United States v. Powers

                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                   No. 23-2218
                                              D.C. No.
            Plaintiff - Appellee,
                                           3:23-cr-08027-
                                               MTL-1
 v.
                                             OPINION
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

    The panel affirmed (1) Philip A. Powers III’s
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.
    The government charged Powers with seven
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


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,
18                       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
                         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
20                       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 who
undertakes ineffective preventative measures acts
reasonably.
    We conclude that Powers’s necessity defense fails not
because he failed to take the most responsible action possible
but because he failed to act reasonably in seeking rescue.
See Perdomo-Espana, 522 F.3d at 987–88. That some
leeway should be given to an individual responding to a
crisis does not mean that anything goes, nor does it establish
that Powers’s actions in setting and abandoning the
Sycamore Fire were objectively reasonable. It is undisputed
that he ignited a dead tree without making any effort to
contain the fire’s ability to spread in a hot, dry forest with no
nearby water sources, and then left the still-smoldering fire
unattended. The magistrate judge found that Powers
reasonably had the ability to set the fire in a safer manner,
and this finding is not clearly erroneous. By choosing not to
take any precautions and to set the Sycamore Fire in an
unnecessarily careless manner (and then abandon it,
unextinguished), Powers acted unreasonably.
    Because Powers failed to act reasonably with respect to
the Sycamore Fire, he is not entitled to the necessity defense
as to Counts 1, 3, and 6. We therefore affirm his conviction
as to those counts.
                          USA V. POWERS                           21


                                 C.
    Likewise, Powers is not entitled to the necessity defense
as to Counts 4 and 7, which arise from the Sycamore 2 Fire,
because he acted in an objectively unreasonable manner. 11
     As with the Taylor Fire and the Sycamore Fire, the
magistrate judge found that Powers acted in an objectively
unreasonable manner by setting the Sycamore 2 Fire without
taking any safety precautions. Powers argues the suggested
precautions—clearing the surrounding area or creating a fire
ring or pit—are unrealistic, but the magistrate judge did not
clearly err by finding that Powers was capable of such
alternatives. When Powers set the Sycamore 2 Fire, he could
still hike (albeit only in small bursts) and was able to remove
his underwear and wave it on a stick (albeit with difficulty).
    Beyond challenging the magistrate judge’s factual
findings, Powers does not explain why his conduct with
respect to the Sycamore 2 Fire was reasonable, and the
evidence presented at trial about the fire’s circumstances was
sparse. This lack of information weighs against Powers
because he has the burden to establish the elements of the
necessity defense by a preponderance of the evidence. See
Cruz, 554 F.3d at 850; United States v. Dominguez-Mestas,
929 F.2d 1379, 1384 (9th Cir. 1991) (per curiam).
    Moreover, the undisputed facts demonstrate that Powers
did not set the Sycamore 2 Fire in a reasonable manner.
Before igniting it, he saw “smoke coming out over a ridge,”
although it is not clear whether he understood its source was
the Sycamore Fire, which was only a few hundred yards
away and spread quickly after he left it. He then saw the

11
  As with the Sycamore Fire, we assume, without deciding, that Powers
faced imminent harm when he set the Sycamore 2 Fire.
22                         USA V. POWERS


helicopter for a second time and “immediately” started the
Sycamore 2 Fire by lighting some nearby brush. Although
there were “materials” in the area from which “a rock ring
could have been built,” and despite knowing that something
nearby was burning, Powers again made no effort to limit
this third fire’s ability to spread in the hot, dry forest. 12
Instead, the photographs admitted at trial show that the
Sycamore 2 Fire was started in the middle of a larger patch
of dry brush.
    In sum, the undisputed facts do not show that Powers
acted reasonably to preserve his life when he started the
Sycamore 2 Fire. Thus, he is not entitled to the necessity
defense as to Counts 4 and 7, and we affirm his convictions
as to those counts.
                                  IV.
    Because the magistrate judge’s view of the evidence was
plausible and we find no error in the conclusion that the
necessity defense did not excuse Powers’s criminal conduct,
and because Powers does not otherwise challenge his
convictions or the order of restitution, we affirm.
     AFFIRMED.




12
  The Sycamore 2 Fire spread to a three-foot circle, burning some “grass
and brush,” before dying out; Powers testified that it self-extinguished
before he left on the helicopter.