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 Nine:
Miscellaneous Issues

I.   The FBI’s Communications with Commonwealth of Puerto Rico Government Officials Before and During
      the Ojeda Arrest Operation

The FBI was criticized in the aftermath of the Ojeda arrest operation for failing to notify Commonwealth of Puerto Rico government officials in advance of the operation in Hormigueros and for failing to provide timely and accurate information concerning the situation after the emergency daylight assault failed. In this Chapter, we address separately the FBI’s communications with Puerto Rico government officials before the operation commenced and after the assault failed. We did not conclude that the approach the FBI took regarding communications with Puerto Rican officials was improper, and we do not have any reason to believe that a different approach would have significantly affected the conduct or the public’s criticism of the operation. However, we found that the explanations that the FBI provided local officials for delaying the entry failed to include details that might have given the officials a greater appreciation of the circumstances driving the entry decision.

  1. FBI's Communications with the Commonwealth of Puerto Rico before the Arrest Operation
  2. The FBI's Manual of Investigative Operations and Guidelines (MIOG) provides the following guidance for arrest operations:

    Special concern should be given to the utilization, or at least the alerting, of local authorities in instances where it may logically be anticipated that resistance could be forthcoming from the subject(s) or member of the community. Although the time of notification to local authorities concerning arrests made within their jurisdictions by FBI Agents is being left to the discretion of the SACs, concern must be given to the sensitivity of our associates in local law enforcement to know what is transpiring in their jurisdictions and we must respect their responsibility to the people in their communities.

    MIOG, Part 2, Section 11-2.1.2 (Authority to Serve Arrest Warrants).

    This guidance was applicable to the operation in Puerto Rico, where the FBI anticipated Ojeda would violently resist efforts to apprehend him. However, SAC Fraticelli did not notify POPR Superintendent Toledo of the surveillance and arrest operation or even of the San Juan FBI's belief that it had located Ojeda's residence in Hormigueros. Fraticelli told us that he wanted to keep the operation secret and limit the possibility of leaks that might compromise the operation. POPR was only generally aware that the FBI had been attempting to locate Ojeda, and had provided some assistance to the FBI in this effort. Fraticelli told us that he had informed Toledo in June 2005 that the FBI was close to locating Ojeda and that POPR assistance would be needed for perimeter security during any arrest operation.

    Restricting who is aware of or involved in an operation where success depends on the element of surprise is a legitimate precaution, and we did not find Fraticelli's exercise of the discretion the MIOG discusses improper in this case. In addition, we reviewed FBI documents from September 2005 indicating that information about the Macheteros investigation was supplied by someone from the POPR to members of the Macheteros. One of the documents we reviewed stated, “[i]t has long been known that the Macheteros have friends within the Puerto Rican Police Department.”107

    However, the San Juan FBI’s concern about POPR's ability to maintain secrecy is significant because of its potential impact on operations. Local law enforcement is a valuable asset to FBI field offices because it expands the resources available for an operation and can provide important intelligence regarding the environment where an operation will be conducted. In this case, for example, POPR might have been able to provide insight regarding the neighborhood where Ojeda's residence was located, such as the resident population, the construction of the homes, and access to utilities. In addition, earlier POPR involvement and its availability to provide perimeter security might have made a surround and call out a more viable option to the San Juan FBI. While we have no basis to conclude that advance notice of the operation to POPR, or using POPR officers earlier in the operation, would have caused the FBI to make different decisions or changed the result, Fraticelli's decision not to notify POPR had significant consequences.

  3. The FBI's Communications with the Commonwealth of Puerto Rico after the Emergency Assault Failed
  4. In letters to the U.S. Department of Justice and the FBI, top Puerto Rico officials criticized the FBI for not providing sufficient information about the status of the operation immediately after the assault failed and for providing incomplete and unsatisfying information when it did discuss the matter. For example, Governor Aníbal Acevedo Vilá explained this frustration to Attorney General Alberto Gonzales in a September 26, 2005, letter, which stated:

    While the FBI undertook their activities at the site, the Secretary of Justice, the Superintendent of Police, and my staff were given contradictory and incomplete information by both the representatives of the FBI and the U.S. Attorney’s Office.

    At about 6:00 p.m. on Friday evening [September 23], the Secretary of Justice was notified by the U.S. Attorney’s Office in Puerto Rico that Mr. Ojeda Ríos was probably either dead or injured by gunfire, and was asked to send local prosecutors to the perimeter of the scene. Later that night, however, federal agents at the scene stated that they would not enter, nor allow anyone to enter, Mr. Ojeda Ríos’s residence until the next day. At that point, we were informed that there was not the necessary equipment to secure the scene in light of a perceived risk that explosive traps might have been set. In the end, it was not until approximately 2:00 p.m. on Saturday afternoon that the FBI and the U.S. Attorney’s Office notified us that Mr. Ojeda Ríos has been killed in the gunfight and allowed our personnel to enter Mr. Ojeda’s scene.

    The reason that I have been given for the delay in allowing the local authorities access to the scene is that the FBI did not have sufficient personnel, nor the necessary technical equipment in order to complete the operation and enter Mr. Ojeda Ríos’s residence. However had basic precautions been taken, essential personnel and technical assistance would have been present at the site well before Friday afternoon, and the mentioned delay in entry would have been unnecessary. For this reason, I am not satisfied with the explanations for the delay that have been shared with me.

    Furthermore, I would like to share with you that the preliminary results of our ongoing investigation of this matter show that Mr. Ojeda Ríos’s life would have probably been spared had he received immediate medical attention. Consequently, the issue regarding the timing of the entry to his house is of paramount importance.

    While we believe our report provides a detailed review of the substantive issues Governor Acevedo highlights in his letter, we did not as part of our investigation reconstruct the exact timing or content of the communications between FBI and Puerto Rico officials, or assess how the historical relationship between the two might have affected those communications. However, we believe it important to make several points in response to Governor Acevedo’s concerns.

    In our view, Governor Acevedo fairly questioned the FBI’s preparedness for the operation based on the explanations he was apparently provided for the delayed entry. A lack of personnel and technical equipment would not have been compelling reasons for delaying entry when balanced against Ojeda’s need for medical attention. However, as we found in Chapter Seven of this report, the delay was attributable to good faith concerns for agent safety, not a lack of sufficient personnel or technical equipment. Specifically, the FBI believed that there might be a second shooter in the residence and that Ojeda might still be a threat. While there were also concerns about agent fatigue and the presence of explosives in this house, we did not find these indicated a lack of preparedness.108 In fact, the commanders at the scene and the officials at FBI Headquarters believed HRT was capable of entering the house on September 23, but decided it safer to wait until the next day when fresh HRT agents could be used and any explosives would be detected more easily.

    In retrospect, the FBI could have provided Puerto Rico officials a better, more complete explanation for the delayed entry. SAC Fraticelli talked to POPR Superintendent Toledo several times during the night of September 23, and also provided a summary of the operation to Governor Acevedo’s Chief of Staff. The FBI also issued two press releases on September 24, and Fraticelli held a news conference that afternoon. Therefore, the FBI had several opportunities to adequately explain its safety concerns. Instead, by highlighting things such as a need for police dogs and specialized equipment – neither of which were actually used in the entry – the FBI exacerbated criticism that, in our view, was based on its lack of adequate disclosure regarding the reasons the entry was delayed.

II.   Whether the FBI Bypassed Prior Opportunities to Apprehend Ojeda Safely

The OIG investigated rumors that were reported in the press that the FBI had sufficient information regarding Ojeda’s whereabouts and habits over a period of years to permit it to establish surveillance at a public location and safely arrest Ojeda away from his home. For example, a report published in the New York Daily News on October 6, 2005, stated:

A former naval intelligence officer says he knows for a fact that Puerto Rican nationalist fugitive Filiberto Ojeda Rios didn’t have to die in a shootout with the FBI.

He says he knows this because he told FBI agents a year ago where they could find Ojeda – even telling them where he liked to eat.

“What they did was an injustice,” the former Navy officer told me last week. “No matter what Ojeda did, he was still a human being…. They could easily have taken him alive.”

The informant, who asked not to be identified, has given his account to the Justice Department’s Inspector General’s Office, which opened an independent review of the shooting last week.

Similarly, while questioning FBI Director Mueller at a House Appropriations Committee hearing on March 28, 2006, Representative Jose Serrano stated:

I took a call in my office from a very distraught person who said, “I’m a former Marine. I am pro-statehood for Puerto Rico. You can’t get any more American than that,” he told me. “And I’m very distraught because I’ve been an FBI informant for the last couple of years, and I told the FBI where Ojeda Ríos was, at every step of the way for the last couple of years. I told them when he was in church. I told them when he was at the supermarket. I told them when he went for a jog. I told them, and I feel somehow responsible that he was killed because he could have been gotten somewhere else, and yet they chose to do it this way.”

The OIG reviewed the FBI’s investigative files and interviewed members of the San Juan FBI Domestic Terrorism Squad and Special Operation Group responsible for locating Ojeda. We found no support for the statements attributed to the “former naval intelligence officer” described in the Daily News article or the “former Marine” who provided information to Representative Serrano. Moreover, the statement in the Daily News report that the purported informant had given an account of these matters to the OIG was also incorrect. No such person has ever approached or been interviewed by the OIG.

However, we found that the FBI’s investigative files contain records of many leads and tips collected over the years relating to Ojeda’s whereabouts at various locations in Puerto Rico. In September 2005, after the San Juan FBI identified the house in Hormigueros as possibly being Ojeda’s residence, the San Juan FBI conducted an internal case file review to determine whether any prior investigative efforts had linked Ojeda to Hormigueros. This review revealed that information had previously been developed that potentially linked Ojeda to Hormigueros and to a property known as “Finca Viram” or “Finca Byran.” There was also a tip from several years earlier that Ojeda had been seen at a particular restaurant in the Hormigueros area.

On the basis of our review of the file, we concluded that these investigative leads did not ultimately lead to any documented sighting of Ojeda. In retrospect, it appears that these leads could have led the FBI to Ojeda sooner. It was beyond the scope of our review, however, to assess the quality of the FBI’s earlier investigation of the leads regarding Ojeda and Hormigueros. For the purpose of this report, we found that the quality and detail of these leads also did not resemble the information attributed to the anonymous sources who spoke to the New York Daily News or to Representative Serrano after the Ojeda operation took place. In particular, we found no basis for the reports that a former marine or naval intelligence officer was providing the FBI with information regarding Ojeda’s daily whereabouts “every step of the way.”

We also found that, in contrast to the allegation that the FBI had known about his location and habits for a year or more, the FBI San Juan expended intensive effort and significant commitment of resources to finding Ojeda for more than a year. Put simply, if the FBI already knew where Ojeda was living, worshipping, eating, or jogging, the San Juan FBI would not have needed to expand the scope of its effort to locate Ojeda, as it did, from less than two full-time agents to an entire Domestic Terrorism Squad supported by the entire Special Operations Group. In fact, we found that the San Juan FBI mounted an intensive and expensive effort to locate Ojeda, which was inconsistent with the claims that the FBI was told repeatedly where Ojeda could be located but ignored that information.

III.   The Landing Zone Error

During the emergency arrest operation on September 23, the Tactical Helicopter Unit (THU) helicopters were unable to locate the intended landing zone in the banana field adjacent to Site 1. Instead, after the helicopter pilots circled near the residence, the agents were rope-dropped into a different landing zone in a field to the south of the target. They encountered a surprised San Juan FBI agent who was positioned at a “choke point” near their landing zone. The noise of the helicopters likely led to Ojeda being alerted to the presence of the assault teams and gave him more time to prepare for the assault. The San Juan FBI agent then drove the assault team to the residence, where they encountered gunfire from Ojeda. In this Section, the OIG assesses the causes and consequences of the failure of the THU pilots to locate the correct landing zone.

  1. Causes of the Error
  2. The banana field landing zone presented a challenging target for the THU pilots to locate in order to deliver the HRT agents to Site 1 to conduct the emergency arrest operation. The intended landing zone was a small oblong field surrounded by extremely steep terrain and a thick, high canopy of trees. These conditions made it difficult for the pilots to see the landing zone from a distance.

    The OIG found that, despite these difficult conditions, the pilots’ failure to locate the correct landing zone was an error that could have been avoided with better contingency planning and communications.

    The helicopter pilots told the OIG that to locate the banana field they were relying on an aerial photograph (Figure 3) and on GPS coordinates for Site 1 that were provided to them by the San Juan FBI. Three pilots told the OIG that they had been told that the photograph had been taken from the south of Site 1, facing north, but that they later discovered that the photograph had in fact been taken from the west, facing east. They stated that this misunderstanding prevented them from orienting themselves with visual cues that could have enabled them to find Site 1 and the nearby banana field.

    The pilots were uncertain who provided the incorrect information regarding the orientation of the photograph, although two of them thought the source of the information may have been the San Juan FBI Aviation Coordinator. The Aviation Coordinator told the OIG, however, that he did not recall seeing the aerial photograph (Figure 3) prior to his interview with the OIG, and that he did not provide information regarding the orientation of this photograph to the helicopter pilots. One of the pilots told the OIG that he heard that the orientation information had been provided by the sniper-observers, but he had no firsthand information. The OIG was ultimately unable to determine the source of the incorrect orientation.

    The OIG concluded, however, that whatever the source of the inaccurate information regarding the orientation of the aerial photograph, the error could have been caught by comparing the aerial photograph with any of several street maps and a satellite image that were already being used to brief the HRT agents in preparation for the operation. These maps clearly showed that Camino Fondo del Saco runs in a northwest direction and that Camino Mon Segarra (the small road on which Site 1 is located) runs to the southeast from Fondo del Saco. A comparison of the satellite image and maps to Figure 3, the aerial photograph (on which Camino Fondo del Saco and Mon Segarra are labeled), plainly reveals that the aerial photograph was not taken from the south looking north but rather from the west or northwest, looking east or southeast. If the pilots had attempted to confirm their information regarding the orientation of the aerial photograph with available maps or by questioning San Juan FBI agents familiar with the area, they would have realized that their understanding of the orientation of the photograph was wrong.109

    Despite these omissions, it still would have been possible for the helicopters to drop the HRT agents in the correct landing zone if the sniper-observers had been able to communicate with the helicopters as they approached Site 1. Paul, the sniper-observer primarily 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 working and he did not have a longer VHF antenna. He stated that he might have brought his VHF antenna with him if the original plan had called for inserting the arresting agents by helicopter. Ray, the Unit Chief for the THU and the lead pilot on the Bell 412 helicopter, told the OIG that as he approached what he thought were the GPS coordinates for the Ojeda residence he asked for assistance from the sniper-observers by radio but did not hear anything. Ray stated that the communications systems on the helicopters have since been upgraded to prevent a recurrence of the communications failure that occurred in this case.

    The THU helicopters were inadequately prepared to find the banana field landing zone because the FBI did not originally anticipate that the helicopters would be used to transport arresting agents to the scene for an emergency assault. Ray stated that the planned function of the helicopters in the operation was to provide medical evacuation services in case of an injury, to be prepared to evacuate Ojeda quickly after he was arrested, and to assist in command and control by relaying information or transporting the commander if needed. This plan did not contemplate the helicopters attempting to approach the landing zone in a manner intended to preserve the element of surprise. In performing any of the originally planned functions, the helicopters could have relied on overt visual signals from the ground, such as a smoke bomb or signals from agents, without concern regarding whether the signal would alert the subject to law enforcement activity.

    When the sniper-observers reported they were compromised, the decision was made to use the helicopters to transport the arrest team. At that point it was too late to take any significant additional steps to assure that the helicopters would be able to find the banana field landing zone accurately and with minimum noise.

  3. Consequences of the Failure to Locate the Landing Zone
  4. Fraticelli told the OIG that one of the reasons he was persuaded to approve the emergency assault was the assurance he received from Steve that the assault team could execute a rope drop from the helicopters and enter the residence very quickly. Fraticelli said that Steve told him the helicopters would approach the landing zone at a low altitude so that Ojeda would not hear or see them until very shortly before the arrest team reached the residence.

    Yet, as discussed above, the helicopters were not adequately prepared to locate the small banana field landing zone. However, we concluded that the helicopters’ failure to make the rope drop in the correct location likely did not have a major impact on the outcome of the operation. The banana field was located immediately adjacent to the front yard of Site 1 residence but down a steep slope. Even if the helicopters had found the banana field they would have made a significant noise and would have been visible from Ojeda’s front porch or windows as they executed the rope drop. The two helicopters could not have executed the rope drop in this small area simultaneously; they would have had to take turns and the agents from the first helicopter would have had to wait for the second rope drop to be completed in order to assemble for the assault. The agents would then have had to scale a steep hill to reach the front yard of the residence. Under these circumstances, Ojeda would have had ample time to detect the presence of the helicopters and to arm himself in preparation for a confrontation.

    Indeed, the central premise of the emergency assault was that the operation had been compromised and that Ojeda was likely to be tipped off by sympathizers. The helicopters did not arrive at the scene until 4:28 p.m., nearly two hours after the sniper-observers reported the compromise. By that time, San Juan FBI agents had already established a visible presence at “choke points” near the residence, another fact that could have been relayed to Ojeda by sympathizers. When Ojeda was found, he was wearing a “flak jacket” vest, combat boots, camouflage pants, and a holster. Ojeda was likely prepared for the assault substantially in advance of 4:28 p.m., and the relatively short delay caused by the helicopters dropping the agents in the wrong landing zone was not a major factor affecting the outcome of the assault.

    However, in a future case, similar errors could significantly harm an FBI operation. We believe that pilots should make a standard practice of checking the orientation of any aerial photographs on which they will depend to find landing zones. In addition, we believe the Ojeda operation offers a useful case study of the utility of pilot reconnaissance operations and of the difficulty of implementing tactics that require rapid and error-free helicopter insertions in conjunction with an effort to maintain the element of surprise.

  1. The FBI’s concern regarding the POPR was evident 20 years earlier when, in 1985, it simultaneously executed arrest warrants for members of the Macheteros (including Ojeda) at multiple locations in connection with the 1983 Wells Fargo bank robbery in West Hartford, Connecticut. According to one account of the arrest operation,

    [T]he FBI consciously opened itself to charges of abuse of power when it failed to notify local authorities about the impending arrests. With closet nationalists behind so many Puerto Rican government desks, agents understandably argued that to tell the locals was to tell Los Macheteros.

    Ronald Fernandez, Los Macheteros – The Wells Fargo Robbery and the Violent Struggle for Puerto Rican Independence (Prentice Hall Press 1987).

  2. For example, some local officials pointed out that the FBI’s explanation that the agents were fatigued suggested a lack of adequate preparation for the September 23 assault. The FBI apparently did not explain to local officials that the assault was conducted on an emergency basis because of the reported compromise of the sniper-observers. As a result, and because of the double shift ordered for the Quick Reaction Force earlier that morning, the FBI agents were less rested than they would have been if the assault had been conducted the next night, as originally planned. With this context, the Puerto Rico officials might have appreciated that the “fatigue” factor was not a product of inadequate preparation but rather the result of the reported compromise.

  3. The OIG also found that there was a discrepancy between the GPS coordinates for the residence that appear in the Aviation Annex prepared by one of the pilots and the coordinates that appear in the PowerPoint presentation given on September 15 and the coordinates that appear in the CONOP that was signed on September 21. We have not been able to determine which set of coordinates was the most accurate. It appears that the discrepancy between the GPS coordinates corresponded to a distance of approximately 200 yards. In light of the heavy vegetation and hilly terrain, the discrepancy may have contributed to the pilots’ inability to locate the banana field.

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