[00:00:02] Speaker 03:
Good morning, ladies and gentlemen.

[00:00:03] Speaker 03:
Welcome to the Ninth Circuit.

[00:00:05] Speaker 03:
Before we hear our argument in the first case, we have a couple of housekeeping matters to take care of.

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Specifically, the cases of Lane versus United States, Goodall versus United States, and Stevens versus State of Arizona are submitted.

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The first case for argument today is Powers versus the United States, and I believe Mr. Kaplan is up first.

[00:00:30] Speaker 02:
Thank you, Your Honor.

[00:00:36] Speaker 02:
Good morning.

[00:00:37] Speaker ?:
May it please the Court?

[00:00:37] Speaker ?:
My name is Daniel Kaplan.

[00:00:38] Speaker 02:
I'm here representing the Appellant Philip Powers, trial counsel Sarah Erlander is here at council table.

[00:00:43] Speaker 02:
I will watch the clock and try to save about two minutes for my rebuttal time.

[00:00:46] Speaker 03:
How much are you trying to save?

[00:00:47] Speaker 02:
About two minutes.

[00:00:49] Speaker 02:
Okay.

[00:00:49] Speaker 02:
Thank you.

[00:00:52] Speaker 02:
When you open up a treatise and look up the necessity defense, what you find are fact patterns essentially the same as what

[00:01:00] Speaker 02:
the undisputed facts in this case are.

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It's undisputed that at the time Philip acted as he did, he was deep in a remote wilderness.

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He had no water.

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There was no one around.

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There was no prospect of rescue.

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He would not have survived another day, according to the undisputed testimony of the doctor who treated him, without rescue, without water, without treatment.

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And it's undisputed that one of the fires that he set for which he was prosecuted

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was what led to his being rescued and not dying that day.

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Mr. Kaplan, as you know, we are a court of review.

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And it's important that we determine what the standard of review is for the findings of the Manchester judge.

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Do we review his findings for clear error or de novo?

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Clear error.

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And what case or cases would you cite to that effect?

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The cases that I cited, the Bibbins case is not very explicit about it, but it appears to be applying that standard directly, sort of skipping over the district court appeal and straight to the magistrate.

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And a case I cited from the 10th Circuit was more explicit about it.

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I can look that up just a moment, but that 10th Circuit case was the one that laid that out pretty clearly.

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that it was the clearly erroneous standard for factual issues and de novo for legal issues.

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So everything we review in this case that was decided by the magistrate judge, we view it through the lens of clear error.

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Is that correct?

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Factual matters, yes.

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Factual, right.

[00:02:38] Speaker 03:
Exactly.

[00:02:39] Speaker 02:
Sure.

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And there's very little dispute on any factual matters here, as the magistrate judge observed, kind of unusual thing about this case.

[00:02:48] Speaker 04:
There were events that happened over

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Two days, not a whole 48 hours, but started in the evening of one day and continued into the second day.

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And in that time period, Mr. Powers set three different fires.

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And the complaint included seven counts.

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So as we apply the law of the necessity defense, do we do it count by count?

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And for each of the separate events that occurred,

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Does he need to demonstrate necessity for each of the fires?

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I would say yes with an asterisk.

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And what I mean by that is the necessity defense would have to be evaluated as to each charge and each fire, yes.

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However, if the court were to separate out one of the three fires, and let's just say the first one, which the government has said is different from the other two, the first one it was nighttime.

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Philip was not in quite as extreme, dangerous, life-threatening circumstances as he was the next day and say, well, maybe it applies to the other two but not to this one, there would be implications for the major portion of the penalty, which is the financial penalty.

[00:04:07] Speaker 04:
Okay.

[00:04:07] Speaker 04:
So you're going right to what I was going to ask you next, which was, Tim, there was a stipulation, if I recall, between the parties with respect to the restitution order.

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And is it tied to any particular fire or is it for all three of them?

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What was the agreement?

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I'll just give you the exact wording.

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It's not expressly tied to a particular fire.

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What it says is the recoverable fire suppression cost, which as the court knows, related solely to the Sycamore fire, the second one.

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There were no costs related to the other two fires.

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Those are, and it says, and specifically the sycamore fire, in the stipulation that's what it says, specifically the sycamore fire are 293,000, et cetera.

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And then the next sentence says, more specifically, if and only if the United States prevails at trial, the parties stipulate the full restitution is that amount.

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So there's a specific reference to those being the cost for the sycamore fire.

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And the phrase prevails at trial, arguably there's some ambiguity there, but in context,

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it appears to be saying that's the restitution for the Sycamore Fire.

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So if the necessity defense applies to the Sycamore Fire, which is solely responsible for those costs being incurred, then that restitution penalty should be vacated.

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You have argued in your brief that once the necessity defense applies,

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and a person is faced between the choice of evils, there's really no requirement that the action they take be reasonable, that they could, whatever they needed to do to avoid one evil and illegal conduct is going to be protected by the necessity defense.

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But as I think about the cases that talk about that, it's a little troubling because there's an example, I think, in the Shoon case about somebody lost in the woods and they

[00:06:11] Speaker 04:
come upon a structure, a house, and they break in and they take provisions, and they need to do that to survive.

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But what if they decided, I am cold, I need to survive, and they burned it down, and they just burned the cabin to the ground, when they could have broken in and warmed themselves inside?

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I mean, does that mean they're covered by the Natasity Defense, even though the action they took was more extreme than what was necessary?

[00:06:34] Speaker 02:
Well, I have to object to the first part of your question, which

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you were stating that I took the position that the actor does not need to be reasonable and I apologize if I gave that impression in the briefs.

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I absolutely did not take that position.

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The action has to be reasonable and there are cases in this court that say that under all the justification defenses, which is a broader category that includes a necessity defense, the actor must behave reasonably.

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What I would say, however, is that there's a line to be drawn between being reasonable and

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being perfect or doing the least possible harm or damage.

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So the magistrate judge applied that latter type of standard saying he could have done more, he could have dug a fire pit, he could have cleared out the brush, he could have done all these things, setting aside whether when he was that close to death and drinking his own urine and that desperate in those circumstances, he had the strength to do that and still have any chance of walking back.

[00:07:36] Speaker 02:
Setting aside that question,

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If you really apply that standard of least possible harm, least possible danger, et cetera, you're going to whittle down the necessity defense to a point where it's essentially never available.

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Because let alone whether people in any circumstances in normal life would be able to meet that standard, people in desperate circumstances, which essentially it's integral to this defense that they are in those circumstances, they're never going to meet that standard.

[00:08:08] Speaker 04:
So certain actions are not covered by justification more broadly or necessity.

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So there was an example of two people go into a remote area and one of them realizes that the other is going to murder him in a month.

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And so they would be justified or by necessity.

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They could steal the other person's car and leave.

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And they could do that at the outset of the trip.

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They don't have to wait for the whole month.

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But I don't understand the law to mean that they could kill the other person and claim necessity for doing that.

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So there are limits, you would agree.

[00:08:45] Speaker 02:
Absolutely.

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Right.

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So you can't just take the most extreme action and then argue, well, it's protected by necessity.

[00:08:53] Speaker 02:
Sure.

[00:08:53] Speaker 02:
And the analogy here would be, and I'm going to try to reserve after this, but the analogy here would be, if Phil said, oh my gosh, I'm afraid I'm going to die here, I'm going to sprinkle kerosene over a two-acre area and then throw a match onto it.

[00:09:06] Speaker 02:
he would have crossed the line of reasonableness.

[00:09:08] Speaker 02:
He would.

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And he wouldn't be entitled to the defense.

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When he held one big lighter up to one dead tree and waited an hour and thought it was going out, he wasn't crossing that line of reasonableness.

[00:09:19] Speaker 02:
But I would like to reserve it.

[00:09:19] Speaker 03:
Counsel, I know you want to save the balance of your time.

[00:09:21] Speaker 03:
But when you come back up, will you address the point that the magistrate judge found that your client's physical condition was, in quotes, moderate after hearing all the medical testimony?

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When you come back up, will you address how under the clear

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error standard you get around that problem.

[00:09:38] Speaker 03:
Yes, Your Honor.

[00:09:38] Speaker 03:
Okay, very well.

[00:09:40] Speaker 03:
All right, let's now hear from government, Mr. Stearns.

[00:09:53] Speaker 01:
Morning, Your Honors.

[00:09:53] Speaker 01:
My name is Paul Stearns.

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I'm an Assistant U.S.

[00:09:55] Speaker 01:
Attorney from Flagstaff, Arizona, and here on behalf of the government, Your Honor.

[00:10:00] Speaker 01:
If I could just start with some basic facts from this case.

[00:10:03] Speaker 01:
It's actually not two days, it was actually three days, and that's important based on some of the arguments that the defendant raises.

[00:10:09] Speaker 01:
The defendant actually drove to the area of the hike on May 26th.

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He spent the night there, and he testified at trial that once he got there, he knew there would be no water.

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He started the hike on May 27th.

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and he intended to do essentially a one-day hike, although it's described in the document that he provided in this case, trial exhibit number 23, which is found at ER-641.

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It's described as a two-day hike that's fairly strenuous, and it also in that document describes how

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water could be an issue.

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It also describes that sometimes the trail is hard to find, and it's important to have a topographical USGS map, which he did not.

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So in any event, he started this hike on May 27th.

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And again, he said he knew that there would be no water once he arrived at the scene.

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The defendant also knew the weather conditions at the time.

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And the weather conditions were essentially very hot and dry.

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And he testified about that.

[00:11:12] Speaker 00:
He testified... Can I jump in?

[00:11:15] Speaker 00:
I would like to sort of...

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understand sort of the limits of the government's position on this point that you're making.

[00:11:21] Speaker 00:
So let's say, for sake of argument, that Mr. Powers was completely irresponsible in how he set out and prepared for this hike.

[00:11:31] Speaker 00:
So that's a given.

[00:11:33] Speaker 00:
So then we move on to, and then he finds himself in this position where he's in a life threatening situation.

[00:11:38] Speaker 00:
And we can argue about when or if that happened, but assume for the purpose of my question, he's at that point.

[00:11:44] Speaker 00:
What's the government's position that because he was irresponsible in getting himself to that point, that too bad the necessity defense is never going to apply because of his own actions?

[00:11:54] Speaker 00:
Is that?

[00:11:55] Speaker 01:
Yes, Your Honor.

[00:11:56] Speaker 01:
I don't think it's a question of either you die, as the defense counsel says, or you essentially raise the necessity and try to start a signal fire.

[00:12:06] Speaker 01:
I think the answer is that you are held responsible for your actions.

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And the responsibility in this case is that he was charged with class B misdemeanors for among other things, leaving a fire and to let it spread beyond his control, counts two through four, violating fire restrictions and the remaining counts essentially causing timber and grass to burn.

[00:12:27] Speaker 00:
So if we conclude, so I guess that's right, you've answered my question.

[00:12:31] Speaker 00:
If we conclude that he is irresponsible in getting himself to the point where he's got a life-threatening situation that,

[00:12:40] Speaker 01:
set the fire, whatever, but you're going to be responsible for it.

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coercion is an affirmative defense as well.

[00:12:58] Speaker 01:
But we have to look at the nature of the coercion.

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Is the coercion human-caused or is it a physical force beyond his control, which is typically something in nature?

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And in this case, because the defendant knew the conditions when he arrived.

[00:13:14] Speaker 01:
In fact, he testified that he spent about two days preparing for this hike.

[00:13:18] Speaker 00:
But doesn't the record also show that he thought he was on a different hike?

[00:13:22] Speaker 01:
No, Your Honor, I don't think it does.

[00:13:24] Speaker 01:
Three times in the record, first of all, Ms.

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Erlender at trial said, let's clear this up.

[00:13:31] Speaker 01:
And she had him establish that while he had provided the wrong document to the Forest Service officer who investigated that, and that was Officer O'Neill, he had provided the wrong hike essentially to him when he was investigating it.

[00:13:46] Speaker 01:
And that's trial exhibit 14, Your Honor.

[00:13:49] Speaker 01:
In reality, Ms.

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Erlinder had him correct the fact

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that the hike he was actually on was the Taylor Cabin Loop, also the Dogie Trail.

[00:13:59] Speaker 01:
And she did that the first time.

[00:14:01] Speaker 01:
And then across examination, I did it again.

[00:14:03] Speaker 01:
There's no question he was confused about what he said to Officer O'Neill.

[00:14:07] Speaker 01:
And, you know, that's essentially a paraphrase of his words.

[00:14:10] Speaker 01:
But then in redirect, one more time, and this is at ER 518, Mr. Powers said that he felt confident he was on the hike that he read about.

[00:14:22] Speaker 01:
And this also goes back to my original point, which is that the defendant arrived the day beforehand.

[00:14:28] Speaker 01:
He didn't just arrive there on the day and then start the hike.

[00:14:31] Speaker 01:
He was actually there the day beforehand.

[00:14:34] Speaker 01:
And again, he testified that he knew it was hot, he knew it was dry, he knew it was in stage two fire restrictions, which is one

[00:14:41] Speaker 01:
fire restrictions short of a full forest closure, he knew there would be no water, and yet he only carried 116 ounces of water.

[00:14:49] Speaker 01:
Now that sounds like a lot of water, but that's about 6.12 ounces of water per mile, assuming he went the most direct route on this hike, which was essentially published in his own book as 18.8 miles.

[00:15:03] Speaker 03:
Let me ask you this.

[00:15:04] Speaker 03:
You had cited the Supreme Court's case in Bailey.

[00:15:07] Speaker 03:
Let me just cite a piece of that.

[00:15:09] Speaker 03:
The Supreme Court said that the necessity of defense is not available unless the defendant, and I'm quoting, demonstrates that given the imminence of the threat, violation of the relevant statute was his only reasonable alternative.

[00:15:24] Speaker 03:
Given that standard at the time that power set what we'll call the Sycamore and Sycamore II fires, what reasonable alternative did he have to lighting an illegal fire?

[00:15:36] Speaker 01:
Well, Your Honor, first of all, I'm glad you pointed that point out, because it says reasonable, they're not simply legal.

[00:15:42] Speaker 01:
And so one of the options that he would have had is to build a fire ring.

[00:15:48] Speaker 01:
One of the options that he would have had was to dig a fire pit.

[00:15:53] Speaker 01:
Now, he had a lot of equipment with him.

[00:15:54] Speaker 01:
He had a machete.

[00:15:56] Speaker 01:
He had a K-bar knife.

[00:15:57] Speaker 01:
And the testimony was that any one of those could have been used.

[00:16:00] Speaker 03:
These are things that the magistrate judge actually

[00:16:04] Speaker 03:
set out, right, five or six things that he could have done, right?

[00:16:08] Speaker 01:
Correct, Your Honor.

[00:16:08] Speaker 03:
And the government's position, I take it, is that that is the response under Bailey.

[00:16:15] Speaker 03:
He could have done any of those things, therefore the necessity defense doesn't fly here.

[00:16:20] Speaker 01:
Well, I think the necessity of defense doesn't apply for a couple of reasons.

[00:16:23] Speaker 01:
Right.

[00:16:24] Speaker 01:
At least those.

[00:16:25] Speaker 01:
Right.

[00:16:25] Speaker 01:
I mean, I think Bailey, the strongest point is where does the coercion come from?

[00:16:29] Speaker 01:
Is it human cause or is it a physical force of nature?

[00:16:33] Speaker 01:
And again, defense counsel in the reply brief says he can't turn off the sun and he can't make the creek flows.

[00:16:39] Speaker 01:
But he knew that it was dry and hot before he started.

[00:16:42] Speaker 01:
And he still hiked unprepared.

[00:16:45] Speaker 01:
And again, it's not just the lack of water.

[00:16:47] Speaker 01:
He didn't bring a backup map.

[00:16:49] Speaker 01:
Exhibit 23, trial exhibit 23, talks about bringing a USGS topographical map.

[00:16:54] Speaker 01:
He didn't bring a backup map.

[00:16:55] Speaker 01:
He didn't bring a first aid kit on a nearly 19-mile hike, in-stage two-fire restrictions, in the high desert.

[00:17:02] Speaker 01:
This is a dry area.

[00:17:04] Speaker 01:
This was essentially a timber box, a tinder box.

[00:17:06] Speaker 01:
So he took no actions.

[00:17:08] Speaker 01:
to essentially constrain that fire.

[00:17:11] Speaker 01:
And one of the cases that I think both parties talk about that's only somewhat applicable here is the Launder case.

[00:17:17] Speaker 01:
In the Launder case, the facts are different.

[00:17:20] Speaker 01:
But the defendant was on a very, very short hike and he got lost.

[00:17:25] Speaker 01:
But in that case, the defendant actually tried to contain the fires and he tried to put them out.

[00:17:29] Speaker 01:
And of course, there's no facts supporting that the defendant walked away from the fire.

[00:17:33] Speaker 01:
In this case, the defendant walked away from the fire and he said it was still going when he walked away from it.

[00:17:38] Speaker 04:
But he thought it was going out, right?

[00:17:40] Speaker 04:
You were talking about the Sycamore fire, the second one that he set.

[00:17:43] Speaker 04:
When, as I recall his testimony, he said he stayed with it for about an hour.

[00:17:47] Speaker 04:
I didn't think it was working as a signal, thought it was on its way out, and so he hiked on or he moved on.

[00:17:54] Speaker 04:
So is one of the things he could have done is stay with that fire or put that fire out before moving on?

[00:17:59] Speaker 01:
Yes, Your Honor.

[00:17:59] Speaker 01:
He could have stayed with fire.

[00:18:01] Speaker 01:
He could have put it out.

[00:18:04] Speaker 01:
And again, if we look at it count by count, count one is the

[00:18:08] Speaker 01:
the count 18 U.S.C.

[00:18:10] Speaker 01:
1856 where he essentially left that fire while it was still burning.

[00:18:13] Speaker 01:
And his testimony was clear.

[00:18:15] Speaker 01:
He left it while it was still burning.

[00:18:16] Speaker 01:
He looked back.

[00:18:17] Speaker 01:
But in any event, I'm going back to the Launder case.

[00:18:20] Speaker 01:
What's interesting about the Launder case is that this court said that

[00:18:25] Speaker 01:
One of the things that was at issue was there were no fire restrictions.

[00:18:28] Speaker 01:
And the court said, in my view, was suggesting that the government should have charged Mr. Launder with the violation of a felony under 18 U.S.C.

[00:18:35] Speaker 01:
1855, which we didn't, of course, do here.

[00:18:38] Speaker 01:
But they said if the Forest Service wanted to put in fire restrictions, they could have.

[00:18:42] Speaker 01:
And in this case, they did.

[00:18:43] Speaker 01:
They essentially followed, you know, this court's suggestions and implemented not just stage one, which is the lowest stage of fire restrictions, but stage two restrictions.

[00:18:52] Speaker 01:
Again, the defendant knew this.

[00:18:55] Speaker 01:
prior to starting the hike.

[00:18:56] Speaker 01:
He testified again that he spent about two days preparing for the hike.

[00:18:59] Speaker 01:
He knew that the area was in fire restrictions.

[00:19:02] Speaker 01:
He said that the fire restrictions were posted.

[00:19:04] Speaker 01:
In fact, it's in the record the fire restrictions are posted at a kiosk in the parking lot where he had parked the night before.

[00:19:11] Speaker 01:
Also on that kiosk was essentially some warnings that says, do you have enough food?

[00:19:15] Speaker 01:
Do you have enough water?

[00:19:16] Speaker 01:
So again, we kind of look at what's the nature of the coercion.

[00:19:21] Speaker 01:
about a month ago I came to court here and I was dressed similar to what I am today and it was hot, it was over 100 degrees, it was sunny.

[00:19:30] Speaker 01:
If I would have went out for a two hour walk and my head got burned, which wouldn't be a surprise given how much hair I don't have, that would have been

[00:19:39] Speaker 01:
strictly speaking, a physical force of nature, but it wouldn't be beyond my control because I could have wore a hat, I could have wore a sunscreen, I could have covered up, I could have stayed in the shade, or maybe it was just so bad that I shouldn't have been on the hike to begin with.

[00:19:52] Speaker 01:
So again, it's human-caused coercion.

[00:19:55] Speaker 01:
It's not a physical force beyond his control, Your Honor.

[00:19:57] Speaker 01:
Okay, your time is up.

[00:19:58] Speaker 03:
Let me ask my colleagues whether either has additional questions of the government.

[00:20:02] Speaker 03:
I think not.

[00:20:02] Speaker 03:
Thank you very much.

[00:20:03] Speaker 03:
Thank you, Your Honors.

[00:20:05] Speaker 03:
Mr. Kaplan, if you'll answer my question when you come up first, okay?

[00:20:09] Speaker 02:
Yes, Your Honor.

[00:20:10] Speaker 02:
So you asked about the magistrate judge finding that his condition was moderate.

[00:20:15] Speaker 02:
And that was clearly erroneous because the magistrate judge's reasoning was Dr. Harden testified that when he, Dr. Harden, examined Phil, he found his condition moderate.

[00:20:26] Speaker 02:
But what's clear on the record and not disputed is between the time when he set the fires and when Dr. Harden examined him,

[00:20:34] Speaker 02:
He had been picked up by a hell attack crew.

[00:20:36] Speaker 02:
He was given water by the hell attack crew.

[00:20:39] Speaker 02:
He was taken out of the sun.

[00:20:40] Speaker 02:
He was put in an ambulance.

[00:20:41] Speaker 02:
And you have video, body cam video from the ambulance, of him getting IV fluids in both arms in the ambulance.

[00:20:48] Speaker 02:
And he was obviously in a cool environment, out of the sun in the ambulance.

[00:20:52] Speaker 02:
And then he was taken to the emergency room.

[00:20:54] Speaker 02:
And when Officer O'Neill talked to him, he said, they've got a couple of liters in you.

[00:20:58] Speaker 04:
It'll be a whole new ball game.

[00:21:03] Speaker 04:
Did the defense present any testimony from any medical testimony to establish what his condition would have been at the time he set the fires?

[00:21:12] Speaker 04:
Or are we just speculating based on what you've argued that what his condition was when he reached the hospital and that he'd had some fluids?

[00:21:19] Speaker 02:
Well, there was no doctor there to examine him when he set the fires.

[00:21:22] Speaker 04:
But, I mean, the doctor was offering an opinion that in a certain amount of time he would have died in the forest, right?

[00:21:27] Speaker 04:
So could he not have offered an opinion about what his condition was when he was setting the fires?

[00:21:32] Speaker 02:
There was one question about when did the heat exhaustion start, something like that, and I think the doctor's answer was, I don't know.

[00:21:40] Speaker 02:
But it doesn't require speculation to say when the treatment that he gets in the hospital, in the emergency room and the hospital is fluids and being out of the sun and being out of the heat, that him being in an ambulance getting fluids and being out of the sun in the heat, being in a helicopter and being out of the sun in the heat and getting fluids,

[00:21:59] Speaker 02:
is making him better.

[00:22:01] Speaker 02:
And he said in the ambulance, I feel a lot better.

[00:22:02] Speaker 02:
Officer O'Neill said, there'll be a whole new ballgame and you get a couple of liters in you.

[00:22:06] Speaker 02:
So it's far from speculation to say his condition when he set the fires was a lot worse than it was after all that treatment, the exact same treatment the hospital gave him when he was taken in.

[00:22:17] Speaker 02:
OK.

[00:22:17] Speaker 02:
John, was that other questions?

[00:22:18] Speaker 04:
I would like to ask him one more question.

[00:22:20] Speaker 04:
So I ask you in the first part of your argument about the hypothetical of the hikers breaking into a cabin and taking provisions.

[00:22:27] Speaker 04:
And what if they burned it down?

[00:22:28] Speaker 04:
And I don't think you answered that part of my question.

[00:22:30] Speaker 04:
I know you said that the person has to be reasonable, but under that hypothetical, would it be okay to say I burned the cabin down because I needed fire to stay warm?

[00:22:41] Speaker 02:
It would be unreasonable.

[00:22:43] Speaker 02:
It would cross the line of reasonableness, as in the hypothetical I gave of instead of holding up a big lighter to one dead tree, fell, sprayed kerosene over two acres, and then threw a match on it.

[00:22:53] Speaker 02:
It would be unreasonable to

[00:22:54] Speaker 02:
take such a destructive action beyond, way beyond what is necessary to try to stay alive.

[00:23:01] Speaker 03:
Thank you both, counsel, for your arguments.

[00:23:03] Speaker 03:
Very helpful.

[00:23:05] Speaker 03:
The case just argued is submitted.