Federal Juvenile -
Law and Practice
WILLIAM R. COULSON
© Copyright 1990 by William R. Coulson. All rights
1. INTRODUCTION AND OVERVIEW
A. [13.1] Scope of Chapter
Federal law provides for specialized
processing and sentencing of juveniles up to the age of 21. The
Federal Juvenile Delinquency Act of 1974, significantly amended
by the Comprehensive Crime Control Act of 1984, offers a range of
benefits to an eligible criminal defendant of which the practitioner
should be aware. 18 U.S.C. §§5031 - 5040.
This chapter discusses the federal criminal
law relating to juveniles. its practical applications, and its potential
problem areas. Forms of common pleadings are appended.
B. [13.2] History and Policy
As criminal enterprises become more
sophisticated, they increasingly employ juveniles (persons under
18 years of age) to do much of the "street work' in areas of federal
interest such as narcotics, interstate car thefts, and mail thefts.
It is often fairer and more efficient to prosecute all juvenile
and adult members of such criminal enterprises in a common forum.
In addition. numerous offenses are uniquely federal in nature -
counterfeiting and alien smuggling, for example. Juveniles involved
in these activities are traditionally prosecuted federally. Finally,
various federal installations in Illinois - veterans' hospitals.
military bases, and some wildlife reservations, for example - are
areas of exclusive federal jurisdiction. Problems with juveniles
at these facilities have increased dramatically in recent years.
The Federal Juvenile Delinquency Act
(FJDA) was signed into law on September 7, 1974. It sought to conform
federal practice to the Supreme Court's seminal juvenile law holding
In re Gault. 387 U.S. 1, 18 L.Ed.2d 527 (1967). The FJDA provides
for specialized handling of juveniles accused of federal crimes
in situations where the state lacks juvenile jurisdiction or is
unwilling or unable to prosecute, or when there is a substantial
federal interest in a case involving controlled substances or acts
The FJDA recognizes the expertise of
the states in the juvenile area and embodies a congressional policy
of federal abstention. Only the
Attorney General or his designate can
authorize the prosecution of a juvenile in federal court, and then
only upon a certification that the statutory prerequisites are met.
The FJDA’s emphasis is on rehabilitation
rather than punishment. A juvenile is charged with a status - delinquency
- and not with a crime. However, the underlying conduct with which
the juvenile is charged is limited to those acts that constitute
a federal crime. In addition, the Act requires the sealing of all
court records and the exclusion of the public from court proceedings,
as well as segregated custody of juveniles. The juvenile's parents
or guardian must be given notice of the proceedings. Convictions
are not part of the public record. The maximum sentence that may
be imposed is generally much less than that to which an adult is
subject. The FJDA also provides mechanisms by which a juvenile can
be prosecuted as an adult in more serious cases. The procedures
defined in the FJDA are generally analogous to Illinois law, which
should be cited when federal precedents are lacking.
C. (13.3) Juvenile Classifications
The Federal Juvenile Delinquency Act
defines a “juvenile” as a person under 18 years of age. In contrast,
under the Illinois Juvenile Court Act, a juvenile is a person under
17 years of age. III.Rev.Stat., c. 37, ¶805-3.
“Juvenile delinquency” is any federal
crime committed by a juvenile. A person can also be charged as a
juvenile with a pre-age-18 act of delinquency until he turns 21.
18 U.S.C. §5031. United States v. Araiza-Valdez, 713
F.2d 430 (9th Cir. 1980).
The age of the defendant is not an element
of the delinquency charge, but it is a fact necessary to the Act's
applicability. United States v. Frasquillo-Zomosa, 626 F.2d
99 (9th Cir.), cert. denied. 449 U.S. 987 (1980). Once a defendant
turns 21, he cannot be charged with an act of juvenile delinquency,
even if the act occurred when he was under 18. Rather, he can be
indicted and tried only as an adult. United States v. Hoo,
825 F.2d 667 (2d Cir. 1987); In re Martin, 788 F.2d 696 (11th
Cir. 1986). When an alleged offense is a continuing one, such as
conspiracy, which began when the defendant was 17 and continued
until after age 18, the government may also choose to indict him
as an adult based on the post-age-18 aspects of the crime. United
States v. Cruz, 805 F.2d 1464 (11th Cir. 1986). If a charged
juvenile turns 21 before trial or sentencing, there is authority
for the case to continue to conclusion and sentencing as a juvenile
case. United States v. Doe, 631 F.2d 110 (9th Cir. 1980).
II. PROSECUTION OF A JUVENILE FOR DELINQUENCY
A. [13.4] Summary of Prosecutive Steps
The following scenario exemplifies the federal
1. arrest, or formal charge by criminal complaint
2. certification by U.S. Attorney that the
state is unwilling or unable to prosecute as a juvenile delinquent,
or that the case involves a crime of violence or a controlled substance
and a substantial federal interest;
3. federal information charging juvenile delinquency;
4. non-jury trial; and
5. if guilty, disposition.
After step 2 - certification -
the government may file a motion to transfer (or the defendant may
consent) so that the juvenile can be prosecuted as an adult. If.
after hearing, the court grants the motion. the government may seek
a felony indictment, and the case proceeds through the regular criminal
B. [13.5] Venue
Venue for a delinquency prosecution
is the same as for the underlying federal offense. That is, prosecution
must be in the district in which the offense was allegedly committed.
Note, however, that a juvenile
found, held, or arrested in Illinois who is charged in another federal
district can consent to be prosecuted in Illinois with the additional
consent of the appropriate Illinois United States Attorney. Fed.R.Crim.P.
C. [13.6] Arrest and Pretrial Custody
An arrestee charged by federal criminal
complaint who is found to be a juvenile may be held under the criminal
complaint until formal delinquency charges can be filed. 18 U.S.C.
The FJDA requires that a juvenile arrestee
be advised "immediately use ... of his legal rights, in language
comprehensible to a juvenile' and that the arresting officer notify
the Attorney General (the U.S. Attorney's office will suffice) and
the juvenile's parents or guardian. The juvenile must be taken before
a magistrate "forthwith" and cannot be detained for longer than
a “reasonable period of time." 18 U.S.C. §5033. The magistrate
must appoint counsel for an indigent juvenile and can order the
parents to pay the fees. If necessary, the magistrate can appoint
a guardian ad litem for the juvenile.
The FJDA provides that the juvenile
be released to his parents or guardian or other responsible party
unless, after hearing, the magistrate concludes that only detention
will insure the juvenile’s timely appearance in court. 18 U.S.C.
§5034. Procedures under the Bail Reform Act otherwise appiv.
18 U.S.C. §3141, et seq.
If a juvenile is detained, the FJDA
explicitly requires that he be segregated from adult prisoners and
that he receive adequate care and treatment, including education
and recreation. 18 U.S.C. §5035.
All court records of the juvenile proceeding
must be sealed: disclosure is limited by the Act. 18 U.S.C. §5038.
The complaint may be a public document
if the age of the arrestee was not initially established. Counsel
should insure that the court and prosecutors are aware of these
obligations once the arrestee's age is established. Also, counsel
should insure that court records are sealed and that the court proceedings
are conducted in camera.
D. [13.7] Certification by the United States Attorney
The FJDA requires that a juvenile be
surrendered to state authorities unless the Attorney General or
his designate, after investigation, certifies to the court that
at least one of three circumstances is present: (1) the juvenile
system of the state lacks jurisdiction or refuses to assume jurisdiction;
(2) the state does not have services adequate for the needs of juveniles,
or (3) the offense is a "crime of violence' (18 U.S.C. §16)
or a drug offense involving distribution or importation, and there
is a “substantial Federal interest.” 18 U.S.C. §5032. The third
basis is available only to offenses committed after October 12,
1984 (the effective date of the Comprehensive Crime Control Act
of 1984). The Attorney General has delegated the certification authority
to the United States Attorney in each district. 28 C.F.R. §0.57.
Certification is not required for a petty offense prosecution. 18
The certification should contain findings
as to the age of the defendant and the basis for the certification.
It is the better practice to incorporate a letter from the state's
attorney declining prosecution if that is the basis for the certification.
A sample certification is given in §18.20 below.
It is the position of the Department
of Justice that the juvenile does not have standing to contest the
basis for the certification. This position has been sustained by
some courts (United States v. Vancier. 515 F.2d 1378. 1380 - 1381
(2d Cir.), cert. denied, 423 U.S. 857 (1975); United States v. Martinez,
536 F.2d 886 (9th Cir.), cert. denied, 429 U.S. 907 (1976)), and
rejected by some (United States v. Juvenile, 559 F.Supp. 1126 (D.Ore.
1984), United States v. C.G., 736 F.2d 1474 (11th Cir. 1984)). The
Attorney General’s power to certify is also characterized as “discretionary”
in the federal escape statute. 18 U.S.C. §751(b). Counsel should,
therefore, challenge the certification where appropriate. However,
a prosecutor's substantial
Federal interest" assertion appears to be beyond the
scope of judicial review.
Also, case law indicates that the state's
unwillingness or inability to prosecute means as a juvenile in Juvenile
Court, and not as an adult. Martinez, supra at 890.
There are a number of situations counsel
should be aware of in which the federal government may elect to
proceed against a juvenile. Clearly, several of these situations
involve questions of prosecutorial discretion, rather than legal
Most obvious are juvenile crimes committed
on an exclusive federal jurisdiction. In Illinois such facilities
include certain veterans’ hospitals, military instations, and wildlife
reservations. State Juvenile Courts lack jurisdiction over these
federal areas. In such cases the federal government has incorporated
the substantive criminal law of Illinois through the Assimilated
Crimes Act, 18 U.S.C. §13. The juvenile is charged with a violation
of Illinois criminal law and §13 as a result of an act of juvenile
Also subject to federal juvenile prosecution
are federal crimes such as counterfeiting, possession of stolen
mail, and alien smuggling that do not have parallel state equivalents.
Federal crimes may provide the basis for an Illinois delinquency
petition (III.Rev.Stat., c. 37, ¶805-3), but such offenses
traditionally are kept in federal court, and the state's attorney
will usually decline them.
Similarly, juveniles who are part of
a larger adult federal criminal enterprise may be prosecuted federally
for reasons of efficiency and uniformity of treatment. The state
juvenile system may be unwilling to interfere with the ongoing federal
prosecution of the adults by proceeding against the juvenile. Evidentiary
problems may be encountered, for example, when the federal evidence
was by consensual recordings whose admissibility in state court
may be questioned.
When the charge involves drugs or violence
and there is a substantial federal interest, the juvenile can also
be prosecuted federally regardless of the state's attorneys position.
This will typically be done when the juvenile is a part of a larger
adult criminal organization.
Finally, under Illinois law a person over 17 is an
adult. Thus, a 17-year-old charged federally with delinquency could
not be surrendered to a state juvenile Court but would be charged
as an adult in state court. Thus. a 17-year-old federal defendant
may wish to urge the Attorney General to certify, so he faces delinquency
federally rather than a felony locally. The Attorney General retains
the discretion, of course, not to certify and to surrender the defendant
to the state for prosecution as an adult. United States v. Hayes,
590 F.2d 309 (9th Cir. 1979).
Deferred prosecution, or pretrial diversion,
is available to juveniles, but only after certification by the United
States Attorney. The U.S. Attorney is usually receptive to a negotiated
disposition of a juvenile's case that emphasizes treatment rather
E. [13.8] Information Charging Juvenile Delinquency
Usually filed concurrently with the certification
is an information charging the defendant with juvenile delinquency.
The information typically states that the defendant committed an
act of juvenile delinquency in that he committed a specified federal
crime. 18 U.S.C. §5032. This information supersedes the complaint.
A sample information is given in §13.21 below. Counsel for
a defendant facing charges for pre-age-18 acts should be sure to
negotiate the filing of the information before the defendant reaches
21 years of age and becomes ineligible for FJDA bene- fits.
The FJDA requires that a detained juvenile
be tried within 30 days of the beginning of the federal detention
unless the defendant causes or consents to additional delay or the
court finds that some additional delay is in the interest of justice.
Thus, the prosecutor must move quickly in a custody case to obtain
the certification and file the information. IS U.S.C. §5036,
United States v. Sechrist, 640 F.2d 81 (7th Cir. 1981).
Once the information is filed, the case is
assigned to a district judge and proceeds to arraignment in the
usual fashion. Remember, however, that all pleadings should be sealed
and court proceedings conducted in chambers. The Federal Rules of
Criminal Procedure regarding motions, discovery, and plea discussions
apply unless they are inconsistent with the FJDA. Fed.R.Crim.P.
F. [13.9] Trial
The trial of a delinquency information is conducted
in chambers and without a jury. McKeiver v. Pennsylvania, 403 U.S.
528. 29 L.Ed.2d 647 (1971); United States v. Cuomo, 525 F.2d 1285
(5th Cir. 1976). The government must prove the offense beyond a
reasonable doubt. The Federal Rules of Evidence apply, as do constitutional
rights of confrontation, self-incrimination, and double jeopardy.
United States v. Frasquillo- Zomosa, 626 F.2d 99 (9th Cir.), cert.
denied. 449 U.S. 987 (1980).
G. [13.10] Sentencing
A juvenile found guilty of delinquency must
be sentenced within 20 court days of the verdict unless the court.
after hearing, decides to commit the juvenile for study before sentencing.
18 U.S.C. §5037.
Comprehensive Crime Control Act of 1984 changed
the juvenile sentencing provisions. These changes are effective
only for offenses committed after November 1, 1987. Thus, offenses
committed before November 1, 1987, are subject to prior law.
1. [13.11] Offenses Committed After November 1, 1987
The sentencing court is required to consider
the policy statements of the United States Sentencing Commission.
The Commission has not promulgated mandatory sentencing guidelines
for juvenile delinquency. The guidelines for specific federal crimes
do not apply to convicted juveniles.
After hearing, the sentencing court has several
options, which area
a. to suspend the adjudication of delinquency;
b. to enter a restitution order;
c. to place the defendant on probation,
d. to commit the defendant to custody.
If the defendant is under 18 at sentencing,
then the maximum period of probation or custody is the adult maximum
for the underlying offense, except that the defendant's probation
or custody cannot extend beyond his 21st birthday. 18 U.S.C. §5037.
If the defendant is over 18 at sentencing,
then the maximum probation is three years. The maximum custody is
five years if the underlying offense has a maximum sentence of twelve
years or higher, and three years otherwise (but the sentence cannot
exceed the maximum sentence on the underlying offense.) 18 U.S.C.
§5037. Parole has been abolished for offenses committed after
November 1, 1987.
2. [13.12] Offenses Committed Before November l,
If the defendant is under 19 at sentencing,
then probation and custody cannot extend past his 21st birthday
(or the maximum time for the underlying offense).
If the defendant is over 19 at sentencing,
then probation and custody cannot exceed two years (or the maximum
term for the underlying offense). Parole is available at any time.
18 U.S.C. §5041.
3. [13.13] The Youth Corrections Act
The Comprehensive Crime Control Act of 1984
repealed the Youth Corrections Act, effective October 12, 1984,
The YCA provided significant sentencing benefits to defendants up
to the age of 26, including the possible setting aside of the conviction
and the expunging of all criminal records. The Act remains available
for offenses committed prior to October 12, 1984, Creative counsel
should, when possible. structure a plea agreement to include only
offenses occurring before the date so the defendant will be eligible
for the Act's sentencing benefits. Obviously, this becomes difficult
after October 12, 1989, because the usual statute of limitations
is five years.
4. [13.14] Post-Sentencing Considerations
All records of the proceeding must be sealed
and the defendant told of his rights to privacy. The court can release
the records only to another court, to law enforcement agencies for
investigative and employment purposes, to treatment agencies, to
national security agencies, and to the victim of the crime. The
FJDA also provides that inquiries related to the defendant's applications
for employment, licenses. bonds, or any other right or privilege
will be answered the same as for persons with no juvenile record.
IS U.S.C. §5038.
The FJDA provides that juveniles who are committed
may not be housed so as to have regular contact with adult prisoners.
It also directs the Attorney General "whenever possible” to use
community-based facilities near the juvenile’s home. 18 U.S.C. §5039.
Federal juvenile delinquents are generally housed in state facilities
on a contract basis, although there are presently no contracts with
III. [13.15] PROSECUTION OF A JUVENILE AS AN
The FJDA provides two mechanisms by which an
accused juvenile may be prosecuted as an adult: (a) consent and
(b) for specified offenses, by government motion to transfer.
A. [13.16] Consent
The FJDA requires that the accused can request
'in writing upon advice of counsel to be proceeded against as an
adult.” §5032. Clearly, the court must be satisfied that the
juvenile has the capacity to give an informed consent. There is
authority that the district court has no discretion to deny a timely
consent. United States v. Doe, 627 F.2d 181 (9th Cir. 1980).
Factors that might prompt such consent include
a plea agreement with the government or the desire for a jury trial.
See United States v. Doe, supra. In most cases, of course, it is
in the defendant’s interest to be proceeded against as a juvenile
and not as an adult. An adult conviction is a matter of public record,
the maximum sentence is generally longer, and it could be served
in an adult institution.
B. [13.17] Motion To Transfer
If the juvenile was over 15 years of age at
the time of the alleged offense, and if the felonv is a crime of
violence (see 18 U.S.C. §16) or a drug offense involving distribution
or importation. the United Stater, has the authority to seek to
trv the juvenile as an adult. It is fair to sav that the severity
of the cr-ime and the recidivism of the defendant are the most important
factors in the Justice Department's evaluation of the need for a
motion to transfer.
The process is triggered by the filing by the
government of a motion to transfer. The motion must be accompanied
bv written authorization from the Attornev General or his designate.
A sample motion is given in §13.22 below.
If the motion is sufficient on its face, the
court must then give notice to the parties as well as to the juvenile's
parents or guardian of the date for hearing on the motion. At this
hearing, the government must, in most cases, persuade the court
bv a preponderance of the evidence that the transfer would be "in
the interest of justice.'
The FJDA sets out several factors which the
court must consider in making this determination. They are
1. “the age and social background of
2. “the nature of the Oeged offense";
3. “the extent and nature of the juvenile's
prior delinquency record';
4. “the juvenile's present intellectual
development and psychological maturity";
5. “the nature of past treatment efforts
and the juvenile's response to such efforts'; and
6. “the availability of programs designed
to treat the juvenile's behavioral problems.”
In anticipation of such a hearing, the United
States will petition the state Juvenile Court for an order releasing
the accused's juvenile records. Also, a federal pretrial services
officer may seek to interview the juvenile, and a psychiatric examination
may be sought. The statute explicitly provides that anv statements
made by the juvenile incident to such hearing preparation cannot
be used in the subsequent criminal prosecution. 18 U.S.C. §5032;
United States v. Spruille, 544 F.2d 303 (7th Cir. 1976).
The hearing should be closed to the public.
Rigid rules of evidence do not apply to such a hearing. The government's
evidence can include testimony of the investigative agent. the juvenile's
records. testimony of his caseworkers, and psychiatric evaluations.
During the pendency of the motion to transfer.
the accused has no right to plead guiltv to the pending delinquency
charge. [-'nited States v. Haves, 590 F.2d 309 (9th Cir. 1979).
Presumably, the motion stays the running of the special 30-day speedy
trial limit in custody cases.
If the court finds that transfer is in the
interest of justice, the juvenile can then be proceeded against
just as an adult. For examples of judicial reasoning on this question,
see In re T. W., 652 F.Supp. 1440 (E.D.Wis. 1987); United States
v. Dennison, 652 F.Supp. 211 (D.N.M. 1986). There is authority for
a defendant's interlocutory appeal of an adverse finding. See United
States v. A. W.J., 804 F.2d 492 (8th Cir. 1986). After such a finding,
the government is free to seek a felony indictment from a grand
jury. Upon return of the felony indictment, the government will
move to dismiss the delinquency information.
If the motion to transfer is denied, trial
proceeds on the pending delinquency charge. There is no statutory
authority for a government appeal. 18 U.S.C. §3731.
There is a limited category of cases in which
the court must order prosecution as an adult on the governxnent's
motion; no 'interest of justice" finding is needed. Mandatory adult
prosecution arises when the government establishes (1) that the
juvenile is at least 16 years of age, (2) that the juvenile is charged
with a felony that involves physical force against the person of
another, arson, or aircraft damage, and (3) the juvenile has previously
been convicted of such a felony.
C. [13.18] Sentencing
A juvenile convicted as an adult is subject
to the adult statutory penalties and to the application of the sentencing
guidelines (for offenses after November 1, 1987).
IV. [13.19] CONCLUSION - STRATEGIC CONSIDERATIONS
Generally, it should be in the interest of
a defendant to be proceeded against as a juvenile rather than as
In the non-aggravated case, the prosecutor
should be receptive to plea discussions aimed at the use of these
provisions for the rehabilitation of the defendant. Other obvious
benefits to the accused are treatment, which is generally good in
the federal system, and the ultimate absence of any record of conviction.
The delinquency charge, and if possible the plea, must be entered
before the defendant turns 21.
In the absence of an agreement with the prosecutors,
counsel should assemble information on the background of the defendant
that will convince the court that juvenile treatment is preferable.
V. SAMPLE PLEADINGS
Law and Practice.
WILLIAM R. COULSON
Cherry & Flynn
@Copyright 1993 by William R. Coulson. All rights
Juvenile Law and Practice - Supplement
II. Prosecution of a Juvenile for Delinquency
C. (13S.6] Arrest and Pretrial Custody
D. [13S.7] Certification by the United States
E. [13S.8] Information Charging Juvenile Delinquency
G. [13S.10] Sentencing
1. [13S.11] Offenses Committed After
November 1, 1987
III. Prosecution of a Juvenile as an Adult
B. [13S.17] Motion To Transfer
Federal Juvenile Law and Practice
11. PROSECUTION OF A JUVENILE FOR DELINQUENCY
C. (13S.61 Arrest and Pretrial Custody Add at the
end of the section:
A juvenile is entitled to his own counsel; therefore,
parental consent is
not required for the juvenile to take particular judicial
actions such as an appeal. United States v. M.LM., 932 F.2d 1016
(lat Cir. 1991).
D. (13S.71 Certification by the United States Attorney
Add at the end of the section:
The certification is what creates subject-matter jurisdiction
district court. United States v. Romulus, 949 P.2d
713 (4th Cir. 1991); United States v. Chambers, 944 P.2d 1253 (6th
Cir. 1991). One case
permitted certification to be filed at the close
of the Government's case-in-chief in the adult prosecution. After
the adult conviction, the case was remanded for a transfer hearing.
Chambers, supra. United States v. Juvenile Male, 923 P.2d 614 (8th
Cir. 1991), also gave the juvenile standing to contest the certification.
E. [13S.8] Information Charging Juvenile Delinquency
Add at the end of the section:
Courts have held that before the information can be
Government must either obtain the defendant's juvenile
records or certify that there are none or none are unavailable.
United States v. M.LM., 932 P.2d 1016 (Ist Cir. 1991); United States
v. Brian N., 900 P.2d 218 (10th Cir. 1990); United States v. Juvenile
Male, 923 F.2d 614 (1991), later proceeding, 956 F.2d 169 (8th Cir.
If an arrested defendant lies about his age, any resulting
delays can be excluded. United States v. Romulus, 949 F.2d 713 (4th
Obviously, even the name of:the juvenile defendant
is seeded. See United States v. R.L.C., 915 P.2d 320 (8th Cir. 1990).
Juvenile Law and Practice - Supplernent G. [13S.101 Sentencing Add
at the end of the section:
A finding of delinquency is appealable. United States
V. M.LM., 932
P.2d 1016 (Ist Cir. 1991); United States v. Juvenile
Male, 939 F.2d 321 (6th Cir. 1991).
1. [13S.11] OffensesCommittedAfterNovemberl,1987 Add
at the end of the section:
The maximum sentence that may be imposed cannot exceed
maximum sentence that the sentencing guidelines would
impose on an adult offender. United States v. R.L.C, 915 P.2d 320
(8th Cir. 1990). Contra, United States v. Marco L., 868 F-2d 1121
(9th Cir. 1989).
The sentence imposed on a juvenile could properly
exceed that possible under state juvenile law. United States v.
Juvenile Male, 939 F.2d 321 (6th Cir. 1991).
111. PROSECUTION OF A JUVENILE AS AN ADULT B. [13S.171
Motion To Transfer Add at the end of the section:
Case law is divided on whether conspiracy is a transferable
See In re Seated Case, 893 P.2d 363 (D.C.Cir. 1990).
Contra, United States v. Juvenile Male, 923 P.2d 614 (8th Cir. 1991).
There is authority that the court must make specific
finding as to each of the factors enumerated in the statute. United
States v. Rornuius, 949 F.2d 713 (4th Cir. 1991).
Cases have noted that transfer must be established
by a preponder- ance of the evidence. United States v. Parker, 95&F.2d
169 (8th Cir. 1992); United States v. Gerald N., 900 F.2d 189 (9th
Cir. 1990) ("abuse of discretion" standard of review).