USCA4 Appeal: 24-4257 Doc: 35 Filed: 09/13/2024 Pg: 1 of 16

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-4257

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

RUSSELL RICHARDSON VANE, IV, a/k/a Duke Russ Hampel, a/k/a Duke,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, Senior District Judge. (1:24−cr−00101−AJT−1)

Argued: July 9, 2024 Decided: September 13, 2024

Before DIAZ, Chief Judge, and NIEMEYER and RUSHING, Circuit Judges.

Affirmed by published opinion. Chief Judge Diaz wrote the opinion in which Judge Niemeyer and Judge Rushing joined.

ARGUED: Yancey Ellis, CARMICHAEL ELLIS & BROCK, PLLC, Alexandria, Virginia, for Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Robert M. Hansen, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Richmond, Virginia, Danya E. Atiyeh, Assistant United States Attorney, Amanda St. Cyr, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. USCA4 Appeal: 24-4257 Doc: 35 Filed: 09/13/2024 Pg: 2 of 16

DIAZ, Chief Judge:

In April 2024, law enforcement arrested Russell Richardson Vane, IV, and charged

him with attempted production of a biological agent or toxin, in violation of

(a). A magistrate judge granted the government’s motion that Vane be detained

pending trial. The district court affirmed the magistrate judge’s order. In rendering their

decisions, the magistrate judge and district court relied in part on evidence proffered by the

government in a detention hearing held under the Bail Reform Act,

(f).

Vane challenges the district court’s denial of his motion to revoke the magistrate

judge’s order of pretrial detention, arguing that § 3142(f) allows only the defendant, and

not the government, to introduce information by proffer. Thus, Vane contends that the

district court erred in using such evidence to justify Vane’s continued detention. The

government, meanwhile, counters that this court—along with every other circuit court to

consider the issue—has long allowed the government to offer evidentiary proffers during

detention proceedings.

We heard oral argument from the parties on this question and, shortly after, issued

a brief order affirming the district court’s decision. 1 We now explain why.

1 Since we issued our order, Vane pleaded guilty to possession of ricin and now moves to voluntarily dismiss this appeal as moot. For the reasons provided below, we deny that motion.

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I.

In support of the government’s motion for pretrial detention, the FBI submitted a

criminal complaint charging Vane with attempting to produce a biological agent or toxin

(specifically, ricin), as well as a probable cause affidavit. We recite the facts according to

that affidavit.

A.

Vane previously belonged to the Virginia Kekoas, “a pro-gun prepper militia based

in Eastern Virginia.” App. 8 ¶ 6. In early April 2024, “the FBI received multiple tips from

both online sources and confidential human sources that a YouTube channel called

‘News2Share’ [had] posted a video titled ‘Virginia Kekoas militia ousts member they

believe may have been entrapping them over explosives.’” App. 8 ¶ 6. In the video,

members of the Kekoas showed screenshots and documents that the ousted member had

allegedly provided related to the “develop[ment] [of] homemade explosives.” App. 8 ¶ 6.

The ousted member was Vane.

During his time with the Kekoas, Vane—whom the group knew as “Duke”—

“claimed that he worked for the Intelligence Community,” 2 and queried whether several

Kekoas members were “interested in information on how to build homemade explosives.”

App. 9 ¶ 10. He also handed a Kekoas member “a manila envelope containing unclassified

documents from one government agency and maps of government facilities relating to

2 Vane “has worked for the government for a decade as a data engineer” and is also a veteran. Appellant’s Br. at 2.

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another government agency.” App. 9–10 ¶ 10. These documents contained “precursor

reports for cellulose and nitrocellulose, discussed ways to obtain the precursors, and

explained their applications in the creation of explosive material.”

.

Vane, on another occasion, asked that Kekoas members “obtain hydrogen

peroxide,” which “can be used as a precursor chemical to easily create homemade

explosives.” App. 10 ¶ 12; see also App. 11 ¶ 12 (“The least you could have done is let

the squad collect some low concentration H2O2 for me. The other parts I can source

without trouble.”).

Vane encouraged the Kekoas “to explore the use of explosives in order to set traps

‘when the tanks come.’” App. 10 ¶ 12. And Vane admitted in a recorded chat to “passing

‘the . . . unclassified homemade explosives answer to Cellulose and Black powder and a

map” to Kekoas leadership. App. 11 ¶ 13. These documents had, in fact, been “accessed

as early as February 12, 2024, and removed from a secure government facility,” before

Vane “disseminated [them] to the militia on or about March 9, 2024.” App. 12 ¶ 15.

Soon after this “escalating sequence of unusual behavior,” App. 8 ¶ 6, the Kekoas

removed Vane from its ranks, suspecting that he was a bad actor “plotting an entrapment

attempt against the group, or worse.” App. 8 ¶ 6. The group then released the YouTube

video before voluntarily meeting with FBI investigators two days later. App. 11 ¶ 14. That

3 A precursor chemical is a substance that can be used “in the production of explosives by either mixing or blending with other substances.” Explosive Precursor Chemicals, Nat’l Inst. of Standards & Tech. (June 12, 2023), https://www.nist.gov/glossary-term/23211 [https://perma.cc/Y37G-YZVB].

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same day, Vane “filed a petition in Fairfax County Circuit Court to legally change his name

to ‘Duke Russ Hampel.’” App. 8 ¶ 5.

The FBI obtained a warrant and searched Vane’s home. In Vane’s laundry room,

agents “discovered a gallon-size Ziplock bag containing castor beans,” App. 12 ¶ 16, and,

in a box next to it, “a handwritten recipe for extracting ricin toxin from castor beans,” App.

13 ¶ 17. The FBI affiant knew that ricin, “naturally present in castor beans,” is “highly

toxic, and can be fatal[] if ingested, inhaled, or injected.” App. 13 ¶ 17. The affiant also

knew that “it is possible to isolate the ricin toxin from the castor beans, a process that . . .

can be accomplished in makeshift household laboratories.” App. 13 ¶ 17.

Also in the box was “laboratory equipment, including beakers, a graduated cylinder,

funnels, and a rack with test tubes, along with cleaning rags.” App. 13 ¶ 18. Some of the

test tubes contained a “powdery whitish material,” which “appear[ed] to be consistent with

the byproducts of ricin production.” App. 13 ¶ 18. “In a second box on the same shelf,

agents found a laboratory-style hotplate stirrer,” which could be used “in ricin production.”

App. 13 ¶ 18. And nearby, agents found “a set of fine mesh strainers,” App. 13 ¶ 18, and

“a bottle of pH test strips,” App. 14 ¶ 18, both of which the handwritten recipe mentioned

as part of the “[ricin] manufacturing process.” App. 13–14 ¶ 18.

After finding and seizing these materials, 4 the agents arrested Vane.

4 Law enforcement obtained a second warrant authorizing the seizure of the ricin materials and equipment.

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B.

Following Vane’s arrest, the government sought to have Vane detained pending

trial. The magistrate judge scheduled a combined preliminary and detention hearing to

assess (1) whether probable cause existed that Vane attempted to develop, produce,

stockpile, acquire, or possess ricin, and (2) whether Vane should be detained.

For the preliminary hearing portion, the government attempted to offer evidence via

proffer. Vane objected, arguing that

, which outlines the standard for

pretrial detentions, referred only to proffered evidence presented during a detention

hearing, “not a preliminary hearing.” App. 56:6–7 (discussing § 3142(f)). And he also

contended that “[§] 3142(f) only allows the defense to provide [evidence] by proffer

explicitly in the text.”

:21–24.

Though the magistrate judge noted that “there’s express permission for proffering

at detention hearings,” App. 56:25–57:1, he began with “a traditional preliminary hearing,”

App. 57:8–9, where the facts were introduced by a witness. The government called the

FBI agent who had prepared the affidavit in support of the criminal complaint against Vane.

After the agent testified on direct examination to the facts in the affidavit and to the fact

that subsequent testing of residue on the seized glassware yielded multiple positive results

for ricin, and after the agent was cross-examined, Vane stipulated to probable cause.

5 The relevant provision reads: “The [defendant] shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.”

(f).

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The magistrate judge then turned to the detention hearing. The government again

asked to proffer evidence, which the magistrate judge allowed. As relevant here, the

government proffered that Vane (1) was “a prepper,” or “an expert in emergency

preparedness,” App. 70:14–15; (2) had “go bags” containing emergency supplies, as well

as cash, precious metals, and 23 firearms in his home, App. 70:22–71:3, 73:5; App. 73:5;

(3) had “an apocalypse checklist that had a list of steps to take in the event of an

emergency,” App. 71:6–7; and (4) had filed “an obituary to Legacy.com claiming that he

had died,” App. 71:22–25.

During a sidebar with the magistrate judge, the government next proffered a

photograph seized during the search of Vane’s home “of a handwritten list titled ‘Plan’

. . . , which laid out a step-by-step plan for [Vane] to fake his own suicide and claim life

insurance benefits for his wife and children.” App. 129. The government also proffered

that Vane had a prior misdemeanor conviction for bringing a firearm to a federal facility

and had also been charged under state law for firing a weapon in public.

The government relied on this evidence to argue that it perceived Vane to be a

danger to his family and community and a flight risk. Seeking to rebut the presumption

that he posed such a risk, 6 Vane emphasized his “longstanding relationship[s] within the

6 Section 3142(e)(3) sets out a rebuttable presumption that arises when “no condition or combination of conditions will reasonably assure . . . the safety of the community if the judicial officer finds that there is probable cause to believe that the [defendant] committed,” as relevant here, an enumerated offense “listed in [18 U.S.C. § 2332b(g)(5)(B)] for which a maximum term of imprisonment of 10 or more years is prescribed.” The presumption applied because Vane’s charged conduct under 18 U.S.C.

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community,” evidenced in part by multiple letters of support his friends and family

submitted. App. 77:7–12.

The magistrate judge found that Vane had rebutted the presumption. But he

concluded that the other statutory factors—the nature and circumstances of the charged

offense; the weight of the evidence supporting that charged offense; Vane’s history and

characteristics; and the nature and seriousness of the danger to those around Vane—cut

against Vane’s pretrial release. In other words, the magistrate judge determined “that the

totality of the circumstances,” considering both the proffered and non-proffered evidence,

“weigh[ed] in favor of detention pending trial.” App. 92:10–11.

C.

Vane moved the district court to revoke the magistrate judge’s detention order. He

argued that § 3142(f)’s proffer provision applies only to information offered by a defendant

during detention proceedings and not information offered by the government. See, e.g.,

App. 102. Vane contended that because “[t]he detention statute contain[ed] no comparable

provision authorizing the government to ‘present information by proffer,’” the government

was barred from doing so. App. 102.

The district court was unpersuaded. It explained that though “[t]he Fourth Circuit

[hadn’t] explicitly ruled” on the permissibility of proffers by the government under § 3142,

App. 175:4, all other “circuits that have considered it have ruled that proffers, the type that

§ 175(a)—an offense listed in § 2332b(g)(5)(B)—carried a maximum term of life imprisonment.

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the government [was] making here, can be made in connection with detention hearings,”

App. 175:7–10. The court also noted that a district court within the Fourth Circuit

“specifically . . . has approved” the government employing such proffers. App. 175:10–

12.

Satisfied that it could consider the government’s proffered evidence, the district

court evaluated the statutory factors for pretrial detention under § 3142(g), as had the

magistrate judge. And like the magistrate judge, the district court found “that there [were]

no conditions or combination of conditions that will assure the safety of the community”

and “that there [were] no conditions or combination of conditions that will assure [Vane’s]

appearance at trial.” App. 202:3–9. The court thus affirmed the magistrate judge’s

detention order.

This appeal followed.

II.

Before addressing the merits, we address—and deny—Vane’s motion to voluntarily

dismiss this appeal.

Because Vane has now pleaded guilty to possession of ricin and awaits sentencing,

he asserts that this appeal is moot and should be dismissed. We disagree. As another court

has found, “[i]t is not uncommon for appellate courts to resolve urgent motions by filing

an expedited and summary order, later to be followed by an opinion that provides the

reasoning underlying the order.” United States v. Perez-Garcia,

(9th

Cir. 2024).

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That’s precisely what we’ve done here. And though Vane no longer challenges his

pretrial detention, the legal issue implicated in his detention—the government’s ability to

proffer under § 3142(f)—remains live.

Moreover, “[w]e already heard and conclusively resolved the merits of [Vane’s]

appeal in a dispositive order, and no party disputes that we had jurisdiction when we

decided the case.” Id. at 1173. That the dispositive order was a summary order doesn’t

make it any less binding, nor does it render this opinion advisory. Id.

We note also that the specific contours of proffer rights under § 3142(f) are a matter

of first impression for our court, and issuing an order without this opinion “would deprive

the legal community as a whole of the benefit of an appellate court decision that adjudicated

[a] properly presented question[] concerning” those rights. Id. at 1174 (cleaned up). It

might also require “later panels to duplicate our efforts while confronting the exact same

issue[]” or “incentivize parties to strategically prevent the publication of a decision adverse

to their interests.” Id. These jurisdictional and equitable principles, as well as judicial

efficiency caution against finding mootness here.

We thus deny Vane’s motion.

III.

A.

Vane’s sole argument on the merits is that the district court erred by relying on

information that the government introduced by proffer. Vane asserts that neither the Bail

Reform Act’s text nor its legislative history and purpose support the district court’s

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interpretation. We review this question of statutory interpretation de novo, see United

States v. Council,

(4th Cir. 2023), and review the district court’s

detention order for clear error, United States v. Clark,

(4th Cir. 1989)

(en banc).

B.

We begin, as we must, with the statute’s text. See McAdams v. Robinson,

(4th Cir. 2022).

Section 3142 governs pretrial detention, and subsection (f) allows a defendant to

“present information by proffer.” That subsection also allows the defendant “an

opportunity to testify, to present witnesses, [and] to cross-examine witnesses who appear

at the hearing.”

(f). The sentence that follows explains that “[t]he rules

concerning admissibility of evidence in criminal trials do not apply to the presentation and

consideration of information at the hearing.”

(emphasis added).

Subsection (g) sets out the factors that a judicial officer considers in its pretrial

detention decision: (1) “the nature and circumstances of the offense charged,” (2) “the

weight of the evidence against the [defendant],” (3) “the history and characteristics of the

[defendant],” and (4) “the nature and seriousness of the danger to any person or the

community that would be posed by the [defendant’s] release.”

§ 3142(g)(1)–(4).

Taking this “available information” together, the judicial officer determines “whether there

are conditions of release that will reasonably assure the appearance of the person as

required and the safety of any other person and the community.” Id. § 3142(g) (emphasis

added).

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C.

Vane’s argument is straightforward: because § 3142(f) expressly grants the

defendant the right to proffer information but is silent on the government’s right to do the

same, the government has no such right. According to Vane, this negative implication

controls, rendering the text clear that “the government cannot meet its evidentiary burden

by way of proffer.” Appellant’s Br. at 10.

At first blush, Vane’s argument makes sense. After all, silence in a statute is often

meaningful. As one example, Vane directs us to United States v. Roof,

(4th

Cir. 2021), where we instructed that “because we take it as a given that Congress knows

how to say something when it wants to, its silence controls when it chooses to stay silent.”

. But in that case, the defendant was attempting to incorporate a mens rea element

into a statutory provision that lacked one in the text.

at 389–90. Here, by contrast,

Vane isolates proffers from the list of rights afforded to defendants to exclude them by

negative implication from the tools the government can use to meet its burden for detention.

At bottom, the “force of any negative implication depends on context.” United

States v. Hawley,

(4th Cir. 2019) (cleaned up). And the context simply

doesn’t support Vane’s interpretation.

Consider that § 3142(f) is not just about proffers. Indeed, the provision also allows

a defendant to testify, present witnesses, and cross-examine witnesses. But Vane, for good

reason, doesn’t argue that the government would also be prohibited from calling and cross-

examining witnesses, which are common and, frankly, critical tools in any adversarial

proceeding.

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Yet that’s the logical conclusion of his argument. If the government can’t present

evidentiary proffers in detention hearings because § 3142(f) is silent on the point, then the

government should likewise be precluded from presenting and cross-examining witnesses.

We wouldn’t reach that absurd result.

We’re struck too by the statute’s repeated reference to “information” offered, rather

than “evidence,” underscoring that the judicial officer should consider a broad swath of

available information, unrestricted by “[t]he rules concerning admissibility of evidence in

criminal trials.”

(f). The statute contemplates that the judicial officer will

hear and assess preliminary information (as would be presented by proffer) at an early and

informal stage in the proceedings to determine whether the government has met its initial

burden to justify detention. See, e.g., United States v. Martir,

, 1144–45 (2d

Cir. 1986) (“While the [statute] is silent concerning how the government is to proceed at a

detention hearing, the thrust of the litigation is to encourage informal methods of proof.”).

Properly put in context, the better reading of § 3142(f) is that it explains the rights

afforded to the defendant and the burden imposed on the government. But the statute places

no bar on how the government is to meet that burden.

We’re not alone in our reading. Several other circuit courts to consider this question

(however glancingly) have agreed that the government may proceed, at least in part, by

proffer. See United States v. Stone,

, 948–49 (6th Cir. 2010) (“However,

conducting a bail hearing by proffer is acceptable under the law and at the discretion of the

district court.”); United States v. Smith,

(D.C. Cir. 1996) (“Every circuit

to have considered the matter has permitted the Government to proceed by way of proffer.”

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(cleaned up)); United States v. Gaviria,

(11th Cir. 1987) (“We hold that

the government as well as the defense may proceed by proffering evidence subject to the

discretion of the judicial officer presiding at the detention hearing.”); Martir,

(“In light of the [statute’s] mandate for informality and the need for speed at a point

where neither the defense nor the prosecution is likely to have marshalled all its proof, the

government as well as the defendant should usually be able to proceed by some type of

proffer where risk of flight is at issue.”); United States v. Winsor,

(9th

Cir. 1986) (“As in a preliminary hearing for probable cause, the government may proceed

in a detention hearing by proffer or hearsay.”). 7

These cases emphasize two important principles. First, the government’s ability to

proceed by proffer doesn’t change its ultimate burden of persuasion to show by clear and

convincing evidence that the defendant is dangerous or by a preponderance of the evidence

that he’s a flight risk. And second, the judicial officer retains discretion to require more

than the government’s proffer to prove that detention is warranted. 8 See United States v.

Edwards,

(D.C. 1981) (en banc) (“If the court is dissatisfied with the

7 Although we haven’t squarely addressed this issue, we’ve suggested that “[e]videntiary proffers are approved by

(f).” United States v. Williams,

, 331 n.7 (4th Cir. 1985); see also United States v. Singh,

, 286 (4th Cir. 2021) (Diaz, J., dissenting) (“Moreover, the government was entitled to make, and the court was entitled to rely upon, evidentiary proffers at the detention hearing.”).

We’re inclined to agree with the government that it met its burden to detain Vane 8

pending trial even without considering the information that it proffered. See, e.g., Appellee’s Br. at 36–39.

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nature of the proffer, it can always, within its discretion, insist on direct testimony.”

(cleaned up)), cert. denied,

(1982). 9

Allowing both parties to proffer information also promotes the purpose of detention

hearings. These hearings, though they implicate a liberty interest, are not meant to be

“mini-trials.” Martir,

. The judicial officer holds a detention hearing

when “neither the defense nor the prosecution is likely to have marshalled all its proof”

and when the defendant may pose either a risk of danger or flight, giving the parties a “need

for speed.”

Requiring the government to offer live testimony could stymie the intended

efficiency of these proceedings to the benefit of neither the prosecution nor the defendant,

who would remain detained until those witnesses could be identified and examined (as well

as the evidence underlying their testimony). And, of course, the district court’s decision to

detain isn’t set in stone, as the defendant can ask the court to revisit the question if his

circumstances “material[ly] change.” App. 92:12–14; see also App. 201:24–202:1.

We also struggle to see how a witness unbound by the rules of evidence could ensure

more reliable testimony than that offered in a proffer. The agent who testified before the

magistrate judge, for instance, conceded that he didn’t know when the traces of ricin were

deposited in the glassware or the toxicity of the ricin toxin in the glassware. See, e.g., App.

63:16–18; App. 64:11–24.

9 The Edwards court interpreted a District-specific bail statute, which the federal Bail Reform Act imported in part. In that case, the court held that the District of Columbia statute met constitutional due process requirements.

at 1337–38.

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For these reasons, we decline to upend detention hearing procedure without a textual

basis for doing so. 10

IV.

We hold that

entitles the government to make evidentiary proffers

during detention hearings. The district court’s order is

AFFIRMED.

10 Because § 3142(f)’s text doesn’t bar the government from offering proffered evidence, we don’t reach the statute’s legislative history. See Noble v. Nat’l Ass’n of Letter Carriers, AFL-CIO,

(D.C. Cir. 2024) (“However, we need not address legislative history if after analyzing the text, structure and context, we conclude that the language is unambiguous.” (cleaned up)).

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