Gun & Drug Convictions Reversed Based on Erroneous Admission of Defendant’s Proffer Statements.

In United States v. Grogan, --- F.4th --- (6th Cir. 2025), the Sixth Circuit reversed the defendant’s convictions for possession with intent to distribute fentanyl, possession of a firearm in furtherance of a drug trafficking crime, and felon in possession of a firearm due to the erroneous admission of various inculpatory statements made by the defendant during a proffer.

Law enforcement suspected that Juan Grogan was involved in a shooting and a kidnapping. When they tried to arrest him, he fled. Agents impounded the car he had been driving and found a gun and fentanyl. He was arrested shortly thereafter and agreed to speak with investigators. He signed a proffer agreement allowing the government to use his statements to cross-examine him if he gave inconsistent testimony at trial.

The case ultimately went to trial and, against the advice of counsel, Mr. Grogan testified. Much of his testimony consisted of arguments about the insufficiency of the government’s evidence. He repeatedly invoked the Fifth Amendment during his cross-examination. Then, over defense objections, the government presented testimony about various inculpatory statements Mr. Grogan made during the proffer.

On appeal, the defense argued that the government could not introduce his proffers at trial because Mr. Grogan did not testify inconsistently or present evidence or arguments that contradicted his proffer. The Sixth Circuit held that Mr. Grogan’s invocation of the Fifth Amendment was not an inconsistent statement as contemplated by the proffer agreement, observing that no inferences can be legitimately drawn from invoking the Fifth Amendment and that “a defendant refusal to testify has no factual content that could contradict a purportedly different factual statement.”

The government argued that, questioning the credibility of government witnesses during his trial testimony, Mr. Grogan contradicted his earlier proffer statements where he admitted having a gun and selling drugs and that the inconsistent proffer statements were therefore admissible under the proffer agreement. The Sixth Circuit held that questioning whether the government can prove that you did something doesn’t amount to a denial that you did it and concluded the admission of all but one of the proffer statements was error.

The error was not harmless because, without Mr. Grogan’s admission that the drugs were his, the government’s evidence of constructive possession was not overwhelming. Mr. Grogan did not have exclusive control of the car where the drugs and gun were found, having lent the car to friends a week earlier. The drugs were not in plain view, and none of the government’s witnesses saw Mr. Grogan in actual possession of the contraband. The government’s emphasis of Mr. Grogan’s drug-ownership confession in its closing argument made it further unlikely that the error was harmless beyond a reasonable doubt.