United States v. Vincent Storme

83 F.4th 1078

• Court: Court of Appeals for the Seventh Circuit
• Decided: October 17, 2023
• Docket: 23-2615
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2615 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

VINCENT STORME, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:20-cr-650-1 — John Robert Blakey, Judge. ____________________

SUBMITTED SEPTEMBER 11, 2023 — DECIDED OCTOBER 17, 2023 ____________________

Before BRENNAN, SCUDDER, ST. EVE Circuit Judges. PER CURIAM. Federal judges grapple every day with one of the most common but consequential decisions in our criminal justice system: whether to detain a defendant pending trial. Those decisions occur pursuant to the Bail Reform Act, which embodies a careful and complementary balance of procedural and substantive protections for those accused of crime and presumed innocent under the Constitution. Before us is Vin- cent Storme’s challenge to the district court’s determination 2 No. 23-2615

to terminate his pretrial release and order him detained pend- ing trial. Two factors complicate the appeal. Foremost, Storme suffers from mental illness and has attempted suicide three times, most recently threatening to take his life if the district court declined to dismiss his pending criminal charges. So we must consider the role suicide risk plays under the operative provisions of the Bail Reform Act. Also complicating this ap- peal is the choppy procedural path that this case has traveled in the district court. So we also take care to underscore the importance of the procedural safeguards Congress embedded within the Act. In the end, we affirm the district court’s deci- sion detaining Storme pending trial. I Storme awaits trial on multiple charges of cyberstalking, 18 U.S.C. § 2261A(2), and unauthorized intrusion into a cell phone, 18 U.S.C. § 1030(a)(2). His indictment, and the criminal complaint leading to it, allege an extreme online campaign of harassment against three different women. The harassment entailed obsessive accusations and occasional physical stalking. Following Storme’s arrest in September 2020, a magistrate judge ordered him released on bond into the custody of his mother subject to conditions of curfew, psychiatric treatment, and restricted use of technology. Storme’s concerning and increasingly erratic behavior began almost immediately. The day after his release, he attempted suicide by overdosing on medication. In February 2021, Pretrial Services reported that Storme had not only violated his curfew over thirty times but had also been arrested in Arlington Heights, Illinois for allegedly stalking a No. 23-2615 3

fourth ex-girlfriend by following her home in his car. The ex- girlfriend obtained a protective order against Storme. Pretrial Services also relayed that Storme had begun abus- ing alcohol and was continuing to have suicidal ideation. On one occasion, Storme called his Pretrial Services officer from the shores of Lake Michigan, threatening to drown himself until the officer talked him down. Ultimately, the district court—then with a different judge presiding over Storme’s case—opted to admonish Storme, prohibit him from contact- ing the ex-girlfriend, and require that he submit to substance abuse testing. But the district court did not revoke release. A few months later, Storme's mother left the Chicago- land area and moved to Virginia. The court did not appoint a new third-party custodian in her stead. In July 2023, after Storme moved to dismiss a superseding indictment, Pretrial Services provided the district court with a report from Storme’s therapist. The therapist expressed con- cern that Storme would kill himself if he thought the court might deny his motion to dismiss. (Storme contends that the charges seek to criminalize speech protected by the First Amendment.) In anticipation of a hearing on the motion, Storme began transferring assets to his mother—a sign of on- going suicidal ideation. He also appeared multiple times in the district court to watch unrelated proceedings before his assigned judge, apparently in an attempt to learn how to pre- dict the judge’s ruling on the motion to dismiss the criminal charges. During the same period, Storme refused to discuss a safety plan with his therapist or Pretrial Services officer, in- stead continuing to hint ominously at his plans for self-harm. On August 3, the day of the hearing, the district court heard argument but decided to reserve ruling on Storme’s 4 No. 23-2615

motion to dismiss. At the close of the proceeding, and without advance notice, the court then revoked Storme’s pretrial re- lease and ordered him detained. The court did not make sup- porting findings or offer explanation, stating that it would do so in a future written order. Upon being removed from the courtroom, Storme began slamming his head to the floor and urging the marshals to kill him. An hour later, while in a holding cell at the Metropolitan Correctional Center, he tried to hang himself with his t-shirt. A correctional officer intervened, leading to Storme being placed on suicide watch for 48 hours. Storme’s counsel—a very experienced and talented crimi- nal defense lawyer—reacted to the district court’s unexpected detention decision by promptly seeking our review. Troubled by the lack of any notice that bail would be revisited, oppor- tunity to be heard, and findings in support of detention, we entered an order on August 8 directing that Storme be re- leased within 24 hours unless the government filed a motion to revoke under 18 U.S.C. §§ 3145(a) or 3148(b). The government complied. After a lengthy detention hear- ing on August 9, the district court granted its motion to re- voke Storme’s release. The district court found probable cause to believe that, while on release, Storme had both committed crimes and otherwise violated his release conditions, render- ing him subject to detention. On the merits of the detention question, the district court agreed with the government that suicide was a form of flight within the meaning of the Bail Reform Act. The district court also determined that Storme’s erratic behavior made him a potential danger to others that could not be adequately mitigated by additional release conditions. No. 23-2615 5

Storme now appeals a second time, 18 U.S.C. § 3145(c), once again urging us to order his release. See FED. R. APP. P. 9(a). II A The Bail Reform Act supplies the statutory framework for making pretrial release and detention decisions in criminal cases. Section 3148 authorizes judges to revoke prior release orders and remand defendants into custody under specific circumstances. Any such order must satisfy the two-part standard Congress delineated in § 3148(b). See United States v. Wilks, 15 F.4th 842, 848 (7th Cir. 2021). First, the district court must make a threshold finding un- der § 3148(b)(1) that there exists either “probable cause to be- lieve that the person committed a Federal, State, or local crime while on release” or “clear and convincing evidence that the person has violated any other condition of release.” Second, the district court must find that detention is neces- sary under § 3148(b)(2), meaning either that “there is no con- dition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community” or that “the person is unlikely to abide by any condition or combination of condi- tions of release.” In making this assessment, the court must consider the factors delineated in § 3142(g) that informed the initial detention or release decision. 6 No. 23-2615

B 1 The district court had sufficient cause to revoke Storme’s detention under § 3148. As a threshold matter, Storme was subject to revocation because he met both alternative grounds in § 3148(b)(1). The record provides probable cause to believe Storme had committed crimes while on release, including (at the very least) felony stalking under Illinois law. See 720 ILCS 5/12-7.3. Although the state did not press charges in response to Storme’s stalking of a fourth ex-girlfriend, probable cause requires only evidence “sufficient to warrant a prudent per- son in believing that the suspect has committed an offense.” United States v. Hammond, 996 F.3d 374, 391 (7th Cir. 2021); ac- cord United States v. Gotti, 794 F.2d 773, 777 (2d Cir. 1986) (holding that § 3148(b)(1) adopts this traditional definition). The record also provides clear and convincing evidence that Storme violated his curfew multiple times in 2020 and 2021. Storme does not challenge either finding. He asserts only that those events are too dated and stale to support revocation of his pretrial release. We cannot agree. Although staleness is a relevant fact for a court to consider when deciding whether to revoke release, it presents no legal barrier to doing so. Con- gress included no revocation time limit within § 3148(b)(1). While the Bail Reform Act generally contemplates swift revo- cation, see 18 U.S.C. § 3142(h)(2)(B) (requiring that a release order inform the defendant of “the consequences of violating a condition of release, including the immediate issuance of a warrant for the person’s arrest” (emphasis added)), it no- where imposes consequences for delay. The absence of such a provision has led the Supreme Court to hold that a defendant should not be released solely because a judge or the No. 23-2615 7

government violated even explicit time limits elsewhere in the Act. See United States v. Montalvo-Murillo, 495 U.S. 711, 716–17 (1990). We see no reason why an implicit deadline—if indeed one exists—should be more strictly enforced. The cases Storme cites are not inconsistent with this inter- pretation. Read in context, the decisions treat delay as a non- dispositive factor informing whether revocation is appropri- ate in the totality of circumstances leading to the detention decision. See United States v. Hamilton, 708 F.2d 1412, 1415 (9th Cir. 1983) (“Three years is beyond that point under the cir- cumstances of this case.”); United States v. Sciuto, 531 F.2d 842, 847 (7th Cir. 1976) (“Whether the delay was unreasonable de- pends upon whether [the defendant] deceived the probation officer.”). But § 3148(b)(1) merely asks whether a defendant is eligible for a revocation of pretrial release. Clear and convinc- ing evidence of violations of release conditions establishes such eligibility and thereby exposes a defendant like Vincent Storme to the risk of pretrial detention. 2 Turning to the application of § 3148(b)(2), we do not be- lieve that Storme’s likelihood of violating release conditions is sufficiently high to justify detention. See 18 U.S.C. § 3148(b)(2)(B). Although Storme repeatedly violated curfew, each violation was only by a few minutes, and after the dis- trict court admonished him over two years ago, he never vio- lated his curfew again. Indeed, before the district court or- dered him detained on August 3, 2023, Storme had been re- leased subject to conditions for nearly three years while gen- erally remaining compliant. Based on the record before us, we cannot conclude that Storme is “unlikely to abide by any 8 No. 23-2615

condition or combination of conditions of release.” Id. § 3148(b)(2)(B). That brings us to a more difficult question: whether de- taining Storme pending trial is necessary to “assure that the person will not flee or pose a danger to the safety of any other person or the community.” Id. § 3148(b)(2)(A). We conclude that, although the mere existence of suicide risk is not itself sufficient to justify pretrial detention, the unique circum- stances of this case nonetheless warrant detention. Storme’s suicidal ideation, the district court reasonably determined, is but one manifestation of a broader pattern of erratic, obses- sive, and unpredictable behavior presenting a danger to others. Suicide risk is distinct from a risk of flight or nonappear- ance. The text of the Bail Reform Act provides no indication that the term “flight” encompasses suicide. To the contrary, the plain import of the term “flight” connotes an intentional act by a defendant to evade criminal prosecution by leaving the jurisdiction. See United States v. Ailon-Ailon, 875 F.3d 1334, 1337 (10th Cir. 2017) (concluding that immigration removal does not qualify as flight because flight must involve an ele- ment of volition). That explains why magistrate and district judges routinely impose travel restrictions and require de- fendants to surrender passports—all to mitigate the risk of flight. Common definitions of flight support this conclusion. See Flee, WEBSTER’S II NEW RIVERSIDE UNIVERSITY DICTIONARY (1984) (“To run away”); Flee, AMERICAN HERITAGE DICTIONARY (2d Coll. Ed. 1982) (“To run away from or as from danger”). And the Bail Reform Act’s legislative history, to the extent it is relevant, provides no hint that Congress contem- plated “flight by suicide” as a cognizable basis for detention. No. 23-2615 9

The same goes for nonappearance. In the bail context, non- appearance refers to an attempt to avoid submitting to a court’s jurisdiction, not to death. Judges “assure the appear- ance” of criminal defendants by imposing release conditions and adopting precautionary measures to prevent them from evading prosecution. But a defendant’s death terminates a pending criminal proceeding “from its inception” as if charges had never been brought. See United States v. Volpendesto, 755 F.3d 448, 452–53 (7th Cir. 2014). The need to secure a defendant’s appearance ceases to have meaning if a defendant dies and the criminal case terminates by operation of law. Consider the practical implications of a contrary conclu- sion. If a defendant’s death constituted a form of nonappear- ance, judges could detain upon a showing of a sufficient risk of death, including one created by age, poor health, or inade- quate access to medical services. We have a difficult time see- ing how Congress intended the Bail Reform Act to operate with such breadth. 3 Moving beyond flight and nonappearance, we turn to the question whether suicide risk alone poses a sufficient danger to justify detention. We hold that it cannot. The Act is clear that a revocation of pretrial release must be based on a risk to “the safety of any other person and the community.” 18 U.S.C. § 3148(b)(2)(A) (emphasis added). By its terms, then, the stat- ute requires a finding that the defendant’s conduct poses a danger to some person other than themselves. The government urges a broader construction, pointing to one of the § 3142(g) factors that judges must consider when 10 No. 23-2615

deciding whether to revoke pretrial release under § 3148. We recognize that Congress worded that factor in terms of “the danger to any person or the community,” notably omitting the term “other” before person. But this language does not supply the operative standard for deciding whether detention is appropriate. It is simply one factor among many that a court should consider when evaluating what is the controlling standard: whether the defendant poses a risk to the “safety of any other person and the community.” 18 U.S.C. § 3148(b)(2)(A). At best, therefore, § 3142(g) suggests that su- icide risk is relevant only to the extent that it presents a risk of harm to others—for example, with a defendant who threat- ens to shoot himself and anyone else who seeks to monitor his whereabouts or well-being. But the mere risk of self-harm is not itself enough. Congress’s inclusion of the phrase “or the community” in § 3148(b)(2)(A) is consistent with our conclusion. It is well un- derstood that harms to the “community” refer not to the de- fendant but to crimes without specific victims. See, e.g., United States v. Ramirez, 843 F.2d 256, 257–58 (7th Cir. 1988) (applying the Bail Reform Act to vacate a release order based on evi- dence of a drug trafficking conspiracy that presents a danger to the community); United States v. Munchel, 991 F.3d 1273, 1283 (D.C. Cir.), judgment entered, 844 F. App'x 373 (D.C. Cir. 2021) (observing that a danger to a community need not be tied to a risk of physical violence to justify detention under the Bail Reform Act). So we conclude that the mere existence of a risk of suicide does not provide grounds to detain a defendant under the Bail Reform Act in any and every case. But this is no routine case. No. 23-2615 11

Revoking release based on dangerousness requires a care- ful assessment of the facts and circumstances relevant to the broad factors in 18 U.S.C. § 3142(g). See 18 U.S.C. § 3148(b)(2)(A) (directing courts to consider these factors when deciding whether to revoke release in light of flight risk or dangerousness). Considering those factors in totality, we agree with the district court that Storme’s continued release would pose a danger to other persons or the community. The allegations against Storme paint a picture of a defendant who responds unexpectedly, dangerously, and obsessively to ad- versity in potentially escalatory ways. Shortly after Storme was charged with electronically stalking one ex-girlfriend, police arrested him for physically stalking another, even while he was under strict supervision. The facts identified by Pretrial Services leading to the August 3 hearing suggest that Storme’s condition was worsening rapidly. The evidence presented to the district court demonstrates that, as of at least July 2023, Storme was preparing for things to escalate again, whether through self-harm or some other unpredictable, desperate action that mere conditions of re- lease could not prevent. By that point, Storme’s mother had left the state, leaving him without a third-party custodian to help monitor him. For months, Storme came to the federal courthouse and sat through unrelated hearings conducted by his assigned judge in an attempt to predict how the court would rule on the pending motion to dismiss. Viewed in this light, his suicide threats created more than a mere risk of self- harm. Tied explicitly to his charges, they were essentially threats of unpredictable violence if the district court ruled against him. 12 No. 23-2615

The district court properly revoked Storme’s detention on the ground that no conditions would assure that he does not pose a danger to the safety of other persons or the community. III In the ordinary case, this conclusion would end our analysis. But this is not an ordinary case, in no small part be- cause it traveled a rocky path to our court. In these circum- stances, then, we close by underscoring the importance of ad- herence to the procedural protections Congress incorporated into the Bail Reform Act. Recall that the district court concluded the August 3 hear- ing on Storme’s motion to dismiss by revoking his pretrial re- lease and ordering him detained pending trial. We have zero doubt the district court made the decision not only believing it legally sound but also grounded in the compassionate per- spective that detaining Storme may save his life. By all measures, the record shows Storme to be suffering from grave mental illness, and the district court, upon learning from Pre- trial Services that his suicidal ideation was intensifying, re- acted by determining that detention may help bring im- portant stability to an unpredictable and precarious situation. If given the chance to redo the August 3 proceeding, we also have zero doubt the district court would have adhered more closely to the revocation process delineated in § 3148(b). The court could have done so by informing the parties of the recent findings of Pretrial Services and otherwise supplying advance notice (if only at the outset of the motion to dismiss hearing itself) that it was considering modifying Storme’s re- lease status. See 18 U.S.C. § 3153(c)(1) (“Each pretrial services report shall be made available to the attorney for the accused No. 23-2615 13

and the attorney for the Government.”); N. D. ILL. L. CRIM. R. 46.4(a) (requiring that attorneys receive any report “in con- nection with” detention, release, or modification proceed- ings). For its part, the government—as § 3148 contemplates— could have unambiguously moved to revoke Storme’s release. A process along those lines would have informed Storme that the district court was considering modifying his release while providing him sufficient opportunity to prepare for a hearing on the matter, as Congress has determined is essential to affording a defendant a full and fair opportunity to respond. See 18 U.S.C. § 3148(b) (stating that a revocation of a defendant’s release must come after a “proceeding for revocation” that includes a “hearing”); id. § 3142(f) (stating that a defendant must have the opportunity to testify, cross- examine, and present witnesses at a detention hearing). Process matters with detention decisions precisely because it protects the liberty interest of persons presumed innocent under the Constitution. Or, as the Supreme Court has put the same point, “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). Other aspects of the August 3 proceeding give us consid- erable pause too. The Bail Reform Act requires express find- ings to support even temporary detention decisions. See 18 U.S.C. § 3142(d) (permitting temporary detention of a person on release for up to 10 days if a judicial officer “determines that … such person may flee or pose a danger to any other person or the community”). The district court did not accom- pany its August 3 detention decision with such findings, un- derstandably leading Storme’s counsel to promptly seek our 14 No. 23-2615

review and leaving the government to file rushed and unclear motion papers requesting a more orderly revocation of Storme’s pretrial release. To the district court’s credit, though, a formal detention hearing ensued promptly on August 9. The transcript of that proceeding is not easy to read, for it is clear that the circumstances leading to the hearing escalated everyone’s anxiety and resulted in some tough exchanges of words. We make this observation believing with complete certainty that all involved—the government, Storme’s counsel, the district court—were acting in the best of faith and working through the tense and difficult circumstances presented by Storme’s ongoing mental illness and acute risk of suicide. Our overarching point is not one of criticism but of positive reinforcement: sound process often matters most in pressure-packed, consequential decisions. Recognizing those moments and taking care to adhere to the requirements prescribed by rule or statute will ensure the protections of the parties’ rights and interests and maximize the chances of clean transcripts containing clear findings and leaving no doubt everyone enjoyed a full and fair opportunity to convey their positions. In the end, the district court reached the right conclusion. Before the court was a defendant suffering from mental illness and charged with very serious crimes marked by danger, ob- session, and persistence. Twice before, Vincent Storme’s men- tal illness manifested itself in unsuccessful suicide attempts, with Pretrial Services informing the district court that the su- icidal ideation was only intensifying in anticipation of an ad- verse ruling on a pending motion to dismiss all criminal charges. Though scattered and disjointed in places, the record No. 23-2615 15

supports the district court’s conclusion that Storme’s unpre- dictable and erratic pattern of behavior presented a danger to others sufficient to justify a revocation of his pretrial release. For these reasons, we AFFIRM the district court’s order re- voking Storme’s release from pretrial detention.