávila,” which translated meant, “Bring Jesus Dávila.” Rodger stated that Ojeda repeated this approximately three times.

    During this period, bottles of water were being tossed from one agent to another around the perimeter. According to Rodger, when the bottles hit the ground, Ojeda yelled “cuidado, cuidado ahi,” meaning “be careful, be careful there.”

    Rodger said he told a HRT agent in the shed with him that he needed another negotiator. Rodger stated that he felt a second negotiator would facilitate the negotiation process. The agent told Rodger that he could not leave his post. Rodger contacted Fraticelli with his cell phone. He told Fraticelli about Ojeda’s request for Dávila and who Dávila was. Rodger told the OIG he did not mention anything about surrender because he did not recall Ojeda discussing it prior to this call. Rodger said that Fraticelli spoke with someone and then told him that no one would be brought to the scene because it was too dangerous.

    Fraticelli told the OIG that he recalled Rodger calling him from the scene regarding Ojeda’s demand for the reporter Dávila. According to Fraticelli, he immediately told Rodger to tell Ojeda that the reporter would not be brought to the scene and that he should come out with his hands up. Fraticelli said that he made this decision immediately, because he had been trained not to insert a third party – such as a reporter – into a gun fight situation.

    Rodger told the OIG that based on his negotiations training he did not inform Ojeda of Fraticelli’s decision, and instead continued calling out to him. At some point, Ojeda responded, “Yo no voy a negociar con ninguno de ustedes hasta que no traigan al periodista Jesus Dávila. Entonces podemos hablar de mi entrega.” The statement translated meant, “I am not going to negotiate with any of you until you bring the journalist Jesus Dávila. Then we can talk about my surrender.”

    Ojeda’s use of the word “surrender” apparently reached the TOC, but it is not clear that this information ever reached Fraticelli. The TOC Log contained two entries, both at 5:37 p.m., reporting that the negotiators were communicating with Ojeda and that he would surrender if a reporter was brought to the scene (although according to Rodger’s recollection this is not exactly what Ojeda actually stated). HRT Deputy Commander Steve told the OIG that he recalled hearing over the radio about Ojeda’s offer to surrender if a specific reporter was brought to the scene, but said he did not discuss Ojeda’s demand with Fraticelli or anyone else. Fraticelli told the OIG that he did not recall hearing that Ojeda had discussed “surrender.” Fraticelli’s recollection is consistent with Rodger’s statement that his first conversation with Fraticelli occurred before Ojeda had used that word. Rodger told us that at some point he made a second cell phone call to Fraticelli, but could not recall whether this was before or after Ojeda used the word “surrender.”

    Rodger asked Ojeda if he had a telephone so they could talk that way. Ojeda replied that he did not. Rodger offered to provide Ojeda a phone, but he did not respond. Rodger continued to call out to Ojeda, telling him that things would be more difficult if he did not communicate. Ojeda still did not respond.

    Based on the TOC Log and agent statements, we believe that Rodger’s communications with Ojeda took place between approximately 5:30 and 6:00 p.m.

XIII.   Activation of the Strategic Information and Operations Center at FBI Headquarters

According to a log maintained in the San Juan FBI command post in the federal office building in San Juan, at 4:40 p.m. the San Juan FBI notified the Strategic Information and Operations Center (SIOC) in FBI Headquarters about the shooting incident in Puerto Rico. The San Juan FBI called SIOC with more details about the incident at 5:18 p.m. Information regarding the shooting also was relayed to the FBI’s Domestic Terrorism Operations Unit (DTOU) in the Counterterrorism Division (CTD) at FBI Headquarters.57 This information was relayed to senior managers in the Counterterrorism Division as it was received. Gary Bald (the Executive Assistant Director (EAD) for the National Security Branch, which contains the Counterterrorism and Counterintelligence Divisions, and the Directorate of Intelligence), Willie Hulon (Assistant Director (AD) for CTD), and John Lewis (Deputy Assistant Director (DAD) for CTD) subsequently began monitoring the events in Puerto Rico.

At approximately 5:30 p.m., shortly after learning of the exchange of gunfire between Ojeda and HRT, DAD Lewis ordered the activation of a command post within SIOC to monitor the events in Puerto Rico, coordinate communication with the TOC and the San Juan FBI, and provide guidance to Fraticelli. The OIG was told that activating SIOC under these circumstances was standard operating procedure and that it did not automatically shift command of the operation from the field to FBI Headquarters. We were told that as the SAC for the San Juan FBI, Fraticelli remained in charge.

The SIOC was staffed with personnel from DTOU. Based on entries in the SIOC log maintained during the event, FBI Headquarters’ involvement in the incident was initially limited to monitoring events in real time and coordinating the FBI’s response to the incident by alerting several management officials and SWAT components from FBI field offices to prepare for possible deployment to Puerto Rico in the event the situation became prolonged.

AD Hulon told us that he spoke with Fraticelli shortly after learning of the exchange of gunfire. He said they discussed the need to establish and maintain a perimeter and begin negotiating Ojeda out of the residence – standard FBI procedure with a barricaded subject, according to Hulon. Fraticelli asked Hulon during this call for additional SAC support in Puerto Rico and specifically requested that the SAC from the FBI’s Dallas Division (Dallas FBI) be sent. Fraticelli told us that he made this request because the Dallas FBI SAC was a Spanish speaker and had an understanding of Puerto Rico from the five years he served there as an agent earlier in his career. Fraticelli also said that the SAC had been his mentor and that he trusted his judgment. Fraticelli stated that he requested both SAC and ASAC support because he believed San Juan was faced with a protracted situation and those involved to that point in time had already worked for several days with limited rest. Fraticelli told us that after he spoke with Hulon he called the SAC to see if he was available to come to Puerto Rico. The SAC responded that he was.

Hulon told us that he assumed Fraticelli’s request for the Dallas FBI SAC was made because Fraticelli had previously served under him as an ASAC in Dallas and because the SAC had experience working as an agent in Puerto Rico. However, Hulon also said he found the request unusual. He told us that in his experience SACs typically turn to their ASACs for support during division operations; the need for additional SAC support is not an immediate consideration and Hulon said that Fraticelli’s request for help so early in the event was somewhat out of the ordinary. Hulon said Fraticelli was fairly insistent about the request and characterized Fraticelli during this call as intense, excitable, and stressed. Hulon said he told EAD Bald about Fraticelli’s request and shared his impression that it was unusual. As we explain below, Fraticelli’s specific request for the Dallas FBI SAC was a factor in FBI Headquarters’ decision to require that Fraticelli obtain CTD’s approval for any plan to enter Ojeda’s residence.

XIV.   Crowds Assemble at Several Locations in Puerto Rico

Reports of an incident at Ojeda’s residence involving the FBI were broadcast on local radio shortly after the exchange of gunfire between Ojeda and HRT. The reports claimed Ojeda had been arrested and that the FBI had picked El Grito de Lares as the day on which to take the action because of its significance to the independence movement. It was also reported that an FBI agent (Frank was not identified by name) had been shot and transported to the Mayagüez Medical Center, prompting one radio station to announce, “FUPI has been rallied to attack the dog at Mayagüez Medical Center.”58 POPR officers were dispatched to the hospital to provide security from the crowds that appeared in response to the radio announcement. In addition, San Juan FBI ASAC Adam59 arranged for FBI agents to provide Frank with 24-hour security. Adam characterized the scene at the hospital as a “media circus.”

The combination of the radio reporting and the conspicuousness of the operation – the loud exchange of gunfire preceded and followed by multiple helicopters circling over the location – caught the public’s attention. Citizens, including members of the press, soon gathered on a road near the scene. According to the FBI, agents from the U.S. Bureau of Alcohol, Tobacco and Firearms, as well as officers from POPR, arrived to provide outer perimeter security shortly after the exchange of gunfire. According to POPR Mayagüez Area Commander Héctor Agosto, POPR deployed 40 to 50 officers to the location. Agents from the San Juan FBI SWAT primarily took up positions along an inner perimeter close to and around Ojeda’s residence.

The FBI and POPR worked together to coordinate road blocks and control access to the area. The San Juan FBI agents we interviewed stated that the POPR did an effective job controlling the crowd even as it grew agitated as the night progressed. The OIG was told the crowd numbered approximately 100 people by 5:30 p.m. and that it chanted at various times, “FBI assassins.” At some point during the night, it began raining. A POPR commander responsible for coordinating perimeter security told the OIG that the rain caused a considerable number of people to leave the area, reducing the potential for a riot.

XV.   The Decision to Send Relief HRT Teams from Quantico

At approximately the same time that the conversations between the FBI negotiator and Ojeda were taking place (between 5:00 and 6:00 p.m.), the decision was made to send a new team of HRT agents to the scene from Quantico to relieve the team that was in a standoff at the scene. In the course of the afternoon of September 23, HRT Deputy Commander Steve provided several telephone updates to HRT Commander Craig in Virginia. Craig told the OIG that after the initial exchange of gunfire, Steve asked Craig to deploy additional HRT resources from Quantico to Puerto Rico because the HRT agents at the scene were fatigued after being awake for up to 48 hours. Craig said that he called the Acting SAC for CIRG and asked him to contact FBI Executive Assistant Director Ashley to obtain verbal authority to deploy HRT’s Blue Squad and the remainder of Gold Squad. After approval was granted, Craig called the Unit Chief for CIRG’s Operations and Training Unit, and asked him to prepare the HRT teams for deployment later that night.

According to Steve, he spoke with Craig on several occasions on September 23 and said that they discussed sending reinforcements to the scene. Steve said that he told Craig that replacements would only be needed if the situation was not resolved that night and carried into the next day. Steve said he also told Craig that evidence recovery would likely continue through the daylight hours on September 24 even if the standoff were resolved that night (September 23).

At 5:33 p.m. on September 23, the HRT agents at the scene were told that because some of them had gone without rest for 50 hours or more, plans were being made to relieve them but it might take a day for the fresh agents to arrive.

XVI.   Ojeda Struck by a Shot from the Perimeter

  1. Brian’s Position
  2. Immediately after Frank was evacuated, the HRT agents began a “cover and withdrawal” process to permit the agents who were exposed on the bank to move back to better cover.

    A makeshift on-scene command post was established behind the garden shed. Don and Scott remained in the alcove around the Red/White corner. Brian told the OIG that he became concerned that Don and Scott were exposed in that location because someone could come quickly out of the gated door and fire at them around the corner, and they would have no cover. Brian therefore moved back behind the shed, climbed up the steep hill behind and to the right of the shed, and moved toward the house.

    There was a retaining wall part of the way up the hillside running to the right of the shed toward the house. (See Figure 6.) Brian stated that there was an area behind the retaining wall that was large enough to provide him with a crawl space as he moved toward the house. Brian stated that while he moved along the wall he did not receive any specific instructions.

    Brian said he heard discussions in Spanish (which he does not speak) between Ojeda and a San Juan FBI agent during the time he was moving into position on the hillside and while he was covering the house. However, Brian told us that at no time did he hear anyone from the FBI say that the subject was discussing the possibility of surrender. He also said that at some point these discussions seemed to come to an end.

    FIGURE 9 View of Residence from Approximate Position of Shooter

    Figure 9 (Photo of residence from approximate position of shooter). Important features are labeled.

    Brian told the OIG he was trying to get a clear view of Don and Scott, and also to get a view of the gated door and the window between that door and the front door. Brian said he found a position behind the wall where he could make eye contact with Don and Scott and also cover the window and the gated door. Brian said his head and shoulders were above the retaining wall and his M4 was pointed at the house. Figure 9 is a photograph of the residence taken from a location close to where Brian was positioned.

    Ken told the OIG that he was instructed to take a similar position behind the retaining wall to see and support Scott and Don. Ken stated that he climbed up the hillside and crawled forward to a position which was about five feet to the left of Brian. Ken said that he felt very exposed at this location because his head and part of his body were above the wall and in view of anyone in the house. Ken said that Brian was in a similar position of exposure.

    During this time frame, there were discussions among the HRT agents at the scene and between Doug and the TOC regarding a course of action. Doug moved from the command post behind the garden shed around the Red side of the residence and was able to get on the roof of the house. He moved near the alcove in order to consult with Scott and Don. Brian said he was not given any new instructions and that he continued to cover the house from his position.

  3. The Shots
  4. Brian was at an elevation slightly higher than the kitchen window. He told the OIG that he shifted his attention between the window and the gated door. He could also see Don and Scott in the alcove. Brian’s view into the window was at a fairly sharp angle from the right. He told the OIG he could see the side of a light-colored refrigerator inside the left half of the window. The refrigerator took up about half of his field of view inside the window. The other half was in darkness.

    Brian told the OIG that while in his position on the wall, he saw movement in the kitchen window on several occasions but that he took no action because he could not identify a threat due to the dark conditions.

    However, Brian said that at one point, he saw some kind of movement inside the window and then saw the refrigerator door open and the refrigerator light go on. Brian stated that he saw an individual crouched down with a gun in his left hand pointing out the window. He said he could not see the individual’s eyes or tell where he was looking. Brian stated that the individual clearly had the weapon pointed in the direction of Brian and his teammates, but he was unsure whether the individual was sighting the gun at anyone in particular.

    Brian told the OIG that at that moment he realized that the individual was armed and that Brian was visible to him. Brian said he was aware that another agent had been wounded by a shot from inside the house and that Brian himself had been hit by at least one shot from inside the house. Brian said he was also aware the individual had previously fired his weapon from the window he was currently positioned at and had shot Brian from that window. Brian stated that he concluded that the individual posed an imminent threat to himself and other agents. Brian took his weapon off the “safe” setting, sighted the weapon where he believed the person’s center mass to be, and fired three rounds in rapid succession in single-fire mode. Brian estimated that about three seconds elapsed between the time he saw the refrigerator light come on and the time he fired his weapon. Brian told the OIG he did not see the refrigerator light after he took the shots and that it was possible that the individual was closing the door of the refrigerator at the time Brian took the shots. According to the TOC Log, Brian fired the three shots at 6:08 p.m.

    Brian said that he had no communications with anyone between the time he saw the light come on and the time he fired his weapon. None of the other agents interviewed by the OIG reported any communications with Brian at that time.

    Several agents told the OIG that immediately after hearing three shots from the perimeter, they heard Ojeda scream “ay, ay, ay.” Brian stated that the scream trailed off into a gurgling sound that he believed indicated a significant injury to the lung or airway. Several agents reported hearing noise from inside the house that sounded like someone stumbling or falling down, objects falling, or moving furniture. Bill stated that he heard a moan after the screams. No witnesses reported hearing any other sounds from the subject, although the radio continued to play inside the house.

    Scott (who was in the alcove) and Ken (who was to Brian’s left behind the wall on the hillside) were both able to identify Brian as the source of the three shots. Several agents told the OIG that they heard Brian state over the radio that he thought he had hit the subject. No other agent reported being in a position to see what Brian saw in the window at the moment he fired the shots, however. Ken was the only agent near Brian, and he told the OIG that from his position he could see the gated door but not the window.

    At approximately 6:16 p.m., the SIOC was informed that shots had been fired from the perimeter and that Ojeda might have been hit. Hulon conferred with Bald, and they agreed that the best course of action at that point was to hold the perimeter.60 Hulon stated that he communicated this recommendation to Fraticelli.

XVII.   The Limited Breach of the Residence

Doug (the assault team leader at the scene) told the OIG that after he heard the perimeter shots he requested approval from the TOC to conduct a “law enforcement clear” of the residence. At approximately 6:13 p.m., HRT Deputy Commander Steve advised Doug that entry should not be attempted yet. Steve told the OIG this decision was based on the possibility that Ojeda had not been disabled and that additional armed and hostile subjects might be in the residence.

At approximately 6:22 p.m., as nightfall approached, Steve approved Doug’s request to conduct a “limited breach” of the gated door near the Red/White corner of the residence in anticipation of entering under cover of darkness. Steve told us that he did not discuss this request with Fraticelli. However, Fraticelli told us that Steve asked his permission to take this action and that he gave it.

At approximately 6:49 p.m., an HRT agent detonated an explosive charge that had been placed on the wooden gate covering the doorway near the Red/White corner. HRT agents also detonated flash bangs at other locations to create a diversion. The charge failed to break open the wooden gate, however, so one of the agents breached the gate by physically prying it open.

Consistent with their instructions, the agents did not enter the gated doorway. However, the agents were able to see through the doorway into the narrow hallway leading toward the back of the house. (See Figure 7.) They could also see the kitchen door cracked open on the left side of the hallway interior. The agents did not see or hear any activity inside the house in response to the explosive charge. Doug reported to the TOC that the agents were not able to see any persons or bodies down the hallway past the breached door. This information was relayed to the SIOC a few minutes later.

Hulon told the OIG that at some point after he was informed that Ojeda may have been hit, he called HRT Commander Craig in Quantico, Virginia. Hulon told us that he spoke with Craig several times from SIOC to discuss the situation and knew that Craig was also having conversations with HRT in Puerto Rico. Hulon said he called Craig because he trusted his judgment and was aware of his knowledge and expertise regarding HRT’s capabilities. According to Hulon, Craig told him during this call that Steve was talking about entering the residence using night vision goggles. Craig told Hulon that this was not a good idea and said that HRT should stand down and not enter the residence that night. Hulon said he agreed. He told us that he got the sense Craig might have already told Steve not to enter the residence, but that he was not certain this was the case.

Craig told the OIG he recalled this conversation with Hulon and said that Hulon solicited his opinion about how to proceed. Craig said he recommended that HRT stand down and maintain a perimeter around the residence until the HRT deployment from Quantico arrived in relief. Craig said Hulon concurred. Craig stated that Hulon then asked who was in charge of the scene, and Craig told him HRT was unless Hulon ordered otherwise.61

XVIII.   Decisions Immediately After the Limited Breach

The OIG received conflicting accounts regarding the decision-making immediately after the limited breach at 6:49 p.m. Craig said that Steve wanted to clear the residence at that point because he felt the assaulters had a tactical advantage. Craig told us that he disagreed and ordered Steve not to enter. Craig stated he based this decision on several considerations: (1) the possibility that there might be more than one shooter, (2) the subject(s) had demonstrated a willingness to kill FBI agents, (3) the agents at the scene were tired, (4) the subject(s) appeared to be prepared for an encounter and may have established a bunker inside the residence, rigged improvised explosive devices, or possessed a hand grenade, (5) it was not a hostage situation, (6) the subject(s) had already shot three HRT agents, one of whom required evacuation, (7) any advantage of speed or surprise was lost once the perimeter had been established after the initial exchange of gunfire, (8) it was not prudent to further risk HRT lives, and (9) the HRT agents being sent from Quantico would be rested and have with them a robot and bomb technicians.

However, Steve’s statements to the OIG were in conflict with Craig’s assertion that he told Steve not to enter the residence after the limited breach. Steve said he spoke with Craig several times on Friday, September 23, following the exchange of gunfire between Ojeda and HRT, and that Craig did not give him any instructions or advice. In fact, according to Steve, as night fell the TOC began planning an operation to clear the residence under cover of darkness using night vision goggles and stealth.

Fraticelli’s recollection of events was consistent with Steve’s. Fraticelli said he fully intended to authorize entering the residence after he learned Ojeda had likely been shot. He told us that as night fell, HRT began preparing for the “law enforcement clear” by calling out to Ojeda, making the limited breach, assessing entry points, assembling an entry team, and ensuring that the agents had night vision goggles.

In addition, Fraticelli approved HRT’s request to cut the electricity to the residence to increase HRT’s tactical advantage during the entry. Fraticelli told us there was a significant delay in actually getting the electricity turned off: the utility company was called at 6:34 p.m., but the electricity was not turned off until approximately 8:09 p.m. Fraticelli said that he was aware Steve had spoken with Craig some time after the exchange of gunfire between Ojeda and HRT, but Fraticelli believed Steve was just providing an update on the situation. Fraticelli told us that he did not know if Craig ever gave Steve an order or a recommendation not to enter the residence.

The TOC Log supports Steve’s and Fraticelli’s statements that HRT was planning a law enforcement clear of the residence following the limited breach. According to entries made between 7:05 and 7:58 p.m., the HRT agents were checking that they had the proper gear (body armor, helmets, and night vision goggles), assessing alternative entry points, and determining how many agents were needed. By 7:41 p.m., Doug had a 7-man team ready to enter the residence. There are no entries in the TOC Log reflecting any order from Craig not to enter.

XIX.   FBI Headquarters Assumes Control of the Law Enforcement Clear

At FBI Headquarters, EAD Bald became concerned with Fraticelli’s ability to manage the situation in Puerto Rico when Hulon told him about Fraticelli’s request for help. Bald said that his impression, based on his conversation with Hulon, was that Fraticelli was overwhelmed and lacked the confidence in his own ability to manage the situation. He said this impression was reinforced when Fraticelli inquired about the status of his request for the Dallas FBI SAC in subsequent calls with Hulon. Bald said that in his experience, SACs receive outside SAC assistance when the situation is prolonged. He felt that Fraticelli’s request was attributable to a lack of confidence, not to ensure an extended SAC presence. We asked Hulon whether it was fair for Bald to draw the impression he did based on what Hulon told him about his conversations with Fraticelli, and Hulon told us he believed that it was.

Bald said that his concerns regarding Fraticelli were confirmed when he was told at approximately 7:00 p.m. that an HRT agent had gotten close enough to the residence to look inside through a window.62 In Bald’s view, the agent’s actions were inconsistent with the earlier guidance he believed Hulon had given Fraticelli, which was to hold the perimeter. Bald said he was also concerned that HRT was making decisions independent of Fraticelli. In his contemporaneous notes, Bald wrote, “call [Craig]. Who is calling shots now – Lou [Fraticelli]? CIRG? CTD?” Hulon made this call to Craig – we believe at approximately 7:25 p.m. – who told him that HRT had the lead. Told this by Hulon, Bald thought Craig was wrong and believed CTD, through the SAC, should have control. Bald addressed the issue with EAD Ashley, who agreed that CTD had the lead and that HRT should report to the substantive division it is supporting (CTD in this operation).63

Based on his impression that Fraticelli was overwhelmed by events and lacked the confidence to manage the situation, together with a concern that HRT might be acting independent of the SAC, Bald concluded that he needed to act to ensure there was a proper chain of command in place before any further deliberate action was taken at the scene. He therefore instructed Hulon sometime shortly before 8:00 p.m. that any deliberate assault or entry of the residence would have to be approved by Hulon.

Hulon told the OIG that he was aware of Bald’s concerns about who was in charge of the operation and knew that Bald and Ashley had discussed the subject. Hulon also said that while he personally was not concerned at that time about management of the operation, he did not disagree with Bald’s decision because he believed Fraticelli probably needed some support, which Hulon had been providing up to that point. Hulon told us that he did not consider the decision to give him approval authority over the entry of the residence unusual. He said he believed Bald’s decision was intended to eliminate any command confusion, clearly delineate that one entity was responsible for decision-making, and provide as much support to the SAC as possible. Hulon added that Fraticelli still retained authority to act in exigent circumstances.

XX.   Counterterrorism Division Rejects a Nighttime Entry

At 8:05 p.m., Hulon called Fraticelli and told him that there would be no entry of the residence without Hulon’s approval. During this call, Fraticelli recommended that a nighttime entry be conducted and HRT Deputy Commander Steve explained to Hulon that HRT could take advantage of the darkness. Although Hulon did not believe this was the best course of action, he left open the possibility by requesting that HRT draft an entry plan and provide it to FBI Headquarters for consideration. HRT began drafting such a plan after this call ended.64

However, a short time later, Hulon and Bald discussed the comparative merits of entering the house at night or during daylight, and decided the entry should be postponed until the next day.

Fraticelli told us that he recalled having a second phone conversation with Hulon at some point that evening – we believe before 9:00 p.m. – during which Hulon conveyed this decision. However, the HRT agents at the scene were not notified until 11:33 p.m. The reasons for Hulon and Bald’s decision, the circumstances surrounding the delay in the decision reaching HRT, and the HRT agents’ reaction to the decision are set forth below.

  1. Reasons for the Decision
  2. Bald and Hulon each identified several reasons for not approving a plan to enter the residence the night of September 23. First, they believed, based on reporting from Fraticelli, Steve, and the TOC, that there might be a second shooter in the residence. This belief was based on the HRT agents’ perceptions of the location and sound of gunfire being directed at them as they assaulted the residence.

    Second, although the reporting indicated that Ojeda might have been hit by the shots from the perimeter, it was not known whether he was incapacitated and therefore whether he still presented a threat to agents entering the residence. The fact that Ojeda had already shot at the agents and had refused to surrender with his wife or at any time during negotiations indicated that Ojeda would resist any effort to apprehend him.

    Third, Ojeda’s intimate knowledge of the interior of the residence – and HRT’s complete lack of knowledge – countered the tactical advantage HRT might have had at night using night vision goggles.

    Fourth, Hulon told us that he also felt the HRT agents’ fatigue factored against entering that night. (Some of the agents had been without rest for up to 48 hours.)

    Fifth, Hulon considered the possibility, based on the history of Ojeda and the Macheteros, that the residence contained improvised explosive devices that would be more difficult to detect during a nighttime entry.

    Sixth, Hulon told us that while he was aware that Ojeda might have been hit by the perimeter shots and in need of medical attention, this significant factor favoring a night entry had to be balanced against the other factors favoring a delay. Hulon told us that the decision to delay entry was not made to let Ojeda bleed to death. In Hulon’s judgment, which was informed by HRT Commander Craig’s recommendation and the discussion with Bald, waiting until the next day to enter the residence was the better course of action. Bald, who was also aware that Ojeda might have been hit by the perimeter shots, stated that Ojeda’s possible need for medical attention was a consideration but believed the factors favoring a carefully planned deliberate action outweighed Ojeda’s uncertain needs.

  3. Communication of the Final Decision
  4. Even though Hulon did not think HRT should conduct a nighttime entry, he told Fraticelli and Steve during the 8:05 p.m. telephone call to put a nighttime entry plan in writing and send it to FBI Headquarters for review. Hulon told us that he asked for the plan in writing because he considered it standard procedure and a written plan would allow FBI Headquarters to carefully review the proposal. Hulon stated that he did not think it would take more than 30 minutes to draft the plan, particularly if HRT was ready at that time to enter the residence and just waiting for approval. HRT Deputy Commander Steve said he told Hulon the plan could be provided within an hour. At the end of the call with Hulon, both Steve and Fraticelli believed that a nighttime entry might still be conducted.65

    Hulon told us that he spoke with Bald about the nighttime entry option after his call with Fraticelli and Steve. Bald said that he recalled talking to Hulon about the comparative merits of a nighttime and daytime entry and characterized the conversation as a brainstorming discussion. Bald said that although Hulon had authority to make the entry decision without Bald’s approval, Bald thought it was prudent for Hulon to discuss the matter with him. Both Hulon and Bald told us that they agreed in this conversation that a nighttime entry was not a good idea. Hulon told us that he considered this judgment a final decision on the matter and recalled that the conversation took place sometime before 9:00 p.m.

    However, Hulon said he could not recall whether he explicitly communicated this decision to Fraticelli or Steve after the conversation with Bald. Hulon told us that he assumed the decision was understood because he had not received an entry plan and because Craig was in contact with Fraticelli and Steve regarding the relief HRT agents being sent from Quantico.

    Fraticelli told us that he recalled a second phone conversation with Hulon that evening during which Hulon said they had decided against a nighttime entry. Fraticelli said Hulon told him that the perimeter should be maintained and that a new HRT team was being sent from Quantico to conduct the entry the next day.

    Apparently, Steve was not made aware of Hulon’s decision because HRT did in fact draft an entry plan and fax it FBI Headquarters later that evening, at 11:25 p.m. By that time, Hulon and Lewis had left FBI Headquarters for the night.66 The HRT plan, drafted as a Fragmentary Order, stated:

    This type of entry must be conducted at night-time gives the HRT operators the advantage of sight that the subject will not have. The same type of operation conducted during daylight hours exposes the HRT Operators to unnecessary risk and provides equal advantage to the subject because he will be able to see as well as the Operators.

    Tactically, the plan called for HRT agents to enter the White side of the residence through the breached wooden gate and the kitchen door inside it, take the subject into custody, and transport him to a designated holding area or medical facility. The order stated, “if the subject is still alive, but unable to move to surrender, then we have an obligation to assess his condition and render medical assistance.” The order also indicated that the power to the residence had been cut off and that the agents would utilize night vision goggles and infrared lasers. The order stated, “[a]t this point, it is anticipated this type of entry is the safest manner available in which to successfully resolve this crisis with the least amount of risk to FBI personnel and the subject.”

    Hulon and Lewis did not see the nighttime entry plan. Both officials told us that when they left FBI Headquarters that night – at approximately 11:15 p.m. according to the SIOC log – they did not believe the entry decision was still pending. Hulon said he felt a final decision had been made. Lewis recalled this decision being conveyed to him earlier that evening. Hulon, who reviewed the entry plan for the first time with OIG investigators, also said he was surprised that it took over three hours for the plan to be drafted and faxed, particularly in light of what he considered to be the plan’s relative simplicity and brevity.

    The decision to delay the entry until the next day did not reach the HRT agents until late in the night, following Fraticelli and Steve’s attempt to persuade DAD Lewis that a nighttime entry was the best course of action. Fraticelli told us that he hoped Lewis, if persuaded, could in turn persuade Hulon, who Fraticelli knew from his earlier conversation had decided against a nighttime entry.

    Fraticelli said he called Lewis and emphasized to him the security concerns at the scene created by the large crowds of Macheteros sympathizers, and the possibility that Ojeda might still be alive and in need of medical attention. Fraticelli told us that Lewis, who gave the impression that Hulon had gone home for the night, said he would talk to Hulon. Fraticelli told us that Lewis called back approximately 15 or 20 minutes later and told him that he had spoken to Hulon, who had rejected the proposal. Steve told us that Fraticelli announced after he spoke with Lewis that there would be no entry that night and that a fresh HRT team was being brought down to enter the next morning. According to the TOC Log, the HRT agents at the scene were informed at 11:33 p.m. that FBI Headquarters had rejected the proposed nighttime entry. This was the first time that the HRT agents were informed that there would not be a nighttime entry.

    Lewis told us that he did not recall a conversation with Fraticelli late in the evening on September 23 in which Fraticelli tried to persuade him to obtain approval to enter the residence that night. Lewis said that by this time he believed Hulon had already made a final decision. However, Lewis did recall having a brief conversation with Hulon that evening about entering the residence to provide medical care to Ojeda if needed and about the SAC’s concern regarding hostile crowds. Lewis said Hulon reiterated in this conversation his decision not to enter until the next day.

    Hulon did recall speaking with Lewis by cell phone after they left FBI Headquarters at about 11:15 p.m. and drove separately to their homes. Hulon said they discussed the decision to enter the residence the next day instead of that night, but Hulon could not recall any details of the conversation and did not know whether Lewis had a prior call with Fraticelli that prompted the discussion.

  5. HRT Agents’ Response to the Decision
  6. Many of the HRT agents at the scene strongly disagreed with the decision to reject the nighttime entry and wait until the next day. In fact, several told us that they believed HRT should have entered the residence shortly after the limited breach of the gated door. Don, who was located in the alcove when the door was breached, told the OIG that he repeatedly sought permission from Doug to enter the residence following this action. Don identified to us several reasons for believing this was the best course of action, including that it would enable HRT to take custody of any other persons in the house, render the scene safe for the HRT and San Juan FBI agents on the front perimeter of the residence, and administer medical aid to Ojeda. Don and other HRT agents at the scene told us they were trained Emergency Medical Technicians capable of rendering emergency medical care.

    Scott, who was in the alcove with Don when the gated door was breached, echoed Don’s reasons for wanting to enter the house immediately after the breach. Scott stated that the approaching darkness would have given HRT a significant tactical advantage in entering the house, and it also created a security risk for the San Juan FBI agents at the perimeter who did not have night vision goggles. Scott said this had the potential to compromise the San Juan FBI agents’ ability to distinguish between HRT agents and members of the public Scott heard gathering near the scene, as well as the San Juan FBI agents’ ability to keep members of the public from penetrating the outer perimeter. Scott also noted that the batteries for the radios and night vision goggles deplete over time and that the HRT agents’ increasing fatigue would create more potential for mistakes and exposure to danger.

    Red Squad Supervisor Doug told us he also favored entering the residence that night because the assault team would have the advantage of the cover of darkness. However, consistent with instructions he was receiving from the TOC, Doug declined the agents’ requests for permission to enter.

    Most of the agents told us they were under the impression that FBI Headquarters made the decision not to enter the night of September 23 primarily out of concern for the agents’ fatigue and emotional state.67 Some also believed that the possibility of explosives or a second shooter in the residence were factors. The agents stated, however, that they believed HRT was capable of entering the residence that night. For example, Paul told us he was upset with the decision because he was confident the agents at the scene could conduct the entry and believed waiting until daylight actually increased the danger. He said HRT trains for the very circumstances it faced in Puerto Rico and would not have needlessly placed their lives at peril because of emotion. Bill told us that he did not believe the HRT agents at the scene were significantly affected by fatigue and said they had the necessary equipment and were ready and able to perform the entry.

    Kevin of the Operations and Training Unit, which is responsible for drafting HRT operations plans, told us he was not aware of any tactical reason not to enter and clear the residence. He said he did not feel the HRT personnel at the scene were too fatigued or emotionally involved. He also said he believed it was unlikely there were any explosives or booby traps in the residence based on the amount of movement in the house during the exchange of gunfire and the fact that Ojeda’s wife came out the front door when she surrendered. Alan also questioned the concern about explosives and told us that one of the reasons HRT wanted to clear the residence quickly was to prevent Ojeda from setting booby traps that might kill or injure agents entering the residence.

XXI.   Notification of the Puerto Rico Department of Justice

During the course of the operation, the FBI provided periodic updates to the United States Attorney’s Office (USAO) for Puerto Rico. Shortly after the perimeter shots were fired, the FBI notified the USAO that Ojeda had been shot. Between approximately 6:45 p.m., and 7:15 p.m., the Criminal Chief for the USAO alerted Roberto J. Sánchez Ramos, the Attorney General for the Commonwealth of Puerto Rico, and Pedro G. Goyco Amador, the Chief Prosecuting Attorney for the Commonwealth, of the shooting and requested that local prosecutors be sent to the scene. Sánchez told the OIG that this was the first notification that the Puerto Rico Department of Justice received from the FBI regarding an operation to apprehend Ojeda.

Sánchez and Goyco both told the OIG that the request for local prosecutors was made pursuant to a requirement under Puerto Rican law that they be present before any bodies could be removed from the scene. Sánchez and Goyco said that they inferred from the USAO’s request that Ojeda was seriously injured or dead.

According to a log maintained in the San Juan command post, local prosecutors who worked for Sánchez and Goyco arrived at the scene at 8:36 p.m. Goyco told the OIG that when the prosecutors arrived, the FBI did not permit them to approach the house, and at some point the FBI informed them that there would be no entry that evening. Goyco called the USAO and was told that the prosecutors could go home that night. However, Sánchez instructed the prosecutors to wait at the scene overnight.

XXII.   Approval of a Modified Fragmentary Order for a September 24 Daytime Clear

The HRT relief team departed from Dulles International Airport at 1:00 a.m. on September 24. HRT Commander Craig accompanied the team. In addition to HRT’s Blue Team and the remainder of the Gold Team, the deployment group included several bomb technicians and a bomb disposal robot from the FBI’s Laboratory Division, a negotiator team that Craig said was brought in an advisory capacity, and two agents from the Operations and Training Unit. The Squad Supervisors for the Blue and Gold Teams both told the OIG that before departing from Dulles they understood their teams’ mission was to replace the HRT agents at the scene and conduct a clear of Ojeda’s residence.

The deployment from Quantico arrived in Puerto Rico on September 24, 2005, at approximately 5:00 a.m. The newly arrived agents were told, among other things, that there was a possibility the residence held explosives or booby traps and that there had been no communication with Ojeda since the time it was believed he had been shot.

At approximately 6:45 a.m., Fraticelli provided a status report to Hulon, who had returned to FBI Headquarters. Fraticelli told Hulon the deployment from Quantico had arrived and was assessing the situation. Fraticelli also told him that a course of action was being developed and that Fraticelli would forward it to FBI Headquarters after he reviewed it. Craig, who by then was at the TOC in Aguadilla, informed the SIOC at approximately 7:02 a.m. that the plan would be completed within an hour.

The plan was drafted at the TOC by two relief agents from the Operations and Training Unit shortly after they arrived. The plan was written as a fragmentary order and modeled after the nighttime clear fragmentary order that had been prepared the previous evening. The new plan called for a two-phased daylight clear of the residence. The first phase involved the insertion of a POPR canine unit to determine the location or activity of the subject(s) in the residence. If the dog alerted on occupant presence or activity, HRT would try to make verbal contact; if the dog returned to his handler – indicating no subject presence or activity – the HRT entry team would conduct a clear of the residence. The order provided that the subject would be given medical attention as necessary once he was located and secured.

The proposed order was faxed to FBI Headquarters by 9:00 a.m. Hulon and Lewis reviewed the draft and recommended minor changes by telephone.68 Fraticelli reviewed and initialed the final version, and it was faxed to FBI Headquarters by 9:19 a.m. At 9:29 a.m., Hulon called Fraticelli and told him the fragmentary order was approved.

Three helicopters transported the relief HRT agents and Laboratory Division personnel to the scene, arriving at approximately 8:30 a.m. There, Blue Squad Supervisor Victor69 met with Red Squad Supervisor Doug and began replacing the HRT agents maintaining the perimeter with the new personnel from Quantico. Victor was advised at 9:33 a.m. that FBI Headquarters had approved the fragmentary order and that the operation could move forward.70

XXIII.   Execution of the Daytime Clear

Although the daytime clear was approved at 9:33 a.m., it was not conducted until three hours later. The primary reason for the delay was related to the first phase of the entry plan: inserting a dog into the residence to determine the location or activity of the subject(s).71 Victor said that San Juan FBI ASAC Leslie, who was the On-Scene Commander at the time, told him that a POPR dog could be brought to the residence within 30 minutes. This dog was never brought to the scene, however, because it was determined to be an explosives dog and not a “bite dog” that keys on live humans. Victor told us that the San Juan FBI SWAT contacted POPR and requested that the correct type of dog be brought to the scene. POPR said it would take about an hour.

The hour passed and the dog was still not at the scene. Victor said the San Juan FBI contacted POPR again regarding the dog’s status and was told it would be another hour before the dog arrived. Victor communicated this information to the TOC at 10:52 a.m. and recommended that the clear proceed without the dog. However, Hulon required the entry team to wait for the dog to conduct the clear.

The dog finally arrived at about 11:54 a.m., but stayed only briefly because the handler received instructions from POPR Superintendent Toledo not to participate in the operation. Toledo told the OIG that he denied the FBI permission to use POPR’s dog because he understood that the FBI feared there might be explosives in the residence and Toledo did not want to put POPR’s dog handler at risk. Victor reported the situation to the TOC at approximately 12:00 noon and again recommended that the clear be conducted without the dog. Fraticelli concurred and called Hulon for approval, which he gave at approximately 12:22 p.m.

Once Hulon approved the clear, Victor’s 7-man entry team walked up the road adjacent to the Red side of the residence. At approximately 12:34 p.m., three diversionary flash bangs were thrown as the team climbed over a retaining wall, entered the residence through the breached wooden gate, and then moved through the kitchen door into the kitchen. The agents discovered Ojeda’s body prone on the floor with a small pool of coagulated blood and a loaded and cocked Browning Hi-Power 9-mm handgun on the floor nearby. The body was located near the front door. Ojeda was dressed in a green camouflaged cap; a green, sleeveless vest; green camouflaged, long-sleeved overalls; and black combat boots.72 An FBI emergency medical technician was unable to get a pulse from the body and observed that rigor mortis had set in. After searching the house for any additional occupants, the entry team reported at 12:37 p.m. that the residence was secure and there appeared to be a single dead subject.

Victor told us that the entry team did not immediately turn Ojeda’s body over because Victor was concerned a grenade could be under Ojeda’s torso or in his left hand, which was under his body and not visible. Two additional items were identified during the clear as potential explosive threats: a case with some wire protruding from it and a large rucksack in the bedroom. Before the bomb technicians were called in to resolve these threats, a preliminary survey of the residence was conducted by the San Juan FBI Evidence Response Team Coordinator, a San Juan FBI Task Force agent, a San Juan FBI photographer, a medical examiner from the Puerto Rico Institute of Forensic Sciences, and a local prosecutor. According to the FBI, Dr. Rechani, Executive Director of the Institute, and Chief Prosecutor Goyco were also present during this walk-through. The survey was completed by 2:00 p.m.

An HRT bomb technician participated in the explosives sweep of the residence. He told us that to deal with the possibility that Ojeda might have an explosive device under him or in his hand, a winch was attached to Ojeda’s vest and the body was pulled out over the lip of the exterior door step to the front door. As the torso passed over the lip, Ojeda’s hand fell free; no explosive device was found. The bomb technician recalled observing some blood over the lip of the exterior door step before the body was moved, but told us that it was not a significant amount. This observation was consistent with photographs of the doorway taken before and after HRT moved Ojeda’s body. Figure 10 is a photograph of the doorstep before Ojeda’s body was moved. Figure 11 is a photograph taken after the body was moved. The increased amount of blood visible in Figure 11 resulted from pulling Ojeda’s body over the exterior door step on September 24. The agents at the scene told the OIG that they did not notice a blood stain on the doorstep prior to the entry at 12:34 p.m.

When it was clear the body did not present a risk, the bomb technicians turned their attention to the other two items identified as possible threats. The case with the protruding wires was removed and opened using the winch. It contained a trumpet.73 The large rucksack found in the bedroom was inspected visually, and no explosive hazards were observed.

Ojeda’s body was first moved at approximately 2:00 p.m. and the bomb technicians completed their work at approximately 2:44 p.m. Victor told us that the San Juan medical examiner then reentered the residence and pronounced Ojeda dead. The local prosecutors were again permitted into the residence at this point. The scene was subsequently turned over to investigators from the Puerto Rico Institute of Forensic Sciences for processing. These investigators removed Ojeda’s body from the residence at approximately 5:00 p.m. The San Juan FBI Evidence Response Team remained at the scene to provide the Institute investigators technical assistance and then search the house pursuant to the federal search warrant obtained on September 22. The search was concluded at 9:30 p.m. According to the Evidence Recovery Log, the FBI seized over 100 items from the residence, including a substantial amount of computer equipment, books, and other documents.

Doorway Bloodstain Before the Body was Moved

Figure 10 (Photo of Doorway Bloodstain Before the Body was Moved)

Doorway Bloodstain After the Body was Moved

Figure 11 (Photo of Doorway Bloodstain After the Body was Moved)

  1. “Eric,” “Gary,” “Bruce,” and “Dan” are pseudonyms. “Peter” and “Paul” were previously identified as pseudonyms.

  2. The outstanding warrant for Ojeda’s arrest was attached to the search warrant application. The arrest warrant was issued on September 25, 1990, by the U.S. District Court for the District of Connecticut for Ojeda’s failure to appear at trial for the Wells Fargo robbery.

  3. Title 18, United States Code, Sections 3148, 2332(f), 2383, 2384, 2385, 2339, 2339(a), and 1071.

  4. In fact, the window on the Green side was made of block glass and the entry on the White/Red corner was a gated doorway. See Figure 6.

  5. A Halligan tool is multipurpose tool, consisting of a claw, a blade, and a pick, which can be used for quickly breaking through barriers, such as locked doors.

  6. A “clear” is a rapid, deliberate action to enter a particular structure, such as a residence, locate anyone inside, and secure the area.

  7. “Kevin” and “Andy” are pseudonyms.

  8. A fragmentary, or FRAG, order is an abbreviated form of an operation order, usually issued on a day-to-day basis, which eliminates the need to restate information contained in the CONOP. Fragmentary orders are issued to change or modify a CONOP or to execute a particular course of action.

  9. “Jason” is a pseudonym.

  10. “Ray” is a pseudonym.

  11. According to Steve, use of the fully automatic mode by HRT agents is normally a matter of agent discretion, subject to the DOJ Deadly Force Policy and considerations of “fire discipline.” Steve stated that HRT agents normally do not use the automatic mode because it is easier to maintain fire discipline in semi-automatic mode. No specific instructions were given to the HRT agents regarding the use of fully automatic mode in the Ojeda operation. Each agent who fired his weapon during the incident told us that he only fired in semi-automatic mode.

    We note that MIOG, Part 2, Section 12-3.1(3), restricts the operational use of fully automatic fire to HRT and SWAT personnel. The same provision states that qualified Special Agents may only use a weapon capable of automatic fire if it is equipped with a fire selector lock to prevent fully automatic fire, which may only be removed by authority of the SAC or his designee. The FBI does not interpret the fire selector lock requirement to apply to HRT or SWAT agents. The HRT M4 carbines used in the Ojeda operation were not equipped with such locks.

  12. “Dale” is a pseudonym.

  13. “Todd” and “Robert” are pseudonyms.

  14. “Ron” is a pseudonym.

  15. The site where the helicopters dropped the assault teams is not depicted on Figure 3. It is located beyond the right (south) edge of the photograph.

  16. “Bill” is a pseudonym.

  17. Two agents stated that one shot hit the windshield of the Durango as it approached the house. However, the San Juan FBI told the OIG that it found no evidence that the Durango had been struck with any shots. The left rear window of the Durango was broken during the operation, which agents from the San Juan FBI stated was likely the result of being struck by equipment carried by one of the HRT agents on the running board. This window would not have been exposed to the house as the Durango approached. It is possible that the shattering of glass gave some of the agents the misimpression that the vehicle had been struck by a gunshot.

  18. “Tom,” “Alan,” “George” and “Ken” are pseudonyms.

  19. “Doug,” “Scott,” “Don,” “Frank,” and “Brian” are pseudonyms.

  20. The door Don described was the doorway from the kitchen into the narrow hallway. (See Figure 7.)

  21. George told the OIG that he did not go on the balcony porch but rather stayed below it and moved along the front edge of the porch floor. George said that he moved toward Frank when he heard that Frank was hit, which could have put him between Brian and the kitchen window when Brian saw the gun being goose-necked.

  22. Brian told the OIG that he fired a total of 8-10 rounds at this point. However, as discussed in Chapter Four, there were only four shells found at the scene that could be matched to Brian’s weapon. Brian acknowledged, and the forensic evidence indicates, that three of Brian’s shots (including the later shot that wounded Ojeda) were fired later in the day from a different position. It therefore appears likely that Brian overestimated the number of rounds he fired from his position on the slope below the porch during the exchange of gunfire.

  23. Photographs of the holes through the door and corresponding ceiling impacts are provided in Chapter Five. As explained in Chapter Five, the OIG did not learn about the origin of these shots until after we interviewed the HRT agents. When we attempted to obtain information from the HRT agents regarding this issue, they told the OIG, through their attorney, that they declined to provide voluntary follow-up interviews. We therefore have been unable to identify the agent who fired these rounds.

  24. As mentioned above, Ron was the only San Juan FBI agent who participated in the initial assault. He was also the only agent present during the assault who was fluent in Spanish. After the initial exchange of gunfire subsided, additional Spanish-speaking San Juan FBI agents arrived at the perimeter, including Rodger, a negotiator.

  25. “Rodger” is a pseudonym.

  26. The following day, September 24, 2005, Fraticelli spoke with Humberto Garcia, the U.S. Attorney for the District of Puerto Rico, and they agreed that it would not be possible to convict Rosado for harboring a fugitive or assaulting a federal officer. She was therefore released that day. Rosado’s hands were never tested for gunshot residue during her arrest or detention.

  27. Dávila is a journalist for El Diario La Prensa, a Spanish language newspaper in New York City that covers events in Puerto Rico.

  28. “Larry” is a pseudonym. “Rodger” was previously identified as a pseudonym.

  29. The DTOU oversees FBI domestic terrorism operations (such as the Macheteros investigation) and had supported the San Juan FBI’s decision to use HRT to locate and apprehend Ojeda. DTOU had been briefed by the San Juan FBI case agent regarding various critical events as the Ojeda arrest operation unfolded.

  30. FUPI is the Spanish acronym for the Pro-Independence University Federation (Federación Universitaria Pro-Independencia). FUPI is an organization of students primarily studying at the University of Puerto Rico, dedicated to the goal of an independent Puerto Rico.

  31. “Adam” is a pseudonym.

  32. Hulon told us that he recalled hearing that the shots were in response to gunfire from inside the residence, although he said the initial reporting was not clear on this point. This understanding is reflected in contemporaneous notes taken by Bald. However, we found no evidence that Brian’s shots were fired in response to gunfire from the residence and believe what Hulon heard may have been inaccurate reporting from the TOC.

  33. In fact, the SAC was in charge at this time. As we discuss in Chapter 7, Craig’s statement to Hulon figured prominently in FBI Headquarters’ decision to require the SAC to obtain its approval for any plan to enter the residence.

  34. Bald told us that Hulon provided this information to him, and his contemporaneous notes support this recollection. However, Hulon said that while he recalled talking with Bald about making sure HRT did not enter the residence prematurely, he did not recall any reporting about an agent looking through a window and therefore did not believe he could have passed that information to Bald. Fraticelli, who would have been Hulon’s primary source of information about events at the scene, also told us that he did not recall any such reporting. We did not find any evidence during our investigation that an agent looked though a window around the time Bald recalled receiving the information; therefore, either the reporting or Bald’s understanding of the reporting was erroneous.

  35. We interviewed Craig before we interviewed Bald and Hulon. We therefore could not ask Craig in that interview about Bald’s interpretation of his statement to Hulon that HRT was in charge of the scene unless Hulon said otherwise. When we asked to conduct a follow-up interview with Craig, his counsel declined our request for the follow-up interview.

  36. By 8:45 p.m., the HRT agents at the scene were told that FBI Headquarters had to approve any entry plan and that the TOC was drafting one.

  37. We asked Bald whether there is a requirement that entry plans be provided in writing and he said there is not. He told us that he believes such plans should be in writing if time permits because doing so decreases the chance for misunderstanding or confusion. However, Bald said there would have been nothing wrong with proposing the entry plan orally in this case.

  38. The SIOC Log indicates that Hulon and Lewis departed FBI Headquarters at 11:15 p.m. Bald had left FBI Headquarters earlier that evening.

  39. However, HRT Deputy Commander Steve told us that he never heard that emotions or fatigue were among the reasons given for not entering on September 23. He said that he was told FBI Headquarters simply did not think a nighttime entry was worth the risk.

  40. The primary changes concerned the language used to describe Ojeda’s condition. For example, the sentence fragment, “close observation into the residence for any indications of life inside,” was changed to, “close observation into the residence for any indications of subject movement or activity.” Similarly, the sentence “[t]he dog will be sent into the residence to alert to any conscious person,” was changed to, “[t]he dog will be sent into the residence in an effort to determine the location or activity of any subject(s) currently in the residence.”

  41. “Victor” is a pseudonym.

  42. The substantial crowd that formed near the outer security perimeter during the previous night did not reappear on September 24.

  43. Victor told us there was also some early consideration given to using the bomb disposal robot brought by the Laboratory Division. The idea was quickly rejected because the steep access to the house would have made it difficult to move the robot into position without exposing agents to possible gunfire from the residence.

  44. A label inside the vest worn by Ojeda bore the inscription, “important body armor fragmentation protective: upper torso (w/collar, m-1955).” The Forensics Institute referred to this item both as a “body armor vest” and “bullet-proof vest.” The FBI referred to it as a “flak jacket” vest in a report describing what Ojeda was wearing when he was found.

  45. At least one Puerto Rico newspaper reported a rumor that the FBI took the trumpet from the scene as a “trophy.” This is not accurate. Investigators from the Puerto Rico Institute of Forensic Sciences took custody of the trumpet when they processed the scene. The Director of the Institute told us that the item will be returned to Ojeda’s family when it is no longer needed for the investigation.

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