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March 19, 2008 ­ Santa Fe Reporter (NM)

Inside Out -- Did Peter Fernandez' Punishment Fit His Crime?

By Dave Maass

Return to Drug War News: Don't Miss Archive

Original article with pictures & sidebars at: (

Peter Fernandez isn't thrilled with his new cellmate, but that's nothing new.

After he was arrested on March 12, 2002, in Albuquerque, he spent almost two weeks in a 9-by-12-foot holding cell in the Santa Fe County Jail with approximately 14 other detainees. Showers were in short supply.

Two weeks later, his rickety "Con Air" flight had a layover at the Federal Bureau of Prison's Oklahoma City Transfer Center. For five days he shared a cell with a 6-foot-5-inch white supremacist.

"That's a story called 'Misery,'" Fernandez says of his time in that cell. Misery was the word the "fucking psychopath" had tattooed on the back of his neck.

A few months and several Virginia city jails later, Fernandez was shipped to the La Tuna Federal Corrections Institute.

La Tuna is a historic "treaty prison," on the border of New Mexico and Texas, where New Mexican inmates are outnumbered more than three to one by Mexican nationals.

Fernandez was housed with a 26-year-old Mexican inmate with the words "Game" and "Over" tattooed on his eyelids and 14 years already served.

Fernandez was a 37-year-old businessman pegged by an Internal Revenue Service agent in a federal anti-drug task force as a money launderer in a New Mexico-Virginia drug ring. He was indicted along with more than 30 other people.

"A guy who's in on, say, tax evasion, just doesn't have a clue of how to deal with a guy who's got a rap sheet a mile long, who's been arrested 43 times," Fernandez says. "One of the big things is that you have to make sure you don't start taking orders. If you start taking orders, there may not be an end to it."

Approximately six weeks later, Game Over and another inmate found Fernandez in his bed in the middle of the night. After the fight, Fernandez was sent to disciplinary segregation with a black eye, cut lip and a quilt of defensive bruises on his arms. He spent 22 days in near isolation in "the hole."

To this day, Fernandez maintains his innocence. Guilty or innocent, he was charged with a non-violent crime and ultimately faced a perverse bird-in-the-hand choice: cut his losses with a short-sentence deal or go to trial. He pleaded guilty to two counts of conspiracy.

Cases like Fernandez' are what the American Civil Liberties Union Drug Law Reform Project was formed to study. The project's litigation director, Allen Hopper, says federal conspiracy charges are so broad in nature that individuals who have the barest incidental tie or even no connection at all to a drug operation can be sent up the river for decades. Next thing they know, they're a non-violent offender stuck in solitary confinement for months on end or, worse, caught in the middle of a prison-gang war.

For that reason, Hopper says Fernandez' case is a microcosm of the greater flawed drug war that has put more than 100,000 people behind bars. In fact, for 2009, the Federal Bureau of Prisons (BOP) requested $5.53 billion from Congress, explaining that the inmate population has grown by 700 percent in the last 25 years due to mandatory minimum sentencing and increased drug prosecutions.

Fernandez knows people are inclined to doubt his innocence, but one thing he says he can prove is that between loose conspiracy laws, a prosecution-weighted trial system and a prison system that operates with impunity, he never had a chance against the federal justice system.

"I read Kafka in college," the Stanford University-educated Fernandez says. "But I mean, man, I didn't think I was going to live it."

These days, Fernandez lives in south Santa Fe, electronically confined to a home with his partner Sabin Bailey and his 16-year-old daughter. It's the other prisoner on the premises that bothers him: Galileo, his daughter's cockatiel.

Fernandez can't stand to look at the cigarette-ash-colored bird as it plinks around its three-tiered wire cage. He's irritated by the obvious "jailbird" metaphor, but mostly what bothers him is just seeing an animal in a cage.

Fernandez is, after all, still restricted himself. According to Program Statement #1480.05, the BOP has to sign off on interviews with inmates in its custody. Fernandez has two weeks left. He knows that there's a possibility he could be sent back to prison just for talking.

He's decided it's worth the risk.

Fernandez wears glasses and speaks with a soft voice that drops even lower when he curses. With a bashful, but practiced, assertiveness Fernandez insists he's not telling his story to feed his ego.

Reluctantly, he poses in a squat among 10 boxes of records for SFR's photographer. He's managed to assemble a library of his case, despite room seizures and a half dozen transfers between detention facilities across the nation.

It began in March 2002, when a multi-agency anti-drug task force executed arrest warrants for more than 30 people in a New Mexico-Virginia drug trafficking operation. The Drug Enforcement Administration and the Eastern Virginia US Attorney's Office made a big show of the four-years-in-the-making "Operation Tidal Wave." They unsealed the indictments, granted detailed interviews and, according to one reporter who covered the case, provided the press with CD-ROMs of evidence. It was unusual for an open investigation, but it produced gritty front-page stories outlining how the alleged kingpin, Anthony Pacheco, used toy shipments to traffic marijuana and "family friendly" organizations to launder money.

After graduating from Stanford, Fernandez says he worked as a fee accountant on contract with the US Department of Housing and Urban Development. Eventually, he found a niche in helping mom-and-pop places switch over to limited liability corporations. In 1994, he says Pacheco hired him on contract to set up a general consulting company and they eventually set up an informal partnership. Fernandez rented office space from Pacheco and, from time to time, Pacheco brought him clients for a small cut.

Over the next six years, Fernandez says he developed a full roster of clients, ranging from tech companies to a burrito joint. Many clients later testified on his behalf during his sentencing. His contact with Pacheco, he says, was limited and the two eventually parted ways after Fernandez, in 2000, opened a sports bar in downtown Albuquerque. He maintains all his business ventures were legitimate and questions why, if he was purportedly a big-time money launderer, his computers weren't seized. To this day, Fernandez still has the two IBM Thinkpads he used during his time as a consultant for Pacheco and others.

He insists he had no idea Pacheco was involved with drugs. Either way, such knowledge can be irrelevant in conspiracy cases.

"Basically, the government has a very low threshold to meet," Hopper says. "Then, anybody they rope into that case is deemed responsible and can be held liable for the actions of every other member, even without any specific knowledge of what those other people were doing."

Former Appeals Court Judge Ben Anthony Chavez, now in private practice, was one of the first lawyers to take a shot at Fernandez' case. He made it as far as the arraignment. Then the prosecution successfully moved to transfer Fernandez to Virginia. Flying back and forth became too expensive to continue as the lead attorney, Chavez says. Plus, his experience was mainly on the state level; federal law was baffling.

"They just don't seem to afford to people the due process," Chavez says. "They don't allow discovery. It's just terrible."

Every day, for 10 minutes at a time, Fernandez called Bailey from a jail in Virginia to trade updates. With $50,000 from her mother's inheritance, Bailey interviewed criminal defense attorneys all over Virginia. They shook their heads and told her that she would need hundreds of thousands of dollars.

Time eventually ran out and Fernandez went to trial with a federal public defender, Larry Dash, a former military lawyer. One by one, the defendants all accepted plea deals in exchange for testimony. Finally, Pacheco also pleaded.

"It really boiled down to what these other individuals were going to say about [Fernandez]," Dash says. "I just thought there was no way we were going to win at trial."

Dash advised Fernandez to swallow his professed innocence and take the plea. The US Attorney's Office in Eastern Virginia did not return calls from SFR.

When mass plea deals are involved, innocent defendants are pretty much out of options, Hopper says. There's a "perverse incentive" for informants to lie and scapegoat the last man standing. What's more paradoxical, Hopper says, is that the defense can't see all the evidence against them before going to trial.

"In order to get to that point in the process, you've got to say, "No, Mr. Prosecutor, I'm not going to take the plea bargain, I'm going to roll the dice and take this to trial," Hopper says. "When people are looking at a 25-years-or-more sentence hanging over their heads, they'll just plea out and take a six-year deal."

Fernandez says he thought about the hard time he could serve -- his 10-year-old daughter might be in her 30s when he got out -- and took the deal. He was sentenced to six years for two counts of conspiracy to money launder and conspiracy to traffic drugs. He says nothing seemed worth risking 25 years in federal prison. La Tuna Federal Correctional Institution proved that hunch true.

Spectators watching Anthony High School football games can see La Tuna's bell tower from the stands. The main building is the last thing riders see when they whip around Wet 'N' Wild World's water slides. The entire historic, mission-style compound is, perhaps ironically, backdrop to the Texas Tourism Information Center.

From the window of Juan Chavez' firehouse-red Dodge Ram, the La Tuna main compound looks more like a Spanish governor's palace than a federal presidio. The property is lined by a waist-high fence and, beyond that, a row of apple tree skeletons and a sprawling pasture of dried grass. A native to the area, Chavez says the prison has been a part of the landscape so long that the locals never give it much thought.

Chavez taught daily classes in automobile maintenance at La Tuna for 8? years through a contract with El Paso Community College. Now he won't even turn into the parking lot, especially with a passenger with an uncapped camera.

"See my windshield right there," Chavez says, pointing at a ring of cracked glass in the corner. "They shot me right there, somebody from La Tuna."

The crack looks more like ricochet damage from a stray rock. But Chavez wears a baseball cap proudly advertising that he's a veteran of both the Vietnam War and Operation Iraqi Freedom. He knows when he's being shot at. He says the guards in the prison towers watch the parking lot.

La Tuna's mailing address is in Anthony, Texas, but the facility itself crosses into New Mexico. According to El Paso Community College's Borderlands Local History Project, La Tuna opened in 1932 as a prison farm for 255 inmates. Today, the prison houses more than 1,096 inmates and agriculture training has been replaced by manufacturing.

While BOP is officially a subdivision of the US Department of Justice, the ACLU sees the BOP as a large part of the "prison industrial complex," which grows and grows with each passing year. The BOP currently has 200,663 inmates in custody, the equivalent of 13 percent of the nation's incarcerated population, and estimates a 5,000-inmate increase every year in the foreseeable future. Almost 54 percent of BOP's inmates are serving time for drug charges, usually between five and 15 years.

"It has become a self-perpetuating monster," Hopper says. "A system has grown up that feeds on the over-incarceration of our population and it becomes a difficult thing to change because of the number of people throughout our society who are benefiting in one way or another from it."

Chavez admits he was tempted by the money one can make as a federal guard. "It pays very well and most guards, when they first start out, make about $50,000 a year," Chavez says. "When I first started, I thought maybe I should've gotten out of the Army early and gone into the federal prisons. But after I saw what was going on in there, shit, man -- the guards are more criminal than the guys in there."

Chavez met Fernandez when the bookish New Mexican signed up for his car class.

"You know he had no business there, but you know, you get tired of not doing nothing," Chavez says. "He did extremely well and if he ever takes his car to get fixed and somebody tries to bullshit him, he's going to go, "Fuck you, man. I know better.'"

It was his stand-up attitude that earned Chavez' respect and loyalty as Fernandez became a thorn in the BOP's side, filing records and complaints. "They wanted to get after Peter bad," Chavez says.

The Bureau of Prisons' media guidelines state that journalists who wish to tour facilities or interview staff members are expected to give BOP a reasonable chance to address all allegations. La Tuna's public information officer, Hilario Terrazas, failed to respond to SFR's calls for three weeks. SFR provided Terrazas with a list of basic allegations -- ranging from rotten food, rats, filth, excessive force and substandard health care -- brought by Fernandez, Chavez and concerned family members of other inmates. On the eve of this story's deadline, Terrazas finally responded, denying SFR both a tour and an interview with the warden.

As a result, SFR was unable to confirm the details of Chavez' final weeks with the BOP two years earlier.

"They wanted me out of there because I exposed their little ring of dirty guards in there," he says, adding that they ultimately sent a letter to his boss at the community college, cancelling his contract.

"So, I tried to go talk to the warden to explain what was going on and she refused to talk to me," Chavez says. "So I said, 'Fuck you. I don't even beg for my life, you think I'm going to beg for a job? I'm retiring.'"

For La Tuna inmates, leaving isn't so easy.

Once, Fernandez says, he saw a kid get half his scalp torn off his skull by a gang of inmates for no other reason than he was getting out in a week. The kid met his family at the gate with his head stitched together with what could have been fishing line from Dr. Frankenstein's tackle box.

Fernandez never suffered that level of violence, but he was also at an advantage. As an educated inmate with paralegal experience, he could barter with his talent to file legal briefs and appeals for other inmates; being a jailhouse lawyer also saved him from a massive battle between New Mexican and Mexican inmates in November 2005.

Nationally, US citizens account for 72 percent of the BOP inmate population, while Mexican nationals account for 17 percent. The demographics are reversed at La Tuna. As a border-region treaty prison, it houses foreign felons authorized for transfer to their home countries; American citizens are in the minority.

At La Tuna, Fernandez hung with a small group of New Mexicans nicknamed the "505s." Mexican nationals stuck together in a pseudo-gang called the "Paises."

"The thing you have to understand is that the guys from New Mexico are not a gang," Fernandez says. "It's not quite the same as the typical gang where you are a gang member, you've got a tattoo, you're in a group, you're doing crimes. You're from New Mexico, that's it, so you're not really in the same kind of mode -- Truthfully, the Paises aren't a gang either, but they've learned to operate like one."

The November showdown began in the kitchen. According to Fernandez, a paise in his 50s had tried to bully a 23-year-old New Mexican into cleaning out and refilling a mop bucket. The New Mexican refused. The two brawled, with the younger coming out on top.

The loser complained to the Paises' "shot-caller," who in turn demanded that the 505s punish the 23-year-old. But since a paise had started the fight, the 505 leader wouldn't back down, Fernandez says.

A few days later, the Paises called a meeting with the 505s in one of the courtyards.

"Half of these 505 guys didn't even know what was going on," Fernandez says. "They're over there smoking cigarettes, sitting at the benches, talking. But all of sudden everyone looks around and there's a lot fucking Paises around."

The Paises, armed with shanks and bludgeons, attacked the 505s. The single guard watching the patio escaped and locked the door behind him, essentially trapping the 505s in the battleground, Fernandez says. He was next door in the legal library when he heard the shotgun blasts from the guards.

Jeanette Otero, a former Albuquerque city employee, says that her nephew, who she asked not be identified, was one of the two worst injured in the riot. The 46-year-old had been busted on federal gun charges for being caught with bullets in his pocket and sentenced to 15 years. He received nearly fatal head wounds during the attack and would have died, Otero says, if his friends hadn't rolled his conscious body out of the fray.

That wasn't the only serious injury Fernandez saw that night.

"People got majorly fucked up," he says. "These guys are all banged up, patches of hair are pulled out and you're seeing epidermal layers, big-ass gashes. [The Paises] had broken off a broom handle and they used it as a knife, so a bunch of these guys had the same wound from getting stabbed with this thing. There was another New Mexican guy who had been beaten and when he fell down they had stomped on his head and it had broken his jaw. It was pretty fucking ugly."

After three hours of being forced to lie face down on the library's linoleum floor, Fernandez was segregated with the rest of the injured New Mexicans in the medical wing.

Later, Fernandez put in a call to EJ Hurst, a criminal defense attorney in Maryland with an interest in prisoner rights. Fernandez asked him to file public information requests about the riot, particularly for video recordings that Fernandez believed would show mistreatment of New Mexicans by guards in the aftermath. (Hurst says he has recently filed a civil suit against the BOP for withholding the information.)

Immediately after the call, Fernandez was sent to the hole, officially known as the "Security Housing Unit." He was in a 6-by-9-foot cell with three other inmates for 178 days.

He wasn't the only person making calls in the riot's aftermath.

Otero contacted her cousin, state Rep. Ernest Chavez, D-Bernalillo, who began contacting New Mexico's congressional delegation.

Six months later, the BOP began transferring the New Mexican inmates out of La Tuna.

"According to my understanding, the facility is run by the Mexicans, not New Mexicans, and they knocked the crap out of my cousin," Rep. Chavez says. "But finally somebody did something about it."

It's unclear who got things moving, but calls were placed to at least US Sen. Jeff Bingaman, D-NM, US Rep. Steve Pearce, R-NM, US Rep. Heather Wilson, R-NM, former Attorney General Patricia Madrid and other elected officials.

"I think they moved [the New Mexican inmates] just to shut us up," Otero says.

The 505s were sent all over the country. Fernandez, the last one transferred out of the hole, ended up in Arkansas. Otero's nephew was sent to Florida and she hasn't seen him since; it's too far to travel. Asked whether that was a fair trade off, she doesn't hesitate with her answer.

"I am so grateful that he is not at La Tuna anymore," she says.

It's a sentiment Sabin Bailey understands.

The day Fernandez was arrested in 2002, Bailey was on an 11-hour drive to a family reunion deep in the heart of Texas. The voice mail messages piled up as she drove in and out of range. When she learned that Fernandez' daughter, then 10 years old, would be on her own, she turned around and drove 11 hours back, stopping at Dairy Queen and gas station pay phones along the way.

Although they had been dating less than two years, Bailey accepted guardianship of Fernandez' daughter. She handled Fernandez' advocacy, both pretrial and during his incarceration. For more than five years, hardly a day passed without a letter from Fernandez, she says. When they didn't arrive, she knew something was wrong. Whenever she was rejected at the prison's visitation sign-in, she knew something was very wrong.

Smoking an American Spirit yellow on the porch of her house, wrapped in a leopard-print coat, the 54-year-old sales-consultant-turned-minister in the Eternal Life Church recalls Sept. 9, 2006, a day she tried to visit Fernandez. She was in the queue for visitation when an ambulance arrived. A few minutes later, she overheard a private contractor telling his boss on his cell phone that there had been a riot. A guard came out and told them visits were cancelled because of "computer problems." She told him she already knew about the riot, but they still wouldn't tell her whether Fernandez was safe.

Bailey later learned that 12 Paises, armed with shanks and "locks in socks," had attacked four 505s as they slept.

After six years of fighting the system, Bailey talks about the "cognitive dissonance" of the experience.

"My belief system said, 'We live in America.' My family has had someone in the military in every war in US history, so I was brought up with a very patriotic kind of family," she says. "It's not that I thought that the American justice system was perfect, because I'm certainly well-read enough to know better than that, but I did not realize that it was non-existent. And there's a big difference. When I was faced with the reality of how this really is, it's just like having something split in you."

Fernandez returned to New Mexico from Arkansas in November 2007 as part of the BOP's work release program. Before returning home, he had to finish a three-month program at an Albuquerque halfway house. Bailey jokes that he complained more about that place than he did any of the prisons.

Bailey's home is full of life and spirit: A St. Mary flag adorns the front door, a Buddha tapestry hangs above the fireplace and the house is crowded with tall and healthy potted plants.

In two weeks, Fernandez will be free to leave when he pleases. He'll be able to take his daughter to Baskin-Robbins any time she wants, assuming that now, at age 16, she's not too busy with school and friends to hang out with him.

He's not planning anything special for his emancipation. He's not sure yet where he will and won't be allowed to go. A beer would be nice.

For now, they keep the box that monitors his ankle bracelet on a counter near the kitchen, where Fernandez frequently tones his atrophied cooking muscles with chorizo and eggs and peppered steak.

He is allowed to leave each morning at 6:30 to catch a bus to Albuquerque where he works at a downtown legal firm. On Sundays, he's allowed out for a maximum of three hours. The rest of the time, he's trapped in the house. Just like the cockatiel.

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