Petition for Writ of Certiorari — North Carolina v. Smith

UD , Supreme COU TS

90-1712 lies

MAY 7 1991

No. OFFICE OF THE CLenh |

i

IN THE

SUPREME CUURT OF THE UNITED STATES

OCTOBER TERM 1990

STATE OF NORTH CAROLINA,

Petitioner

v.

CARLTON J. SMITH,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NORTH CAROLINA

PETITION FOR WRIT OF CERTIORARI

LACY H. THORNBURG

Attorney General

Robert J. Blum

Special Deputy Attorney General

Counsel of Record

G. Lawrence Reeves

Assistant Attorney General

H. Jefferson Powell

Special Counsel to the Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh North Carolina 27602-0629

elephone: 919-733-6012

Attomeys for Petitioner

QUESTIONS PRESENTED

I. DID THE SUPREME COURT OF NORTH

CAROLINA ERR IN HOLDING THAT THE

EXISTENCE OF "EXCLUSIVE" FEDERAL

JURISDICTION OVER A_ FEDERAL

ENCLAVE BARS THE EXERCISE OF CON-

CURRENT STATE JURISDICTION OVER

JUVENILE MATTERS?

Ii. DID THE SUPREME COURT OF NORTH

CAROLINA ERR IN HOLDING THAT A

STATE COURT CANNOT REVIEW A UNITED

STATES ATTORNEY’S CERTIFICATION

UNDER 18 U.S.C. § 5032 THAT NO STATE

COURT HAS JURISDICTION OVER A

JUVENILE MATTER?

TABLE OF CONTENTS

QUESTIONS PRESENTED ........-----++->:

TABLE OF AUTHORITIES ........----+++-:

OPINION BELOW ...........---- ee eeeeeeee

JURISDICTION .......- cece eres cnccceces

CONSTITUTIONAL AND STATUTORY

tg, °.. ee ee ace

STATEMENT OF THE CASE ........-------

I.

The Proceedings Below...........-----

II. The Decision Below. .........--ccccccccees 8

REASONS FOR GRANTING THE WRIT

I.

The Decision of the Supreme Court of

North Carolina Misconstrued the Concept

of "Exclusive" Federal Jurisdiction and,

as a Result, Imposed Restrictions on State

Concurrent Jurisdiction Inconsistent with

the United States Constitution and Federal

ee ee wat Rae ee

Il. The Decision of the Supreme Court of

North Carolina Incorrectly Treated a United

States Attorney’s Certification under 18

U.S.C. § 5032 as Requiring it to Rule

Against the Existence of State Jurisdiction

III. This Case Presents Important Questions of

Federal Law That Have Not Been, But

Should Be, Settled by This Court. .......

a2 & 8). 9 | St ee ays

Pere 17

TABLE OF AUTHORITIES

CASES

Asarco, Inc. v. Kadish, 490 U.S. 605 (1989) ........

Atkinson v. State Tax Comm'n of Oregon,

EEE ESS

Bowen v. Johnston, 306 U.S. 19 (1939) ............

Hancock vy. Train, 426 U.S. 167 (1976) .............

Howard v. Commissioners of Sinking

Fund of City of Louisville, 344 U.S. 624 (1953) ......

Kent y. United States, 383 U.S. 541 (1966) ..........

Kleppe v. New Mexico, 426 U.S. 529 (1976) ........

Oregon v. Hass, 420 U.S. 714 (1975) ..............

Pacific Coast Dairy v. Department of Agriculture,

EE

Paul v. United States, 371 U.S. 245 (1963) ..........

Rewis v. United States, 401 U.S. 808 (1971) .........

State v. DeBerry, 224 N.C. 834, 32 S.E.2d 617

CCA VCbEGSES Eee ees seek bcbecvocces

State v. Smith, 328 N.C. 161, 400 S.E.2d 405 (1991) ... passim

Tafflin v. Levitt, 493 U.S. 455 (1990)...............

United States v. A Juvenile Male, 819 F.2d 468

EE

United States v. Daye, 696 F.2d 1305

EE IES

United States v. Juvenile, 599 F. Supp. 1126

LE

re

iv

%

United States v. Smith, 675 F. Supp. 307

(E.D.N.C. 1987), rev'd, 851 F.2d 706 (4th Cir. 1988) .. .6,7,8

United States v. Unzeuta, 281 U.S. 138 (1930) ......... 8,11,12

United States v. Vancier, 515 F.2d 1378 (2d Cir.),

cart. Ganled, 423 US. GBF CIGTA) vce cccccvcccsscesss 9,16,18,19

CONSTITUTIONAL AND STATUTORY PROVISIONS

ip ee BR ES Sy PPro er eT TeeTrrree cee 2,10,11,15

ps Gd rrr errr rrr re Terr er. 9

1S USK. Fh GG See CIM OR) .w cece cccsccccces 13

ENE, oo oes ciccccccdvionnnvenes passim

es EE 6. .c0ccecucececsctvenveseed passim

ee ER ID 6 ob ce scse veesscistcereoves 2

Act of June 11, 1932, ch. 243 (72d Cong., Ist Sess.) ..... 13,14

PE. Gam. SUM. F TAHSES (ISGP) occ ccccccccessecsss 3

DEC. Gem. Stat. § TA-SOS (IRB) occ ccccccccccvcees 4

PO Coe, SUE, BG O7 CIS) occ ccccescccecnncsti 4,11

OTHER AUTHORITIES

yp POTEET TE CTLERUTE LEE ETTE Ee 11

S. Rep. No. 1011, 93d Cong., 2d Sess., reprinted in

(1974) U.S. Code Cong. & Admin. News,

| eT orc ree CTI TREE T TEE eee 14

| eer 14

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

STATE OF NORTH CAROLINA,

Petitioner

v.

CARLTON J. SMITH,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NORTH CAROLINA

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE UNITED

STATES:

The Petitioner, the State of North Carolina, by and

through its undersigned counsel, the Honorable Lacy H.

Thomburg, Attomey General of North Carolina, and Special

Deputy Attomey General Robert J. Blum, Assistant Attomey

General G. Lawrence Reeves, Jr., and Special Counsel to the

Attorney General H. Jefferson Powell, respectfully prays that a

writ of certiorari issue to review the judgment of the Supreme

Court of North Carolina entered on 7 February 1991, which

remanded this case for the dismissal of three first-degree murder

charges against Respondent.

OPINION BELOW

This petition seeks review of the published decision by

the Supreme Court of North Carolina reported at State v. Smith,

328 N.C. 161, 400 S.E.2d 405 (1991), which is reproduced in the

Appendix at A-1.

JURISDICTION

The judgment below, entered on 15 March 1991,' in-

volved resolution of substantial questions of federal law and was

not based on independent and adequate state grounds. Stare v.

Smith, 328 N.C. 161, 165, 169, 400 S.E.2d 405, 407, 409 (1991).

This Court therefore has jurisdiction to grant this petition for a

writ of certiorari to the Supreme Court of North Carolina and to

review its judgment pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Constitution Article I § 8 cl. 17: The Congress shall

have power ... To exercise exclusive Legislation in all Cases

whatsoever, over such District (not exceeding ten Miles square)

as may, by Cession of particular States, and the Acceptance of

Congress, become the Seat of the Government of the United

States, and to exercise like Authority over all Places purchased

by the Consent of the Legislature of the State in which the Same

shall be, for the Erection of Forts, Magazines, Arsenals, dock-

Yards, and other needful Buildings.

l The opinion of the Supreme Court of North Carolina was filed on 7

February 1991. The mandate was stayed until 15 March 1991, on which

date the clerk entered actual judgment.

18 U.S.C. § 5032 (1990): Delinquency proceedings in district

courts; transfer for criminal prosecution

A juvenile alleged to have committed an act of juvenile

delinquency, other than a violation of law committed within the

special maritime and territorial jurisdiction of the United States

for which the maximum authorized term of imprisonment does

not exceed six months, shall not be proceeded against in any court

of the United States unless the Attomey General, after investiga-

tior., certifies to the appropriate district court of the United States

that (1) the juvenile court or other appropriate court of a state does

not have jurisdiction or refuses to assume jurisdiction over said

juvenile with respect to such alleged act of juvenile delinquency,

(2) the State does not have available programs and services

adequate for the needs of juveniles, or (3) the offense charged is

a crime of violence that is a felony or an offense described in

section 401 of the Controlled Substances Act (21 U.S.C. 841), or

section 1002(a), 1003, 1005, 1009, or 1010(b)(1),(2) or (3) of the

Controlled Substances Import and Export Act (21 U.S.C. 952(a),

953, 955, 959, 960(b)(1),(2),(3)), or section 922(p) of this title,

and that there is a substantial Federal interest in the case or the

offense to warrant the exercise of Federal jurisdiction.

If the Attorney General does not so certify, such juvenile

shall be surrendered to the appropriate legal authorities of such

State.

N.C. Gen. Stat. §7A-523 (1989): Jurisdiction.

(a) The court has exclusive, original jurisdiction over any

case involving a juvenile who is alleged to be delinquent, undis-

ciplined, abused, neglected, or dependent. This jurisdiction does

not extend to cases involving adult defendants alleged to be guilty

of abuse or neglect. For purposes of determining jurisdiction, the

age of the juvenile either at the time of the alleged offense or

when the conditions causing the juvenile to be abused, neglected,

or dependent arose, governs. There is no minimum age for

juveniles alleged to be abused, dependent or neglected. For

juveniles alleged to be delinquent or undisciplined, the minimum

age is six years of age.

N.C. Gen. Stat. § 7A-524 (1989): Retention of jurisdiction.

When the court obtains jurisdiction over a juvenile, juris-

diction shall continue until terminated by order of the court or

until he reaches his eighteenth birthday. Any juvenile who is

under the jurisdiction of the court and commits a criminal offense

after his sixteenth birthday is subject to prosecution as an adult.

Any juvenile who is transferred to and sentenced by the superior

court for a felony offense shall be prosecuted as an adult for all

other crimes alleged to have been committed by him while he is

under the active supervision of the superior court. Nothing herein

shall be construed to divest the court of jurisdiction in abuse,

neglect, or dependency proceedings.

N.C. Gen. Stat. §104-7 (1985): Acquisition of lands for public

buildings; cession of jurisdiction; exemption from taxation.

The consent of the State is hereby given, in accordance

with the seventeenth clause, eighth section, of the first article of

the Constitution of the United States, to the acquisition by the

United States, by purchase, condemnation, or otherwise, of any

land in the State required for the sites for customhouses, court-

houses, post offices, arsenals, or other public buildings whatever,

or for any other purposes of the government.

Exclusive jurisdiction in and over any land so acquired

by the United States shall be and the same is hereby ceded to the

United States for all purposes except the service upon such sites

of all civil and criminal process of the courts of this State; but the

jurisdiction so ceded shall continue no longer than the said United

States shall own such lands. The jurisdiction ceded shall not vest

until the United States shall have acquired title to said lands by

purchase, condemnation, or otherwise.

So long as the said lands shall remain the property of the

United States when acquired as aforesaid, and no longer, the same

shall be and continue exempt and exonerated from all State,

county, and municipal taxation, assessment, ‘or other charges

which may be levied or imposed under the authority of this State.

STATEMENT OF THE CASE

On 24 August 1981, the respondent’s aunt, cousin, and

sister were found murdered in military dependents’ quarters on

the United States Marine Corps base at Camp Lejeune in Onslow

County, North Carolina. The respondent was fifteen years old at

the time of the murders. A state grand jury indicted the respon-

dent for the murders, but the Supreme Court of North Carolina

held, on 7 February 1991, that federal jurisdiction over Camp

Lejeune precluded state prosecution of the respondent. This

petition for a writ of certiorari seeks review of that decision.

I. The Proceedings Below.

The respondent became a suspect in the investigation of

the 24 August 1981 murders soon after the bodies of his relatives

were discovered. The parties have stipulated that the bodies were

found in a residence located within a portion of Camp Lejeune

described as "Area C" (A-39), which was acquired by the federal

government in 1941. (A-35, A-36) On 24 August 1981 an

Assistant United States Attomey contacted the state District

Attomey’s office with responsibility for Onslow County and

inquired into that "office’s position regarding federal or state

jurisdiction.” (A-40) By a letter of the same date an assistant

district attorney stated that it was his “understanding” that

criminal offenses occurring on the Marine Corps installations in

Onslow County "fall exclusively within the federal jurisdiction.

Even assuming concurrent jurisdiction exists, we will defer to

cognizant federal authorities in this case." (A-40) The federal

authorities, however, were unable at the time to muster evidence

sufficient to prosecute respondent.

Sometime after the bodies were discovered on Camp

Lejeune, the defendant and his family moved to Oregon.

In 1986 defendant attempted to enlist in the

Oregon National Guard, at which time investiga-

tive officials at Camp Lejeune were contacted for

release of defendant’s medical information. That

information, particularly the psychological part

thereof, and a disclosure that a murder investiga-

tion was still pending kept defendant out of the

Oregon National Guard. In an effort to help her

son, defendant’s mother contacted authorities at

Camp Lejeune requesting that the investigation be

closed. Thereupon, Naval Investigative Service

(NIS) agents contacted defendant and members of

his family and had several interviews with them.

During one such interview, on 30 June 1986,

defendant made an incriminating statement to

NIS agents, at which time he was arrested and

taken into custody.

United States v. Smith, 675 F.Supp. 307, 308-09 (E.D.N.C. 1987),

rev'd, 851 F.2d 706 (4th Cir. 1988).

The federal government made two unsuccessful attempts

to prosecute respondent for the 1981 murders. The first attempt,

begun on 8 July 1986, consisted of the filing of a juvenile

information. Pursuant to 18 U.S.C. § 5032, an Assistant United

States Attorney certified that the State of North Carolina did not

have jurisdiction over the "acts of juvenile delinquency alleged

in this case" because they had "occurred on Marine Corps Base,

Camp Lejeune, North Carolina, a military reservation acquired

for the use of the United States and under exclusive jurisdiction

thereof.” (A-43) A subsequent motion to transfer respondent to

United States District Court for trial as an adult was allowed

(A-20), but the Court of Appeals reversed, holding that the

transfer violated the ex post facto clause of the Constitution.

United States v. A Juvenile Male, 819 F. 2d 468 (4th Cir. 1987).

The federal government’s second attempt to prosecute

respondent began on 7 July 1987 with a grand jury indictment of

respondent for three counts of first-degree murder. The Court of

Appeals ultimately held, on interlocutory appeal, that the earlier

initiation of juvenile proceedings against the respondent

precluded the federal government from later prosecuting him as

an adult. United States v. Smith, 851 F.2d 706 (4th Cir. 1988).

The federal charges were dismissed in December 1988. (A-23)

On 13 December 1988, an Onslow County grand jury

returned indictments charging respondent with three counts of

first-degree murder in connection with the 1981 deaths. The

respondent entered pleas of not guilty to these charges and

subsequently filed two motions to dismiss for lack of jurisdiction.

One of respondent’s motions contended that the State had no

jurisdiction because the murders alleged occurred on "an area of

exclusive federal jurisdiction." (A-44) The Superior Court

denied respondent’s motions on 23 February 1989 (A-25), and

the Supreme Court of North Carolina allowed respondent’s peti-

tion for review by writ of certiorari. On 7 February 1991, the

Supreme Court reversed the Superior Court’s denial of

respondent’s motions to dismiss and remanded the case for

dismissal of the three murder charges pending against respon-

dent. The Supreme Court based its decision on its interpretation

of federal law. State v. Smith, 328 N.C. 161, 400 S.E.2d 405.

(A-1) The Supreme Court of North Carolina and Chief Justice

Rehnquist as Circuit Justice subsequently denied petitioner’s

applications for a stay of the mandate pending the timely filing

of a petition for a writ of certiorari and the final determination of

the matter by this Court. (A-32, A-33)

Il. The Decision Below.

The Supreme Court of North Carolina held in this case

that as a matter of federal law the state Superior Court lacked

jurisdiction. The Supreme Court cited several decisions ? for the

proposition that the federal government alone has jurisdiction

over prosecutions related to crimes committed in areas ceded to

the United States. Smith, 328 N.C. at 165-66, 400 S.E.2d at

407-08. The Supreme Court concluded that "[iJt appears from

these cases that the Superior Court, Onslow County, does not

have jurisdiction to try the defendant,” id. at 166, 400 S.E.2d at

408, and stated that “we believe [the Secretary of the Navy]

accepted exclusive jurisdiction as completely as he could.” Jd.

at 168, 400 S.E.2d at 409.

The opinion of the Supreme Court of North Carolina-

noted the State’s argument that cases such as Paul v. United

States, 371 U.S. 245 (1963), recognize that the existence of

federal jurisdiction is not inconsistent with state concurrent juris-

diction and that Congress has acted clearly and unequivocally to

preserve state concurrent jurisdiction over juvenile offenses. See

2 United Stotes v. Unzeuta, 281 U.S. 138, (1930); Bowen v. Johnston,

306 U.S. 19 (1939): United States v. Daye, 696 F.2d 1305 (11th Cir.

1983); and State v. DeBerry, 224 N.C. 834, 32 S.E.2d 617 (1945).

18 U.S.C. § 5032. The Supreme Court nonetheless concluded

that the State’s argument was foreclosed by the fact that "the

United States Attorney certified to the United States District

Court pursuant to 18 U.S.C. § 5032 that the courts of North

Carolina did not have jurisdiction.” 328 N.C. at 167, 400 S.E.2d

at 408. The Supreme Court cited United States v. Vancier, 515

F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857 (1975), as holding

that such a certification was unreviewable, and treated Vancier as

controlling:

Because we are dealing with a federal ques-

tion we must look to the federal courts for

guidance. If we must accept the United States

Attomey’s certification as final that the courts of

this State do not have jurisdiction, then 18 U.S.C.

§ 5032 is not helpful to the State.

328 N.C. at 167-68, 400 S.E.2d at 409. Moreover, the Supreme

Court clearly appeared to refer to Vancier when it stated:

Bound as we are by the federal court’s inter-

pretation of this federal question, we must hold

that the Superior Court, Onslow County, does not

have jurisdiction.

ID. at 169, 400 S.E.2d at 409. One Justice concurred in the

decision of the Court on the ground that the federal courts had

exclusive jurisdiction because of the federal Assimilative

Crimes Act, 18 U.S.C. § 13. 328 N.C. at 174,400 S.E.2d at 412

(Martin, J., concurring).

10

REASONS FOR GRANTING THE WRIT

I. The Decision of the Supreme Court of

North Carolina Misconstrued the Con-

cept of "Exclusive" Federal Jurisdiction

and, as a Result, Imposed Restrictions on

State Concurrent Jurisdiction Inconsistent

with the United States Constitution and

Federal Law.

The United States Constitution grants Congress power

"[t]o exercise exclusive Legislation in all Cases whatsoever ...

over all Places purchased by tiie Consent of the Legislature of the

State in which the Same shall be, for the Erection of Forts,

Magazines, Arsenals, dock- yards, and other needful Buildings."

U.S. Const. Art. 1 § 8 cl. 17. >The language of the Plenary Powers

Clause, read literally, suggests that federal jurisdiction over

federal enclaves obtained with state consent is "exclusive" in the

sense that all state lary and all state jurisdiction is ipso facto

eliminated. This Court, however, has never accorded the clause

such a wooden reading. It is settled law that the federal "legisla-

tive jurisdiction acquired may range from exclusive federal juris-

diction with no residual state police power, to concurrent, or

partial, federal legislative jurisdiction, which may allow the State

to exercise certain authority.” Kleppe v. New Mexico, 426 US.

529, 542 (1976) (citation omitted). In ceding jurisdiction, the

state may limit or condition the jurisdiction it is surrendering.

Paul v. United States, 371 U.S. 245, 268 (1963). State civil laws

in existence remain in effect as long as they do not conflict with

the federal purpose, /d. at 268-69 ("basic scheme” of state law

existed at time of cession). Congress, for its part, may limit the

3 This clause is sometimes labelled the "Plenary Powers Clause.” See

Hancock v. Train, 426 U.S. 167, 178 (1976).

11

extent to which the United States actually accepts jurisdiction.

Atkinson v. State Tax Comm’ n of Oregon, 303 U.S. 20, 25 (1938).

Where Congress intends to authorize acceptance of less than

complete territorial jurisdiction, the portion of jurisdiction not

accepted remains with the state even if the state intended to cede

“exclusive” jurisdiction. /d.

In the present case, the crimes alleged took place on land

acquired by the Department of the Navy in 1941 pursuant to a

state statute consenting to "exclusive" federal jurisdiction over

federal enclaves and explicitly reserving only the power to serve

state judicial process. N.C. Gen. Stat. § 104-7. The Supreme

Court of North Carolina believed itself obligated to deny the

existence of state jurisdiction over the prosecution of the respon-

dent based upon a series of decisions stating that the federal

government has exclusive criminal law jurisdiction in federal

enclaves acquired pursuant to Article I section 8 clause 17. 4 The

Supreme Court of North Carolina has misunderstood the sig-

nificance of the cases on which it relied. Those cases stand for

the rule that an otherwise plenary cession of jurisdiction to the

federal government does not implicitly reserve state criminal

jurisdiction. The reason for such a rule is obvious: the enforce-

ment of the criminal law is one of the highest attributes of

sovereignty. The intended purpose of the Plenary Powers Clause

was to enable Congress, to the extent it wishes, to exercise direct

and plenary sovereignty in the national capital and in federal

enclaves without interference from conflicting state authority.

See The Federalist, No. 43; Hancock v. Train, 426 U.S. 167

(1976). Petitioner does not question the general rule upheld in

4 United States v. Unzeuta, 281 U.S. 138 (1990); Bowen v. Johnston,

306 U.S. 19 (1939): United States v. Daye, 696 F.2d 1305 (11th Cir.

1983); and State v. DeBerry, 224 N.C. 834, 32 S.E.2d 617 (1945).

12

cases such as Bowen and Unzeuta. See footnote 4, supra. The

holdings in other cases, however, indicate that the general rule

does not apply to the case at bar.

In Howard v. Commissioners of Sinking Fund of City of

Louisville, 344 U.S. 624 (1953), this Court recognized that even

when the United States accepts exclusive jurisdiction over an

area, that area does not cease to be a part of the state where it is

located. Jd. at 626. In Howard, this Court also recognized that

a state may exercise its power over a federal area within its

boundaries as long as the state does not interfere with the juris-

diction asserted by the federal government. /d. at 626-27. In

Paul v. United States, 371 U.S. 245 (1963), this Court said that

when the federal government acquires land from a state, state law

existing at the time of the acquisition remains enforceable. /d. at

268. Accord Pacific Coast Dairy v. Department of Agriculture,

318 U.S. 285, 294 (1943) ("local law not inconsistent with federal

policy remained in force until altered by national legislation").

These cases stand for the principle that "exclusive" federal juris-

diction need not be truly exclusive, a principle perhaps best

explained in the words of Justice Frankfurter in his dissent in

Pacific Coast Dairy:

5 In only one of the cases cited by the Supreme Court of North Carolina,

United States v. Daye, 696 F.2d 1305 (11th Cir. 1983), was the argument

made that Congress had acted to preserve state criminal jurisdiction.

Daye held that a statute permitting states to assert jurisdiction over Indian

territories did not authorize state jurisdiction over a c.ime committed in

a ceded national park. Daye also involved a question of the adequacy of

18 U.S.C. § 5032 certification; however, the issue of whether the Juvenile

Justice Act embodies a congressional authorization of state jurisdiction

on federal enclaves was not raised.

13

Enough has been said to show that the

doctrine of "exclusive jurisdiction" over federal

enclaves is not an imperative. The phrase is in-

deed a misnomer for the manifold legal phases of

the diverse situations arising out of the existence

of federally-owned lands within a state--problems

calling not for a single, simple answer but for

disposition in the light of the national purposes

which the enclave serves. [f Congress speaks,

State power is of course determined by what Con-

gress says. If Congress makes the law of the state

in which there is a federal site as foreign there as

is the law of China, then federal jurisdiction

would really be exclusive. But short of such

congressional assertion of overriding authority,

the phrase “exclusive jurisdiction" more often

confounds than solves the problems due to our

federal system.

Id. at 300 (Frankfurter, J., dissenting) (emphasis added).

With regard to state power over juvenile matters, Con-

gress has indeed spoken. Congress has said that the general

policy of the federal government is to abstain in juvenile proceed-

ings. Congress has said that juvenile delinquency is essentially

a state and local problem that must be dealt with by state and local

governments. The present Juvenile Justice Act, 18 U.S.C. §§

5031 et seq., embodies “the general policy of federal abstention

in juvenile proceedings,” United States v. Juvenile, 599 F.Supp.

1126, 1130 (D. Ore. 1984), a policy that predates North

Carolina’s cession of Area C of Camp Lejeune to the federal

government. See 18 U.S.C. §§ 662a, 922 (1940 ed.); 72nd

Congress, Session I, Ch. 243, June 11, 1932. The report of the

Senate Judiciary Committee accompanying the Juvenile Justice

and Delinquency Prevention Act of 1974, which was in effect on

i

14

24 August 1981, stated that juvenile delinquency is essentially a

state and local problem which must be dealt with by state and

local governments. S.Rep. No. 1011, 93d Cong., 2d Sess.,

reprinted in (1974) U.S. Code Cong. & Admin. News, pp 5283,

5286. Moreover, the 1974 legislative history implies a congres-

sional intent that state jurisdiction over juveniles on federal

enclaves is more than policy, i.e., that states have concurrent

jurisdiction over juveniles and must refuse to exercise it before

the federal government can proceed. This appears to be so

regardless of the nature of the cession that transferred the property

to the federal government. /d. at 5320. The language contained

in the 1974 legislative history is as follows:

A juvenile shall not be proceeded against in

federal court unless the state courts refuse juris-

diction, or do not have adequate services avail-

able.

Id. (emphasis added). Although the 1932 Act uses different

language, i.e., "any state that can and will assume jurisdiction,"

Ch. 243, such language is nevertheless consistent with the notion

that Congress has for many decades intended that the states

exercise concurrent jurisdiction over juvenile offenders even if

the federal government has obtained “exclusive” jurisdiction by

virtue of the cession.

Congress has consistently and emphatically stated its

intent that the problem of juvenile delinquency on federal

enclaves should be handled at the state and local community level

whenever possible. Where adequate juvenile programs and ser-

vices exist, as in North Carolina, Congress has chosen to require

the federal courts to defer to state authority and to permit the states

to deal with acts of juvenile delinquency. See, e.g.,41 Op. N.C.

Att’y Gen. 580 (1971). (A- 45) The decision of the Supreme

15

Court of North Carolina fails to respect the choice Congress has

actually made, and thus defeats rather than furthers the purpose

of the Plenary Powers Clause.

Finally, the Supreme Court of North Carolina believed

that the fact that the present proceeding against respondent is a

criminal prosecution of him as an adult undercut petitioner’s

argument. This suggestion misconstrues the question of jurisdic-

tion presented by this case. The State concedes that normally it

would not have jurisdiction over adult criminal matters. This

defendant, however, was not an adult at the time he allegedly

committed the offenses, and he therefore falls out of the routine

"adult criminal" category. Although it is true that the respondent

would be prosecuted as an adult, he arrived at this status by a

substantially different route, i.e., as a juvenile offender. Thus, the

state’s jurisdiction over respondent has its origin in juvenile law,

which is civil in nature. See Kent v. United States, 383 U.S. 541

(1966). Once jurisdiction attaches, as it did in 1981, it continues

to exist notwithstanding the fact that the respondent is no longer

a juvenile.

Nowhere in the Juvenile Justice Act is there any indica-

tion whatever that Congress limited its preference for state juris-

diction over acts of juvenile delinquency by a requirement that

the state juvenile laws preclude prosecution as an adult in ap-

propriate circumstances. The criminal acts of which respondent

is accused occurred when he was fifteen years of age, a fact which

put him squarely within the Juvenile Justice Act’s reservation of

state jurisdiction. The fact that respondent came of age before

the State could gather sufficient evidence to proceed against him

can have no effect on the State’s jurisdiction. The Supreme Court

of North Carolina has not only erroneously answered an impor-

tant federal question, it has distorted established concepts of

concurrent state jurisdiction. It is therefore imperative that this

Honorable Court correct this error.

Ee

16

Il. The Decision of the Supreme Court of

North Carolina Incorrectly Treated a

United States Attorney’s Certification

under 18 U.S.C. § 5032 as Requiring it to

Rule Against the Existence of State

Jurisdiction.

Before federal authorities may proceed against a juvenile

for an act of delinquency, 18 U.S.C. § 5032 requires that the

Attomey General or his delegate (in this case, the United States

Attomey) certify after investigation that no state court has or will

exercise jurisdiction over the juvenile with respect to the alleged

delinquent act. Only if there is such a certification can the

appropriate district Lomat entertain a proceeding under the

Juvenile Justice Act. ° A certification under section 5032 requires

the United States Attorney to make a legal determination as to the

existence of state court jurisdiction. The Supreme Court of North

Carolina mistakenly treated that legal determination as con-

clusive and unreviewable, citing United States v. Vancier, 515

F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857 (1975). 328 N.C.

at 167-68, 400 S.E.2d at 408-09. In Vancier, the Second Circuit

held that a federal district court could not review the accuracy of

a United States Attomey’s determination in deciding whether it

could exercise jurisdiction under the Juvenile Justice Act. 515 F.

2d at 1381. The Vancier decision does not purport to preclude

state courts from independently determining the existence of

their own jurisdiction under the relevant federal and state law. A

6 The Attorney General -- in practice, as in this case, the United States

Attomey of the relevant district -- may also make a section 5032

certification if he or she finds that the state lacks adequate "programs and

services” or that the act alleged is a crime of violence and that there is a

“substantial federal interest in the case or the offense.” In the present

case, the section 5032 certification was based solely on the belief of an

Assistant U.S. Attorney that no state court had jurisdiction.

17

section 5032 certification is a prerequisite to the exercise of

federal jurisdiction; it is not an ouster of state jurisdiction. To

accord an Assistant United States Attomey’s legal opinion final

and unreviewable authority in state courts as to the existence of

state jurisdiction contradicts the intent of Congress in enacting

section 5032 and would constitute a dramatic change in the

federal-state balance that Congress should not be presumed im-

plicitly to have made. See Rewis v. United States, 401 U.S. 808

(1971).

III. This Case Presents Important Questions of

Federal Law That Have Not Been, But

Should Be, Settled by This Court.

The decision of the Supreme Court of North Carolina in

this case involves questions of great legal and practical impor-

tance. The Supreme Court has created a restriction on state

jurisdiction, announced as a rule of federal law, that applies

incorrectly this Court’s decisions on "exclusive" federal jurisdic-

tion and contradicts the intention of Congress in enacting the

Juvenile Justice Act. The potential practical consequences of

leaving the judgment below undisturbed are far-reaching for at

least two reasons. First, if followed by other courts, the decision

below will compel the federal courts to deal with juvenile matters

for which Congress has found the federal system ill-equipped.

Second, the uncertainty created by State v. Smith may lead to

nationwide disagreement among state officials over the scope of

concurrent state jurisdiction and may deter state officials from

addressing acts of juvenile delinquency occurring on federal

enclaves. Some state officials may interpret this decision to mean

that "exclusive" federal jurisdiction is indeed truly exclusive as

to juvenile matters. Yet, other state officials may interpret this

decision to mean that "exclusive" federal jurisdiction is truly

exclusive as to juvenile matters only when a United States

18

attomey certifies that a state does not have concurrent jurisdic-

tion. Still other state officials may interpret this decision to mean

that “exclusive” federal jurisdiction is truly exclusive as to adult

criminal matters but not necessarily truly exclusive as to juvenile

matters.

The doctrinal effect of the Supreme Court’s error is not

limited to the particular issue of state concurrent jurisdiction overt

juvenile offenses in federal enclaves; the Supreme Court’s

decision, if allowed to stand, puts in question the continuing

validity of any state concurrent jurisdiction in federal enclaves

unless expressly reserved by the state. Unless this Court is

prepared to permit its long-standing precedents upholding such

jurisdiction to be eroded or overruled sub silentio, it should grant

the State’s petition and review the decision below.

The Supreme Court’s interpretation of the effect of a

section 5032 certification is, independently, an important ques-

tion of federal law that ought to be decided by this Court. The

Supreme Court thought itself compelled by the federal court of

‘ appeals decision in United States v. Vancier to accord a United

States Attomey’s legal opinion conclusive and unreviewable

authority in a state court determination of state jurisdiction. See

Smith, 328 N.C. at 167-68, 169, 400 S.E.2d at 409. This unprece-

dented ruling construes section 5032 to have worked a major

change in the relationship between federal executive officials and

state courts, a change which would raise serious constitutional

questions and which should not be ascribed to a congressional

19

statute without the plainest of indications. Because the Supreme

Court erroneously thought itself bound by Vancier, © it did not

examine the basis for its self-imposed restriction on state juris-

diction. ®

This Court should grant the State’s petition for a writ of

certiorari and review the creation by the Supreme Court of North

Carolina of an unfounded "federal law" restriction on state

authority. Cf. Oregon v. Hass, 420 U.S. 714, 719 (1975) (state

court may not impose restrictions on state authority "as a matter

of federal constitutional law when this Court specifically refrains

from imposing them") (emphasis omitted).

7 The Supreme Court may of course "look to the federal courts for

guidance,” Smith, 328 N.C. at 167-68, 400 S.E.2d at 409, in resolving a

question of federal statutory construction. See Tafflin v. Levitt, 493 U.S.

455, __, 110 S. Ct. 792, 798 (1990) (federal law decisions of state

courts, while guided by federal court interpretations of federal statutes,

are reviewable only by United States Supreme Court). It is plain from

the decision below, however, that the Supreme Court of North Carolina

treated Vancier as controlling: the Supreme Court's opinion contains no

independent consideration of the effect of a section 5032 certification,

but simply cites Vancier as a binding interpretation of federal law. Smith,

328 N.C. at 167-68, 400 S.E.2d at 409. However, only the decisions

of this Court constitute interpretations of federal law that are binding on

the highest court of a state. See Asarco, Inc. v. Kadish, 490 U.S. 605,

617 (1989) (state courts have power to issue "binding" decisions “that

rest on their own interpretations of federal law").

g Vancier isnot, in fact, even persuasive authority supporting the holding

of the Supreme Court in the present case. Vancier addressed the

question of whether the United States District Court could reevaluate the

United States Attomey's certification in determining whether it had

jurisdiction over a juvenile proceeding. Vancier’s holding that a federal

district court cannot do so, even assuming it is correct, does not address

the question presented here of concurrent state court jurisdiction.

20

CONCLUSION

For the foregoing reasons, the State of North Carolina

respectfully prays and requests that a writ of certiorari issue to

review the decision of the Supreme Court of North Carolina in

this case.

Respectfully submitted,

LACY H. THORNBURG

Attomey General

Robert J. Blum

Special Deputy Attorney General

Counsel of Record

G. Lawrence Reeves, Jr.

Assistant Attomey General

H. Jefferson Powell

Special Counsel to the Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: 919/733-6012

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

STATE OF NORTH CAROLINA,

Petitioner

v.

CARLTON J. SMITH,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NORTH CAROLINA

APPENDIX

LACY H. THORNBURG

Attorney General

Robert J. Blum

Special Deputy Attorney General

Counsel of Record

G. Lawrence Reeves

Assistant Attorney General

H. Jefferson Powell

Special Counsel to the Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

elephone: 919-733-6012

Attorneys for Petitioner

TABLE OF CONTENTS

APPENDICES

Page

Opinion of the Supreme Court of North Carolina,

State v. Smith, 328 N.C. 161,

MUMMIES ooo cc ccerccccccsenereccees A-1

Order of U.S. District Court Filed 28 July 1986

Granting Motion to Transfer for Trial as Adult ........ A-20

Order of U.S. District Court Filed 6 July 1987

Dismissing Juvenile Information ................... A-21

Order of U.S. District Court

Filed 3 December 1987 Denying Defendant’s

a A-22

Order of U.S. District Court Filed

14 December 1988 Dismissing Murder Charges ....... A-23

Order of U.S. District Court Filed 12 January 1989

Dismissing Count Four (Escape Charge) ........°..... A-24

Order of James M. Strickland, Presiding Superior

Court Judge, Filed 23 February 1989

Speman POON OO DIGMNNNS . 2. ccc cn eee A-25

Order of the Supreme Court of North Carolina

Denying Motion for Stay of Mandate,

8) A-32

Order of William H. Rehnquist, Circuit Justice,

Supreme Court of the United States, Denying

Application for Stay of Mandate,

es oc encndbeneccesess A-33

EE

Order of Supreme Court of North Carolina

Denying Motion for Reconsideration of Order,

co eee A-34

Letter of Secretary of the Navy Forrestal

eas A-36

Stipulation of Counsel Regarding Area C

of Marine Corps Base,Camp Lejeune .............. A-39

Letter of Assistant District Attomey Stroud

Dated 24 August 1981 ............... ccc cece eee. A-40

Juvenile Information with Appended

Certification of Assistant U.S. Attomey

IE A-41

Defendant’s Motion to Dismiss

Filed 13 February 1989 Alleging Lack of

Jurisdiction of State of North Carolina .............. A-44

41 Op. N.C. Att’y Gen. 580 (1971) ....00 0000 o. 0... A-45

A-l

IN THE SUPREME COURT NORTH CAROLINA

State of North Carolina

No. 130PA89 - Onslow

Ve

Carlton J. Smith

On writ of certiorari to review an order entered by Strick-

land, J., at the 23 February 1989 Session of Superior Court,

Onslow County. Heard in the Supreme Court 15 March 1990.

The defendant has been indicted on three charges of

murder in the Superior Court, Onslow County. On 24 August

1981, when the defendant was fifteen years of age, the bodies of

Connie Smith, Sharon Lee Sager, and Tyler Dash were found on

the Marine Corps Base, Camp Lejeune, North Carolina. The area

in which the bodies were found was purchased by the United

States in 1941. Ina letter to J. Melville Broughton, the Governor

of North Carolina, dated 4 June 1941, Acting Secretary of the

Navy James Forrestal notified the Governor that an Act of Con-

gress required that in any case in which a State cedes jurisdiction

over lands within its borders to the United States the head of any

department having custody of such lands, shall, if such jurisdic-

tion be accepted, file a notice of such acceptance with the

Governor of such state ceding such jurisdiction. Acting Secretary

Forrestal notified Governor Broughton that jurisdiction was ac-

cepted over the land effective at 12:00 noon on 9 June 1941 "in

the manner and form provided by an act of 1907, Ch. 25, N.C.

Code 1927, Sec. 8059." This is now N.C.G.S. § 104-7. On 24

August 1981 an assistant district attomey of the Fourth

Prosecutorial District wrote to an assistant United States Attoméy

that, "[iJt has always been my understanding that criminal offen-

ses occurring on the Marine Corps installations in Onslow Coun-

——

A-2

ty fall exclusively within the federal jurisdiction. Even assuming

concurrent jurisdiction exists, we will defer to cognizant federal

authorities in this case.”

On 8 July 1986 the federal government filed a juvenile

information against the defendant, charging him with three

counts of first degree murder. The information alleged that the

murders were committed in violation of 18 U.S.C. § 1111 (1982)

on the Marine Corps Base, Camp Lejeune, North Carolina under

the exclusive jurisdiction of the United States. On the same day

the United States Attorney certified to Chief Judge W. Earl Britt,

United States District Court for the Eastern District of North

Carolina, that pursuant to 18 U.S.C. § 5032 (1982) on the

authority delegated to him by the Attorney General of the United

States "no juvenile court or other appropriate court of any state,

including the General Court of Justice of the State of North

Carolina, has jurisdiction over said juvenile with respect to acts

of juvenile delinquency alleged in this case, such acts having

occurred on Marine Corps Base, Camp Lejeune, North Carolina,

a military reservation acquired for the use of the United States

and under exclusive jurisdiction thereof."

On 28 July 1986 the government’s motion to transfer the

defendant to United States District Court for trial as an adult was

allowed. On appeal to the Fourth Circuit Court of Appeals this

order was reversed. At the time the three persons were killed on

the Camp Lejeune reservation a fifteen year old person who was

convicted of first degree murder could be committed to a rela-

tively short period of confinement or treatment. In 1984 the

federal Juvenile Delinquency Act was amended to provide that a

fifteen year old charged with murder could be tried as an adult

and sentenced to life imprisonment or possibly death. The Fourth

Circuit Court of Appeals held that it would violate the ex post

facto clause of article I, section 9 of the United States Constitution

to try the defendant under an act which was not in effect at the

A-3

time the alleged crimes were committed and which would en-

hance the sentence which the defendant could receive. United

States v. Juvenile Male, 819 F.2d 468 (4th Cir. 1987).

The United States Attorney then sought and was granted

leave to dismiss the information. A federal grand jury then

indicted the defendant on three counts of first degree murder. The

district court denied a motion to dismiss the indictment and this

order was reversed on appeal. The United States Court of Ap-

peals for the Fourth Circuit held that once the government

proceeded against a person under the Juvenile Delinquency Act

it could not proceed against him under another act. United States

v. Smith, 851 F.2d 706 (4th Cir. 1988). The indictment against

the defendant was dismissed.

On 13 December 1988, the Onslow County grand jury

indicted the defendant for the murders of the three persons whose

bodies had been found on 24 August 1981. The superior court

denied a motion to dismiss the indictments and we granted the

defendant’s petition for certiorari.

LACY H. THORNBURG, Attomey General, by

ROBERT J. BLUM, Associate Attorney General,

and G. LAWRENCE REEVES, JR., Assistant

Attomey General, for the State.

CHARLES H. HENRY, JR. and RICHARD L.

CANNON, II, for the defendant appellant.

WEBB, Justice.

This case brings to the Court the question of whether the

Superior Court, Onslow County has jurisdiction to try a person

as an adult for crimes he allegedly committed as a juvenile on the

i

A-4t

Camp Lejeune military reservation. There are constitutional and

statutory provisions that affect this question. Article I, § 8 of the

Constitution of the United States provides in part:

The congress shall have powet....

[17.] To exercise exclusive legislation in

all cases whatsoever, over such district (not ex-

ceeding ten miles square) as may, by cession of

particular states, and the acceptance of congress,

become the seat of the government of the United

States, and to exercise like authority over all

places purchased by the consent of the legislature

of the state in which the same shall be, for the

erection of forts, magazines, arsenals, dock-yards,

and other needful buildings[.]

N.C.G.S. § 104-7 provides in part:

The consent of the State is hereby given,

in accordance with the seventeenth clause, eighth

section, of the first article of the Constitution of

the United States, to the acquisition by the United

States, by purchase, condemnation, or otherwise,

of any land in the State required for the sites for

customhouses, courthouses, post offices, ar-

senals, or other public buildings whatever, or for

any other purposes of the government.

Exclusive jurisdiction in and over any

land so acquired by the United States shall be and

the same is hereby ceded to the United States for

all purposes except the service upon such sites of

all civil and criminal process of the courts of this

State; but the jurisdiction so ceded shall continue

no longer than the said United States shall own

such lands. The jurisdiction ceded shall not vest

until the United States shall have acquired title to

said lands by purchase, condemnation, or other-

wise.

40 U.S.C. § 255 provides in part:

Notwithstanding any other provision of law, the

obtaining of exclusive jurisdiction in the United

States over lands or interests therein which have

been or shall hereafter be acquired by it shall not

be required; but the head or other authorized

officer of any department or independent estab-

lishment or agency of the Government may, in

such cases and at such times as he may deem

desirable, accept or secure from the State in which

any lands or interests therein under his immediate

jurisdiction, custody, or control are situated, con-

sent to or cession of such jurisdiction, exclusive

or partial, not theretofore obtained, over any such

lands or interests as he may deem desirable and

indicate acceptance of such jurisdiction on behalf

of the United States by filing a notice of such

acceptance with the Governor of such State or in

such manner as may be prescribed by the laws of

the State where such lands are situated. Unless

and until the United States has accepted jurisdic-

tion over lands hereafter to be acquired as

aforesaid, it shall be conclusively presumed that

no such jurisdiction has been accepted.

In interpreting article I, § 8 of the Constitution of the

United States and the statutory provisions, it has been held that

if several steps are taken the federal government acquires juris-

diction over lands it owns. The government must acquire the land

A-6

by condemnation or otherwise. If the state in which the land is

situated cedes jurisdiction to the federal government, and if the

government accepts jurisdiction, the state no longer has jurisdic-

tion over this territory. Paul v. United States, 371 U.S. 245, 9

L.Ed.2d 292 (1963). Whether the United States has acquired

jurisdiction is a federal question. Silas Mason Co. v. Tax Com.,

302 U.S. 186, 82 L.Ed. 187 (1937).

In this case all parties agree that the murders allegedly

occurred on the Camp Lejeune military reservation and that the

State has ceded and the federal government has accepted juris-

diction over this territory. The State contends the government’s

jurisdiction is not exclusive and the State has jurisdiction to try

the defendant.

In criminal cases dealing with this problem the federal

courts have said the jurisdiction of the United States is exclusive.

In United States v. Unzeuta, 281 U.S. 138, 74 L.Ed. 761 (1930),

the defendant assigned error for being tried in federal court for a

murder committed on the Fort Robinson military reservation in

Nebraska. In overruling this assignment of error the United

States Supreme Court said, "[wJhen the United States acquires

title to lands, which are purchased by the consent of the legislature

of the state which which they are situated ’for the Erection of

Forts, Magazines, Arsenals, Dock-yards and other needful

Buildings’ (Const. art. I, § 8) the Federal jurisdiction is exclusive

of all state authority." Id. at 285, 74 L.Ed. at 773. In Bowen v.

Johnston, 306 U.S. 19, 83 L.Ed. 455 (1939), the defendant was

convicted of a murder committed in the Chickamauga and Chat-

tanooga National Park. The United States Supreme Court said

the federal district court had exclusive jurisdiction to try the

defendant for crimes committed in this territory. See also Benson

v. United States, 146 U.S. 325, 36 L.Ed. 991 (1892).

——

In United States v. Daye, 696 F.2d 1305 (11th Cir. 1983),

the Court of Appeals for the Eleventh Circuit, in overruling the

defendant’s assignment of error to his being tried in federal court

said, “because the Everglades National Park remains in the

exclusive jurisdiction of the federal government, Florida has not

and cannot extend its jurisdiction to cover Indian lands located

within the Park." In State v. DeBerry, 224 N.C. 834, 32 S.E.2d

617 (1945) this Court, relying on federal cases, held it was error

not to abate a criminal action for assault on a female which

occurred on the premises of a post office. We said that at the time

the United States acquired the land for the post office, "the

Legislature had given its unqualified consent to the acquisition

of lands within the State by the United States for the purpose of

erecting thereon any post office, courthouse, etc., and the Federal

jurisdiction therefore became exclusive." Id. at 837, 32 S.E.2d

at 619. It appears from these cases that the Superior Court,

Onslow County does not have jurisdiction to try the defendant.

The State argues that the federal government has not

exercised exclusive jurisdiction over juvenile delinquency offen-

ses which occur on the Camp Lejeune military reservation. It

bases this argument on Paul v. United States, 371 U.S. 245, 9

L.Ed.2d 292; Howard v. Commissioners of Sinking Fund of City

of Louisville et al., 344 U.S. 624, 97 L.Ed. 617 (1953); Stewart

v. Sadrakula, 309 U.S. 94, 84 L.Ed. 596 (1940); and Chicago R.I.

& P. Ry. Co. v. McGlinn, 114 U.S. 542, 29 L.Ed. 270 (1885).

These decisions have developed the doctrine that in civil cases

the state laws in existence on federal enclaves at the time of the

cession of the territory continue in effect until abrogated by the

federal authority. This assures that no area, however small, will

be left without a developed legal system for private rights. The

State argues that the areas of interest to both sovereigns may

co-exist within the enclave so long as there | is no interference with

the federal function.

A-8

The State argues that the federal government has not

abrogated State jurisdiction over juvenile offenders on the Camp

Lejeune military reservation and the State has concurrent juris-

diction. It relies on 18 U.S.C. § 5032 which says in part:

A juvenile alleged to have committed an act of

juvenile delinquency, other than a violation of law

committed within the special maritime and ter-

ritorial jurisdiction of the United States for which

the maximum authorized term of imprisonment

does not exceed six months, shall not be

proceeded against in any court of the United

States unless the Attommey General, after inves-

tigation, certifies to the appropriate district court

of the United States that (1) the juvenile court or

other appropriate court of a State does not have

jurisdiction or refuses to assume jurisdiction over

said juvenile with respect to such alleged act of

juvenile delinquency, (2) the State does not have

available programs and services adequate for the

needs of juveniles....

If the Attorney General does not so certify, such

juvenile shall be surrendered to the appropriate

legal authorities of such State.

The State contends that this statute and other legislative action

show it was and is the position of Congress that states are better

able to deal with the juvenile delinquency problems than federal

authorities. The State concedes that it normally would not have

jurisdiction over criminal matters but says in this case that a

juvenile delinquency hearing is a civil matter. Once the state

court obtained jurisdiction it did not lose it when the defendant

became an adult. The State contends it has concurrent jurisdic-

tion because the federal government has never accepted

Ese

jurisdiction over juvenile matters on the Camp Lejeune reserva-

tion. It argues that 40 U.S.C. § 255 allows the federal government

only the jurisdiction it requires.

The difficulty for the State in relying on 18 U.S.C. § 5032

to argue that the federal government recognizes that states are

better able to deal with juvenile delinquency problems than the

federal government is that the United States Attorney certified to

the United States District Court pursuant to 18 U.S.C. § 5032 that

the courts of North Carolina did not have jurisdiction over the

defendant with respect to the acts committed on the Camp

Lejeune military reservation. In United States v. Vancier, 515

F.2d 1378 (2nd Cir.), cert. denied, 423 U.S. 857 (1975), a juvenile

was charged in the United States District Court for the Southem

District of New York with an act of juvenile delinquency. He was

also charged with a criminal act in a court in the State of New

York. The United States Attorney certified to the federal district

court that a juvenile or other appropriate court did not have

jurisdiction over the defendant with respect to the alleged acts of

juvenile delinquency. The state court dismissed the charges and

the defendant was held in federal court to be a juvenile delin-

quent. On appeal he contended he should not have been tried in

federal court because the state court had jurisdiction. The Second

Circuit Court of Appeals held that the United States Attomey’s

certification, in the absence of a showing of bad faith, had to be

accepted by the Court as final. It held the federal district court

had exclusive jurisdiction. Because we are dealing with a federal

question we must look to the federal courts for guidance. If we

must accept the United States Attorney’s certification as final that

the courts of this state do not have jurisdiction, then 18 U.S.C. §

5032 is not helpful to the State.

As to the State’s argument that the federal government

never accepted jurisdiction of juvenile delinquency matters on

the Camp Lejeune reservation, the acceptance of Acting

A-10

Secretary of the Navy Forrestal said that jurisdiction was “ac-

cepted on behalf of the United States in the manner and form

provided by an act of 1907, Ch. 25, N.C. Code 1927, Sec. 8059"

(N.C.G.S. § 104-7). N.C.G.S. § 104-7 says, "[e]xclusive juris-

diction ... shall be and the same is hereby ceded to the United

States for all purposes except the service upon such sites of all

civil and criminal process of the courts of this State.” It appears

that the State ceded all jurisdiction that it could except for the

service of process and this is what the United States accepted.

The State says that Acting Secretary Forrestal could not

have accepted jurisdiction of persons charged with acts of

juvenile delinquency because he did not know "the many com-

plexities of jurisdictional law that would arise in the future."

Whatever the Acting Secretary could foresee, we believe he

accepted exclusive jurisdiction as completely as he could. The

state and federal governments had laws in effect governing

matters of juvenile delinquency at the time jurisdiction was

ceded. There is nothing in either of the two opinions of the Court

of Appeals for the Fourth Circuit dealing with this defendant that

would indicate the district court did not have jurisdiction to

conduct an adjudication of delinquency for this defendant.

As to the State’s contention that a juvenile delinquency

hearing is a civil matter in both federal and state courts and for

that reason the state and federal governments have concurrent

jurisdiction, it is true that in Kent v. United States, 383 U.S. 541,

16 L.Ed.2d 84 (1966), the United States Supreme Court said

juvenile delinquency proceedings are designated civil and not

criminal. Subchapter XI of Chapter 7A of the General Statutes,

which contains the North Carolina Juvenile Code, does not

classify a juvenile hearing as civil or criminal. We cannot find a

case in this state which says a juvenile proceeding is a civil case.

In regard to juvenile proceedings this Court has held that

"[wJhatever may be their proper classification, they certainly are

A-ll

not ‘criminal prosecutions’ which require a jury trial or a trial at

which the public must be admitted. In re Burrus, 275 N.C. 517,

529, 169 S.E.2d 879, 886 (1969). There are certain constitutional

rights which a juvenile has at such a hearing which are not

required in civil trials, such as the right to counsel if there is a

possibility of commitment and the privilege against self in-

crimination. This would suggest a juvenile hearing is not a civil

case. We do not believe we have to decide whether a juvenile

hearing is civil or criminal. In this case the proceedings against

the defendant in the Superior Court, Onslow County are criminal

proceedings. His case was transferred to superior court for trial

on three charges of murder.

Bound as we are by the federal court’s interpretation of

this federal question, we must hold that the Superior Court,

Onslow County does not have jurisdiction to try the defendant.

If we were to hold otherwise we would have to overrule State v.

DeBerry, 224 N.C. 834, 32 S.E.2d 617. As Chief Justice Stacy

said in DeBerry, "[t}his may lead to an undesirable result. Never-

theless, we can only declare the law as we find it." Id. at 837, 32

S.E.2d at 619.

We reverse the order of the superior court and remand for

the dismissal of the three charges against the defendant.

REVERSED AND REMANDED.

A-12

NO. 130PA89 - State v. Smith

MARTIN, J., concurring

I concur in the result reached by the majority but for

different reasons.

A review of the history of this appeal is helpful to an

understanding of the issues involved.

1. On 24 August 1981 Connie Smith, Tyler Todd, and

Sharon Sager were found murdered in a residence located

at 6080-A Kentucky Court in the Watkins Village housing

area of the Camp Lejeune Marine Corps base. The vic-

tims were the defendant’s aunt, his twelve year old sister,

and his cousin.

2. On 24 August 1981 this defendant was fifteen years of

age and resided with his mother and two sisters on the

Marine Corps base at Camp Lejeune.

3. The defendant was immediately a suspect in the case.

However, federal authorities evidently concluded that

they did not have sufficient evidence to proceed, and by

1983 they had lost track of this defendant altogether.

4. Sometime after the murders, defendant Smith moved

with the remainder of his family to Oregon.

5. In 1986 defendant wanted to join the Oregon National

Guard. That organization contacted Camp Lejeune for

copies of defendant’s medical records. Upon receipt of

the records which included psychiatric reports, defendant

was turned down for the National Guard. Defendant’s

mother contacted Camp Lejeune and asked that the inves-

A-13

tigation concerning defendant be closed so that he could

"get on with his life.” Agents from the Naval Investiga-

tive Service contacted defendant and conducted a number

of interviews with him. At one of those interviews,

defendant made incriminating statements conceming the

murders and was arrested on 30 June 1986.

6. On 7 July 1986 Samuel T. Currin, United States

Attomey, through his assistant, M.F. Bogdanos, filed a

certificate with the Federal Court for the Eastern District

of North Carolina certifying "no Juvenile Court or other

appropriate court of any state including the General Court

of Justice of the State of North Carolina has jurisdiction

over said juvenile with respect to the acts of juvenile

delinquency alleged in this case, such acts having oc-

curred on Marine Corps base at Camp Lejeune, North

Carolina, a military reservation acquired for the use of the

United States and under exclusive jurisdiction thereof.”

7. On 8 July 1986 the federal government filed a

"juvenile information" charging defendant with these

three murders, and a magistrate found probable cause to

believe that "the juvenile committed the offenses al-

leged.”

8. On 22 July 1986 the U.S. District Judge entered an

order upon motion of the government transferring this

case to the District Court for trial of the defendant as an

adult. This order was appealed to the United States Court

of Appeals, Fourth Circuit.

9. On 26 May 1987 the United States Court of Appeals,

Fourth Circuit, entered a decision reversing the order of

the trial court transferring this defendant’s case for trial

as an adult. The court held that at the time of the com-

A-14

mission of these alleged crimes (24 August 1981) there

was no provision in the Federal Juvenile Delinquency Act

which would permit the transfer of a juvenile’s case to the

District Court for trial as an adult. Although the statute

in effect in 1981 was amended in 1984 to allow such

transfer, the amendment could not be applied to this

defendant for these alleged crimes as that would con-

stitute a violation of the ex post facto clause of the United

States Constitution. United States v. Juvenile Male, 819

F.2d 468 (4th Cir. 1987).

10. On 6 July 1987 the United States District Judge

entered an order granting leave to the government to

dismiss the juvenile information, and this dismissal was

taken by the government.

11. On 7 July 1987 the United States government

procured a true bill of indictment from the grand jury

charging this defendant with three counts of murder in the

first degree involving these alleged killings and a fourth

count of escape.

12. On 8 July 1987 the defendant made a motion to

dismiss the bills of indictment which was denied by the

Federal Court on 3 December 1987. Notice of Appeal

was taken to the United States Court of Appeals, Fourth

Circuit.

13. The Court of Appeals on 12 July 1988 reversed the

District Court Judge ordering that the three murder char-

ges should have been dismissed.

14. On 14 December 1988 the United States District

Judge entered an order pursuant to the Fourth Circuit

opinion dismissing the three murder charges against this

cee mene

~ al

A-15

defendant. The theory of the Fourth Circuit decision was

that the initiation of the juvenile proceedings against this

defendant, which the government had previously dis-

missed, prevented the government from later prosecuting

him as an adult by way of a bill of indictment.

15. Thereafter, on 12 January 1989 the government dis-

missed the escape charge with the consent of the Federal

Court.

16. On 13 December 1988 the Onslow County grand jury

returned indictments charging defendant with the 24

August 1981 murders of his aunt, cousin, and sister.

17. Defendant entered pleas of not guilty at his arraign-

ment on 25 January 1989.

18. On 13 February 1989 defendant filed two motions to

dismiss for lack of jurisdiction.

19. On 23 February 1989 Judge Strickland denied these

motions. Whereupon the case was appealed to this Court.

At the outset, the validity of State v. DeBerry, 224 N.C.

834, 32 S.E.2d 617 (1945), is not necessary to a resolution of this

appeal. This Court in DeBerry only held that N.C.G.S. § 104-1

and 104-7 did not apply to property acquired by the United States

in 1899, years before the statutes were adopted. The case at bar

is not concerned with the retroactivity of the statutes. The

“unqualified consent” by the state to the federal acquisition of the

post office property in DeBerry was based upon legislation

adopted in !887, not N.C.G.S. § 104-7. DeBerry is not relevant

to the issue before the Court at this time.

A-16

The legal issue involved in this case is not the guilt or

innocence of the defendant of the murders in question. The

defendant has made a judicial stipulation that on 24 August 1981

the three victims were found murdered in a residence on the

Marine Corps base at Camp Lejeune. The only question remain-

ing as to guilt or innocence is whether this defendant was the

perpetrator of the three murders, or any one or more of them.

Defendant has made incriminating statements to Naval Investiga-

tive Service agents from which a jury could conclude that defen-

dant was the person who perpetrated the crimes.

The issue before this Court is whether the Superior Court

of Onslow County had jurisdiction to try this defendant upon the

bills of indictment returned against him for the murders. The

resolution of this issue depends upon this Court’s interpretation

of the United States Constitution, state and federal statutes, and

the acts of the state and federal governments with respect to the

acquisition of the land by the United States government upon

which Camp Lejeune is now situated and within which the

murders in this case occurred.

At the time of the murders in question there was no

provision in the Federal Juvenile Delinquency Act for the trial of

a juvenile as an adult when charged with such serious offenses as

murder. The most that the federal government could do under

the Federal Juvenile Delinquency Act at that time was to have a

juvenile delinquency adjudication proceeding.

The United States government in 1981, at the time of

these crimes, had no provision to try as an adult a juvenile who

had committed three murders. Under the law of North Carolina

in 1981, the defendant could be tried as an adult for the offense

of murder. Where there is a gap in jurisdiction of the United

States, upon the ceding of territorial jurisdiction by the state to

the United States, the state retains its underlying territorial juris-

A-17

diction over the area in question insofar as the exercise of such

jurisdiction by the state does not interfere with the activities of

the federal government in carrying out its duties upon the federal

enclave. However, the Federal Assimilative Crimes Act cures

this gap in the federal jurisdiction. This act reads:

Laws of States adopted for areas within

Federal jurisdiction

Whoever within or upon any of the places

now existing or hereafter reserved or acquired as

provided in section 7 of this title [18 USC § 7], is

guilty of any act or omission which, although not

made punishable by any enactment of Congress,

would be punishable if committed or omitted

within the jurisdiction of the State, Territory, Pos-

session, or District in which such place is situated,

by the laws thereof in force at the time of such act

or omission, shall be guilty of a like offense and

subject to a like punishment.

18 U.S.C. § 13 (1948).

The provisions of this Act have been in effect since 1825.

The purpose of this statute is to provide for punishment in the

federal courts, as an offense against the United States, of offenses

committed within federal enclaves, but only in the way and to the

extent that the offense in question would have been punishable

if committed within the jurisdiction of the state. United States v.

Press Publishing Co., 219 U.S. 1,55 L.Ed. 65 (1910). It provides

criminal laws for federal enclaves by use of the state to fill gaps

in federal criminal law. United States v. Brown, 608 F.2d 551

(Sth Cir. 1979). Where Congress has failed to pass specific

criminal legislation, the Act is used to fill the gaps in criminal law

in federal enclaves. United States v. Fulkerson, 631 F.Supp. 319

(D. Haw. 1986).

A-18

In 1981, the federal law failed to provide for the trial of

a juvenile for the crime of murder committed within a federal

enclave. The juvenile could only be proceeded against under the

Federal Juvenile Delinquency Act. Such proceedings are civil

rather than criminal. Kent v. United States, 383 U.S. 541, 16

L.Ed.2d 84 (1966). The juvenile court basically is determining

the needs of the child and society rather than adjudicating

criminal conduct or fixing criminal responsibility, guilt, or

punishment. Id. Thus in 1981, the federal laws failed to provide

for the trial of this defendant, a juvenile, on criminal charges of

murder.

To the contrary, North Carolina in 1981 did provide for

the trial of a juvenile for the crime of murder. The statute, passed

in 1979, reads:

The court after notice, hearing, and a find-

ing of probable cause may transfer jurisdiction

over a juvenile 14 years of age or older to superior

court if the juvenile was 14 years of age or older

at the time he allegedly committed an offense

which would be a felony if committed by an adult.

If the alleged felony constitutes a capital offense

and the judge finds probable cause, the judge shall

transfer the case to the superior court for trial as

in the case of adults.

N.C.G.S. § 7A-608 (1989).

Therefore, by applying the Federal Assimilative Crimes

Act, thereby incorporating N.C.G.S. § 7A-608 as a part of the

federal criminal law, the United States had jurisdiction to try this

defendant for the capital charges of murder. Because the federal

government thereby had jurisdiction to try this defendant on the

murder charges, the state lacked jurisdiction to do so.

Inexplicably, counsel and the court failed to recognize

and apply the Federal Assimilative Crimes Act in deciding and

reviewing the issue of whether this defendant could be tried as

an adult in the federal court for these three murders. See United

States v. Juvenile Male, 819 F.2d 468 (4th Cir. 1987). Had the

federal court done so, these murder cases could have been adjudi-

cated in 1987. Nevertheless, the actions of the federal court

cannot serve to expand the jurisdiction of the courts of this state.

For these reasons, I concur in the result.

A-20

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

NEW BERN DIVISION

No. 86-31-01-CR-4

UNITED STATES OF AMERICA,

ORDER

¥.

)

)

)

)

)

A JUVENILE MALE. )

The court hereby GRANTS the government’s July 18,

1986, motion to transfer the juvenile defendant to district court

for trial as an adult. Inasmuch as the defendant has indicaied his

intent to seek an immediate appeal to the Fourth Circuit from this

ruling, all matters pertaining to this case shall remain under seal

and the defendant shall be treated as if a juvenile pending appel-

late review. A failure to do so would irreparably damage the

defendant should this court’s ruling be reversed on appeal. Amore

detailed order delineating the rationale underlying the court’s

decision herein shall issue as soon as possible.

SO ORDERED.

This 28th day of July, 1986.

/s/ James C. Fox

JAMES C. FOX

United States District Judge

A-21

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

No. 86-31-01-CR-4

UNITED STATES OF AMERICA, )

Plaintiff, )

)

V. ) ORDER

)

A JUVENILE MALE, )

Defendant. )

This matter is before the court on motion by the Govern-

ment to dismiss the Juvenile Information, No. 86-31-01-CR-4,

against the defendant in this action. The Government also has

moved the court for an order providing that six (6) exhibits

previously introduced be returned to the Government for use in

subsequent proceedings.

Therefore, it is ORDERED that leave is granted for the

Government to file a dismissal of Juvenile Information, No.

86-31-01-CR-4, pursuant to Rule 48(a); Fed. R. Crim. P. Further,

the Government’s motion for the return of its six (6) exhibits

heretofore filed in this matter is ALLOWED, and the clerk of

court is directed to retum said exhibits as requested in the

Government’s June 22, 1987 motion.

SO ORDERED.

This 6th day of July, 1987.

/s/ James C, Fox

JAMES C. FOX

United States District Judge

A-22

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

NEW BERN DIVISION

No. 87-24-01-CR-4

UNITED STATES OF AMERICA )

)

v. ) ORDER

)

)

CARLTON J. SMITH.

This matter is before the court on motion by defendant to

dismiss the indictment. For reasons which will be set forth more

fully in a subsequent memorandum opinion, the motion is denied.

This 3 December 1987.

ls/_ W. Earl Britt

W. EARL BRITT

United States District Judge

A-23

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

NEW BERN DIVISION

No. 87-24-01-CR-4

UNITED STATES OF AMERICA

ORDER

Ve

i i

CARLTON J. SMITH.

This matter is before the court on remand from the United

States Court of Appeals for the Fourth Circuit. Pursuant to that

remand Counts One, Two and Three of the indictment, charging

the defendant with murder, are hereby dismissed. On the remain-

ing charge, Count Four, appearance bond in the amount of One

Hundred Dollars ($100) is hereby set.

This 14 December 1988.

ls/_ W. Earl Britt

W. EARL BRITT

United States District Judge

A-24

UNITED STATES DISTRICT COURT

Eastern District of North Carolina

New Bern Division

United States of America Criminal No. 87-24-01-CR4

)

)

vs )

)

Carlton J. Smith ) Filed: Jan. 12, 1989

ORDER FOR DISMISSAL

Pursuant to Rule 48(a) of the Federal Rules of Criminal

Procedure and by leave of court endorsed hereon the United

States Attorney for the Eastern District of North Carolina hereby

dismisses Count 4 of the Indictment against Carlton J. Smith,

defendant, for the reason that post-indictment investigation and

legal developments in the case have persuaded the Government

that it is not in the public interest to proceed with this charge.

Asst. United States Attorney

Leave of court is granted for the filing of the foregoing

dismissal |

ls/_W, Earl Britt

United States District Judge

A-25

STATE OF NORTH CAROLINA

SUPERIOR COURT DIVISION

State v. Carlton James Smith

[caption omitted]

ORDER

This matter came on before the undersigned Judge presid-

ing at the February 20, 1989 Criminal-Civil Session of Superior

Court in Onslow County. At the request of the defendant, the

Court conducted a hearing on two motions filed by the defendant,

one motion being entitled “Motion to Dismiss for Lack of Juris-

diction,” and the other being entitled "Motion to Dismiss for Lack

of Jurisdiction in Superior Court.” Both motions were dated

February 13, 1989.

At this hearing the defendant was present and represented

by his attorneys, Mr. Richard L. Cannon, III, and Mr. Charles H.

Henry, Jr. The State of North Carolina was represented by District

Attomey William H. Andrews and Assistant District Attorney

Walter H. Paramore, II.

At this hearing, the State of North Carolina and the

attomeys for the defendant stipulated to the following facts which

the Court finds beyond a reasonable doubt:

1. That on August 24, 1981, Connie Smith, Tyler Todd

Dash, and Sharon Sagler were found murdered in the residence

located at 6080-A Kentucky Court in the Berkley Manor residen-

tial area of Camp Lejeune Marine Corps Base.

2. That on the same date, the defendant, Carlton James

Smith, was fifteen years of age with a birthdate of March 20,

1966.

A-26

3. That the United States Marine Corps Base at Camp

Lejeune is located entirely in Onslow County, North Carolina.

4. That all Federal charges against the defendant have

been dismissed as of this date.

~~ —-tr-addition to the foregoing findings of fact, the Court

makes the following additional findings of fact beyond a

reasonable doubt:

1. That on December 13, 1988, the Onslow County Grand

Jury indicted this defendant on these charges.

2. That the property on which this crime allegedly oc-

curred was acquired by condemnation by the United States in

1941 for the establishment of Camp Lejeune Marine Corps Base.

3. That in 1941, the United States accepted jurisdiction of

the property now occupied by Camp Lejeune Marine Corps Base.

4. That there was no intent on the part of the United States

to accept exclusive jurisdiction over acts of juvenile delinquency

or juvenile delinquents on Camp Lejeune Marine Corps Base.

Exception No. |

5. That there are now no Federal charges pending against

this defendant.

6. That this prosecution of the defendant by the State of

North Carolina would not interfere with any jurisdiction asserted

by the Federal Government and would not interfere with any

interest gf the Federal Government.

A-27

Exception No. 2

7. That on August 24, 1981, Joseph E. Stroud, Jr., then an

Assistant District Attorney in the Fourth Prosecutorial District

wrote a letter to an Assistant United States Attorney for the

Easter District of North Carolina stating as follows: "It has

always been my understanding that criminal offenses occurring

on the Marine Corps installation in Onslow County fall ex-

clusively within the Federal jurisdiction. Even assuming concur-

rent jurisdiction exists, we will defer to cognizant federal

authorities in this case.”

8. That on July 7, 1986, an Assistant United States Attor-

ney for the Eastern District of North Carolina certified to the

Federal District Court for the Eastern District of North Carolina

as follows: "This is to certify that in the case of the United States

of America vs. A Juvenile Male, no juvenile court or other

appropriate court of any state, including the General Court of

Justice of the State of North Carolina, has jurisdiction over said

juvenile with respect to the acts of juvenile delinquency alleged

in this case, such acts having occurred on Marine Corps Base,

Camp Lejeune, North Carolina, a military reservation acquired

for the use of the United States and under exclusive jurisdiction

thereof.”

9. That the Federal murder charges arising out of this same

incident were ordered dismissed by the United States Court of

Appeals on July 12, 1988.

Based upon the foregoing Findings of Fact, the Court

makes the following Conclusions of Law:

1. That at the time the United States accepted jurisdiction

over the property that now makes up Camp Lejeune Marine

Corps Base, there was no intent on the part of the United States

A-28

to accept exclusive Federal jurisdiction over acts of juvenile

delinquency or juvenile delinquents because the Federal juvenile

statutes in effect both then and now and at all times since 1941

indicate a clear Federal preference for the referral of juvenile

delinquent matters to State authorities. In view of the clear

language of the Federal juvenile statutes, the United States could

not have intended to accept exclusive Federal jurisdiction over

juvenile delinquent matters at the time that it accepted jurisdiction

over the property that now constitutes the Camp Lejeune Marine

Corps Base.

Exception No. 3

2. That the United States Supreme Court in Howard vs.

Commissioners of Louisville, 344 U.S. 624 (1953) held that there

is no barrier to the exercise of State jurisdiction over Federal

property even when exclusive jurisdiction has been accepted by

the United States and acknowledged by the Govermor of that State

so long as.4here ts no interference with the jurisdiction asserted

by the Federal Government.

3. That this prosecution of the defendant by the State of

North Carolina would not interfere with any jurisdiction asserted

by the Federal Government and would not interfere with any

interest of the Federal Government.

Exception No. 4

4. That there is no Federal barrier to the exercise of

jurisdiction by the State of North Carolina over juveniles who

commit acts of delinquency on the Camp Lejeune Marine Corps

Base.

A-29

Exception No. 5

5. That G.S. 104-7 provides for the ceding to the United

States of exclusive jurisdiction over any lands acquired by the

United States under the provisions of G.S. 104-7. However, 40

U.S.C. 255 provides that unless and until the United States has

accepted jurisdiction over such lands, it is conclusively presumed

that no such jurisdiction has been accepted. In this case, there

being no intent on the part of the United States to accept exclusive

Federal jurisdiction over juvenile delinquent matters on Camp

Lejeune Marine Corps Base, the State of North Carolina retained

jurisdiction over juvenile delinquent matters on Camp Lejeune

Marine Corps Base under the authority enunciated by the North

Carolina Supreme Court in the case of State v. Burell, 256 N.C.

288 (1962).

Exception No. 6

6. That the letter from Assistant District Attorney Stroud

deferring State prosecution to Federal authorities in 1981 did not

bar the District Attommey forevermore from prosecuting this case.

Furthermore, the opinjon of Assistant District Attorney Stroud in

1981 that the Federal Government had exclusive jurisdiction over

criminal offenses occurring at Camp Lejeune does not defeat

jurisdiction on the part of the State of North Carolina any more

so than a contrary opinion on his part would have conferred

jurisdiction if none existed.

Exception No. 7

7. That the certification by a member of the United States

Attomey’s Office that the State of North Carolina had no juris-

diction does not deprive the State of North Carolina of jurisdic-

A-30

tion any more so than a contrary certification would have con-

ferred jurisdiction upon the State of North Carolina if none

existed.

Exception No. 8

8. That the procedural requirements set out in 18 U.S.C.

5032 and its predecessor 18 U.S.C. 922 are not binding on

proceedings in the State Courts of North Carolina and are relevant

in this matter only in so far as they shed light upon whether or

not the United States in 1941 intended to accept exclusive juris-

diction over juvenile matters when it acquired the property on

which the Camp Lejeune Marine Corps Base is now located.

Exception No. 9

9. That the State of North Carolina has jurisdiction so as

to be able to prosecute these offenses and this defendant.

Exception No. 10.

10. That under the authority of In Re Stedman, 305 N.C.

92 (1982), the District Court Division of the General Court of

Justice of Onslow County has no further jurisdiction over this

defendant in that he is now over twenty-two years of age.

11. That the Superior Court of Onslow County does have

jurisdiction over these offenses and this defendant so as to be able

to place him on trial for the offenses for which he has been

indicted by the Onslow County Grand Jury.

A-31

Exception No. 11

Therefore, it is ORDERED that the defendant’s "Motion

to Dismiss for Lack of Jurisdiction in Superior Court" and

"Motion to Dismiss for Lack of Jurisdiction" be and same are

hereby denied.

This 23rd day of February, 1989.

(s/ James M, Stockland

PRESIDING SUPERIOR COURT

JUDGE

A-32

SUPREME COURT OF NORTH CAROLINA

J. Gregory Wallace, Clerk

Area Code 919 733-3723 P.O. Box 2170

Raleigh, North Carolina 27602

21 February 1991

Mr. Robert J. Blum

Associate Attorney General

Re:

No. 130PA89

Dear Mr. Blum:

Motion by Attomey General for Stay of Mandate has been

filed and the following order entered:

"Allowed as follows: the issuance of the mandate of this

Court is stayed until 15 March 1991, on which date this

stay shall automatically expire and the mandate shall

issue. By order of the Court in conference this the 20th

day of February 1991.

s/ Whichard, J.

For the Court:

Very truly yours,

PEGGY N. BYRD

Assistant Clerk

A-33

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543

William K. Suter

Clerk of the Court March 5, 1991

Mr. Robert J. Blum

Special Deputy Atty. General

P.O. Box 629

Raleigh, NC 27602-0629

Re: North Carolina,

v. Carlton J. Smith

Application No. A-643

Dear Mr. Blum:

The application for a stay of mandate of Supreme Court

of North Carolina pending filing and disposition of petition for

writ of certiorari in the above-entitled case has been presented to

the Chief Justice, who on March 5, 1991 endorsed thereon the

following:

"3/5/91

Denied

WHR"

Very truly yours,

WILLIAM K. SUTER, Clerk

By /s/Francis J. Lorson

Francis J. Lorson

Chief Deputy Clerk

A-34

No. 130PA89 FOUR-B DISTRICT

SUPREME COURT OF NORTH CAROLINA

SEEKERS EE

STATE OF NORTH CAROLINA )

)

Vv ) From Onslow

)

)

CARLTON J. SMITH

CEES EEE

ORDER

Upon consideration of the motion filed by Attomey

General, for reconsideration of the order dated 20 February 1991

in this matter, the following order was entered:

"Denied by order of the Court in conference, this

the 13th day of March 1991.

s/Webb, J.

For the Court"

WITNESS my hand and the seal of the Supreme Court of

North Carolina, this the 13th day of March 1991.

J. GREGORY WALLACE

Clerk of the Supreme Court

Assistant Clerk

a

a

A-35

AREA C

A-36

DEPARTMENT OF THE NAVY

WASHINGTON

JUN 4 1941

Sir:

An Act of Congress approved October 9, 1940 (54 Stat.,

1033), provides that in any case where a state cedes jurisdiction

over lands within its borders to the United States, the head or

authorized officer of any department or independent estab-

lishment or agency of the Government having custody of such

lands, shall, if such jurisdiction be accepted on behalf of the

United States, file a notice of such acceptance with the Governor

of the State ceding such jurisdiction.

Pursuant to the provisions of the aforesaid act, jurisdic-

tion is hereby accepted on behalf of the United States in the

manner and form provided by an Act of 1907, Ch. 25, H. C. Code

1927, Sec. 8059, over certain lands in Onslow County, North

Carolina, to wit:

Beginning at a point in the center line of North

Carolina Highway No. 24, said point being at the

normal high water line on the eastern shore of

North East Creek, and running S. 46° 60’ E.

2,888.3 feet along the center line of said highway

to the beginning of a 1° curve; thence continuing

along the center line of said highway to the left on

said curve 2,791.6 feet to the end of said curve;

thence continuing along the center line of said

highway S. 74° 11’E. 1,516.00 feet to the property

line between Minie Bagott and P. L. Wynn; thence

S. 1° W. 2,018.00 feet along the property line

between those two properties to the north line of

the property of Grover Davis; thence N. 85° 30’

~ oeoedadie

A-37

E. 2,697.00 feet along the north line of said

property to Mirey Branch; thence southerly with

the various courses of Mirey Branch to the mouth

of Cowbone Branch; thence eastwardly with the

various courses of Cowbone Branch to a ditch;

thence S. 24° 50’ E. 376.00 feet to a point; thence

S. 50° 25’ E. 1100.00 feet to a point; thence S. 2°

50’ E. 333.00 feet to Deep Bottom Branch; thence

southwesterly with the various courses of Deep

Bottom Branch to a comer; thence N. 62° 30’ W.

1180.00 feet to a point; thence S. 75° W. 240.00

feet to a point on Mirey Branch; thence southerly

with the various courses of Mirey Branch to Wal-

lace Creek; thence southeasterly with the various

courses of Wallace Creek to a corner; thence S.

16° 35’ W. 1290.00 feet to a point; thence S. 42°

35’ W. 860.00 feet to a point; thence N. 64° 30’

W. 656.00 feet to a point in the center of Bear

Creek Road; thence S. 78° 30’ W. 2206.00 feet to

a point in the center of Old Sneads Ferry Road;

thence with said road northwesterly to Bear Creek

Road; thence with said Bear Creek Road to

Sneads Ferry Road; thence to the Sneads Ferry

Road northwardly to a comer of Grover Davis’

property; thence N. 41° 45’ W. 742.00 feet to

Wallace’s Creek; thence southwesterly with the

various courses of Wallace’s Creek to the mouth

of said creek; thence northerly, westerly, northerly

and easterly along the normal high water line of

the eastern shore of New River to the mouth of

North East Creek; thence easterly and northerly

along the normal high water line of North East

Creek to the point of beginning, save and except

a strip of land 30 feet in width lying on the

southerly side of the center line of North Carolina

Highway No. 24, containing 6,226.345 acres,

more or less.

A-38

These lands were acquired for the establishment of a

Marine Corps Training Area in Onslow County, North Carolina,

pursuant to the provisions contained in the Act of Congress

approved April 5, 1941 (Public No. 29, 77th Congress).

Jurisdiction over the above described lands is accepted on

behalf of the United States effective at 12:00 o'clock noon on the

9th day of June, 1941.

There is enclosed a carbon copy of this letter of accep-

tance. Its return in the enclosed franked envelope with your

endorsement thereon of the time of the receipt of this acceptance

will be appreciated.

Respectfully,

JAMES FORRESTAL

Acting Secretary of the Navy

Original of this letter received

and filed on the 10 day of June 1941

His Excellency :

The Governor of North Carolina

Raleigh, North Carolina

J. MELVILLE BROUGHTON

Governor

ce - Attorney General

A-39

STIPULATION

The undersigned counsel stipulate to the following facts:

1. On August 24, 1981, Connie Smith, Tyler Todd, and

Sharon Sagler were found murdered in the residence

located at 6080-A Kentucky Court in the Watkins Village

housing area of Marine Corps Base Camp Lejeune.

2. The Watkins Village housing area is located within

Area C (as described on pages 24 through 28 of this

record) of Marine Corps Base Camp Lejeune.

4s/Roben J. Blum

Robert J. Blum Charles H. Henry, Jr.

Associate Attorney General Attomey for

N.C. Department of Justice Defendant/Petitioner

(sLG. Lawrence Reeves, Jr.

G. Lawrence Reeves, Jr. Richard L. Cannon, IL

Assistant Attomey General Attomey for

N.C. Department of Justice Defendant/Petitioner

A-40

GENERAL COURT OF JUSTICE

OFFICE OF THE DISTRICT ATTORNEY

FOURTH PROSECUTORIAL DISTRICT

P.O. Box 1282

Jacksonville, North Carolina 28540

William H. Andrews

Distnct Attomey

August 24, 1981

The Honorable Wallace W. Dixon

Assistant United States Attorney

P.O. Box 26897

Raleigh, North Carolina 27611

Re: Homicide case on Marine Corps Base, Camp

LeJeune, North Carolina

Dear Mr. Dixon:

Per our telephone conversation of this afternoon, I understand

that your office is investigating a triple homicide aboard Marine Corps

Base, Camp LeJeune, North Carolina, and you wish to know our

office's position regarding federal or state jurisdiction. You related to

me that the bodges of the victims were found on the military reservation

and that one victim was a military dependent, while the other two were

houseguests of the first. You also told me that you have a fifteen year

old suspect who is a military dependent.

It has always been my understanding that criminal offenses

occurring on the Marine Corps installations in Onslow County fall

exclusively within the federal jurisdiction. Even assuming concurrent

jurisdiction exists, we will defer to cognizant federal authorities in this

case.

Very truly yours,

It.

JOSEPH E. STROUD, JR.

ASSISTANT DISTRICT ATTORNEY

JES Jr./res :

_

A-4l

FILED IN OPEN COURT

ON JULY 8, 1986

J. Rich Leonard, Clerk

U.S. Distnct Court

Eastern District of N.C.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH

CAROLINA

NEW BERN DIVISION

NO. 86-31-01-CR-4

UNITED STATES OF AMERICA )

)

vs. ) JUVENILE

) INFORMATION

A JUVENILE MALE, )

Defendant. )

The United States Attorney Charges:

First Count

That on or about the 24th day of August 1981, at Marine

Corps Base, Camp Lejeune, North Carolina, in the Eastern Dis-

trict of North Carolina, on lands acquired for the use of the United

States and under the exclusive jurisdiction thereof, a JUVENILE

MALE did, with premeditation and malice aforethought and by

means of slashing her throat with a knife, murder Sharon Lee

Sager, in violation of the peovisions of Title 18, United States

Code, Section 1111.

Second Count

That on or about the 24th day of August 1981, at Marine

Corps Base, Camp Lejeune, North Carolina, in the Eastern Dis-

trict of North Carolina, on lands acquired for the use of the United

States and under the exclusive jurisdiction thereof, a JUVENILE

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MALE did, with premeditation and malice aforethought and by

means of slashing his throat with a knife, murder Tyler Todd

Dash, in violation of the provisions of Title 18, United States

Code, Section 1111.

Third Count

That on or about the 24th day of August 1981, at Marine

Corps Base, Camp Lejeune, North Carolina, in the Eastern Dis-

trict of North Carolina, on lands acquired for the use of the United

States and under the exclusive jurisdiction thereof, a JUVENILE

MALE did, with premeditation and malice aforethought and by

means of slashing her throat with a knife, murder Connie Denise

Smith, in violation of the provisions of Title 18, United States

Code, Section 1111.

SAMUEL T. CURRIN

United States Attorney

By: M. F. BOGDANOS

Special Assistant U.S. Attorney

By: James S. Perry

Asst. U.S. Attorney

A-43

FILED IN OPEN COURT

ON JULY 8, 1986

J. Rich Leonard, Clerk

U.S. District Court

Eastern District of N.C.

CERTIFICATION

TO: THE HONORABLE, THE CHIEF JUDGE W. EARL BRITT,

FEDERAL COURT FOR THE EASTERN DISTRICT OF NORTH

CAROLINA:

This is to certify that in the case of THE UNITED STATES

OF AMERICA v. A JUVENILE MALE, no juvenile court or

other appropriate court of any state, including the General Court

of Justice of the State of North Carolina, has jurisdiction over said

juvenile with respect to the acts of juvenile delinquency alleged

in this case, such acts having occurred on Marine Corps Base,

Camp Lejeune, North Carolina, a military reservation acquired

for the use of the United States and under exclusive jurisdiction

thereof.

This certificate is made pursuant to the requirements of Title

18, United States Code, Section 5032, and is made by the United

States Attorney for the Eastern District of North Carolina on the

basis of authority delegated to him by the Attorney General of

the United States. (Attorney General Order No. 579-74, 28 C.F.R.

0.57.).

This 7th day of July, 1986.

SAMUEL T. CURRIN

United States Attorney

By: M. F. Bogdanos

Special Assistant U.S. Attorney

By: James S. Perry

Asst. U.S. Attorney

ee

A+44

FILE NO. 88 CrS 20823, 20824, 20825

FILM NO.

NORTH CAROLINA _ IN THE GENERAL COURT OF JUSTICE

ONSLOW COUNTY SUPERIOR COURT DIVISION

STATE OF NORTH CAROLINA )

)

VS. ) MOTION TO DISMISS FOR

) LACK OF JURISDICTION

CARLTON J. SMITH, )

Defendant. )

NOW COMES the defendant, Carlton J. Smith, by and through

his court-appointed counsel, Richard L. Cannon, [lI and Charles H.

Henry, Jr. undersigned, and respectfully moves this honorable Court to

dismiss the indictments returned against the defendant on December

13, 1988 for lack of jurisdiction.

In support of this motion, defendant shows the Court that Smith

was fifteen years of age when the incidents occurred from which the

charges arose. The err ig “er on Camp LeJeune Marine Corps

Base, an area of exclusive al jurisdiction. Smith was prosecuted

by federal authorities pursuant to 18 U.S.C. § 5032.

THEREFORE, Smith moves this Court to dismiss the indictments

returned herein for lack of jurisdiction.

This the 13th day of February, 1989.

ELLIS, HOOPER, WARLICK,

WATERS & MORGAN

RICHARD L. CANNON, III BY: CHARLES H. HENRY, JR.

Attomey for the Defendant Attorney for Defendant

209 South Evans Street 313 New Bridge Street

Post Office Box 8523 Post Office Drawer 1006

Greenville, North Carolina 27835 Jacksonville, NC 28541

Telephone: (919) 758-2010 Telephone: (919) 455-3637)

A-45

20 October 1971 41 N.C.A.G. 580

Subject: Infants and Incompetents; Custody;

Jurisdiction of State Courts Over

Federal Reservation

Requested by: Lieutenant Colonel R. W. Edwards U.S.

Marine Corps Staff Judge Advocate

Question: What is the appropriate court to exercise

jurisdiction over the custody of an

abused or neglected child residing

within the confines of Marine Corps

Base, Camp Lejeune, North Carolina?

Conclusion: The District Court Division of the

General Court of Justice of North

Carolina wherein Camp Lejeune is lo-

cated has jurisdiction over the custody

of an abused or neglected child residing

within the confines of Marine Corps

Base, Camp Lejeune, North Carolina.

By G.S. 104-7 the State of North Carolina has consented

to the acquisition of land within the State by the United States

and, aside from reserving the right to serve civil and criminal

process, has ceded to the federal government exclusive jurisdic-

tion over land so acquired. 40 U.S.C.A. 255 requires that, in

order for the federal government to acquire this jurisdiction, it

must be accepted by the appropriate federal official and notice of

the acceptance must be filed with the state authorities. Between

June, 1941, and June, 1946, the United States, by various letters

addressed to the Governor of the State, gave notification of

acceptance of exclusive jurisdiction over virtually all of Camp

Lejeune.

el

A-46

However, the particular field of domestic relations, in-

cluding adjudication as to the custody of an abused and neglected

child, is exclusively one belonging to the states, not to the federal

government. State of Ohio v. Agler, 280 U.S. 379; McCarty v.

Hollis, 120 F.2d 540. Therefore, since the United States has no

authority to exercise jurisdiction in the area of custody of abused

and neglected children, it is incapable of accepting jurisdiction

thereof. As a result, absent state jurisdiction over this matter, no

means would exist for safeguarding the welfare of these children-

-a situation violative of the basic legal principle that no area,

however small, will be left without a developed legal system for

the protection of private rights. State v. Burell, 26 N.C. 288;

James Stewart and Co. v. Sadrakula, 309 U.S. 94.

Additionally, it is a general rule of public law that when-

ever jurisdiction and legislative powers over a territory are trans-

ferred from one sovereign to another, laws designed to assure

good order and peace to the community and to promote its health

and prosperity remain in force until they are abrogated or changed

by the new government. This general rule is equally true of

transfers of exclusive jurisdiction from a state to the federal

government, provided that there is no interference with the

exercise of the jurisdiction intended to be transferred. Chicago,

Rock Island and Pacific Railway Company v. McGlinn, 114

U.S. 542; James Stewart and Co. v. Sadrakula, supra. The

principle of applicability of state statutes to exclusive jurisdiction

federal enclaves is normally limited to prior existing state

statutes. However, if the basic state laws or the basic scheme for

guaranteeing the welfare of the individuals residing in the area

antedates the jurisdictional transfer, changes in the regulatory

means of implementing the basic scheme should not preclude the

Sstate’s exercise of jurisdiction in the area of law involved. Paul

v. United States, 371 U.S. 245.

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In view of the inability of the federal government to

accept or exercise jurisdiction over the custody of an abused or

neglected child, despite the transfer of "exclusive" jurisdiction,

the State of North Carolina was never actually divested of juris-

diction over these cases.

The current North Carolina statutes governing the

processing of cases of this sort (G.S. 7A-277 through 289) were

adopted subsequent to the assumption of jurisdiction over the

situs of Camp Lejeune by the United States; nevertheless, they

are the outgrowth of statutes dealing with the same general

subject which existed prior to and at the time of the transfer of

jurisdiction of the Camp Lejeune situs to the federal government.

Inasmuch as they fill what would otherwise be a void, these state

statutes obviously do not interfere with the exclusivity of juris-

diction as exercised by the United States in al] other matters and

are controlling in cases involving the custody of abused or

neglected children.

Robert Morgan

Attomey General