whattt
interesting how or why
or is this just another case of wanting to create a non sequitur
anyway to save on the bucks as well as the
others of us
i think you may get the same general bangs for free from
messages 7425 & 4269
for altho this too is an old & threadbare trick
theres no end to the parade of unscrupulous &or uninformed
lawyers who would play it
not so much upon the courts
because the courts would never buy it
but upon their own desperate clients
who are usually already behind bars anyway
--- In
BoundaryPoint@yahoogroups.com, "L. A. Nadybal"
<lnadybal@c...> wrote:
> Interesting - another case of not wanting to create a precedent.
> The General Counsel of the border commission sent me a
citation of a
> court case... I pulled it from Lexis and here it is. I spring for the
> $9 for it, and it refers to two others relating to the same border
> area - I'd appreciate it if two others of us would spring for the
> costs of them and put them up here.530 F.2d 1330, *; 1976
U.S. App.
> LEXIS 12941, **
>
> VIRGIL LEROY AIKINS, Petitioner-Appellant, v. UNITED
STATES OF
> AMERICA, Respondent-Appellee
>
> No. 74-2619
>
> UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
>
> 530 F.2d 1330; 1976 U.S. App. LEXIS 12941
>
>
> February 9, 1976
>
> PRIOR HISTORY: [**1]
>
> Appeal from the United States District Court for the District of
Arizona.
>
> DISPOSITION: AFFIRMED.
>
> CASE SUMMARY
>
> PROCEDURAL POSTURE: Petitioner convict sought review of
a decision of
> the United States District Court for the District of Arizona, which
> determined after an evidentiary hearing that the crime for which
he
> pleaded guilty was committed within the territorial jurisdiction
of
> the United States.
>
> OVERVIEW: Petitioner convict was arrested at the Nogales,
Arizona port
> of entry and charged with importation of heroin, in violation of
21
> U.S.C.S. § 174. After he pleaded guilty and was sentenced,
petitioner
> challenged the jurisdiction of the district court, which
determined
> that the crime was committed within the territorial jurisdiction of
> the United States. Petitioner sought review of the district court's
> determination of jurisdiction. It was undisputed that the offense
> occurred at the United States primary inspection station
located
> approximately 35 feet north of the presently monumented
international
> boundary between the United States and Mexico. Difficulty
arose
> because there was a disparity of approximately two hundred
feet
> between the line as marked by monuments and the parallel of
31 degrees
> 20 minutes north designated by the Gadsden Treaty of 1853
as the
> international boundary. The court affirmed the district court's
> decision that the United States had jurisdiction over the crime,
> holding that pursuant to the applicable treaty and the means
for
> resolving traditional boundary disputes, both countries
intended to be
> bound by the line marked out upon the land.
>
> OUTCOME: The court affirmed the decision of the district court
that
> the crime for which petitioner convict pleaded guilty was
committed
> within the territorial jurisdiction of the United States. The court
> held that pursuant to the applicable treaty and the means for
> resolving traditional boundary disputes, both countries
intended to be
> bound by the line marked out upon the land.
>
> CORE TERMS: treaty, marked, monuments, territorial
jurisdiction,
> evidentiary hearing, pleaded guilty, joint commission, integral
part,
> dividing line, designated, inspection, disparity, decisive,
station,
> minutes, feet
>
> LexisNexis(TM) HEADNOTES - Core Concepts - Hide
Concepts
>
> International Law > Territorial Boundaries
> HN1 The Gadsden Treaty between the United States and
Mexico states
> that each of the two governments shall nominate one
commissioner by
> common consent the two thus nominated may proceed to
survey and mark
> out upon the land the dividing line stipulated by this article.
That
> line shall be alone established upon which the
commissioners may fix,
> their consent in this particular being considered decisive and
an
> integral part of this treaty, without necessity of ulterior
> ratification or approval, and without room for interpretation of
any
> kind by either of the parties contracting. The dividing line thus
> established shall, in all time, be faithfully respected by the two
> governments, without any variation therein, unless of the
express and
> free consent of the two. Gadsden Treaty of 1853, U.S.-Mexico,
Article I.
>
> Real & Personal Property Law > Estates, Rights & Titles >
Adjoining
> Landowners' Relations
> HN2 In the context of a dispute between a private party and the
United
> States, the rule is that the wisdom of centuries of land law is to
the
> effect that lines marked on the ground by monuments stand
highest in
> the determination of the true boundaries of conveyed land,
ranking
> above statements of directions, distances, or area.
>
>
> COUNSEL: Virgil L. Aikins, in pro per, Tacoma, Washington, for
Appellant.
>
> William C. Smitherman, U.S. Atty., Tucson, Arizona, for
Appellee.
>
> JUDGES: Wright and Choy, Circuit Judges, and East, * Senior
District
> Judge.
>
> * Honorable William G. East, Senior United States District
Judge,
> District of Oregon, sitting by designation.
>
> OPINIONBY: WRIGHT
>
> OPINION: [*1331] WRIGHT, Circuit Judge:
>
> Petitioner presents the novel question whether the offense to
which he
> pleaded guilty occurred within the territorial jurisdiction of the
> United States. The district court, after conducting an evidentiary
> hearing, determined that it had and denied petitioner's motion
to
> vacate sentence pursuant to 28 U.S.C. § 2255. We affirm.
>
> Petitioner was arrested at the Nogales, Arizona port of entry
and
> charged with importation of heroin in violation of 21 U.S.C. §
174.
> After he pleaded guilty and was sentenced, petitioner
challenged the
> jurisdiction of the court. In a previous appeal to this court, we
> ordered that the case be remanded to the district court for an
> evidentiary [**2] hearing to determine whether the offense
was
> committed within the territorial jurisdiction of the United States.
> Aikins v. United States, 472 F.2d 1380 (9th Cir. 1973).
Petitioner now
> appeals the district court's determination against him.
>
> It is undisputed that the offense occurred at the United States
> primary inspection station located approximately thirty-five feet
> north of the presently monumented international boundary at
Nogales.
> Difficulty arises because there is a disparity of approximately
two
> hundred feet between the line as marked by monuments and
the parallel
> of 31 degrees 20 minutes north designated by the Gadsden
Treaty of
> 1853 as the international boundary. In essence, petitioner
contends
> that although the inspection station is located north of the line
> marked by the monuments, it is south of the line designated by
the
> treaty and therefore outside the territorial jurisdiction of the
> United States.
>
> The government admits that the disparity between the two
lines exists
> but contends that the line marked by the monuments governs.
A
> determination whether petitioner's offense was committed
within the
> United States depends on which line represents the boundary
[**3]
> between the two countries.
>
> A proper reading of the Gadsden Treaty of 1853 supports the
> government's position. [*1332] After describing the parallel of
31
> degrees 20 minutes north as the boundary in the area of what
is now
> Nogales, HN1the treaty states:
>
>
> Each of the two governments shall nominate one
commissioner . . .
> by common consent the two thus nominated . . . may proceed
to survey
> and mark out upon the land the dividing line stipulated by this
> article . . . . That line shall be alone established upon which the
> commissioners may fix, their consent in this particular being
> considered decisive and an integral part of this treaty, without
> necessity of ulterior ratification or approval, and without room
for
> interpretation of any kind by either of the parties contracting.
>
> The dividing line thus established shall, in all time, be
> faithfully respected by the two governments, without any
variation
> therein, unless of the express and free consent of the two. . . .
>
> Gadsden Treaty of 1853, Article I. [10 Stat. 1031; TS 208; 9
Bevans 812.]
>
> The treaty's language clearly indicates that both countries
intended
> to be bound by the line "marked out upon the land. [**4] " Both
> countries agreed that the line fixed by the commissioners
would be
> decisive and would become an integral part of the treaty. While
the
> commissioners were required to follow the parallel set forth in
the
> treaty as closely as possible, the parties apparently
understood that
> technological problems and difficulties in the terrain might
make
> exact measurement and demarcation impossible. The
emphasis in the
> language of the treaty on acceptance of the line as marked by
the
> commissioners indicates that this line, rather than the
hypothetical
> parallel, marks the international boundary. n1
>
> - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
> - - - - -
>
> n1 The boundary was resurveyed during the period 1891-96 by
a joint
> commission of American and Mexican surveyors because
some of the
> earlier monuments had either been destroyed or moved.
During the
> course of this survey it was recognized that there had been
some
> slight errors in the original survey. However, the joint
commission
> concluded that because of the terms of the Gadsden Treaty the
boundary
> as earlier established was final and could not be altered.
Report of
> the Boundary Commission, 1891 to 1896 at 17-18.
>
> - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
> - - - - - [**5]
>
> This reading of the treaty also comports with means for
resolving more
> traditional boundary disputes. HN2In the context of a dispute
between
> a private party and the United States, we said:
>
> The wisdom of centuries of land law [is] to the effect that
lines
> marked on the ground by monuments stand highest in the
determination
> of the true boundaries of conveyed land, ranking above
statements of
> directions, distances, or area . . . .
>
>
> United States v. Weyerhaeuser Co., 392 F.2d 448, 451 (9th Cir.
1967).
>
> To construe the treaty otherwise and accept petitioner's
position
> would result in disruption of the affairs of both countries and
the
> local inhabitants who have come to rely on the boundary as it
was
> fixed by agreement more than a hundred years ago. Both the
United
> States and Mexico agreed to the creation of the boundary as it
now
> exists, neither has objected to it, and this court will not alter it.
>
> The denial of petitioner's motion is
>
> AFFIRMED.
>
>
>
>
>
>
> --- In BoundaryPoint@yahoogroups.com, "Lowell G. McManus"
> <mcmanus71496@m...> wrote:
> > I witnessed the painting of the Mexican part of the bridge's
steel
> structure
> > that is right up to the monument. It was done with brushes
and
> buckets by men
> > that walked across the bridge from Mexico and worked
without any safety
> > harnesses or nets.
> >
> > Catching illegal immigrants is probably not an issue under
the
> bridge, as the
> > area is within sight of the US Border Station at the end of one
of
> the two
> > highway bridges in Eagle Pass/Piedras Negras.
> >
> > Attached is a September 2000 photo of the railway bridge
(before the
> painting)
> > taken from Piedras Negras, Coahuila, México. The boundary
monument
> is not
> > visible, but it is located on the left side of the stone pier
> closest to the
> > water on the USA bank of the river. Since this picture, a
swath of
> land under
> > the bridge on the USA side is kept clear of vegetation all the
way
> to the river.
> > This clearing is done by Union Pacific Railroad, the owner of
the
> American
> > segment of the bridge.
> >
> > Lowell G. McManus
> > Leesville, Louisiana, USA
> >
> >
> > ----- Original Message -----
> > From: "L. A. Nadybal" <lnadybal@c...>
> > To: <BoundaryPoint@yahoogroups.com>
> > Sent: Sunday, July 06, 2003 11:18 PM
> > Subject: [BoundaryPoint] Re: MXUS Treaty 1970
> >
> >
> > > I think I agree - for this case only.
> > > I think however, the ambiguity in it all leaves the ground
under the
> > > bridge subject to US sovereignty for all purposes other than
the
> > > bridge... capturing wetbacks, for instance. When a purpose
has
> > > something to do with the bridge, then Mexicans have
sovereign rights
> > > to park their construction, inspection, repair or painting
trucks
> > > under it without deference to the US. Would that make a
condominium?
> > >
> > > Assuming Mexican crews lowered themselves from their
half of the
> > > bridge to a spot on the ground under it, did they ever leave
Mexico to
> > > take advantage of their sovereign right? The border has
got to be
> > > somewhere, and I've yet to figure out where. Could it be in
two
> > > places at once?
> > >
> > > LN
> > >
> > >
> > >
> > > --- In BoundaryPoint@yahoogroups.com, "acroorca2002"
<orc@o...> wrote:
> > > > again
> > > > in the absence of any wording that clearly establishes a
> > > > nonstandard regime by explicitly delineating a vertical
> > > > differentiation of some kind
> > > > & in view of the reiteration of the defining & standard
provision
> > > > practically verbatim from 1884 to 1970
> > > > namely that
> > > > the monument shall denote the boundary or dividing line
for all
> > > > the purposes of the bridge
> > > > it seems to me that nothing of any relevance to your
question
> > > > has changed at all
> > > >
> > > > moreover
> > > > among the purposes of a bridge
> > > > are
> > > > to rise above the ground it rests on
> > > > & to form a passageway across that ground
> > > > & even to occupy the ground &or the space above it
> > > > in order to maintain the special purposes & nature or
treatment
> > > > of that ground itself
> > > >
> > > > indeed to carry this line to its logical & necessary
conclusion
> > > > without the special ground & markers there can be no
bridges
> > > > & without the bridges & markers
> > > > there cant even be any specially treated ground
> > > >
> > > > so it seems to me
> > > > both from what is actually said & from what is not
> > > > in every regard
> > > > the bridge includes or subsumes the land underneath it
> > > > &
> > > > in relation to our starting proposition
> > > > which is that boundaries are vertically continuous
> > > > unless otherwise specified
> > > > if indeed they are ever otherwise specified
> > > > well once again
> > > > as i see it
> > > > no news is no news
> > > >
> > > > --- In BoundaryPoint@yahoogroups.com, "Lowell G.
McManus"
> > > > <mcmanus71496@m...> wrote:
> > > > > I have abstracted the entire 1970 treaty, and it contains
some
> > > > fairly unorthodox
> > > > > provisions! My abstraction is attached in Word format.
Yes, I
> > > > know, I went
> > > > > overboard, but I wanted y'all to appreciate the full thrust
of the
> > > > treaty
> > > > > without my having to transcribe it verbatim.
> > > > >
> > > > > For those who don't care to read the attached, here is
the
> > > > Article relative to
> > > > > bridges:
> > > > >
> > > > > "The boundary on international bridges which cross the
Rio
> > > > Grande or the
> > > > > Colorado River shall be shown by an appropriate
monument
> > > > exactly over the
> > > > > international boundary determined by this Treaty at the
time of
> > > > demarcation.
> > > > > When in the judgment of the Commission the
variations of the
> > > > international
> > > > > boundary should warrant that the monument on any
bridge
> > > > should be relocated, it
> > > > > shall so recommend to the two Governments and with
their
> > > > approval may proceed to
> > > > > the reinstallation. This monument shall denote the
boundary
> > > > for all the
> > > > > purposes of such bridge. Any rights other than those
relating
> > > > to the bridge
> > > > > itself shall be determined, in case later changes occur,
in
> > > > accordance with the
> > > > > provisions of this Treaty."
> > > > >
> > > > > Compare that with the respective language from the
> > > > Convention of 1884 [as quoted
> > > > > by L.N.], which document is expressly terminated by the
1970
> > > > Treaty:
> > > > >
> > > > > "If any international bridge have been or shall be built
across
> > > > either rivers
> > > > > named, the point on such bridge exactly over the middle
of the
> > > > main channel as
> > > > > herein determined shall be marked by a suitable
monument,
> > > > which shall denote the
> > > > > dividing line of all purposes of such bridge,
notwithstanding
> > > > any change in the
> > > > > channel which may thereafter supervene. Because of
the
> > > > frequent changes in the
> > > > > course of the rivers, any right other than in the bridge
> itself and
> > > > in the
> > > > > ground on which it shall be built shall in the event of any
> > > > subsequent change be
> > > > > determined in accordance with the general provisions
of this
> > > > convention."
> > > > >
> > > > > Note that the 1970 Treaty drops all reference to the
ground on
> > > > which bridges are
> > > > > built.
> > > > >
> > > > > I think that we sorted out all relevant questions a few
days ago
> > > > as they would
> > > > > have been under the 1884 Convention, but this 1970
Treaty
> > > > sends us back to the
> > > > > drawing board. I throw it out there you, and I await your
> > > > comments.
> > > > >
> > > > > Lowell G. McManus
> > > > > Leesville, Louisiana, USA
> > >
> > >
> > >
> > >
> > >
> > > Your use of Yahoo! Groups is subject to
> http://docs.yahoo.com/info/terms/
> > >
> > >
> > >