652 Fed.Appx. 553 (9th Cir. 2016), 15-50192, United States v. Sears

Docket Nº:15-50192
Citation:652 Fed.Appx. 553
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN C. SEARS, Defendant - Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Jean-Claude Andre, Assistant U.S. Attorney, Sharon K. McCaslin, Assistant U.S. Attorney, Mark Remy Yohalem, Esquire, Attorney, Office of the U.S. Attorney, Los Angeles, CA. For JOHN C. SEARS, Defendant - Appellant: Daniel Ignace Kapelovitz, Law ...
Judge Panel:Before: W. FLETCHER and GOULD, Circuit Judges and LEMELLE,[**] Senior District Judge.
Case Date:June 15, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 553

652 Fed.Appx. 553 (9th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

JOHN C. SEARS, Defendant - Appellant

No. 15-50192

United States Court of Appeals, Ninth Circuit

June 15, 2016

Argued and Submitted, Pasadena, California May 2, 2016.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the Central District of California. D.C. No. 2:14-cr-00667-RGK-1. R. Gary Klausner, District Judge, Presiding.

AFFIRMED.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Jean-Claude Andre, Assistant U.S. Attorney, Sharon K. McCaslin, Assistant U.S. Attorney, Mark Remy Yohalem, Esquire, Attorney, Office of the U.S. Attorney, Los Angeles, CA.

For JOHN C. SEARS, Defendant - Appellant: Daniel Ignace Kapelovitz, Law Offices of Daniel I. Kapelovitz, West Hollywood, CA.

Before: W. FLETCHER and GOULD, Circuit Judges and LEMELLE,[**] Senior District Judge.

Page 554

MEMORANDUM[*]

Defendant-Appellant John Sears appeals the district court's order affirming the magistrate judge's finding that Sears was guilty of violating two National Park Service regulations. We affirm.

1. Sears's actions were not excused by the defense of necessity. In order to prevail on his necessity defense, Sears had to show (among other things) that he broke the law in order to " prevent imminent harm." United States v. Perdomo-Espana, 522 F.3d 983, 987 (9th Cir. 2008). Although Sears contends that he would have risked the " life and limb" of both himself and his mules if forced to leave the area where he was sleeping, the evidence undermines Sears's claim that leaving would have been unduly dangerous. Although it was dark, Sears had a flashlight. Furthermore, the path to the equestrian-based campsite was along the administrative road, not some untamed part of the wilderness.

Sears also failed to show that " there were no other legal alternatives to violating the law." Id. at 988. Sears had a clear legal alternative: he could have asked the rangers for assistance. The rangers could have accompanied Sears to the equestrian campsite, ensuring that...

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