For federal prisoners, a life sentence usually means just that: incarceration without a pauper’s prayer for parole. The chances for early release diminish with every passing month and failed appeal.
Short of a presidential pardon, Rolando “Roly” Fernandez seemed certain to live out his years behind bars, where he’s been since 1995, the year a New Orleans jury convicted him in a drug-trafficking conspiracy involving the Medellín cartel of Colombia and thousands of kilograms of cocaine.
But in an extraordinary ruling, U.S. District Judge Eldon Fallon, in New Orleans, has granted Fernandez a new trial nearly two decades after he was found guilty of using his custom auto body shop in Miami as a hub for interstate shipments of cocaine and cash.
Prosecutors at the time portrayed Fernandez as a top lieutenant in the Sensat drug syndicate, an organization that flooded New Orleans and other American cities with cocaine at the height of the crack epidemic.
Fallon, who presided over Fernandez’s trial in his first year as a federal judge, ruled recently that he would not have sentenced Fernandez to life in prison had he been tried separately from Luis Sensat, the alleged kingpin of the drug ring. Fallon cited “alarming” failures by Fernandez’s defense lawyer and even faulted himself for overlooking an important claim in Fernandez’s initial motion for a new trial, which he denied in 1998.
Despite Fernandez’s protestations of innocence, the odds against him had grown particularly dim. Prosecutors contended he was “procedurally barred” from even filing his most recent court challenge, and they’ve appealed Fallon’s ruling to the 5th U.S. Circuit Court of Appeals.
“It’s an incredible victory,” said Richard Diaz, the attorney who defended Fernandez at trial. “Post-conviction relief is very difficult because of the standards of the law.”
Though it was his own “ineffective assistance” that paved the way for a new trial, Diaz applauded Fallon for correcting an injustice, saying it made him “proud of the system.”
Diaz said prosecutors brought a weak case against Fernandez, who had no prior arrests and was so confident he’d be acquitted that he refused a midtrial plea offer that called for a seven-year sentence.
“This conviction has always bothered me,” Diaz added. “It’s always burned inside of me.”
Before his arrest, Fernandez had been widely known in South Florida and beyond as a successful Cuban-American entrepreneur whose fancy custom shops attracted celebrities like Gloria Estefan and Julio Iglesias. Dealing primarily in exotic car models, including some featured in the TV series “Miami Vice,” his business catered to clients like Andre Dawson, the Hall of Fame baseball player who finished his career with the Florida Marlins.
Federal agents, following the flow of cocaine from Miami to New Orleans for a decade, believed Fernandez served a sketchier clientele and lent his expertise to a more dubious enterprise: creating hidden compartments in vehicles that could hide massive amounts of cocaine and cash.
The authorities accused Sensat and Fernandez of constructing a network of couriers and midlevel distributors to insulate themselves from detection. Several of those dealers and drug runners were arrested in New Orleans and turned state’s evidence, testifying they delivered millions of dollars in cash to Fernandez in a customized motor home.
“The money is going to these guys here, with their Ralph Lauren shirts and freshly cleaned, pressed shirts, every day,” Assistant U.S. Attorney Michael Magner railed in his closing argument, referring to Sensat and Fernandez. “They didn’t foul their own nests,” he added. “They fouled ours.”
Perhaps the most stinging allegation Fernandez faced — beyond a claim that he served as the drug ring’s money launderer — was that he introduced Sensat to a Colombian drug supplier called Ramiro, a game-changing connection that supposedly allowed Sensat to expand his operations. Thousands of kilograms of cocaine were flown from Colombia to Mexico, prosecutors said, before being smuggled into the United States by boat or car for delivery to markets as diverse as New Orleans and Cincinnati.
Agents monitored Fernandez for years before his arrest. In early 1989, for instance, Fernandez delivered about $120,000 to an undercover agent posing as a money launderer, but he wasn’t arrested because the authorities couldn’t prove the cash came from drug trafficking.
‘Never used cocaine’
A couple of months later, a British customs agent who happened to be in Miami for training followed Fernandez into a restaurant and supposedly overheard him telling an attractive dinner partner, “I’ve just got to get this cocaine deal done, and then I’ll be in the clear.”
“It appeared to me that the gentleman was probably getting a bit of a hard time from the lady,” the agent, Robert John Snuggs, told the New Orleans jury years later. “It was only a few seconds, but I got the impression he was perhaps a bit under pressure from the lady.”
Testifying in his own defense, Fernandez denied wrongdoing and insisted he knew Sensat only as a customer and car fanatic. “Never used cocaine,” he said, “never done anything with cocaine in my entire life.”
The jury convicted Fernandez and Sensat of distributing cocaine and also found them guilty of an underlying conspiracy charge. Sensat also was convicted of running a continuing criminal enterprise and of interstate travel in aid of racketeering.
Under the federal guidelines in place in December 1995, Fallon sentenced both men to life in prison, saying the punishment was justified by their “extensive involvement in the drug distribution network, the extraordinary quantity of cocaine involved and the number of lives (they) adversely affected while attempting to seek illicit profit.”
Fernandez, who had never been arrested before the cocaine case, would almost certainly face a lesser sentence if he were convicted today, said Diaz, his former attorney.
Even if the 5th Circuit reverses Fallon, Fernandez’s current defense attorney, Robin Schulberg, has argued he would qualify for a lesser sentence in light of a vote this summer by the U.S. Sentencing Commission to retroactively reduce federal sentencing guidelines for convicted drug traffickers.
After two decades behind bars, Fernandez, 53, still claims he was wrongly convicted. “I’m going to claim innocence until the day I die,” he testified at an evidentiary hearing two years ago.
In 2008, Fernandez began writing letters to Fallon’s chambers, asking the judge to take a fresh look at his case and consider his lack of criminal history before the cocaine case. He quoted an unnamed private investigator as saying his case “cries out for justice.”
“If you were to ask me what the most difficult part of all of this is, I would have to tell you that it is being incarcerated for a crime that I didn’t commit and being away from my family and loved ones,” Fernandez wrote. “Please help me to return to my family, to my friends and to my community where I would be, as before, a productive citizen. In here, I feel that I am a total waste.”
A new affidavit
Fallon ordered the federal Public Defender’s Office in 2009 to review “what, if any, action is necessary concerning (Fernandez’s) conviction and sentence.”
His new attorneys traveled to a prison in South Carolina and obtained an affidavit from Sensat, the drug kingpin, that said he would have testified in 1995 that Fernandez wasn’t involved in cocaine trafficking. Because Fallon decided not to try the cases separately, Sensat couldn’t have offered that testimony for Fernandez without incriminating himself in the process, Fernandez’s attorney argued in a renewed motion for a new trial in 2012.
Fallon, in a 25-page ruling issued in June, faulted his own jurisprudence, saying he failed years ago to address the specific claim that Fernandez’s attorney hurt his case by not securing an affidavit then from Sensat, even after Fernandez told his lawyer that Sensat was willing to testify on his behalf.
“There is no question that such testimony would have been important to Fernandez’s case,” Fallon wrote. “Not only could it have left jurors with significant doubt regarding Fernandez’s guilt, but an affidavit to this effect also would have formed the basis for a severance of the trials.”
Schulberg, of Covington, said in an email that Fallon’s opinion was “well reasoned and legally sound,” adding that she expects it will be upheld on appeal.
It’s not clear when the 5th Circuit might rule. If it upholds Fallon’s ruling, prosecutors might well dismiss the charges against Fernandez rather than attempt to retry a drug conspiracy case dating back to 1984.
This month, Fallon denied Fernandez’s motion to be released on bail, even as he noted his “completely clean disciplinary record” behind bars. But the judge urged the government to relocate Fernandez to a holding facility closer to Miami, which he said “would be advantageous to society, to Fernandez’s family and to Fernandez if he is able to see his family on a more regular basis.”
“Such a move would truly benefit Fernandez’s ailing mother,” Fallon added.
Follow Jim Mustian on Twitter, @JimMustian.