FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`No. 23-2218
`D.C. No.
`3:23-cr-08027-
`MTL-1
`
`OPINION
`
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
` v.
`
`PHILIP ALEJANDRO POWERS III,
`AKA Philip Alejandro Powers III,
`
` Defendant - Appellant.
`
`
`Appeal from the United States District Court
`for the District of Arizona
`Michael T. Liburdi, District Judge, Presiding
`
`Argued and Submitted October 22, 2024
`Phoenix, Arizona
`
`Filed February 24, 2025
`
`
`
`
`
`Before: Milan D. Smith, Jr., Bridget S. Bade, and Danielle
`J. Forrest, Circuit Judges.
`
`Opinion by Judge Bade
`
`
`

`

`2
`
`
`
`
`
`USA V. POWERS
`
`SUMMARY*
`
`Criminal Law
`
`III’s
`(1) Philip A. Powers
`The panel affirmed
`convictions, following a bench trial before a magistrate
`judge, on seven misdemeanor counts arising from his setting
`three fires in national forests (the “Taylor Fire,” the
`“Sycamore Fire,” and the “Sycamore 2 Fire”); and (2) an
`order of restitution.
`Powers argued that the magistrate judge erred in refusing
`to apply the necessity defense to acquit him of the
`charges. A district judge affirmed the magistrate judge’s
`conclusion that the necessity defense did not apply.
`The panel held that because Powers did not show that he
`was facing imminent harm when he set the Taylor Fire, and
`because the manner in which he set the fire was objectively
`unreasonable, his necessity defense as to Counts 2 and 5
`fails.
`The panel held that because how Powers set the
`Sycamore Fire and his decision to leave it unattended and
`unextinguished were objectively unreasonable, he is not
`entitled to the necessity defense as to Counts 1, 3, and 6.
`The panel held that because the undisputed facts do not
`show that Powers acted reasonably to preserve his life when
`he started the Sycamore 2 Fire, he is not entitled to the
`necessity defense as to Counts 4 and 7.
`
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`

`

`
`
`USA V. POWERS
`
`
`
`3
`
`Powers did not otherwise challenge his convictions or
`the order of restitution.
`
`
`
`COUNSEL
`
`Paul V. Stearns (argued), Assistant United States Attorney;
`Krissa M. Lanham, Appellate Division Chief; Gary M.
`Restaino, United States Attorney; United States Department
`of Justice, Office of the United States Attorney, Flagstaff,
`Arizona; for Plaintiff-Appellee.
`Daniel L. Kaplan (argued), Assistant Federal Public
`Defender; Jon M. Sands, Federal Public Defender, Federal
`Public Defenders Office, Phoenix, Arizona; Sarah Erlinder,
`Assistant Federal Public Defender, Federal Public Defenders
`Office, Flagstaff, Arizona; for Defendant-Appellant.
`
`
`
`OPINION
`
`
`BADE, Circuit Judge
`
`After losing the trail while hiking in northern Arizona,
`Defendant-Appellant Philip A. Powers III deliberately set
`three fires in the Prescott and Coconino National Forests.
`The United States Forest Service (USFS) later named these
`fires the “Taylor Fire,” the “Sycamore Fire,” and the
`“Sycamore 2 Fire.” The Sycamore Fire spread uncontrolled
`over 230 acres of forest, burning timber, shrubs, and grasses,
`and threatening Flagstaff, Arizona and the nearby watershed.
`Firefighters contained the fire after approximately nine days,
`
`

`

`4
`
`USA V. POWERS
`
`and the USFS incurred $293,413.71 in recoverable fire
`suppression costs.
`seven
`charged Powers with
`The government
`misdemeanor counts arising from these fires: one count of
`leaving a fire unattended in violation of 18 U.S.C. § 1856
`(Count 1) and six counts of violating USFS regulations
`(Counts 2 through 7). At a bench trial before a magistrate
`judge, Powers admitted setting the fires but asserted that he
`had done so out of necessity. Powers acknowledged that he
`was aware of the dry conditions and fire restrictions in the
`forests when he set the fires, but argued that he should
`nonetheless be acquitted because he was out of food and
`water, he did not have cell phone service, his physical
`condition was deteriorating, and his death was imminent.
`Therefore, he had no choice but to set the fires to “signal”
`for help. The magistrate judge rejected Powers’s necessity
`defense and found him guilty on all counts, sentenced him to
`supervised probation, and ordered him to pay restitution to
`the USFS.
`In this appeal, Powers challenges his convictions and the
`order of restitution.1 He argues that the magistrate judge
`erred in refusing to apply the necessity defense to acquit him
`of the charges. We have jurisdiction under 28 U.S.C.
`§ 1291. See United States v. Bibbins, 637 F.3d 1087, 1090
`(9th Cir. 2011). Because Powers’s actions in setting the fires
`were objectively unreasonable, and because he was not
`facing imminent harm when he set the Taylor Fire, he failed
`to meet
`the requirements of
`the necessity defense.
`Accordingly, we affirm.
`
`
`1 Powers has fully served his term of supervised probation.
`
`

`

`
`
`USA V. POWERS
`
`
`
`5
`
`I.
`A.
`In May 2018, Powers began an approximately nineteen-
`mile hike on the Taylor Cabin Loop trail near Sedona,
`Arizona.2 The trail begins in the Coconino National Forest
`and weaves through the high desert of the Sycamore Canyon
`Wilderness Area. Powers brought mandarin oranges,
`mangos, granola, and approximately 116 ounces of water.
`He also brought camping gear, including a machete, a ka-bar
`knife, and a lighter. He had a GPS feature on his
`smartphone, but he did not bring a paper map or compass.
`The weather was “very hot and dry,” and Powers knew that
`there were fire restrictions in the area prohibiting any fire
`without a permit.
`After hiking twelve to fourteen miles of the nineteen-
`mile loop, Powers reached Taylor Cabin. Shortly after he
`passed the cabin, and about ten hours into the hike, he lost
`the trail. He became “very frantic” because he needed to find
`the connecting trail to go “around the mountain”; otherwise,
`the only way back to the trailhead was to hike the distance
`he had already traveled. He had not seen anyone on the trail
`and was running low on water, with no means of
`replenishing his supply.
`After hiking for about forty minutes in search of the
`connecting trail, Powers doubled back to Taylor Cabin,
`arriving near sunset. He tried to use his phone to call for
`
`
`2 At first, Powers believed he was on the Cabin Loop trail, an
`approximately eighteen-mile hike near Flagstaff that is “moderate[ly]”
`difficult and weaves through a pine forest. In actuality, Powers was on
`the Taylor Cabin Loop trail, which is “[s]trenuous[ly]” difficult.
`
`

`

`6
`
`USA V. POWERS
`
`help, but he had no signal. He decided to stay at the cabin
`overnight.
`
`B.
`Around 9:00 p.m., Powers decided to set a signal fire.
`There was a fire pit next to Taylor Cabin, but Powers
`believed that a fire in the pit would not create enough smoke
`to be noticed by passing planes. Thus, he ignited a nearby
`patch of “dead grass mixed in with vegetation” that was
`“right next to [the] fire pit.” This first fire, the Taylor Fire,
`spread over about a tenth of an acre, burning grass, brush,
`and small trees, but did not attract any rescuers. When he
`set the Taylor Fire, Powers had about sixteen ounces of
`water left, as well as some mangos, two mandarin oranges,
`and “dehydrated granola,” in addition to jelly and coconut
`oil that he found in the cabin.
`By the next morning, the Taylor Fire had died out.
`Powers finished his remaining water and began the fourteen-
`mile hike back to the trailhead. The second day of hiking
`was “rough.” The temperature was around 100 degrees
`Fahrenheit. Powers was exhausted, lacked water, and
`believed he “was going to die” in the wilderness. His legs
`were cramping, and he felt like his body was “shutting
`down.” After noticing that he had stopped sweating, Powers
`“knew [he] was in trouble.” He resorted to drinking his own
`urine.
`After hiking about three miles away from Taylor Cabin,
`Powers decided to set another fire. He “tried to get to a spot
`where [he] would be easily visible,” thinking that a higher
`“vantage point” would allow the smoke to be “easily seen
`from the canyon.” After searching for “dead brush that
`would easily ignite,” “stay lit,” and “cause smoke,” Powers
`ignited a dead tree. He did not build a fire ring, dig a fire pit,
`
`

`

`
`
`USA V. POWERS
`
`
`
`7
`
`or remove any flammable materials from the area before
`starting the fire.
`Powers stayed with this second fire, the Sycamore Fire,
`for about an hour, at which point it was “still smoldering”
`but appeared to be dying out. Thinking that the fire had
`failed to signal help, Powers decided to continue hiking. He
`abandoned his backpack but took his car keys and cell
`phone. He did not extinguish the Sycamore Fire before
`leaving.
`Powers walked a few hundred yards, with frequent
`breaks, and drank his urine again. He started to feel like he
`was “hunching over” and his feet were “slipping” as he tried
`to hike. About thirty minutes after leaving the Sycamore
`Fire, Powers saw “a low-flying helicopter,” which “looped
`around” and left. The helicopter returned approximately
`thirty minutes later, and Powers began doing “everything
`[he] could to get its attention.” Because he was dressed in
`camouflage, he removed his underwear, which were orange,
`and waved them around on a stick.3 He also ignited a third
`signal fire, the Sycamore 2 Fire, which spread to a three-foot
`circle before dying out. As with the other two fires, Powers
`did not start the Sycamore 2 Fire in a fire ring or pit, nor did
`he clear flammable materials from the area.
`C.
`The helicopter belonged to USFS, which had received
`reports of a wildfire. Unbeknownst to Powers, the Sycamore
`Fire had not died out—flying in, firefighters saw a smoke
`column and twenty to thirty acres of burning landscape. The
`
`3 Because he was exhausted, Powers could not remove his boots and
`pants, so he used a knife to cut through his pants and “rip [his underwear]
`off.”
`
`

`

`8
`
`USA V. POWERS
`
`Sycamore Fire ultimately spread to 230 acres before it was
`contained.
`After landing, firefighters spotted Powers lying under a
`tree. He was able to walk to the helicopter with the
`assistance of two firefighters. The helicopter crew gave him
`water and flew him to Sedona where he was put in an
`ambulance and given intravenous (IV) fluids. While in the
`ambulance, Powers admitted to setting the fires.
`Powers was transported to an emergency medical center,
`where he was treated by Dr. Jeff Hardin, who diagnosed him
`with (1) severe dehydration, (2) rhabdomyolysis, (3) acute
`renal failure, (4) weakness, and (5) heat exhaustion. 4 Dr.
`Hardin consulted with a nephrologist, who recommended
`hospital admission and additional fluids. Powers was then
`transferred to a hospital in Cottonwood for further treatment.
`D.
`Powers was charged with seven federal misdemeanors:
`one count of leaving a fire unattended in violation of 18
`U.S.C. § 1856, three counts of building a fire in violation of
`federal restrictions under 36 C.F.R. § 261.52(a), and three
`counts of causing a fire in a national forest without a permit
`in violation of 36 C.F.R. § 261.5(c). During a two-day trial,
`Dr. Hardin testified that Powers probably would have died
`within 24 hours had he not been rescued; he also described
`Powers as “pretty ill” but “not on death’s door.” Powers
`testified that he set the three fires because he “wanted to live”
`and, during closing arguments, asserted the necessity
`defense.
`
`
`4 Rhabdomyolysis is a “breakdown of the muscle in the body,” which
`releases “toxins” and can cause various health problems, including
`kidney damage.
`
`

`

`
`
`USA V. POWERS
`
`
`
`9
`
`The magistrate judge found Powers guilty of all counts
`and concluded the necessity defense did not apply for three
`reasons. First, when Powers set the fires, the harm he faced
`was not sufficiently “imminent.” Second, Powers acted
`unreasonably by setting the fires in the manner that he did
`because he had safer alternatives that, although “per se
`illegal,” made his chosen conduct objectively unreasonable.
`Third, Powers created the conditions underlying the
`necessity because he was reckless and negligent in preparing
`for the hike. The magistrate judge sentenced Powers to one
`year of supervised probation, ordered a special assessment
`of $70.00, and levied stipulated restitution in the amount of
`$293,413.71 for the recoverable fire suppression costs.
`Powers appealed this judgment to the district court,
`which affirmed the magistrate judge’s conclusion that the
`necessity defense did not apply to excuse Powers’s criminal
`conduct and entered a partial remand on grounds not relevant
`to this appeal. Powers timely appealed.
`II.
`We review the magistrate judge’s legal conclusions de
`novo and her factual findings for clear error. United States
`v. Doremus, 888 F.2d 630, 631 (9th Cir. 1989); see also
`United States v. Lantis, 17 F.4th 35, 38 (10th Cir. 2021).
`Under the clear error standard, factual findings must be
`upheld so long as they are “plausible in light of the record
`viewed in its entirety.” June Med. Servs. v. Russo, 591 U.S.
`299, 301 (2020) (quoting Anderson v. Bessemer City, 470
`U.S. 564, 573–74 (1985)).
`
`III.
`Before determining whether the necessity defense
`applies to Powers’s illegal conduct of setting fires in the
`
`

`

`10
`
`USA V. POWERS
`
`National Forests, we first review and clarify the defense’s
`requirements. “The necessity defense is an affirmative
`defense that removes criminal liability for violation of a
`criminal statute.” Raich v. Gonzales, 500 F.3d 850, 861 (9th
`Cir. 2007) (citation omitted). It “traditionally covered the
`situation where physical forces beyond the actor’s control
`rendered illegal conduct the lesser of two evils.” United
`States v. Bailey, 444 U.S. 394, 410 (1980). For example,
`“[a]n escapee who flees from a jail that is in the process of
`burning to the ground” may be entitled to the defense, id. at
`415, “for he is not to be hanged because he would not stay
`to be burnt,” United States v. Kirby, 74 U.S. (7 Wall.) 482,
`487 (1868); see also United States v. Schoon, 971 F.2d 193,
`196 (9th Cir. 1991) (citing United States v. Dorrell, 758 F.2d
`427, 432 (9th Cir. 1985)) (explaining that the necessity
`defense “justifies criminal acts taken to avert a greater harm,
`maximizing social welfare by allowing a crime to be
`committed where the social benefits of the crime outweigh
`the social costs of failing to commit the crime”), as amended
`(Aug. 4, 1992).5
`“Because the necessity doctrine is utilitarian, however,
`strict requirements contain its exercise so as to prevent
`nonbeneficial criminal conduct.” Schoon, 971 F.2d at 197.
`To prove necessity, a defendant must show “(1) that he was
`faced with a choice of evils and chose the lesser evil; (2) that
`
`5 In Schoon, we listed several examples of when the necessity defense
`may apply to excuse criminal conduct: “prisoners could escape a burning
`prison,” “a person lost in the woods could steal food from a cabin to
`survive,” “an embargo could be violated because adverse weather
`conditions necessitated sale of the cargo at a foreign port,” “a crew could
`mutiny where their ship was thought to be unseaworthy,” and “property
`could be destroyed to prevent the spread of fire.” 971 F.2d at 196
`(citations omitted).
`
`

`

`
`
`USA V. POWERS
`
`
`
`11
`
`he acted to prevent imminent harm; (3) that he reasonably
`anticipated a causal relation between his conduct and the
`harm to be avoided; and (4) that there were no other legal
`alternatives to violating the law.” United States v. Perdomo-
`Espana, 522 F.3d 983, 987 (9th Cir. 2008) (quoting United
`States v. Arellano-Rivera, 244 F.3d 1119, 1125–26 (9th Cir.
`2001)).
` All four elements must be proven by a
`preponderance of the evidence, and each is viewed through
`an objective framework. Id. at 987–88; see United States v.
`Cruz, 554 F.3d 840, 850 (9th Cir. 2009) (noting that a
`“‘defendant must prove the elements of [an] affirmative
`defense by a preponderance of the evidence,’ unless some
`other standard is set by statute” (quoting United States v.
`Beasley, 346 F.3d 930, 935 (9th Cir. 2003))).
`Moreover, to benefit from the necessity defense, a person
`“must act reasonably.”6 Perdomo-Espana, 522 F.3d at 987–
`88 (applying the necessity defense and explaining that
`“[e]mbedded in our recognition that a person who seeks to
`benefit from a justification defense must act reasonably is
`the principle that justification defenses necessarily must be
`analyzed objectively”); see also Bailey, 444 U.S. at 410–11
`(noting that “in the context of prison escape, the escapee is
`not entitled to claim a defense of . . . necessity unless and
`until he demonstrates that, given the imminence of the threat,
`violation of [the law] was his only reasonable alternative”);
`United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972)
`
`6 At argument, Powers (through counsel) agreed that a person must act
`reasonably to invoke the necessity defense and rejected the position that
`a defendant could engage in any illegal conduct, so long as he did not
`have legal options. Powers offered the example that the necessity
`defense would not apply if he had started a signal fire by covering a
`portion of the forest floor with kerosine because doing so would be
`unnecessarily dangerous, even if it was likely to signal rescue.
`
`

`

`12
`
`USA V. POWERS
`
`(explaining that the societal benefit underlying justification
`defenses “is lost . . . when the person seeking to avert the
`anticipated harm does not act reasonably”).7
`Applying this reasonableness requirement to the third
`and fourth elements of the necessity defense, we have stated
`that “the law implies a reasonableness requirement in
`judging whether legal alternatives exist,” Perdomo-Espana,
`522 F.3d at 987 (quoting Schoon, 971 F.2d at 198), and “the
`defendant must ‘reasonably anticipate a causal relation
`between his conduct and the harm to be avoided,’” id.
`(alteration omitted) (quoting Arellano-Rivera, 244 F.3d at
`1126). We now clarify that the reasonableness requirement
`also applies to the second element: The action a defendant
`takes to prevent imminent harm must be reasonable. See
`Perdomo-Espana, 522 F.3d at 987–88; Schoon, 971 F.2d at
`197–98.
`We next separately analyze each criminal act that Powers
`committed to determine whether the necessity defense
`removes criminal liability for that act.
`A.
`Powers’s convictions for Count 2 (setting a fire in
`violation of USFS regulations) and Count 5 (unlawfully
`causing timber, trees, brush, and grass to burn without a
`permit) arise from the Taylor Fire. The magistrate judge
`found that Powers was not entitled to the necessity defense
`as to Counts 2 and 5 because he was not facing imminent
`harm when he set the Taylor Fire, and because his conduct
`in setting the fire in brush rather than in the fire pit that was
`
`
`7 The necessity defense is a type of justification defense. See United
`States v. Barnes, 895 F.3d 1194, 1205 n.4 (9th Cir. 2018).
`
`

`

`
`
`USA V. POWERS
`
`
`
`13
`
`only a few feet away was objectively unreasonable.8 We
`agree.
`
`1.
`“The term ‘imminent harm’ connotes a real emergency,
`a crisis involving immediate danger to oneself or to a third
`party.” Barnes, 895 F.3d at 1205 (alteration omitted)
`(citation omitted). For example, in Perdomo-Espana, we
`held that a defendant suffering from diabetes was not facing
`“imminent harm” because his condition was not
`“immediately dire.” 522 F.3d at 988. Although the
`defendant asserted that he had dangerously high blood sugar
`levels, he showed no outward signs of illness when
`interviewed hours later (despite receiving no medical
`treatment in the interim); also, a doctor characterized him as
`a “non-urgent” patient who needed “longer-term care.” Id.
`at 985; see also Schoon, 971 F.2d at 197 (the necessity
`defense does not condone crimes committed to “thwart
`threats” that are “yet to be imminent”); 2 Wayne R. LaFave,
`Substantive Criminal Law § 10.1(d)(5) (3d ed. 2023)
`(“[U]ntil the time comes when the threatened harm is
`immediate, there are generally options open to the defendant,
`to avoid the harm, other than the option of disobeying the
`literal terms of the law—the rescue ship may appear, the
`storm may pass; and so the defendant must wait until that
`
`
`8 The magistrate judge also found that Powers was not entitled to the
`necessity defense because he acted recklessly or negligently in preparing
`for the hike. Neither the Supreme Court nor the Ninth Circuit has
`addressed whether a defendant’s reckless or negligent creation of the
`dangerous circumstances is relevant to a viable necessity defense.
`Because Powers’s necessity defense fails for other reasons, we do not
`decide that issue.
`
`

`

`14
`
`USA V. POWERS
`
`hope of survival disappears.” (footnotes and citations
`omitted)).
`The undisputed facts demonstrate that Powers was not
`facing imminent harm when he set the Taylor Fire. At 9:00
`p.m. on the first day of his hike, Powers had food, sixteen to
`twenty ounces of water remaining, and a sheltered place to
`rest, and his phone still had power. He was not yet ill except
`for some muscle cramping. Although Dr. Hardin testified
`that muscle pain may be a symptom of rhabdomyolysis,
`which in turn can lead to renal failure, he did not opine that
`Powers was suffering from dehydration, rhabdomyolysis,
`acute renal failure, or any other condition at the time he set
`the Taylor Fire. 9 Instead, he testified about Powers’s
`condition and treatment the following day at the medical
`center in Sedona. 10 In sum, Powers did not present
`
`9 Dr. Hardin also testified that rhabdomyolysis can be caused by
`dehydration or muscle exertion, such as from a long hike. In Powers’s
`case, Dr. Hardin could not say if his rhabdomyolysis was caused by
`dehydration or exertion, but he “would pin it more on the hike.”
`10 The magistrate judge found that Powers was “not yet in a life-
`threatening state” when he set the fires based, in part, on Dr. Hardin’s
`testimony about Powers’s condition during the medical examination in
`Sedona. Powers argues that the magistrate judge clearly erred by
`assuming that his physical condition when he set the fires was the same
`as his condition during the medical examination, despite evidence that
`he drank water and received IV fluids after setting the fires and before
`the examination. But the magistrate judge did not act irrationally by
`considering Powers’s condition during the medical examination as
`circumstantial evidence of his condition when he started the fires. See
`United States v. Khatami, 280 F.3d 907, 910 (9th Cir. 2002) (“In
`reviewing the evidence, we are required to ‘respect the exclusive
`province of the factfinder to . . . draw reasonable inferences from proven
`facts . . . .’” (alteration omitted) (quoting United States v. Goode, 814
`
`
`

`

`
`
`USA V. POWERS
`
`
`
`15
`
`testimony or other evidence suggesting that, when he set the
`Taylor Fire, he was facing a “serious or imminent risk of
`bodily harm at that time.” Perdomo-Espana, 522 F.3d at
`985; see also United States v. Cervantes-Flores, 421 F.3d
`825, 829 (9th Cir. 2005) (per curiam) (concluding that
`defendant’s HIV diagnosis did not constitute imminent harm
`because, although the defendant “may have a more limited
`life span than others,” there was no evidence that the disease
`created “a threat of death or other serious, immediate
`harm”), overruled on other grounds by Melendez-Diaz v.
`Massachusetts, 557 U.S. 305 (2009). The magistrate judge
`did not err by finding that Powers was “not yet in a life-
`threatening state” when he set the Taylor Fire.
`2.
`Powers’s necessity defense also fails as to the Taylor
`Fire counts because his actions taken to preserve his life
`were objectively unreasonable. Powers set the Taylor Fire
`by igniting a “bunch of dead grass mixed in with vegetation
`right next to [the] fire pit” near Taylor Cabin, and he did not
`clear the area or make any effort to limit its spread
`beforehand. The magistrate judge found that “Powers could
`have started the Taylor Fire in the fire ring that was only feet
`away from where he started the fire in the brush” and that
`“he could have removed flammable material to keep the fire
`from spreading.” Moreover, Powers testified that he hoped
`the smoke from the Taylor Fire would attract attention, but
`“he acknowledged that smoke wouldn’t be seen at night.”
`Thus, his conduct in starting the Taylor Fire, at night, in the
`
`F.2d 1353, 1355 (9th Cir. 1987)). And Powers does not identify any
`evidence from which a reasonable factfinder could infer that he was “in
`a life-threatening state” by 9:00 p.m. on the first day of the hike when he
`set the Taylor Fire.
`
`

`

`16
`
`USA V. POWERS
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`brush a few feet away from a fire pit, was objectively
`unreasonable.
`Powers dismisses the magistrate judge’s findings that he
`could have taken reasonable safety precautions when setting
`the fires as “irrelevant” because starting any fire (even in the
`fire pit) would have violated the fire regulations. He argues
`that only legal alternatives can render the necessity defense
`inapplicable, pointing to the fourth element of the defense: a
`lack of legal alternatives. Perdomo-Espana, 522 F.3d at 987
`(citation omitted). But this argument cannot be reconciled
`with his concessions that the necessity defense does not
`excuse any conduct and instead requires that the person
`invoking the defense has acted reasonably.
` As he
`acknowledged, the necessity defense would not protect
`“dousing a large swath of the forest with kerosene and
`setting
`it aflame” because such conduct would be
`unreasonable.
`This argument also ignores the first and second elements
`of the defense, which require that he chose the lesser evil and
`acted reasonably to prevent imminent harm. Id. at 987–88.
`And Powers does not explain how starting the Taylor Fire a
`few feet from a fire pit, at night, and without taking any
`measures to prevent it from spreading uncontrollably was
`objectively reasonable conduct.
`Because Powers has not shown that he was facing
`imminent harm when he set the Taylor Fire, and because the
`manner
`in which he set
`the fire was objectively
`unreasonable, his necessity defense as to Counts 2 and 5
`fails. We therefore affirm his conviction as to those counts.
`
`

`

`
`
`USA V. POWERS
`
`
`
`17
`
`B.
`Powers’s convictions on Counts 3 and 6 arise from
`setting the Sycamore Fire; his conviction on Count 1 arises
`from
`leaving
`the Sycamore Fire unattended without
`extinguishing it. The magistrate judge found that Powers
`was not entitled to the necessity defense as to Counts 1, 3,
`and 6 because he was not facing imminent harm when he set
`and then abandoned the Sycamore Fire and because his
`actions were objectively unreasonable. Because Powers set
`the Sycamore Fire many hours after he set the Taylor Fire,
`when he no longer had food or water and his physical
`condition likely deteriorated, we assume without deciding
`that Powers faced imminent harm when he set and
`abandoned the Sycamore Fire. But we agree that both how
`he set the Sycamore Fire and his decision to leave it
`unattended
`and
`unextinguished were
`objectively
`unreasonable.
`The magistrate judge found that, when Powers set the
`Sycamore Fire, he had only illegal alternatives—he could
`not set a signal fire without breaking the law, and he had no
`legal means of attracting rescue or obtaining water or other
`supplies to finish the hike. But she also found that “Powers
`had other objectively reasonable options [with respect to] the
`manner in which he [chose] to start signal fires,” such as
`clearing brush, creating a fire ring or pit, or extinguishing the
`Sycamore Fire before leaving it. Thus, the magistrate judge
`found that Powers acted in an objectively unreasonable
`manner by failing to take any safety precautions.
`Powers again argues the magistrate judge erred by
`focusing on illegal alternatives, which he contends are
`“irrelevant to the necessity defense.” But even if a defendant
`has only illegal options, to assert a viable necessity defense,
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`18
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`USA V. POWERS
`
`he must choose among those options reasonably. See
`generally Perdomo-Espana, 522 F.3d at 988 (noting that “a
`person who seeks to benefit from a justification defense must
`act reasonably”). For example, a lost hiker is not justified in
`burning down a cabin to stay warm if he can break into the
`cabin and warm himself at its fireplace, even though both
`actions may be per se illegal. In other words, the need to act
`to prevent a greater evil and a lack of legal alternatives does
`not eliminate the requirement that a defendant seeking to
`benefit from the necessity defense must choose a course of
`action that is reasonable under the circumstances. See id. at
`987–88.
`Powers also argues that the alternatives suggested by the
`magistrate judge are “unrealistic” because he “did not have
`the energy to build firefighter-quality signal fires when he
`acted as he did.” To begin, the magistrate judge held Powers
`to a reasonableness standard, not a “firefighter” standard.
`And the magistrate judge did not clearly err by finding that
`Powers could have taken some precautionary measures to
`prevent the fire from spreading uncontrollably. Although
`Powers was fatigued, he climbed to “the highest vantage
`point [he] could see” to ignite the Sycamore Fire and
`continued to hike (with breaks) even after abandoning this
`fire. From these facts, the magistrate judge could plausibly
`infer that Powers had the physical ability to take steps to
`build a safer fire and to extinguish the smoldering tree. See
`June Med. Servs., 591 U.S. at 301; Khatami, 280 F.3d at 910.
`In a similar vein, Powers argues that clearing brush or
`building a fire enclosure would have been unreasonable
`because, “if the fire failed to attract rescuers,” these activities
`would have sapped his remaining energy and “destroy[ed]
`any possibility of making further progress down the trail.”
`This argument is speculative and assumes that the exertion
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`

`
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`USA V. POWERS
`
`
`
`19
`
`required for all possible safety measures would have
`meaningfully compromised his ability to continue hiking
`back to the trailhead. The magistrate judge made no such
`finding, and the evidentiary record does not establish that
`this was clear error. Thus, the argument is unavailing. See
`June Med. Servs., 591 U.S. at 301; see also Raich, 500 F.3d
`at 872 (“The establishment of the factual elements of the
`[necessity] defense, if submitted, is for the jury (or other trier
`of fact).” (Beam, J., concurring in part and dissenting in
`part)).
`Powers also argues that “[s]tomping out the Sycamore
`Fire would have ensured [his] death” because the Sycamore
`Fire, which
`spread quickly after Powers
`left
`it
`unextinguished, ultimately attracted rescuers. But Powers
`testified that he left the Sycamore Fire because he believed
`“it was not a sufficient fire and it was dying.” He did not
`suggest that he made a conscious choice to leave the
`Sycamore Fire smoldering based on a reasonable belief that
`doing so would abate the threatened harm (i.e., by continuing
`to smoke and therefore signal rescue). See LaFave, supra,
`§ 10.1(d)(3) (explaining that, to assert a viable necessity
`defense, the defendant “must believe that his act is necessary
`to avoid the greater harm”). Thus, this argument is not
`supported by the record.
`Finally, Powers argues that, even assuming he could
`have taken fire safety precautions without lowering his odds
`of being rescued by someone who saw smoke from his signal
`fires, his conduct was objectively reasonable. In his view,
`the magistrate judge effectively faulted him for not acting in
`the most “punctilious manner” possible, thereby imposing a
`more stringent standard than the necessity defense requires.
`Powers also contends that finding his actions unreasonable
`because he failed to take safety measures necessarily invites
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`20
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`USA V. POWERS
`
`critique of the effectiveness of any measures taken in future
`cases, which “would whittle this important [necessity]
`defense down to nothing.” We disagree with the premise of
`this argument. Failing to take safety measures is different
`than taking measures that turn out to be ineffective.
`Reasonableness is a fact-bound inquiry. And our decision
`today says nothing about whether a defendant