United States v. Patrick V.

United States Court of Appeals
For the First Circuit

No. 03-2138

UNITED STATES OF AMERICA,

Appellee,

v.

PATRICK V.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George S. Singal, U.S. District Judge]

Before

Howard, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.

Robert E. Mongue for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.

February 19, 2004
 COFFIN, Senior Circuit Judge. This is an appeal by a

juvenile, Patrick V. (Patrick), from a judgment of delinquency in

a proceeding under the Federal Juvenile Delinquency Act (FJDA), 18

U.S.C. §§ 5031-5042, for commission of arson causing extensive

property damage in violation of 18 U.S.C. §§ 844(i) and 2. The

district court ordered Patrick detained for a period of 30 months,

followed by supervised release for 27 months, plus joint liability

with another individual for restitution in the amount of

$728,141.61. Patrick claims that the rehabilitative purpose of the

FJDA requires treatment rather than detention, and weighs against

the imposition of restitution.

The challenge to both the detention and the restitution

aspects of the judgment reflect the uneasy tension between the

rehabilitation focus of the FJDA and the sterner approach of the

more recent Mandatory Victim Restitution Act, 18 U.S.C. § 3663A.

Federal intervention in juvenile proceedings is relatively rare, at

least in this circuit, and we find ourselves in a field as yet

unploughed.

After careful review, we conclude that the district court

did not abuse its discretion in ordering detention and restitution

on the record before it. We do, however, feel that the record is

insufficient to permit the court, in arriving at its own final

disposition, to factor in information as to the location and

rehabilitative capabilities of the detention facility chosen by the

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government pursuant to the requirements of 18 U.S.C. § 5039. We

believe such consideration should be part of the juvenile

sentencing process and therefore retain jurisdiction and remand to

the district court for this limited purpose.

I. Factual Background

The Misconduct. Prior to the summer of 2002, Patrick had

no history of delinquent activity or substance abuse. His

emotional well-being, however, was affected by earlier traumatic

events that rendered him potentially more susceptible to the

influence of a 19-year old "adult" friend, Christopher Conley. At

the disposition proceedings, both of Patrick's parents testified

that their divorce in 1992, when Patrick was five, was acrimonious,

and that Patrick's relationship with his parents likely suffered as

a result. A second traumatic interlude occurred when Patrick, when

ten years of age, was sexually abused by a camp counselor. After

Patrick's mother confronted the counselor, the counselor committed

suicide. Patrick was apparently in therapy as a result of this

latter experience, but only intermittently.

The friendship between Patrick and Conley spurred the

abrupt change in Patrick's behavior. Conley, recently released

from a drug rehabilitation program in Pennsylvania, introduced

Patrick to drugs and alcohol. Although Patrick had previously been

an honor-roll student, his grades began to slip during the spring

of 2002, his ninth grade year. Prior to the arson, Conley and

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Patrick committed a series of burglaries. The first burglary was

a vindictive payback; the rest allegedly were thrill-seeking

escapades.

On the night of the arson, July 7, 2002, Conley and

Patrick illicitly entered one of the buildings of Southern Maine

Marine Services (SMMS), intending to steal a marine radio to enable

them to monitor police communications. Once inside, they noticed

surveillance cameras (which, unbeknownst to either, were

inoperable). Conley and Patrick attempted to locate the

surveillance videotape, but when this proved unsuccessful they

decided to burn down the building and destroy any evidence of their

crime. Searching the SMMS premises, they found explosive items

such as flares and electronic equipment; they spread gasoline

around the area and near an oil tank, and placed propane tanks near

a metal frame repair building and at the corner of a wooden office

building. After setting fire to the gasoline by lighting a marine

flare, the two fled the scene.

The fire, which took over six hours to control,

completely destroyed the building used for repairs and damaged the

office building. The property damage was extensive, including the

loss of two boats, three boat trailers, boat motors, tools,

technical manuals and other marine equipment. The losses,

amounting to over $725,000, were suffered by 26 individuals and

insurance companies.

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 A month later, a box traced to appellant and Conley was

recovered from a vacant building and led to their apprehension.

Initiation of Proceedings. An information charged

Patrick with juvenile delinquency, alleging that he aided, abetted,

and committed arson of a building used in interstate or foreign

commerce in violation of 18 U.S.C. §§ 844(i) and 2. Under the

Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042, authority

to prosecute requires certification that a precondition to federal

jurisdiction exists, in this case the commission of a crime of

violence and a substantial federal interest. 18 U.S.C. § 5032.

The certificate in this case identified the basis of the federal

interest as the crime of arson, damage to structures used in

interstate commerce (boats owned by citizens of several states) and

some federally owned property belonging to the Secret Service. At

arraignment on July 3, 2003, appellant admitted the truth of the

version of events presented by the government and, after careful

inquiry by the court as to his understanding of his rights, signed

a plea agreement.

Pre-Offense Conduct. Prior to the disposition hearing,

additional information was given to the court in a Predisposition

Report (bearing the caption "Presentence Investigation Report").

It included a summary of pre-offense conduct, which consisted of

five burglary and theft charges pending in state juvenile court.

Between June 5 and July 4, 2002, Patrick and Conley allegedly broke

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into two homes, stealing computers and other such equipment valued

at over $2,000, and into three places of business, stealing

computers, equipment, and cash.

Medical Records. A second type of information before the

court was in the form of medical and treatment records. A

psychological evaluation by Dr. Greg Carbone, requested by

appellant, reported that Patrick had from average to superior

intelligence, but also was afflicted with "marked personality and

developmental immaturity," post-traumatic stress, depressive

disorder, and impulse control disorder. Dr. Carbone recommended an

18 to 36 month course of treatment.

A post-apprehension stay at a treatment center in Utah

resulted in a diagnosis of mood disorder, parent-child relational

problems related to his parents' acrimonious divorce, polysubstance

abuse, and narcissistic traits. After five months, he was

involuntarily discharged for failure to comply with rules,

interference with the facility's computers, sexual misconduct, and

assisting another resident in obtaining drugs for a suicide

attempt. His primary therapist noted a "superficially pleasant and

charismatic" personality but also concluded that he was "sneaky,

dishonest, and without remorse."

Finally, Patrick was sent to a facility in Texas where he

spent three weeks in a restricted setting. The staff reported that

he met its expectations, "performed very well," and had no

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instances of inappropriate behavior. A clinical therapist reported

that his "prognosis [was] fair given his prior treatment failure."

The therapist recommended that Patrick be "in a secured residential

facility for at least six to nine months" and then be admitted "to

a less restrictive program."

Appellant's Financial Status. The Predisposition Report

stated that appellant had completed 11th grade and had no

employment history or income source.1 But it recommended "a

significant order of restitution" and also noted that if the court

chose to invoke 18 U.S.C. § 3556, full restitution was made

mandatory by the Mandatory Victims Restitution Act of 1996, 18

U.S.C. § 3663A, since a "crime of violence" had been committed.

The Disposition Hearing Order. On August 4, 2003, the

court held the disposition hearing. Two victims of the fire made

statements. The owner of SMMS described his psychological and

economic losses, concluding with the probable loss of the business

he had built over the years. An employee told how his life and

that of his wife had been dramatically altered for the worse with

the loss of his job at SMMS. Appellant was present and expressed

his deep sorrow and regret to both victims. Appellant's mother and

father also spoke, acknowledging the role their bitter divorce had

played and stressing their son's need for professional treatment.

1
Although the predisposition report states that Patrick
completed the 11th grade, appellant's brief indicates that Patrick
completed the 9th grade, which is more likely.

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 Government counsel urged the maximum term of detention

that the law permitted for a juvenile in appellant's shoes, 57

months. Appellant's counsel, predicting that appellant would be

sent either to California or to a southern state where he would be

exposed to hardened criminals, urged that Patrick be given three

years of probation, and required to attend a therapeutic

educational program.

The court, at the end of the hearing, deliberated and

stated its views. It noted that appellant's 19-year-old co-

arsonist Conley had been sentenced to a federal penitentiary for

approximately five years. It stated that it took account of

Patrick's age and difficulties encountered, including the

contributory role of his parents, and expressed the hope that

appellant "will move on and reclaim your life." It also recognized

that apologies to the two victims showed that appellant was "at

least on the road to assuming responsibility." But it concluded

that "accepting responsibility for what you did requires some

detention in addition to probation."

The district court ordered appellant detained for 30

months, with subsequent supervised release for 27 months. It

further imposed, as it felt required to do by law, an obligation to

pay full restitution, jointly with his co-arsonist.

Subsequent proceedings. On October 10, 2003, the court

amended the judgment to correct a "clerical mistake." Instead of

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ordering payment of restitution "[i]n full immediately," it stated

simply that restitution would begin following release from

detention, according to a schedule devised by the supervising

officer, "subject always to review" by the court. And instead of

requiring interest on the restitution amount, interest was

specifically waived because of Patrick's inability to pay.

On October 13, appellant moved for a statement of

conclusions of law as to restitution, arguing against its

imposition. The court wrote an endorsement on the motion, denying

it and saying, "[r]estitution is appropriate in this case and would

be ordered even if it were discretionary."

II. Discussion

A. Standard of Review

Both parties have given us their first preferences for a

standard of review. Appellant has made a brief plea for de novo

review. The government boldly suggests that review should not be

available at all. We reject both invitations in favor of abuse of

discretion. We are persuaded that the task of reconciling the

various considerations involved in the disposition of a juvenile

adjudged delinquent following commission of a very serious and

dangerous crime of violence is one that demands a wide range of

discretion by the sentencing court. See United States v. Juvenile,

347 F.3d 778, 784 (9th Cir. 2003)(holding that standard of review

for a juvenile delinquency sentence is abuse of discretion).

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B. Restitution

The government contends that because appellant ostensibly

agreed to restitution in the disposition below, any claim on appeal

as to the inappropriateness of restitution was forfeited. The

government points to appellant's counsel's focus on the calculation

of restitution and his argument that it should be based on fair

market value rather than replacement costs. When the court

inquired whether there were objections other than to the amount of

restitution, it received an admittedly vague answer from

appellant's counsel: "In my objections to the presentence report it

was more in the nature of asking for additions; there is a lot more

than is reflected."

The government, however, overlooks the fact that

appellant specifically objected to the portion of the

predisposition report concerning mandatory restitution. Morever,

when the August 6, 2003, judgment issued without any such specific

ruling on his objection, appellant immediately filed a post-

judgment motion for Conclusions of Law with Respect to the

Imposition of Restitution. The court succinctly addressed the

issue and denied the motion with an endorsement reading

"Restitution is appropriate in this case and would be ordered even

if it were discretionary." While appellant's lack of emphasis on

the issue at the disposition hearing does give pause, it apparently

stemmed from a misunderstanding that the court had already decided

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that restitution was mandatory. The additional fact that the court

was presented with the issue in the post-judgment motion and ruled

on the merits convinces us that this is a case where we, too,

should address the argument.2 Cf. Nat'l Assoc. of Soc. Workers v.

Harwood, 69 F.3d 622, 28 (1st Cir. 1995)(deciding that appellate

court could hear an issue not raised below in part because omission

was inadvertent, not deliberate). We also see no prejudice to the

government. See id. at 627.

We therefore turn to the substance of appellant's

argument. First, appellant asserts that restitution under the FJDA

is discretionary, even if the underlying offense is a crime of

violence. Second, appellant argues that the district court abused

its discretion by ordering restitution in this case because it

failed to properly consider Patrick's financial resources as well

as the detrimental effect such a large debt will have on Patrick's

prospects for rehabilitation. We first consider the statutory

scheme, and then address its application to Patrick.

In 1995, in considering what was to become the Mandatory

Victim Restitution Act, 18 U.S.C. § 3663A, the Senate Committee on

the Judiciary, deeply concerned over the impact of violent crime

2
Furthermore, because this legal question is likely to arise
in other cases - all the more likely because of the paucity of case
law regarding federal juvenile dispositions in general and
restitution in particular - declining to hear the issue will
neither promote judicial economy nor aid in the administration of
the juvenile justice system. See United States v. Krynicki, 689
F.2d 289, 292 (1st Cir. 1982).

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upon victims, took testimony from the federal judiciary concerning

the impact of the proposed legislation on the criminal justice

system. Despite testimony from the Criminal Law Committee of the

Judicial Conference that mandatory victim restitution would not

lead to "any appreciable increase in compensation to victims of

crime," the Committee was of the view that even "nominal

restitution payments" serve "the potential penalogical [sic]

benefits of requiring the offender to be accountable . . . ." S.

Rep. 104-179, at 18 (1995), reprinted in 1996 U.S.C.C.A.N. 924,931.

The legal atmosphere of the federal act relating to

juveniles is marked by a duality of objectives -- that of

rehabilitation and that of protecting society. See infra at 16.

This is specifically true of the impact of the Mandatory Victim

Restitution Act on juveniles who have committed serious crimes

inflicting losses on victims. But, despite the nominal requirement

of full restitution, the reach of the Act in the case of juveniles

is modest.

It is first of all necessary to identify the series of

steps that lead to a juvenile restitution order. Misunderstanding

of the discretionary nature of restitution, even when a crime of

violence has been committed, is revealed by the brief holding in

United States v. Juvenile G.Z., 144 F.3d 1148, 1149 (8th Cir.

1998), that when a juvenile pleads guilty to a crime of violence,

"in these circumstances, restitution is mandatory, not

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discretionary." In fact, however, there are two stages. There is

a threshold choice, followed by a mandatory course.

This is the sequence of steps. Under the relevant

juvenile proceeding section, 18 U.S.C. § 5037, the district court

"may" order restitution under 18 U.S.C. § 3556.3 Once the court

chooses this route, § 3556 leaves no further choice, stating that

the court "shall order restitution in accordance with section

3663A." Under § 3663A, a court must order a defendant to make

restitution to the victim, "[n]otwithstanding any other provisions

of law," if the offense falls within the definition of a "crime of

violence" under 18 U.S.C. § 16. See 18 U.S.C. § 3663A(c)(1)(A)(i).

Section 16 describes such a crime as involving the "use of physical

force against the . . . property of another" or "any other. . .

felony . . . that, by its nature, involves a substantial risk that

physical force against the . . . property of another may be used."

18 U.S.C. § 16(1), (2). Arson is such a crime. And, under §

3664(b)(1)(A), restitution must be ordered in the full amount

without consideration of the economic circumstances of the

defendant.

This, then, is the applicable law. But its impact on the

appellant is not as draconian as it might appear without taking

3
Because the 2002 Amendments to the FJDA did not go into
effect until November 2, 2002, they do not apply in this case. We
note, however, that this does not change our analysis of 18 U.S.C.
§ 5037. Both the current and previous language of § 5037 state
that the court "may" order restitution.

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careful note of the court's order in this case. We have noted its

deletion, in an amended judgment, of any requirement of immediate

payment in full and the waiver of both fine and interest. The

determination of amounts payable, the times of payment, and the

duration of the payment period are described as follows:

Any amount that the defendant is unable to pay
now shall be paid in monthly installments, to
be initially determined in amount by the
supervising officer. Said payments are to be
made during the period of his/her supervised
release/probation subject always to review by
the sentencing judge on request, by either the
defendant or the government.

The critical time for evaluating appellant's ability to

pay is, then, when the supervising officer prepares a schedule at

the beginning of the period of supervised release. See United

States v. Stoecker, 215 F.3d 788, 792 (7th Cir. 2000). The

schedule could allow nominal payments if economic circumstances

justified them, § 3664(b)(3)(B), but more substantial or even full

payment could be required if, for example, appellant were to

receive an inheritance.

With respect to the burdensome nature of such a large

amount of restitution, appellant's premises are inflated. In his

main brief he presents his predicament as that of one who "will

enter adulthood with a debt unpayable," which for his whole life

will "doom all hope of rehabilitation." In his reply brief he

expands on the theme to assume that even a yearly payment of

$14,000, over half the median income of a person in appellant's

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shoes, would never pay off the debt -- something he would "carry to

[his] grave."

Were this predicament a reality, a court might well say

that such a burden ruled out any vestige of rehabilitation. But

this is far from the reality faced by the appellant. As the

government acknowledged at oral argument, and as indicated by the

restitution order, the duration of appellant's payment period is

the 27 months of supervised release following detention.

Given the arguably minimal impact of the order (stemming

from its limited duration) in combination with the required

evaluation of appellant's financial circumstances at the beginning

of supervised release, we do not find that the imposition of

discretionary restitution "doom[s] all hope" of rehabilitation. We

therefore find no abuse of discretion.

C. Detention

The thrust of appellant's argument is that the purpose of

the FJDA is rehabilitation and that this purpose trumps all others.

When confronted by the government's "alarmist" argument that under

appellant's view a court could never impose detention on a

juvenile, appellant responds that detention must be reserved for

only those for whom "rehabilitation is not an option." But in such

a case the court would transfer the juvenile case for trial as an

adult. See 18 U.S.C. § 3502.

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 The absolutist view, while remaining the goal of choice

for many, does not reflect the extent to which rehabilitation, with

the growth of youth violence, has increasingly shared the stage

with goals of the criminal process. Stacey Sabo, Note, "Rights of

Passage: An Analysis of Waiver of Juvenile Court Jurisdiction," 64

Fordham L. Rev. 2425, 2434-435 (1996); Barry C. Feld, "The

Transformation of the Juvenile Court," 75 Minn. L. Rev. 691, 692

(1991). In United States v. R.L.C, 503 U.S. 291, (1992), Justice

Souter, writing for the Court in a case involving both the FJDA and

the Sentencing Reform Act, stated, "We do not think a broader

congressional purpose points clearly in either party's direction."

He would go no farther than to say that rehabilitation was not

rejected. Id. at 298 n.2 ("While it is true that some

rehabilitative tools were removed from the juvenile penalty scheme

in 1984, the Juvenile Delinquency Act does not completely reject

rehabilitative objectives.")(internal citations omitted).

Absent, therefore, an absolute bar to detention, we are

left to determine if the record permitted the district court's

decision. Appellant makes an impassioned argument that the only

evidence before the court was that the offense took place during

the brief period when he was under the sway of an adult, that he

took responsibility for his actions, had no prior convictions, was

markedly immature, was "already in the process of rehabilitation in

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a secured, locked facility," and that there was no evidence that

federal detention could provide any rehabilitation program.

This is a view of the evidence highly favorable to

appellant. But the evidence before the court permitted another

view. Taking responsibility for one's actions is a multi-layered

concept, beginning with words and extending to conduct. The Utah

therapist, after a five-month course of treatment, concluded that

appellant was "without remorse." Although it was true that

appellant had no prior convictions, he had five recent burglaries

pending in the state court. And while appellant may well have been

under the sway of his adult companion, there was the real

possibility that his diagnosed craving for approval might lead him

along similar paths in the future. Finally, the problematic

reports covering the substantial period of time that preceded his

brief stay at the Texas facility might have weighed more heavily

with the court than the Texas reports of good behavior and only a

"fair" prognosis.

It remains for us to note the consideration given by the

district court to the relationship between rehabilitation and

detention. Appellant argues that the district court gave no

evident consideration to appellant's rehabilitation possibilities,

in contravention of the objectives of the FJDA. At the conclusion

of the disposition hearing, the court addressed appellant, giving

credit for at least starting "on the road to assuming

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responsibility," and acknowledging the difficulties he had

encountered, the fact that he was making progress, and the case his

attorney had made for probation. In the end, however, the court

felt that real acceptance of responsibility entailed some

detention, and ordered a term of 30 months, approximately one half

the time urged by the government. This period, we note, fell

within the 18- to 36-month period of treatment recommended by Dr.

Carbone.

We cannot conclude on this record that there was a

failure to consider any important factor, an erratic weighing, or

an impermissible view of the law. At oral argument, appellant

cited United States v. Juvenile, 347 F.3d at 778, as being

impressive precedent for his case. Like many federal juvenile

cases, that case involved a Native American in a tribal setting.

A 14-year old juvenile had been beset for over half his life by

sexual abuse on a grand scale and finally was himself prosecuted

for sexual abuse. He signed a plea agreement, and, notwithstanding

a government recommendation that he be in custody only until his

eighteenth birthday, was sentenced by the court to custody until he

reached twenty-one - a detention of almost seven years. The Court

of Appeals reversed and remanded for resentencing.

This is a good case for appellant in its valiant

assertion that rehabilitation is still alive. But the facts are

distinguishable in a significant respect. As a preliminary matter,

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we observe that Juvenile is not authority against all detention for

juveniles found to be delinquent. More importantly, in Juvenile,

the court, rejecting the government's more moderate recommendation,

ordered a maximum detention to age 21, a detention of a 14-year old

of almost seven years. By contrast, appellant's two-and-one-half

year detention will end before his eighteenth birthday.

In sum, in light of the evidence before the court on

appellant's progress, we cannot say that the court abused its

discretion on the present record in concluding that a 30-month

term of detention is consistent with the rehabilitative objection

of the FJDA. We leave it to the district court to consider its

judgment in light of information to be obtained concerning the

location and nature of the detention facility to which Patrick was

assigned.

The Proper Facility. A juvenile who is detained under

the FJDA is committed by the district court to the custody of the

Attorney General for placement in an appropriate facility. See 18

U.S.C. § 5039. Pursuant to the statute, the facility must provide

the juvenile not only the necessities of life, but "counseling,

education, training, and medical care including necessary

psychiatric, psychological, or other care and treatment." Id.

Additionally, "[w]henever possible, the Attorney General shall

commit a juvenile to a foster home or community-based facility

located in or near his home community." Id.

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 At the disposition hearing, appellant's counsel raised

the issue of appropriateness of the facility of detention. He

speculated that Patrick might be sent to California or another

distant place where he would be exposed to hardened criminals.

Counsel noted that, "the reality is that the Bureau of Prisons does

not have a juvenile facility that will address Patrick's needs."

This was in the context of appellant's effort to stress the goal of

rehabilitation, and his requested disposition of probation coupled

with the continued treatment he was receiving in the Texas program.

Appellant's ability to focus on the details of the

detention was limited, however, because it was undetermined where

he would serve his detention. At the conclusion of the proceeding,

Patrick's attorney (in response to a question about self-reporting)

answered, "I'm at a loss because I'm not sure where he will be

designated. Supposedly it will be in his own state or community

program."

The record before the district court is bereft of any

information concerning the facility chosen for appellant's

detention - its location, policies, and programs available to

juveniles in appellant's situation. On appeal, we have been

provided only with the brief statements of counsel. Appellant

states in his reply brief that the regional office of the Bureau of

Prisons, having neither a facility in the northeast serving only

juveniles nor any contract with the State of Maine, has placed

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appellant in a state facility in Pennsylvania. At oral argument,

the government's attorney confirmed that Patrick is in a

Pennsylvania facility and added, "that's the nearest juvenile

facility to Maine."

As for the nature of the detention facility, appellant

asserts only that a juvenile's communications with family are

severely limited and that there is little or no evidence in the

record that appropriate rehabilitative treatment is available. At

oral argument, the government's attorney responded to a question

concerning the availability of psychiatric treatment at the

Pennsylvania facility by stating simply that he could not "imagine

that the Bureau of Prisons would be staffing a juvenile facility

without some professionals at that level."

We are uncomfortable with this state of the record,

particularly in a case of first impression in this circuit in which

federal jurisdiction is asserted under the FJDA. Our task is to

try to strike a balance between the responsibilities of a court

arriving at the disposition of a juvenile matter and the exclusive

authority of the Attorney General to determine the facility of

detention in any case.4

4
A court's power to pass upon the adequacy of the care
actually given by a facility would generally have to await a
proceeding challenging custody in light of specific conditions of
detention alleged by the juvenile to be deficient.

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 Our focus, therefore, is solely on assuring an informed

sentencing decision by the court. Sentencing in a juvenile matter

is in some important respects different from the more restrictive

situation in adult sentencing. Section 1B1.12 of the sentencing

guidelines states explicitly that "[the] guidelines do not apply to

a defendant sentenced under the Federal Juvenile Delinquency Act."

A district judge has wide discretion in determining whether any or

how much detention (not to exceed a maximum applicable to a

"similarly situated adult defendant") should be imposed on a

juvenile. A rational exercise of that decision requires at the

minimum a realistic understanding of the location and nature of

probable detention facilities available to the government.

Accordingly, the district court should assemble from the

parties information as to the likely facility and programs to which

the juvenile would be sent if detention is imposed. This would not

mean that the Attorney General's hands would be tied then or in the

future, but it would help ensure that the court has adequate

information to fulfill Congress's mandate that the FJDA preserve a

balance between rehabilitation and protection goals. Such

information might reveal a likely choice of facility allowing ease

of family access and adequate treatment for diagnosed disorders.

This would seem more in keeping with the rehabilitative goal than

one with little likelihood of family access and treatment. In such

event, a clearly imperfect fit might be mitigated by a shorter

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commitment to detention. Cf. Juvenile, 347 F.3d at 789, 792

(remanding to the district court for further findings of fact

regarding placement of juvenile in a detention facility far from

family).

Without some sort of pre-confinement review of a

facility's ability to provide appropriate rehabilitation, a

juvenile - whose term of detention is likely to be limited by the

imminence of adulthood - may be deprived of much of the protection

afforded him by the FJDA; after-the-fact review of a facility's

resources could result in the juvenile spending a substantial

portion of his detention in an inappropriate setting.

We therefore remand this case to the district court to

complete the record as to the location of the facility of

detention, its policies, programs, and resources.5 The court shall

have broad discretion as to the nature of the proceeding. An

evidentiary hearing may be held, but the court may choose to obtain

the needed information in some other fashion and may request such

additional briefing as it deems necessary. The focus of any

proceeding is not the current care and custody of the appellant,

but on the appropriateness of the detention facility as of the time

5
In this instance, the district court will focus on the actual
facility where Patrick is placed. In other juvenile dispositions,
however, we recognize that the precise placement is not necessarily
ascertainable in advance, and thus the court's inquiry may focus on
the realm of probable facilities. This is further in keeping with
our recognition that placement is ultimately the responsibility of
the Attorney General.

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of the court's disposition hearing. Upon receipt of further

information, the district court may choose to affirm or modify the

original disposition. We shall retain jurisdiction pending receipt

of a report from the court.

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