Former California firefighter enters federal prison to serve second sentence for arson committed nine years ago.


Katie Aguilera

On October 31, 2016, Benjamin Cunha surrendered himself to a minimum security federal prison camp in California to serve a five-year sentence for arson on federal land.  It will be the second time he will serve a prison sentence for fires he started during the summers of 2005 through 2007.

Cunha, then a fire fighter, started numerous fires in grassy road side areas and hill side stands of oak trees in Amador and El Dorado counties over the course of those summers.  He was arrested in September 2007, and in March, 2008, after reaching an agreement with state prosecutors, Cunha pleaded guilty to two counts of arson.  As part of his plea deal, he agreed to give details to the Cal Fire investigators about the fires he started in exchange for transactional immunity from further prosecution.  He was given a six-year sentence by the state court for those fires in 2008.  Most of his sentence was suspended, and he served a full year in the El Dorado County jail and then five years on probation.  (Read here for more detail about Cunha’s story.)

After serving his sentence in state prison, Cunha returned to his community and set out to successfully fulfill his probation.  He moved on with his life, believing he had served his time and his past mistakes were behind him.  However, in the summer of 2013, after two suspicious fires started in the Amador/El Dorado area, Cunha became the prime suspect, and was arrested in August 2013.  No evidence has been put forward to connect Cunha with the two 2013 fires, and in the end, he was not charged for those.  Instead, federal prosecutors charged him with two counts of felony arson for fires he had started in 2006/2007 that had burned onto federal land.

In spite of the transactional immunity he had received from the state prosecutors in 2008, Cunha now faced federal charges for fires he had started six years before. The federal prosecutors argued that “the uncompelled grant of transactional immunity by the state prosecutors does not bind federal authorities.”

In February 2016, after agreeing to another deal with prosecutors to receive a shorter sentence, Cunha was sentenced to five years in federal prison, the federal mandatory minimum sentence for one count of arson.

US District Judge John A. Mendez, who presided over Cunha’s 2016 case, had the following to say about Cunha’s sentencing, according to court transcripts.

“My question for the government is, why did it take five years to indict this defendant?  I don’t understand this case in a lot of ways…

…neither the state court lawyers nor the judges anticipated any possible federal involvement in this [in 2008].  They let him talk, and for that you’re paying a price, Mr. Cunha.  But I didn’t see any explanation, when you already had a confession–and now we’re nine years almost, eight and a half years since he was arrested.

And he’s an individual that clearly has turned his life around, has become a productive member.  While you continually refer to him as a serial arsonist, he was eight years ago, and for that, the state prosecuted him.

But I saw no explanation…as to why it took five years for the United States to decide let’s indict this guy now.  It just seems out of the ordinary to me.  I know that there were two federal properties involved, but you knew that back in 2007.  You had a confession.  I don’t know how this got lost in the shuffle or why, after all those years, you decided he needed to be indicted.”

At a follow-up sentencing hearing, Judge Mendez said to Cunha, “I think this is an excessive penalty.  You do have a price to pay for what you did, and I completely understand that.  I think the state handled that, but the Federal Government disagreed.  And as a federal judge, I’m required to apply the law as it sits…You don’t deserve a five-year sentence.”

The sixth amendment to the US Constitution states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”  Not a trial that takes place nearly nine years after the crime was committed, and admitted to, by the defendant.  Not a trial that takes place after the defendant has already served a sentence for and moved on from his crime, maintaining a productive and crime-free life ever since.

Judge Mendez said at Cunha’s sentencing, “I’m not saying you [federal prosecutors] didn’t have a right to bring the case, but to bring it nine years, or eight and a half years, after the fact concerns me.”

Cunha now faces five years in a minimum security prison camp where he spends his weekdays at an E waste recycling facility dismantling and sorting electronics.  He describes the camp as an old air force base that has no fences and the door is never locked.  He says he is free to go outside whenever he pleases, and that he leaves the camp and walks to the E waste recycling facility along a public road to work Monday through Friday.  Cunha points out that he could be doing the same thing on house arrest, actually working, paying taxes, and supporting his family.

This is an interesting point to consider.  The California Legislature’s non-partisan fiscal and policy advisor, the Legislative Analyst’s Office, estimates it costs an average of $71,000.00 a year to incarcerate an inmate in California.  Of course that figure would vary based on the security level and location of prisons, health and age of an inmate, etc, but that is no small sum.  How many inmates are serving a sentence due to indiscriminate mandatory minimum sentences in facilities like the one Cunha is in at the expense of taxpayers, and at the expense of the families that are pulled apart by such incarceration?  At what cost does this apparent need for what is perceived to be suitable, one-size-fits-all punishment come to our society?

Wildfire in El Dorado: Was Justice or Vengeance Served in California Arson Case?

Cunha one

Katie Aguilera

“I always wanted to be a firefighter, you know, the third generation thing, my dad and grandpa were firemen.”

On July 28, 2013, at around 12:05, a fire started in dry grass along the side of Highway 49 in Amador County, California, between the communities of El Dorado and Plymouth.  A 911 call was made at 12:07 by a passing motorist, and firefighters responded to the fire and quickly had it contained.  It burned approximately 0.2 acres of the oak covered hillside above the highway.  Within hours, a Cal Fire investigator was on the scene.  There had been no lightning strikes or thunder storms in the area for days, and after ruling out a discarded cigarette due to the weather conditions, campfire, hot engine pieces from passing cars, and other accidental human causes, the investigator determined the fire was started by an arsonist.  A small paper fragment at the ignition site led the investigator to conclude the arsonist used some sort of incendiary device to start the fire.

That same day, not far away, a 30-year-old Placerville, California resident, Benjamin Cunha, was attending the Amador County Fair.  Cunha is well known within the community.  He hails from a family of firefighters, his grandfather had served the Diamond Springs Fire Protection District as chief for 20 years, and his father retired from the same district after serving as a captain for 25 years.  Cunha had served in various volunteer positions since his teen years, including at the El Dorado County Museum and the El Dorado Western Railroad.

Becoming a firefighter was Ben Cunha’s goal, and he began taking college fire science classes in high school.  After graduating high school early, he took a seasonal job with Cal Fire, working six months a year, and also served as a volunteer firefighter for the Diamond Springs Fire Protection District.  In 2004, Cunha obtained a position as an apprentice firefighter at the El Dorado County Fire Department.

But growing up amongst firefighters and working as a firefighter wasn’t Benjamin Cunha’s only history with fire.  In August of 2005, Cunha made a decision he would come to regret “more than anything.”  He started a fire in the grass alongside a road in El Dorado County.  It would not be the only fire Cunha would light in El Dorado and Amador counties.  Over the course of that summer, and the following summer, Cunha lit numerous fires in grassy road side areas and hill side stands of oak trees.

Cunha was sentenced for those fires in 2007 and served his time in prison and on probation.  He settled back into his community, immediately getting a good job.  By the time the July 28, 2013 fire on Highway 49 started, Cunha was a successful and productive member of his community, enjoying the local county fair with friends and family.  But that didn’t matter when his presence at the Amador County Fair, a mere two miles from the fire on Highway 49, was noted by Cal Fire personnel.  After a second suspicious fire started on August 4, 2013, Ben Cunha was once again arrested and charged with arson.

“I wish I’d never done that, more than anything in my life.  But I did.  I did.”

Recently, in a phone call, Cunha explained to me why he lit the fires in 2005-2007.  He stated, “it was the stupidest decision I’ve ever made in my life, but, making $6.00 an hour and trying to support myself, I figured out, hey, I can make a few extra dollars, come in on my days off, and…I did that.  And I regret that more than anything in my life.  I also, I was trying to get a…I was being laid off, actually, in 2007, and I was trying to secure a position there.”  He gave similar reasons back in 2007, and he certainly isn’t the first person to light fires in order to profit from them.  This August 2, 2010 High Country News article gives some examples of other cases.

Cunha went on to explain, “it was a real difficult thing, there were six of us at that station, we worked in Caloma…they called us apprentice firefighters and we didn’t have a captain or anything there [they were supervised under the captain of the neighboring fire station]. I drove the fire engine.  We were there 24 hour shifts, 10 days a month…it was really hard, everybody was always just trying to scrape by because they wanted to be a firefighter so bad, they were willing to work that job for $6.00 an hour, even though you couldn’t really live on that.”

According to the book Fire Raisers, Freaks and Fiends:  Obsessive Arsonists in the California Foothills by Ed Nordskog, published in September, 2013, Cal Fire investigators were in the midst of an ongoing investigation into suspicious fires later attributed to Robert Eason, a former volunteer firefighter with the Capay Volunteer Fire Department the summer Cunha started lighting fires.  By 2006, the investigators were aware that Eason wasn’t the only person setting fires in the area. The book states that at one of the fire locations, “Cal Fire Captain and Investigator Tom Oldag found a time-delay incendiary device at this scene.  This device consisted of a single cigarette without a filter surrounded by four paper matches affixed to the cigarette with black tape.  Oldag, who was aware of the Eason fires that took place about eighty-miles away, was sure that this was not Eason’s type of device.  He now became concerned about a copycat arsonist in the area.”

Nordskog goes on to add, “Cal Fire and USFS investigators were extremely worried.  They realized they had an emerging series on their hands and the suspect was getting extremely dangerous.  The fires were all linked by location, time of day, ignition fuels, similar device, and ambient temperature.  The only factor that was good news for the investigators was that the fires were all set on days with very little wind, which every firefighter knows is the main critical factor in the spread of wild land fires.”

In July 2007, after yet another hot afternoon fire, a “witness reported seeing a yellow and black motorcycle in the area just before the fire broke out.”  Investigators had a camera placed along Sand Ridge Road, and the film showed a “small Toyota pickup being driven by a young white male passing through the area four times prior” to another fire.  The truck was identified as belonging to Ben Cunha’s grandfather, and the motorcycle as belonging to Cunha himself.  Investigators began surveilling Cunha, and according to Nordskog’s book, they suspected him of lighting at least fifteen fires.  Nordskog writes, “Cunha’s time records showed that he was not assigned to a fire station when most of the fires were reported.”

Captain Oldag began an investigation of Cunha’s personal life.  Not surprisingly, he found that Cunha “frequently wore firefighter tee shirts, boots, and other accessories,” and he “seemed to only hang out with firefighters and at fire stations,” according to Nordskog’s book.  It seems unlikely that a young man whose life goal is to be a firefighter would avoid all things firefighting related in his off hours.

More surprisingly, Nordskog writes that Oldag also discovered that a local fire chief recalled that “when Cunha was around ten or eleven years old, he and another Cal Fire chief in the area had recognized Ben Cunha as a ‘problem-child fire setter.’  They suspected him of setting several fires in and around his family’s home and had even watched the young boy to see if they could catch him in the act.  The chief said that Ben Cunha had been such a problem a decade before that they actually had to enroll him in a juvenile fire setter counseling program.”

Both Ben Cunha and his father have denied this claim.  Ben Cunha stated to me, “that was nonsense, that didn’t happen.  I got in trouble when I was like, seven or eight years old, for playing with matches, not lighting a fire, playing with matches.  Just as an educational thing, my dad took me to talk to the prevention officer…I was never in a juvenile fire setters class.”  His father, Ed Cunha, told me that he remembered speaking with a Cal Fire firefighter, the chief mentioned by Nordskog, years ago about a program, but didn’t remember that his son had ever attended it.  He also confirmed what Ben said, that he had been playing with matches and did not start a fire.

After Nordskog’s book was published, Ed Cunha again spoke to the fire chief Nordskog mentions in the book, and the man confirmed he was interviewed by Oldag, but denied making the statements in Nordskog’s book.   Additionally, that fire chief was still serving the Diamond Springs Fire Protection District when Cunha became a volunteer, and there is no indication that he voiced concerns about Cunha’s childhood then.   To date, I have been unable to reach the fire chief mentioned, or other Cal Fire personnel who might have knowledge about this.  I contacted the author, Ed Nordskog, via email, and asked about this and his response was that he has information from “multiple sources (more than one firefighter) that Cunha was involved in a Juvenile Firestarter’s type program as a young boy.”

In 2007, as Oldag was studying Cunha’s history, Cal Fire investigators watched Cunha’s every move, following him whenever he left his home.  Since Cunha often drove his motorcycle, airplanes were used to follow him around the countryside.  After watching Cunha light two more fires, the investigators made their move and arrested him Sunday, September 9, 2007.  In March, 2008, after reaching an agreement with the prosecutors, Cunha pled guilty to two counts of arson.  As part of his plea deal, Cunha agreed to give details to the Cal Fire investigators about the fires he started in exchange for transactional immunity from further prosecution.

Cunha explained, “Cal Fire investigators were pushing for, they wanted to know what fires I started.  So they came up with the…transactional immunity.  They said, ‘you have transactional immunity, in order to get the plea deal, one year in jail, five years of probation, but you need to sit down with the investigators and confirm all the fires that were set,’ and, ‘that nobody will ever charge you, nobody can do anything against you with that, this is transactional immunity.’  The judge explained it to me, everybody did, and so they said, ‘you have nothing to worry about.’  So I went in there and basically told them of every fire I knew of that was set, and that was that.”

Cunha received a six-year sentence, most of which was suspended by the court.  In his book, Nordskog describes this as a “galling move by the court.”  He writes that “the investigators who worked so hard on this case remain bitter to this day,” and “rumors were rampant that some retired fire chief had gotten into the judge’s ear and possibly influenced the sentencing.”  Cunha had a different explanation for the sentence when he told me that the District Attorney and the judge examined his case and his history and decided to give him another chance at life.  Cunha said they told him, “’you don’t have any criminal charges, you’re active in your community’ and they said, ‘we’d like to give you a second chance.  We think you’re a good guy, and you screwed up.’”

I have another idea as to why the District Attorney and the Judge felt Cunha deserved a light sentence.  Perhaps, like me, they heard rumors that Cunha was not the only firefighter involved in lighting these fires.  Another area resident that I spoke with, who wished to remain anonymous, stated, “things came out back then, when it first happened, that Ben was basically the fall guy for a much bigger operation that was going down.”  Could it be that Cunha, after receiving transactional immunity, claimed responsibility for fires that he didn’t start to protect fellow firefighters, believing he wouldn’t face additional charges?  When I asked Cunha about this, he was unwilling to discuss it, which is understandable, if true.

I asked Nordskog via email if he had heard any explanation for the fires that were started when Cunha was on duty, and he responded, “I have no doubt (based on my experience) that Cunha was lighting fires both on-duty and off-duty as most firefighter arsonists do.”  He added that Cunha drove a water tender and was “always alone and unsupervised.”  This is possible of course, but doesn’t explain the rumors of others’ involvement, which the investigators surely were aware of.

Cunha served his time, 365 days, in the El Dorado County Jail, and was released.  As part of his sentence, he remained on probation, and was required to wear a GPS tracking device during fire season.  The judge had warned him that any violation of his probation would land him in state prison to serve the suspended sentence.

Several months after his release, Cunha received a phone call that would land him back in jail for over a year.  Nordskog writes in his book that “Cunha did not seem to understand the extraordinary break he had received.  Within just a few months, he was rearrested by the local cops for violating his probation, being a felon in possession of firearms, and facilitating the sale of stolen property.”  Nordskog’s book was published while Cunha was in prison fighting the charges.

According to this December 3, 2008 Firehouse article, Cunha was “arrested on charges of violating probation, possessing weapons, facilitating the sale of stolen weapons and for a felon in possession of a firearm.”  It goes on to state, “Cunha was allegedly involved with people who stole weapons and helped sell them, Placerville police officials said.”  His bail was set at an astounding $10 million.  But the news reports fail to explain whether Cunha was ever convicted for these charges, or to explain how this apparent violation of his probation did not lead to his serving the suspended sentence in state prison, as the judge had warned would happen.

In fact, Cunha wasn’t convicted for any of these charges.  He told me, “a guy I knew, I met in there [jail], called me up one day and said, ‘Hey, I’ve got some guns I inherited from somebody,’ some nonsense story.  He said, ‘do you know how much they’d be worth, or would you want to buy them?’  I said, ‘well, I don’t want to get involved with anything like that, but you can call a friend of mine, he might be interested,’ and I gave him a phone number, and that was the extent of my involvement in the whole thing.  The guy got in trouble, and they brought up my name, they immediately came and arrested me, and they charged me with a felon in possession of a firearm, which I’d never done, I hadn’t touched them…I was stuck in jail for another year and a half on that, and it finally came to it that we were fighting this and fighting this, and we wouldn’t take any deals on it, and the judge finally wanted to know what was going on, they had a private meeting at the court, and they came out and they said, Mr. Cunha, just plead guilty to a violation of probation and you’ll go home today.”  And that is what Cunha did.

In 2011, Cunha was again arrested for a probation violation.  He was called to the probation office because something was going on with his GPS tracker, and when he arrived, he was arrested.  He asked what it was about, and was told his tracker wasn’t transmitting, that he must not have charged it, allowing it to go dead.  Cunha disputed that, saying he charged it every day, but he was sent to jail anyway.  He said, “I sat in jail for almost a month, 20-25 days, something like that.  My attorney went to them and said, ‘I want to look at your equipment to make sure it’s not malfunctioned,’ and they came back and said, ‘we’re going to go ahead and drop this case, we’re gonna dismiss it.’”  The next time he checked in with his probation officer, Cunha asked why the equipment wasn’t checked before he was arrested.  He said that he was told, “this was input from Cal Fire that was requesting you be detained, but they said, ‘yes, we realized the equipment was broken within the first week of you being detained.’”

“What I don’t understand, is why did a judge tell me, look me in the face, and tell me nobody could ever prosecute me for this.”

In the summer of 2013, Ben Cunha had completed his probation and believed the past was behind him. He told me his community “basically forgave me for what I did, they said, ‘yeah, you screwed up, you did what your punishment was and you moved on with your life.’”  But then came the two fires in July and August, 2013, and Cunha was once again arrested.  However, he wasn’t charged with the two 2013 fires, but rather was charged with two of the fires he had described to Cal Fire investigators back in 2007.

According to court documents, in “July and August of 2013, authorities investigated two new suspected arson fires in the El Dorado/Amador area.  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.  Rather than continue the investigation of the 2013 fires, and to curb the risk of any additional fires in the meantime, Cunha was charged in the current indictment for the two 2007 fires that the government alleged burned onto federal land.”

It didn’t matter that Cunha had received transactional immunity from the state to prevent further prosecution in exchange for giving information about those fires.  The sentencing document explains in a footnote, “Cunha received transactional immunity from state prosecutors for the information he provided to local law enforcement.  However, the uncompelled grant of transactional immunity by the state prosecutors does not bind the federal authorities.”  It goes on to cite court cases that support that position.

According to Cunha, the judge made clear his displeasure over the federal charges at trial.  Cunha told me that the judge said to the prosecution, “why are we here?”  The prosecutors responded that it was arson on federal land, and Cunha said the judge answered back with, “yes, but I believe the state took care of this issue ten years ago.  I’m not sending this man to prison for seven years, I want to send him home.”  Cunha went on to say that the judge “apologized to me over and over again.  The judge said this is not right, this is wrong…he also made a comment saying he felt that the investigators were unsatisfied with the original case and were pushing it.”  I am hoping to obtain a copy of the court transcripts from the trial to verify the judge’s statements.

There was no evidence to show he started the two fires in 2013.  A security camera on a bank that showed the highway leading to the fire location did not capture Cunha’s vehicle passing by on the days of the fires.  The tiny fragment of paper found at the July fire was supposedly an incendiary device similar to what Cunha had used previously, and that combined with the fact that he had been at the fair two miles away the day of the July fire, seems to be all it took to make him the prime suspect.  And that was enough to get him back into court to be sentenced to five years in federal prison for fires that Cunha believed he had immunity from prosecution for.

Cunha was sentenced to five years in federal prison on February 23, 2016, and ordered to pay $246,862.00 in restitution.  He was originally scheduled to report to federal prison in July, 2016 but due to health issues, has had the date postponed until October, 2016.  He has been on house arrest since 2013, which cost him his job due to the resulting time restrictions.  He stated, “I’ve been on house arrest since 2013, since day one of this case.  I don’t get any credit for that, I could be on house arrest for ten years fighting the case, and they’d still say, ‘okay, you have your full sentence to do.’  It doesn’t count for anything, even though they’ve taken away my rights, and I have no freedom to leave, or do anything.  I get zero credit for any of this.”

“The last year you can do in a halfway house, so they can teach you how to get a job, and live life.  And I’m like, well, I have a house, I had a great job…”

It is clear from Nordskog’s book, the judge’s statements, and from Cunha and his father, that the Cal Fire investigators were unhappy with the original sentence in 2007.  Captain Oldag seems to have made use of Cunha’s case in a series of seminars on arson investigation, one of the largest was at the national arson investigators conference in Las Vegas in 2013.  According to Ed Cunha, Ben’s father, Oldag was “extremely upset with the Judge’s decision and made his position on the matter known to Fire Officials across the state.”  One wonders if vengeance rather than justice has been served in this case.

Interestingly, in what strikes me as a remarkable coincidence, and an incredible stroke of luck, Oldag caught another arsonist red-handed in July, 2007, along the very same highway as the July 28, 2013 and August 4, 2013 fires Cunha was arrested for but not charged with.  According to this August 1, 2007 Cal Fire blog post, “Cal Fire investigator Tom Oldag caught an arsonist in the act in Plymouth Friday afternoon on his way to an unrelated fire that burned 19 acres near Jackson earlier that day.”  The article goes on to say, “according to Oldag, the arsonist, Juan Antonio Cardona, had just started the grass fire on Highway 49 a half mile north of town when Oldag drove by in a marked truck.”  Oldag is quoted as saying, “I just happened to be in the right place at the right time.”

According to the investigation report, this fire was lit on the west side of Highway 49, half a mile North of Plymouth.  Oddly, Oldag was driving with lights and sirens on as he passed Cardona on the highway, but Cardona, who admitted to drinking at the Amador County Fair earlier in the day, stated he didn’t hear the sirens until after Oldag had passed by.  In the fire investigation report for the July 28, 2013, the fire occurred on the west side of Highway 49, approximately one mile south of Bell Road, which intersects Highway 49 about six miles outside of Plymouth.  The incident reports for the two fires, however, put the latitude and longitude of both at almost exactly the same place!  Additionally, the August 4, 2013 fire also occurred at nearly the same location, according to incident reports.

With his February 23, 2016 sentencing, Cunha, now a husband and father, has little options left.  He remains at home due to his health condition, but will have to report to federal prison in October unless he receives an additional extension for medical reasons.  He spoke of the irony, that as part of his sentence, he would spend the last 15% in a halfway house in order to learn life skills to prepare him for his return to society.  As though he hasn’t already made a successful life for himself in spite of his past mistakes, a life the federal government will expend untold tax dollars removing him from for five years.


Update:  Former California firefighter enters federal prison to serve second sentence for arson committed nine years ago.