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 18 U.S.C.
§ 175(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, 18 U.S.C. § 3142(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.” 3 App. 10 ¶ 10.
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 18 U.S.C. § 3142, 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.” 5 App. 55:21–24.
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.” 18 U.S.C. § 3142(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, 96 F.4th 1166, 1172 (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.
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, 77 F.4th 240, 246 (4th Cir. 2023), and review the district court’s
detention order for clear error, United States v. Clark, 865 F.2d 1433, 1437 (4th Cir. 1989)
(en banc).
We begin, as we must, with the statute’s text. See McAdams v. Robinson, 26 F.4th
149, 156 (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.” 18 U.S.C. § 3142(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.” Id. (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.” Id. § 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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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, 10 F.4th 314 (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.”
Id. at 390. But in that case, the defendant was attempting to incorporate a mens rea element
into a statutory provision that lacked one in the text. Id. 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, 919 F.3d 252, 256 (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.” 18 U.S.C. § 3142(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, 782 F.2d 1141, 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, 608 F.3d 939, 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, 79 F.3d 1208, 1210 (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, 828 F.2d 667, 669 (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, 782 F.2d at
1145 (“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, 785 F.2d 755, 756 (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, 430 A.2d 1321, 1334 (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 18 U.S.C. § 3142(f).” United States v. Williams, 753 F.2d 329, 331 n.7 (4th Cir. 1985); see also United States v. Singh, 860 F. App’x 283, 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, 455 U.S. 1022 (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, 782 F.2d at 1145. 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.” Id. 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. Id. 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 18 U.S.C. § 3142 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, 103 F.4th 45, 50 (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)).