police problem act amendment of two thousand and five however nowhere in the trial court did the government in their brief or in their presentation or in their argument a trial today argue anything we we brought this appeal on both issues one that that mr antonio has rights the right to have every element of the charge proved against him was not met by the government we brought up which the court failed to analyze are what does the prevalence act indicates that so long as those boundaries were confirmed by congress and also that the court felt to analyze except as otherwise provided by congress it's our position here either that there's this lad and this this exterior boundary that was not confirmed by congress let me let me break it down a little bit and i love this case because how often do you go back to of where the accident took place in this case why why doesn't everybody concedes the other three boundaries are within the pueblo why doesn't the eight hundred and fifty eight congressional confirmation answer the three legal question here suspected right correct so when the boundary was set as i understand your argument you're saying it couldn't have included this private land correct it had been clued some other land right i mean what other  boundary well there are other other there could be other pieces of private property with them boundaries of the reservation that happens with a lot of frequently white why couldn't congress define could obtain title as a result of the the nine hundred and twenty four dollars act and and again the government failed to prove whether it was the government's burden to prove jurisdiction but it is possible that the as land was one held adversely in the purpose for the eight hundred and fifty eight grant which was one of the classes that would allow that transfer i mean that would allow that recognition of his right at least on paper now maybe not legally it looks like the the the property question has been circled it's not a peninsula any longer you know there's twenty two answers to that question one is that the district court did not base their decision on that issue the district court analyzed that in the court words i believe work as a courtesy to the parties and to  define a property boundaries by some type of natural barrier you know here as river could be the ocean or you know a large lake  reservation land and the natural barrier why why should that matter  that seemed to be to not just be a throwaway issue i was what you're saying that your theory of the case could never have been reach but it because of the manner in which the jury was instructed correct is that what i do understand that argument currently under in your argument is that the that the way the jury was is struc today said if you do not find in favor of the government on its theory then you can consider the defense theory courage and that because of that the defense theory of the case was never independently analyzed in the state of mind was not independently analyzed because it because of that you were deprived of a fair trial correction and what's your best case obviate was intended to simplify the steps to restructure and make the presence of federal criminal jurisdiction clear and out exactly that type of inquiry and congress decided to do that by returning the test to the original digraph in the prior dulko what was the status of the boundaries of the pueblo under the under the prevailing authority at that time we are at that point right now because you have you have the spanish you have the mexican revolution within mexico itself and so there's all kinds of shifting back and forth of governments but in so far as the blow itself was concerned prior to is that true with respect to the discreet property of the souvenir i thought that had come down under a separate grant your honor it is my understanding is that the entirety of the grant in other words the to include the fee boundaries that is correct that is correct your honor and when we look at the survey or your survey or general support of fact what we see is that the surveyor general from new mexico who was charged with conducting a survey asked to send the a problem in fact did not conduct the survey but relied upon sending it was one of the few problems that retained the original documentation from the spanish grand and so the surveyor actually didn't go out and do the survey but instead relied on the documentation that was issued in connection with the seven hundred and forty eight gram from the spanish authorities does that go to the to the original course of the river you're out of the original course of the river it's an kind of no man's land where the mother rico i call that the reclaim property who who has jurisdiction over that the in other words the court positing it there is a strip of land that emerges on the western boundary of the problem you know it's an interesting issue your honor and i would federal jurisdiction or i believe that it would be iran and my reasoning would be in a i did some looked at this it was a new area for me but at the common law i believe the appreciation in other words land builds up as a result of the slow movement a body of water over time belongs to the upland all that's different if there is an earthquake that changes in a in a very fast way but the accretion at least of the common law does those best in the  put provided by the survey and again that in this case is the original boundaries described in the seven hundred and forty eight graph in spanish authority and if i if i may let me touch on the if what i think is that the point of contention this case which is the effect and the construction of the proviso with the conclusion of the one hundred and fifty a statute that proviso provides that the confirmation will not affect any private interest or private claims that may obtain within the exterior boundaries and i understand mr antonio's position here to be that the proviso should be read to exclude from the confirmation any tracks of land over which there is a private plane in other words a claim other some important color to the to the case because it describes the fact that the confirmation by congress was a set of affectively into nature quickly and calmly talks about the fact that the confirmation a confirmation the chord in congress is quote a confirmation is made at the claimant appears to have as between himself and the united states the right to it but subject to the rights of others who are at liberty to assert their superior title in the local courts so the court of conduit was being very clear that the fact of confirmation does not prohibit a private party from coming into one of that time would have been a new mexico territorial corps and asserting that as between those two private parties a or b has a superior title and according conway does note the fact that the confirmation over the patent issued pursuant to confirmation is quote in the nature of we could claim an admission that rightful ownership had never been in the united states but had passed at the time of the session to the claimant or to those under whom he claimed so my ultimate point there your honor i mean you a little long winded in answering your question i apologize but does not eat x correct or a so in your theory the fact that there's a peninsula here that reaches into the pub low is irrelevant because what matters is what the boundaries were in seven investigate those types of issues but to simplify the issue on that point in it seems to me that to some degree all of this discussion begs the issue in the sense that in my reading  briefs the argument here is that the government has the burden of proof as an element of proof in the crime charged to prove jurisdiction and that the matter was never put to the jury to decide and more importantly was not decided that it was not decided big except for the district court saying well i'm going to decide this and i'm going to issue an opinion and then halfway through the trials as i'm going to shoot opinion on this i'm maintaining an open mind i'm going to give me a break at some point you've got to decide this you know you've got to prove your case  returned to verdict right right after the case of close after the jury were oh yeah oh i think we forgot an element of proof yeah i think i better get around right not order that is not a proper way to bring to prove a criminal case is that well i respectfully would differ with the court's characterization of what happened here there was a well i mean i just it just a poor old simple judge reads the briefs i'd just characterize with the briefs are absolutely right and i think i don't what don't blame me blame the previous absolutely wrong it's a fair point i would suggest that what the court did here where the court made its ruling was in its decision to but i would note that the counsel of the prosecutor he would say involved the case had requested at that point that the jury be instructed prior to the close of the case and defense counsel said you don't have to do that judge we're not going to make a rule twenty nine dollars on that basis of the district court did not do that until it's invited there i would suggest it to the extent that is the argument the extent this court is concerned that it was not done at the close of the government's case i would say submit the yes the finding was made in the jury instructions and i would also know that the defense defense counsel at the trial level of knowledge is that the ruling was made on page seven hundred and thirty eight dollars the record the court says there are going  believe it's the rule twenty nine dollars in the courts as the defense counsel says judge you've made a ruling on the jurisdictional issue we disagree with that but you've made a ruling and will take it up down the road which presumably means here we are down the road but there was an instruction sequencing certainly your honor as i understand the the argument as i understand judge of the serious question was is the jury now not invited to fully consider the alternative  theory of the lesser included offense and i would submit on that point that there are a number of elements of the record here that give the core that gives some comfort on that issue well we have a case i think  the find the defendant not guilty on the higher charge may you proceed to consider the lesser included but i think there may be little case did not consider the argument advanced here that the th procedure violates fundamental due process right to have the defense theory of the case considered independently and separately i think that's correct or rather i think that is a little different gloss on in  what the argument is and at that point again i think the record should give this court some comfort insofar as the instruction as to the mental state necessary for the lesser offense was read to the jury the jury was instructed to read the  instructions in their entirety upon returning to the jury room and if you read the closing argument the defense made it hit that point very hard with the jury so there are a number of occasions in which the jury was reminded both by the judge by the defense counsel and by the jury instructions themselves about the mental state that was necessary or was it was suggested by the lesser included so to the extent the argument is that the jury would never have reached that or read that instruction or consider that mental state i would suggest and submit that the record belies that contention