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Lawyers for BP agent challenge court's jurisdiction in Nogales shooting

The criminal trial of a Border Patrol agent, accused of murdering a Mexican teenager in a 2012 cross-border shooting, hangs on a federal judge's determination of the interwoven jurisdictions between governments along the U.S.-Mexico border. 

Border Patrol Agent Lonnie Ray Swartz was indicted by a grand jury last September for shooting through the border fence and killing 16-year-old Jose Antonio Elena Rodriguez in October 2012. The boy was walking along the sidewalk on Calle International near the international boundary when he was hit by nearly a dozen rounds, with most of the bullets striking him in the back. 

The trial has been delayed yet again, and is now set for February 2017, but in the meantime, lawyers for Swartz have argued that the case should be dismissed because the federal court does not have the jurisdiction to prosecute the agent for murder.  

The argument is based on the original indictment, which charged Swartz for second degree murder after he "with malice aforethought" fired through the fence and killed Rodriguez "within the special maritime and territorial jurisdiction of the United States..." 

Swartz pleaded not guilty to the charges in October. 

In a court filing, one of Swartz' lawyers Sean Chapman argued that Swartz was "standing within the State of Arizona and Santa Cruz County when he discharged his firearm, causing the death of an individual in the Republic of Mexico."

"There is no indication that the alleged crime was committed on federal land," wrote Chapman, saying that he was challenging the jurisdiction for the federal court to hear the case because Swartz was "not within the special maritime and territorial jurisdiction of the United States, as required by law." 

Chapman was not in court Monday because he is preparing arguments for the civil suit against Swartz by Rodriguez's family, which will be held in San Francisco in front of the 9th Circuit Court of Appeals. Instead, Jim Calles represented Swartz. 

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Calles said that while the federal government has the ability to prosecute drug smuggling and illegal immigration at the federal court, the second degree murder charge against Swartz should be prosecuted by state or county authorities. 

"We're challenging the jurisdictional claim because its one that none of us have seen before," said Calles, following the court hearing.

During the court hearing, Calles argued that the federal government had "implicitly and explicitly" abandoned the strip of land along the U.S.-Mexico border known as the Roosevelt Reservation, created by President Theodore Roosevelt as part of a 1907 proclamation.

"The nature of what took place makes the jurisdiction important," said Calles, and that federal government carried the burden of proof. 

The Roosevelt Reservation essentially formalized an earlier document named for Roosevelt's predecessor President William McKinley, which set an easement of 60 feet on each side of the international boundary. 

The reserved land was created to clear the international border from public and private infrastructure in Naco and Nogales that often ran right up to the line, allowing people to smuggle illegal goods across the border.

As part of this structure, the United States and Mexico agreed to clear the land on both sides, removing houses and even rail lines to create the easement. In Nogales, Sonora, this resulted in the creation of Calle Internacional, the street where Rodriguez died on Oct. 10, 2012. 

Calles noted that the 2006 Secure Fence Act, a federal law that ordered Homeland Security to build more fencing along the U.S.-Mexico border, ignored the Roosevelt Reservation and ordered Justice Department officials to make land deals with affected landowners. 

Calles did not say that the federal government could not build fencing or "tactical infrastructure" along the U.S.-Mexico border, rather that the existence of parking spaces, rail lines, and U.S. ports of entry such as Nogales' Dennis DeConcini Port of Entry proves that the federal government no longer uses the reservation. 

Assistant U.S. Attorney Mary Sue Feldmeier disputed this argument, saying that the land where Swartz fired his weapon was inside an area that was acquired and held in reserve by the federal government.

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"We not only acquired it, we reserved it," Feldmeier said. "I don't know how the U.S. government can nullify itself."

In court filings, Feldmeier and other Justice Department officials wrote that "not only did the McKinley and Roosevelt Proclamations set the geographic area as a 'public reservation,' but the United States actually owns the aforementioned 60-foot area north of the Arizona/Mexico international border."  

 The federal government they wrote has "used the land on which to build an international border fence through which the shooting in the case occurred."

Feldmeier had two witness confirm her argument. 

First, Gabriel Duran, a consultant with the International Boundary and Water Commission, went though the history of the Roosevelt Reservation. Duran testified about the modern applications of the IBWC and its history, describing how officials from the U.S. and Mexico negotiated to create the modern border, beginning with the Treaty of Guadalupe Hildalgo, which ended the Mexican-American war in 1848, and then the Gadsden Purchase, when the United States purchased  land south of the Gila River, which includes Tucson and Nogales,  in 1853. 

The border, Duran said is marked by 258 obelisks, including a few original marble monuments intended to help surveyors mark the original U.S.-Mexico border. 

While the Rio Grande River serves as the border line between the U.S. and Mexico from El Paso to Brownsville, Texas, the rest of the border was created by surveyors, who built the monuments in sight of each other as they went, using the stars and the motions of the planets to envision the border's imaginary line, Duran said. 

Modern GPS technology shows that in some places, the U.S.-Mexico border might be as much as 200 feet off the original description laid down by the IBWC, but Duran said that the monuments mark the current border. 

The bi-national commission, Duran said cooperated because the U.S. and Mexico "are so tied together they must share resources." 

During cross-examination Calles asked if Arizona had given up its southern edge to the easement, but Duran said that Arizona is part of the southern boundary of the United States. 

Calles argued Duran's statement illustrates that the land may actually be part of Arizona and Santa Cruz County, and not part of the special easement. 

Border Patrol Agent Samuel Lucio, the branch chief of Tactical Infrastructure, testified that the fence is actually about three feet north of the border, though it can range slightly farther north to claim "high-ground." The fence is just north to allow U.S. contractors to build and maintain the fence without entering into Mexico, Lucio said. 

He also noted that agents patrol the fence-line on a "daily basis" using construction roads, proving that the border line is essentially federal territory. 

During the hearing, Lucio produced a photograph showing a sign that marks the area near the fence in Nogales, Arizona as federal property. 

Collins asked two questions aimed at Calles, first asking if Congress could have authorized the Secure Fence Act without mentioning the Roosevelt Reservation because it was unnecessary as the land along the U.S.-Mexico border had already been acquired. 

"It's your land, why not use it?" Collins asked. 

Collins also asked Calles if Congress had authorized land purchases following the Secure Fence Act. 

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During this discussion Feldmeier noted that in some cases, small pockets of land had been purchased from private landowners in Texas, but in Nogales this had not happened. 

Collins did not render a decision, but instead gave Calles 10 days to submit a new brief. 

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Paul Ingram/TucsonSentinel.com

The border fence that separates Nogales Arizona and Nogales Sonora rises up along a ridge near where 16-year-old Jose Antonio Elena Rodriguez was shot and killed by Border Patrol Agent Lonnie Swartz during an October 2012 incident.