In lieu of finding another folder (I am still organizing, and will be back on track within a week or two), I will just present some other odd bits of writing. Some of these are quite long - well, article length, anyway.
Shortly after moving to Seattle, I moved into the house of the 300-lb. crazy man, and met Kevin Cunningham. This is the story of a relationship, but not a love affair. Just a friend. I wrote this shortly after he had been sent to prison, and updated it shortly after his release. He is doing very well, has a job he likes, lives in a small room behind another woman friend's house, and stuffs it with garage sale items. He calls me every day to tell me about another movie from the 60's on AMC, another recipe involving capers, or some truly spectacular plastic grapes found in a yard sale.
KEVIN CUNNINGHAM
by Barbara Stoner
luceloosy@aol.com
Mon, 20 Mar 2000 12:09:27 EST
On May 1, an old friend of mine, Kevin Cunningham, will walk through the doors of the Federal Detention Center in SeaTac, a semi-free man. He must report to a half-way
house, where he will reside until his official date of release sometime in September of 2000. Kevin is finishing a 10-year mandatory minimum sentence for helping friends water pot plants. A little more than a year has been deducted from his sentence for good behavior, but there was never any possibility of parole. He was arrested on January 13, 1992, and has been in jail/prison ever since. He is now nearly 50 years old. He had no priors and there was no violence or weapons of any kind involved.
Joanie Balter, of the Seattle Times, did a column on Kevin at the time of his initial sentencing. Judge William L. Dwyer, while sentencing Kevin, called it a "sad day for justice in the federal courts."
The following is my account of the Kevin Cunningham story.
************
I first met Kevin almost 15 years ago. I was newly arrived in Seattle, had run out of money, and for reasons too silly and bizarre to go into right now, had found a temporary berth in a house owned by a 300-pound crazy man known as "the Captain."
There was the crazy Captain and Willie and Dr. Paul and John ("I'm fifty years old, goddammit, and I've still got all my own teeth"), assorted jazz musicians in the basement, me, a couple of dogs, and Kevin Cunningham. I used to clean house for rent and food. Not that anyone cared if I cleaned house, but I felt better about staying there if I did and it gave me something to do besides look for work. I started referring to the living room as the dayroom, and kept threatening to draw bars on my bedroom window.
Kevin kept me sane. Kevin was a little crazy too; you had to be or you would never have found the place, even by accident, but he was my kind of crazy. Sort of. He loved David Lynch movies. He used to say, "Barbara, you're a Deadhead. I'm an Eraserhead." He has seen "Eraserhead" thirteen times when I first knew him, and it was up to seventeen times by the time he went away. He took me to my first party in Seattle. The Maggots played for another friend's birthday party. They opened with "The Eleven", by the Grateful Dead and Kevin said, "This is why I like this band. They don't just do Dead
covers. They do some real good improvisational jazz, like this." I didn't tell him the truth until much later. He had an almost obscene fondness for sausage and condiments (of course, he loved the sausage dog), and would talk about guinea pigs the way bikers talk about Harleys, but he would sit in the living room and ignore most of the professional craziness and read "The Village Voice" and tell me about the latest strange foreign films and books by French neo-existentialists, and he kept me sane.
A few months later I got a job and a place of my own and I left the Captain's (I piped ashore), and I never went back. But my oldest friends in Seattle are still the ones I met there, the ones who are my kind of crazy, the ones who helped just by being there. Kevin and I stayed friends.
Kevin Cunningham was arrested 13 January 1992 by DEA agents as he was about to use his key to enter a house rented by several old friends of his. Already under arrest inside the house was R... C..., a resident of the house. A marijuana growing operation in the basement totaled 1205 plants, according to DEA count. The affidavit in support of the search warrant claimed that an agent was "jogging by" and smelled marijuana. There were no firearms present in the house or on the person of either of the
detainees.
The primary physical evidence in the case was Kevin's possession of a key to the house, a note in the basement addressed to "Kevin" saying that the writer would be back "to do the trim," and a fingerprint on a light fixture found in a closet. The testimonial evidence came from R... C..., who was arrested with him, and another woman whose address was found in the house and who admitted to having a grow operation of her own. Mr. C... had a previous arrest for growing marijuana and was facing a 20-year mandatory minimum sentence. The woman had no prior arrest record, but was told she
would do ten years in prison if she did not testify against Kevin. The testimony against him consisted basically of these "damning" statements:
Kevin was a friend who came over and helped with the operation. He watered
the plants and he sometimes shopped for gardening materials. He did not, according to C's testimony, assist in harvesting, bagging, or distribution. He received some money for "helping out."
Kevin was held on $100,000 bond. Neither his parents nor his friends had that kind of money. Kevin had no permanent address or present job. He spent one year and nine months moving from jail to jail - King County, Pierce County, Snohomish County. He had two jury trials. The first trial, in April of 1992, found him guilty in about 45 minutes. The judge, however, noted that the prosecution had unfairly used his unemployed status to infer that he made his living growing marijuana and suggested that therein lay grounds for a new trial. Although the second trial found him guilty also, this time it took the better part of two days, and at one point resulted in a hung jury. The judge sent the jury back to reach a verdict and the dissenter(s) were won over. I believe the difference in the two trials was the issue of mandatory minimums.
Defense attorneys are not allowed to tell the jury or anyone else within the jury's hearing what the penalty is for any given offense. Many people are not aware of mandatory minimums and many jurors have no idea that when they find a defendant guilty of growing marijuana that that defendant will spent 10 years in prison. In Kevin's first trial, certainly, the jurors were not aware of the penalty. It was tax month. The prosecution took the number of plants found (1205), most of them tiny starters, grew them and budded them out in the jury's imagination, and then sold them on the street for top dollar
(in summation, of course). The jury was then told that Kevin made hundreds of thousands of tax-free dollars and the jury came back guilty in about 45 minutes.
During the second trial, while questioning the witnesses as to why they had agreed to testify against Kevin (it is permissible to let a jury know that a deal has been made), one of the witnesses mentioned the 10 and 20-year mandatory minimum sentences. The judge did not stop them, since the defense attorney had not specifically asked for that information, and for some reason the prosecution spaced out and did not object. Later, during summation, the defense attorney was able to use the knowledge of the mandatory
minimums since it had been allowed into testimony with no objection from the prosecution. We almost felt it was a minor victory to have a hung jury for a couple of hours, and I believe it was the knowledge of the sentence that had some jurors balking at sending a friendly plant waterer to prison for 10 years.
Kevin, who turned 40 the month in which he was arrested, has consistently refused to cooperate with the authorities. Another woman remained at large for another two or three years. The house and utilities were all in her name. Kevin had no idea where she was. His refusal to cooperate, however, is a conscientious one. He does not believe that the government has a right to do what it is doing and as a matter of conscience refused to assist them in any way. He did not testify against anyone else or in his own behalf.
This is very consistent with the man I have known for all of my years in Seattle. He is a gentle, funny, intelligent man who likes corndogs, kitsch art from garage sales, and strange foreign films, and who can be very stubborn and intransigent when it comes to things in which he believes.
He had a key to the house because he had known the woman who rented the house for over 20 years. They had always been very close friends, not lovers, and Kevin was always free to come and go in her house as he pleased, although he preferred to live on his own. Kevin lived very simply, sometimes in a rented room, sometimes with other friends, sometimes on the street. He often stayed with the Captain so he could help out with cleaning and yard work and so on. He is a nice guy and he helped some friends grow pot. He has spent the last 8+ years in a federal prison for doing that. He will be released to a halfway house on May 1, 2000, and finally released from custody in September of 2000.
Whatever your thoughts are about the venality or lack thereof of growing marijuana, or whatever Kevin's knowledge of, and involvement with, this operation, the facts are these: the man who admitted to running a large-scale marijuana-growing operation and who testified that Kevin's role in this operation was as a plant waterer and material procurer -- and sporadically at that -- was given a 52-month sentence for his cooperation. The
woman who admitted that she herself ran a small-scale marijuana-growing operation in her own home and who testified that Kevin helped "carry the plants over" and sometimes but not often would help out with caring for them, was granted total immunity. The woman in whose name the house was rented turned herself in after two or three years, and because of this "cooperation" was given a sentence of 52 months, cut short due to her voluntary enrollment in a drug and alcohol program. All three of these people are now free, and have been for some time. Kevin Cunningham, plant waterer extraordinaire,
will have spent nearly 9 years of a 10-year sentence in prison for his crime.
Sentencing was on August 9 of 1992. In sentencing Kevin, United States District Judge William L. Dwyer had this to say:
"This is a difficult sentencing for all concerned because the mandatory minimum provided by statute and the guideline range both result in a sentence that is excessive and unjust.
"The mandatory minimum is ten years. The guideline range is 121 to 151 months.
"Mr. Cunningham, at age 40, has no prior criminal record. The offense was simply the growing of marijuana for sale. There are no aggravating factors.
"The mandatory minimum and the guideline range are determined by the number of plants involved, in this instance more than one thousand. A slightly lower number of plants, less than one thousand, would produce a much lower sentencing range.
"The mechanical use of tables such as this which require harsh and rigid prison terms based solely on counting plants or counting grams of a substance, marks a sad day for justice in the federal courts.
"The parties to a case such as this, and the public, are denied the benefits of discretion and common sense which can arrive at a sentence that is fair and just in light of all the relevant factors, including the circumstances of the offense, the defendant's past record, his prospects for rehabilitation, the need for deterrence of others, and the cost to the public of incarcerating a person for year after year. (Italics inserted)
" What we always tell juries is that they must comply with the law whether they agree with it or not, and the duty of a judge is the same in that regard. The mandatory minimum statutes and the guidelines have been upheld as constitutional and must be followed by the district courts.
'There is no basis for a downward departure from the guideline range in this case. And even if there were, the mandatory minimum would still apply. The court can go below the mandatory minimum only if the government moves for that relief based on the defendant's cooperation.
"For these reasons, there is no choice but to impose the sentence I am about to impose."
Kevin Cunningham, after having been moved through several Federal Prisons throughout the west and southwest, is currently residing at the Federal Detention Center in SeaTac, Washington.
Shortly after moving to Seattle, I moved into the house of the 300-lb. crazy man, and met Kevin Cunningham. This is the story of a relationship, but not a love affair. Just a friend. I wrote this shortly after he had been sent to prison, and updated it shortly after his release. He is doing very well, has a job he likes, lives in a small room behind another woman friend's house, and stuffs it with garage sale items. He calls me every day to tell me about another movie from the 60's on AMC, another recipe involving capers, or some truly spectacular plastic grapes found in a yard sale.
KEVIN CUNNINGHAM
by Barbara Stoner
luceloosy@aol.com
Mon, 20 Mar 2000 12:09:27 EST
On May 1, an old friend of mine, Kevin Cunningham, will walk through the doors of the Federal Detention Center in SeaTac, a semi-free man. He must report to a half-way
house, where he will reside until his official date of release sometime in September of 2000. Kevin is finishing a 10-year mandatory minimum sentence for helping friends water pot plants. A little more than a year has been deducted from his sentence for good behavior, but there was never any possibility of parole. He was arrested on January 13, 1992, and has been in jail/prison ever since. He is now nearly 50 years old. He had no priors and there was no violence or weapons of any kind involved.
Joanie Balter, of the Seattle Times, did a column on Kevin at the time of his initial sentencing. Judge William L. Dwyer, while sentencing Kevin, called it a "sad day for justice in the federal courts."
The following is my account of the Kevin Cunningham story.
************
I first met Kevin almost 15 years ago. I was newly arrived in Seattle, had run out of money, and for reasons too silly and bizarre to go into right now, had found a temporary berth in a house owned by a 300-pound crazy man known as "the Captain."
There was the crazy Captain and Willie and Dr. Paul and John ("I'm fifty years old, goddammit, and I've still got all my own teeth"), assorted jazz musicians in the basement, me, a couple of dogs, and Kevin Cunningham. I used to clean house for rent and food. Not that anyone cared if I cleaned house, but I felt better about staying there if I did and it gave me something to do besides look for work. I started referring to the living room as the dayroom, and kept threatening to draw bars on my bedroom window.
Kevin kept me sane. Kevin was a little crazy too; you had to be or you would never have found the place, even by accident, but he was my kind of crazy. Sort of. He loved David Lynch movies. He used to say, "Barbara, you're a Deadhead. I'm an Eraserhead." He has seen "Eraserhead" thirteen times when I first knew him, and it was up to seventeen times by the time he went away. He took me to my first party in Seattle. The Maggots played for another friend's birthday party. They opened with "The Eleven", by the Grateful Dead and Kevin said, "This is why I like this band. They don't just do Dead
covers. They do some real good improvisational jazz, like this." I didn't tell him the truth until much later. He had an almost obscene fondness for sausage and condiments (of course, he loved the sausage dog), and would talk about guinea pigs the way bikers talk about Harleys, but he would sit in the living room and ignore most of the professional craziness and read "The Village Voice" and tell me about the latest strange foreign films and books by French neo-existentialists, and he kept me sane.
A few months later I got a job and a place of my own and I left the Captain's (I piped ashore), and I never went back. But my oldest friends in Seattle are still the ones I met there, the ones who are my kind of crazy, the ones who helped just by being there. Kevin and I stayed friends.
Kevin Cunningham was arrested 13 January 1992 by DEA agents as he was about to use his key to enter a house rented by several old friends of his. Already under arrest inside the house was R... C..., a resident of the house. A marijuana growing operation in the basement totaled 1205 plants, according to DEA count. The affidavit in support of the search warrant claimed that an agent was "jogging by" and smelled marijuana. There were no firearms present in the house or on the person of either of the
detainees.
The primary physical evidence in the case was Kevin's possession of a key to the house, a note in the basement addressed to "Kevin" saying that the writer would be back "to do the trim," and a fingerprint on a light fixture found in a closet. The testimonial evidence came from R... C..., who was arrested with him, and another woman whose address was found in the house and who admitted to having a grow operation of her own. Mr. C... had a previous arrest for growing marijuana and was facing a 20-year mandatory minimum sentence. The woman had no prior arrest record, but was told she
would do ten years in prison if she did not testify against Kevin. The testimony against him consisted basically of these "damning" statements:
Kevin was a friend who came over and helped with the operation. He watered
the plants and he sometimes shopped for gardening materials. He did not, according to C's testimony, assist in harvesting, bagging, or distribution. He received some money for "helping out."
Kevin was held on $100,000 bond. Neither his parents nor his friends had that kind of money. Kevin had no permanent address or present job. He spent one year and nine months moving from jail to jail - King County, Pierce County, Snohomish County. He had two jury trials. The first trial, in April of 1992, found him guilty in about 45 minutes. The judge, however, noted that the prosecution had unfairly used his unemployed status to infer that he made his living growing marijuana and suggested that therein lay grounds for a new trial. Although the second trial found him guilty also, this time it took the better part of two days, and at one point resulted in a hung jury. The judge sent the jury back to reach a verdict and the dissenter(s) were won over. I believe the difference in the two trials was the issue of mandatory minimums.
Defense attorneys are not allowed to tell the jury or anyone else within the jury's hearing what the penalty is for any given offense. Many people are not aware of mandatory minimums and many jurors have no idea that when they find a defendant guilty of growing marijuana that that defendant will spent 10 years in prison. In Kevin's first trial, certainly, the jurors were not aware of the penalty. It was tax month. The prosecution took the number of plants found (1205), most of them tiny starters, grew them and budded them out in the jury's imagination, and then sold them on the street for top dollar
(in summation, of course). The jury was then told that Kevin made hundreds of thousands of tax-free dollars and the jury came back guilty in about 45 minutes.
During the second trial, while questioning the witnesses as to why they had agreed to testify against Kevin (it is permissible to let a jury know that a deal has been made), one of the witnesses mentioned the 10 and 20-year mandatory minimum sentences. The judge did not stop them, since the defense attorney had not specifically asked for that information, and for some reason the prosecution spaced out and did not object. Later, during summation, the defense attorney was able to use the knowledge of the mandatory
minimums since it had been allowed into testimony with no objection from the prosecution. We almost felt it was a minor victory to have a hung jury for a couple of hours, and I believe it was the knowledge of the sentence that had some jurors balking at sending a friendly plant waterer to prison for 10 years.
Kevin, who turned 40 the month in which he was arrested, has consistently refused to cooperate with the authorities. Another woman remained at large for another two or three years. The house and utilities were all in her name. Kevin had no idea where she was. His refusal to cooperate, however, is a conscientious one. He does not believe that the government has a right to do what it is doing and as a matter of conscience refused to assist them in any way. He did not testify against anyone else or in his own behalf.
This is very consistent with the man I have known for all of my years in Seattle. He is a gentle, funny, intelligent man who likes corndogs, kitsch art from garage sales, and strange foreign films, and who can be very stubborn and intransigent when it comes to things in which he believes.
He had a key to the house because he had known the woman who rented the house for over 20 years. They had always been very close friends, not lovers, and Kevin was always free to come and go in her house as he pleased, although he preferred to live on his own. Kevin lived very simply, sometimes in a rented room, sometimes with other friends, sometimes on the street. He often stayed with the Captain so he could help out with cleaning and yard work and so on. He is a nice guy and he helped some friends grow pot. He has spent the last 8+ years in a federal prison for doing that. He will be released to a halfway house on May 1, 2000, and finally released from custody in September of 2000.
Whatever your thoughts are about the venality or lack thereof of growing marijuana, or whatever Kevin's knowledge of, and involvement with, this operation, the facts are these: the man who admitted to running a large-scale marijuana-growing operation and who testified that Kevin's role in this operation was as a plant waterer and material procurer -- and sporadically at that -- was given a 52-month sentence for his cooperation. The
woman who admitted that she herself ran a small-scale marijuana-growing operation in her own home and who testified that Kevin helped "carry the plants over" and sometimes but not often would help out with caring for them, was granted total immunity. The woman in whose name the house was rented turned herself in after two or three years, and because of this "cooperation" was given a sentence of 52 months, cut short due to her voluntary enrollment in a drug and alcohol program. All three of these people are now free, and have been for some time. Kevin Cunningham, plant waterer extraordinaire,
will have spent nearly 9 years of a 10-year sentence in prison for his crime.
Sentencing was on August 9 of 1992. In sentencing Kevin, United States District Judge William L. Dwyer had this to say:
"This is a difficult sentencing for all concerned because the mandatory minimum provided by statute and the guideline range both result in a sentence that is excessive and unjust.
"The mandatory minimum is ten years. The guideline range is 121 to 151 months.
"Mr. Cunningham, at age 40, has no prior criminal record. The offense was simply the growing of marijuana for sale. There are no aggravating factors.
"The mandatory minimum and the guideline range are determined by the number of plants involved, in this instance more than one thousand. A slightly lower number of plants, less than one thousand, would produce a much lower sentencing range.
"The mechanical use of tables such as this which require harsh and rigid prison terms based solely on counting plants or counting grams of a substance, marks a sad day for justice in the federal courts.
"The parties to a case such as this, and the public, are denied the benefits of discretion and common sense which can arrive at a sentence that is fair and just in light of all the relevant factors, including the circumstances of the offense, the defendant's past record, his prospects for rehabilitation, the need for deterrence of others, and the cost to the public of incarcerating a person for year after year. (Italics inserted)
" What we always tell juries is that they must comply with the law whether they agree with it or not, and the duty of a judge is the same in that regard. The mandatory minimum statutes and the guidelines have been upheld as constitutional and must be followed by the district courts.
'There is no basis for a downward departure from the guideline range in this case. And even if there were, the mandatory minimum would still apply. The court can go below the mandatory minimum only if the government moves for that relief based on the defendant's cooperation.
"For these reasons, there is no choice but to impose the sentence I am about to impose."
Kevin Cunningham, after having been moved through several Federal Prisons throughout the west and southwest, is currently residing at the Federal Detention Center in SeaTac, Washington.
