UPDATE: 3/6/2017: this post is receiving some new traffic due to an episode of the Lifetime Movie Network show 24 to Life which aired Wednesday, March 1st, 2017, and again on March 5th, 2017, on A&E. This episode chronicles Ben Cunha’s final 24 hours before reporting to federal prison. I want to direct any new readers to the two, much more detailed stories I have written about Ben Cunha’s story after talking with Cunha and others involved. Those can be found here and here. Both articles clear up much of what I had previously questioned in this article.
On February 23rd, 2016, Benjamin Cunha was sentenced to five years in prison, and fined $246,862.00, on a single count of arson. At first glance, this doesn’t seem all that odd. After all, we learned from the Hammonds’ case that violating 18 U.S.C. 844(f)(1) means a mandatory minimum sentence of 5 years, and the fact is, Cunha had admitted to starting at least 30 fires over a two year period. Considering the number of fires he supposedly started, five years certainly doesn’t seem excessive, and Cunha is undoubtedly lucky his fires didn’t injure anyone or cause greater damage. (His fellow El Dorado County arsonist responsible for the devastating King Fire in September 2014, Wayne Allen Huntsman, was just sentenced to 20 years, and fined $60 million, on a single count.)
However, Cunha’s case is much more interesting than that simple five-year sentence for a single count of arson implies. That one count is a result of only one of the fires Cunha admitted to starting, a fire called the Mine Fire that burned approximately 80 acres, at least some of which was federal land. That fire occurred in 2007, and the other fires he admitted to igniting all occurred between August 2005 and September 2007.
Cunha, who had worked as a volunteer and wildland firefighter, was arrested in September 2007 and charged with three felony arson charges. A plea agreement was reached in the case, described here to include:
As part of his plea agreement, he admitted to the details of the 30 fires he set. He had disclosed to local law enforcement that because of his firefighter experience, he was able to build a time delay device to create “fires big enough that significant fire-fighting resources would be required to extinguish the fires.”
He is said to have started the fires in order to earn extra money fighting them, and also to impress his fellow fire-fighters, presumably to help secure his position within the ranks.
In 2008, according to 2016 court documents, Cunha was “sentenced to 365 days in jail, which he was allowed to serve in a program that allowed him to leave the jail each day for work and return for sleep. Cunha was also sentenced to 72 months of probation.” Terms of his probation included wearing a GPS monitor during the fire season. This probation period concluded in 2012.
Benjamin Cunha was arrested and charged, he reached a plea deal and admitted to setting the fires, he served his jail time and his probation, and yet, he was charged again in 2013 for the Mine Fire. Initially, he was charged with two counts, for the Mine Fire and Palmer fire, both of which burned onto federal land, but due to another plea deal, the second count was dropped. What brought the second round of charges? Well, apparently more fires, and the Bureau of Alcohol, Tobacco, and Firearms and Explosives.
The summer following the completion of Cunha’s probation, in July and August of 2013, two new fires were being investigated for suspected arson. Again according to the court documents linked above, “Law enforcement determined that at least one of the fires was started using a time-delay incendiary device similar to the time-delay incendiary devices Cunha had admitted to using in the 2007-2008 series of El Dorado/Amador county fires. Cunha was a primary suspect in the 2013 fires.”
The investigation into the 2013 fires was halted, and Cunha was arrested and charged with the two 2007 fires that burned onto federal land. This time he faced federal charges, and, at the very least, the resulting mandatory minimum sentence of five years. The prosecutors pushed for a longer sentence in his case, arguing that the decision to shorten the sentence in his plea deal included the provision that Cunha would provide assistance to the government. Again from the court documents:
The plea agreement contains the possibility that the government would recommend 84 months [versus the 90 months sought] if Cunha provided substantial assistance to the government. The government, in its discretion, has determined that Cunha has not provided substantial assistance…
In 2008, Cunha cooperated with authorities to reach a plea deal in that he admitted to starting the fires and gave details of the time-delay incendiary device he designed and used. What more information could he provide in the second case that would be considered “substantial assistance?”
In the end, Cunha was sentenced to only five years, and he wasn’t charged for the 2013 fires as part of the plea deal reached in the federal case. Considering that the investigation into the 2013 fires was dropped and Cunha was apparently considered the only suspect, the feds must have had significant enough proof to put pressure on him. So why not charge him with those fires too, in order to secure that longer sentence?
As stated in the 2016 court document, the federal government felt “the need to protect the community, the need to promote respect for the law, and the need to provide just punishment.” But only after the two 2013 fires Cunha wasn’t charged for? Why not in 2008, when he started at least 30 fires, including the two that burned onto federal land that he was sentenced for in 2016?
In 2008, he was charged only by the state and sentenced to 365 days and probation instead of facing federal charges and the mandatory minimum of five years. In the prosecution’s push for a longer sentence in 2016, it is stated that “it defies common sense that a serial arsonist, who voluntarily admitted to setting at least 30 fires, would score at criminal history zero and receive the same mandatory minimum sentence as a first-time offender.” Could it be that the feds did not stand to gain anything from Cunha’s case in 2008 and therefore did not feel the need to protect the community from an admitted serial arsonist at that time?
What is even more curious is that, in spite of the fact that Cunha was told in 2008 that he would be sent to prison if he violated his probation, he somehow appears to have done so without any consequence at all. According to this article, and this one, Benjamin Cunha was arrested and charged with felony counts while on probation. The second article, from California Fire News, has this to say:
Former CAL FIRE firefighter now troubled man-child Benjamin Cunha, who has volunteered for several fire departments in El Dorado County and hails from a long line of career firefighters, and who was convicted of arson earlier this year has been re-arrested on suspicion of arranging a deal to sell firearms.
He had received a six-year suspended sentence on the arson charge and was told he would go to prison if he violated rules of his probation.
The first article claims that officials from the sheriff’s department stated that Cunha was charged with four felony counts as a result of this stolen firearms deal. Bail was set at $10 million. These charges included being a felon in possession of a firearm and facilitating the sale of stolen weapons; both clear violations of his probation. This occurred in December 2008, not so very long after Cunha would have been released after his 365 days in (bedtime only) prison. Yet, this seemingly rather huge violation of his probation does not appear to land him back in prison, nor does it appear to be mentioned in 2013 and his subsequent case with the federal charges, even as the federal prosecutors pushed for a longer sentence by arguing that Cunha was a danger to the community. How can that be?
I also find it worth noting that just before those suspicious fires in 2013 occurred, El Dorado County Sheriff John D’Agostini decided to revoke the U.S. Forest Service’s authority to enforce state law in the county of El Dorado. According to this article:
…the sheriff informs the federal agency that its officers will no longer be able to enforce California state law anywhere in his county.
“I take the service that we provide to the citizens of El Dorado County and the visitors to El Dorado County very seriously, and the style and manner of service we provide,” D’Agostini said. “The U.S. Forest Service, after many attempts and given many opportunities, has failed to meet that standard.”
That article goes on to add that a law professor, when asked “if the sheriff’s actions can supercede the feds,” gave this answer: “looks to me as though the sheriff can do this.”
Benjamin Cunha’s case, like so many others, leaves me with many questions about the way the federal government pursues criminals, and also how it criminalizes people. Just as the Hammonds’ arson case had so much more to the story, I wonder what else might be involved in Cunha’s story. A curious case indeed.