The United States Court of Appeals for the Sixth Circuit ruled that invoking the Fifth Amendment while testifying at trial does not constitute inconsistent testimony with a prior confession made under a proffer agreement because under U.S. Supreme Court precedent, no factual inference can be drawn from the invocation of the right against self-­incrimination, and similarly, questioning the sufficiency of the prosecution’s evidence while testifying at trial does not necessarily contradict a prior admission under a proffer agreement. Therefore, the Court held it was harmful error for the U.S. District Court for the Northern District of Ohio to admit the defendant’s proffer statements because he did not violate the proffer agreement by providing inconsistent testimony at trial.

Background

In February 2021, Juan Grogan was indicted by a grand jury on three counts: (1) possession of fentanyl with intent to distribute, (2) possession of a firearm in furtherance of a drug trafficking crime, and (3) possession of a firearm as a felon.

Police investigated Juan Grogan in connection with two incidents: (1) an altercation at an Autosport Plus store that involved a car chase in his Dodge Journey and shots being fired, and (2) a kidnapping. Investigators put Grogan under surveillance in connection with the incidents. Detective Kyle Evans observed Grogan drive the Dodge Journey to a house, leave for approximately an hour, and return. Evans did not see anyone else enter or exit the vehicle. He and other agents approached the house for the purpose of executing an arrest warrant for Grogan.

Upon reaching the house, J’Leshia Pope, Grogan’s ex-­girlfriend, advised the officers that she lived in the house, and she later testified that Grogan jumped out a window and fled as the officers approached. She also confirmed that Grogan drove the Dodge Journey that day and that she did not see anyone else in it.

The Dodge Journey was impounded, and during an inventory search on December 7, 2020, officers discovered a handgun, digital scale, plastic baggies, and heroin and fentanyl inside the center console. Grogan’s DNA was found on the gun. He was arrested three days later and did not talk with investigators.

Weeks later, he agreed to speak with investigators, including Detective Michael Volpe. Grogan attended a proffer session accompanied by his lawyer. During the proffer session, he agreed to provide information to the Government, and it agreed to review the information in consideration of a plea deal, though no promises of any deal were made. Grogan discussed the events of the day the inventory search occurred, the contraband found in the Dodge Journey, the incident at the Autosport Plus store, and the kidnapping.

Grogan signed a proffer agreement stating under what conditions the Government could use the information he provided during the proffer session for impeachment or as substantive evidence. The agreement stated:

Impeachment and Rebuttal Use. If your client testifies inconsistently with the proffer or otherwise presents offers or elicits evidence or asserts facts or theories inconsistent with the proffer at any trial, sentencing, or other legal proceeding, the Government may use the proffer to cross-­examine your client. Moreover, the proffer may be used for impeachment or as substantive evidence to rebut any evidence or argument inconsistent with the proffer offered by -­-­ or on behalf of your client … at any trial, sentencing, or other legal proceeding. These provisions are necessary to ensure that no court or jury is misled by receiving information inconsistent with that provided by your client in the proffer.

The parties failed to reach a plea deal, so they began preparation for trial. Grogan sought to have the evidence recovered during the inventory search of the Dodge Journey suppressed, arguing that the arrest warrant lacked factual and legal justification and that there was a lack of reasonable suspicion for searching the vehicle. The District Court denied the motion, and the case proceeded to trial on only the drug possession and firearm found in the vehicle, not the kidnapping or the shooting.

Against the advice of counsel, Grogan testified in his defense at trial. His strategy was to relitigate the denial of his motion to suppress, attacking the warrant and challenging the sufficiency, quality, and credibility of the Government’s evidence. He contended that there was no basis for investigating him on December 7 and that he “was not involved in” the kidnapping. In reference to the kidnapping victim, Grogan stated, “I don’t even know this boy.” Regarding the Autosport Plus incident, he testified that the incident “did not involve me,” and “I didn’t have anything to do with that situation.” He also characterized Pope as “very dishonest” and indicated that text messages “would discredit her testimony.”

On cross-­examination, Grogan admitted that he drove the Dodge Journey on the day of the inventory search, stating that he borrowed it from his cousin. He invoked his Fifth Amendment rights when the Government asked him whether he jumped out the window and fled when officers approached the house. He invoked his Fifth Amendment rights again when asked whether the firearm and drugs were his. To which the Government replied, “Okay” twice and “Okay, that’s fine.”

After cross-­examination, in reference to the Autosport Plus incident, Grogan stated, “I was just literally a standby-­er, and I didn’t have anything to do with that incident.”

However, to rebut his testimony, Volpe testified about Grogan’s statements during the proffer session. Volpe claimed that Grogan admitted to jumping out the window and that the firearm and drugs found in the vehicle belonged to him. Grogan also admitted to driving the Dodge Journey during the car chase after the Autosport Plus incident, and his passenger shot at the other vehicle during the chase, according to Volpe. During the proffer session, Grogan stated that “he loaned his Dodge Journey to Chance Young to be used in the kidnapping” the week prior to the inventory search because of a debt Grogan owed Young. Finally, Volpe testified that the kidnapping involved four perpetrators, and two of them had already been prosecuted.

Grogan was convicted on all three counts, and the District Court sentenced him to a total term of imprisonment of 185 months. Grogan timely appealed, challenging the admission of his proffer statements. 

Analysis

The Court began its analysis by reviewing the law governing plea negotiations, noting that statements made by a defendant are ordinarily not admissible at trial. Fed. R. Evid. 410. However, a defendant can agree “to waive the exclusionary provisions of the plea-­statement Rules.” United States v. Mezzanatto, 513 U.S. 196 (1995). For instance, a defendant can consent to the use in court of statements made during proffer sessions if he provides inconsistent evidence. See United States v. Shannon, 803 F.3d 778 (6th Cir. 2015). The Court stated that statements are inconsistent “only if the truth of one implies the falsity of the other.” Id. (quoting United States v. Krilich, 159 F.3d 1020 (7th Cir. 1998)). Impeaching a witness or “questioning his credibility and accuracy” is not necessarily inconsistent with an earlier admission of guilty by a defendant. Id. Impeachment becomes inconsistent testimony “when a defendant tries to create a contrary factual inference,” according to the Court. Id.

The Sixth Circuit employs a two-­step approach in determining whether the District Court properly admitted proffer statements, the Court stated. First, it interprets the proffer agreement de novo. Id. Second, if the proffer agreement is applicable, it reviews “for abuse of discretion the district court’s evidentiary rulings admitting [the] proffer statements, and [it] will not reverse unless an error affects a ‘substantial right.’” Id. (quoting United States v. Barrow, 400 F.3d 109 (2d Cir. 2005).

The Court explained the dispute before it as follows. The parties agreed that Grogan consented to the partial waiver of Rule 410 objections. Grogan contended that his proffer statements could not be introduced at trial because he did not testify inconsistently or present evidence or arguments that contradicted his proffer statements. The Government argued that Grogan did, in fact, testify inconsistently with respect to some statements when he invoked his Fifth Amendment rights at trial. It also argued that for all the evidence, specific statements and arguments made by Grogan during the trial contradicted his proffer statements.

The Court then addressed each of the proffer statements individually, starting with Grogan’s admission that he owned the drugs in the vehicle. When asked at trial about the drugs, he invoked his Fifth Amendment rights, which the Government argued means he “testified” inconsistently with his proffer statement in violation of the proffer agreement.

Invoking Fifth Amendment

The Court stated that the issue is whether invoking the Fifth Amendment “implies the falsity of a prior admission” and concluded that it does not, rejecting the Government’s argument. It reasoned that a defendant’s “refusal” to testify does not contain any “factual content” that could contradict a prior factual statement. To conclude that the invocation of the Fifth Amendment contradicts a prior factual statement requires the drawing of an inference or implication from the invocation, the Court explained. However, the Supreme Court has instructed that “no inference whatever can be legitimately drawn” from the invocation of the Fifth Amendment. Johnson v. United States, 318 U.S. 189 (1943) (noting a defendant “might well be entrapped if his assertion of the privilege could then be used against him”).

The Court also noted that the invocation of the Fifth Amendment often results in the jury inferring guilt. See Griffin v. California, 380 U.S. 609 (1965) (noting the defendant’s refusal to answer a question accords with guilt and is often interpreted by a jury in that way even if the prosecution cannot draw the same inference). But that aligns with what Grogan stated in his proffer session. So, even if an inference could be drawn from his invocation of the Fifth Amendment, “it would show consistency—not inconsistency” as the Government argued, the Court explained. Thus, because Grogan did not contradict his prior proffer statement by invoking the Fifth Amendment, the Court concluded that the admission of his proffer statement admitting to owning the drugs was improper.

Questioning Sufficiency of Prosecution’s Evidence

Aside from its Fifth Amendment argument, the Government also argued that Grogan’s direct testimony regarding the drugs was inconsistent with his proffer statement that he owned the drugs, and thus, admission of the proffer statement on the issue was proper. Specifically, the Government based this argument on Grogan’s following testimony: “However, once again, they are presenting to the Court that I’m a drug dealer and I’m a felon in possession of a firearm when the Government can’t prove how they became in possession of this firearm to even have knowledge of me being involved in anything that they’re presenting in court today.”

The Court framed the issue as follows: “does questioning whether the government can prove that you did something amount to a denial that you did it?” The Court cited to the Second Circuit’s opinion in United States v. Rosemond, 841 F.3d 95 (2d Cir. 2016), in which it said no, and the Court agreed with that court’s conclusion. The Rosemond Court explained that to hold otherwise, “would prevent defense counsel from challenging the Government’s lack of evidence on a particular element, even where the Government failed to introduce any evidence on a certain element.” In Rosemond, the Second Circuit compared “sufficiency arguments” to “credibility arguments” and explained that such challenges do not necessarily imply that an event did not occur, “only that the witness may not have seen or reported it accurately, and thus primarily implicate the Government’s burden of proving each element beyond a reasonable doubt.” 

Based on the foregoing rationale, the Court concluded that “Grogan neither made statements nor offered arguments inconsistent with his proffer that the drugs belonged to him.” Thus, the Court ruled that the District Court’s admission of the proffer statement was improper and an abuse of discretion.

Five Additional Proffer Statements

Grogan argued that five other proffer statements were improperly admitted by the District Court: “(1) that Grogan owned the firearm found in the borrowed car; (2) that Grogan jumped out of Pope’s window when he saw police coming; (3) that Grogan owned the wallet found in the same car; (4) that Grogan’s firearm was used in the shooting; and (5) that Grogan loaned the car ‘to be used in [a] kidnapping.’”

The Court ruled that four out of the five proffer statements were improperly admitted. Proffers (1) and (2) were improperly admitted based on the Court’s previous discussion on the invocation of the Fifth Amendment. Proffer (3) was improperly admitted because Grogan’s statement on this matter questioned the sufficiency of the evidence, as per Rosemond, but it did not contradict the earlier proffer statement, according to the Court. Proffer (5) was improperly admitted because nowhere “in the proffer does Grogan claim he knew the victim personally or even knew what the kidnappers planned to do once they left with his car,” so his trial testimony did not contradict that proffer statement, the Court concluded.

Proffer (4), however, was properly admitted because Grogan’s trial testimony contradicted his proffer statement, ruled the Court. At trial, he testified that the Autosport Plus shooting “did not involve” him and that he “was literally a standby-­er.” But in his proffer statement, he said that he was present at the store when the verbal altercation occurred, the he drove the vehicle, and that he drove it while the passenger fired at the other car. Thus, the Court ruled that proffer (4) was properly admitted.  

Harmful Error

The Court then turned to the issue of harmful error. An error is harmful if courts lack fair assurance “that the judgment was not substantially swayed by the error.” United States v. Craig, 953 F.3d 898 (6th Cir. 2020) (quoting Kotteakos v. United States, 328 U.S. 750 (1946)). That is, an error is harmless “unless it is more probable than not that the error materially affected the verdict.” United States v. Jaffal, 79 F.4th 582 (6th Cir. 2023). When evidence of guilt at trial is overwhelming, the error may be harmless. See United States v. Rogers, 118 F.3d 466 (6th Cir. 1997). In addition to the other evidence admitted at trial, courts must also evaluate the prejudicial effect of the improperly admitted evidence. Craig. The Court explained that “even if the evidence of guilt is sufficient, if the improperly admitted evidence is highly prejudicial, the error may be harmful. And since the government bears the burden of showing an error was harmless, if we are uncertain, ‘the tie goes to the criminal defendant.’” A.K. ex rel. Kocher v. Durham Sch. Servs., L.P., 969 F.3d 625 (6th Cir. 2020).

The Court focused its attention on the improperly admitted proffer statement on the drug ownership, and it further narrowed its focus to the impact the admission of Grogan’s drug-­ownership confession—that is, the proffer statement on that issue—had on the outcome of the trial. The Court observed that a confession is “extremely probative of guilt.” United States v. Wolf, 879 F.2d 1320 (6th Cir. 1989). In evaluating whether an improperly admitted confession is harmless, courts consider whether “it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” in the absence of the confession. Id. The Court stated that Sixth Circuit precedent instructs that confessions are likely harmful in cases where the prosecution emphasizes the admission or uses the admission “to add color to circumstantial evidence.” See Wolf.

Turning to the present case, the Court stated that the Government “did exactly that—it repeatedly relied on Grogan’s confessions in its closing statement,” asking the jury to listen “to even what Juan said, what Mr. Grogan said.” The Government proceeded to discuss each of Grogan’s proffer admissions. Based on the Government’s heavily reliance on his improperly admitted proffers and lack of direct evidence that he possessed the drugs, the Court concluded that it was “more probable than not that the error materially affected the verdict.” Thus, the Court ruled that the improper admission of the drug-­ownership proffer statement was harmful error and warranted a new trial.

Conclusion

Accordingly, the Court reversed Grogan’s convictions and remanded the case for further proceedings consistent with its opinion. See: United States v. Grogan, 127 F.4th 642 (6th Cir. 2025).

Editor’s note: Anyone interested in the topic of proffer statements made for the purpose of entering into a plea agreement, which never materializes, and are subsequently introduced into evidence at trial is encouraged to read the Court’s full opinion.  

The United States Court of Appeals for the Sixth Circuit ruled that invoking the Fifth Amendment while testifying at trial does not constitute inconsistent testimony with a prior confession made under a proffer agreement because under U.S. Supreme Court precedent, no factual inference can be drawn from the invocation of the right against self-­incrimination, and similarly, questioning the sufficiency of the prosecution’s evidence while testifying at trial does not necessarily contradict a prior admission under a proffer agreement. Therefore, the Court held it was harmful error for the U.S. District Court for the Northern District of Ohio to admit the defendant’s proffer statements because he did not violate the proffer agreement by providing inconsistent testimony at trial.

Background

In February 2021, Juan Grogan was indicted by a grand jury on three counts: (1) possession of fentanyl with intent to distribute, (2) possession of a firearm in furtherance of a drug trafficking crime, and (3) possession of a firearm as a felon.

Police investigated Juan Grogan in connection with two incidents: (1) an altercation at an Autosport Plus store that involved a car chase in his Dodge Journey and shots being fired, and (2) a kidnapping. Investigators put Grogan under surveillance in connection with the incidents. Detective Kyle Evans observed Grogan drive the Dodge Journey to a house, leave for approximately an hour, and return. Evans did not see anyone else enter or exit the vehicle. He and other agents approached the house for the purpose of executing an arrest warrant for Grogan.

Upon reaching the house, J’Leshia Pope, Grogan’s ex-­girlfriend, advised the officers that she lived in the house, and she later testified that Grogan jumped out a window and fled as the officers approached. She also confirmed that Grogan drove the Dodge Journey that day and that she did not see anyone else in it.

The Dodge Journey was impounded, and during an inventory search on December 7, 2020, officers discovered a handgun, digital scale, plastic baggies, and heroin and fentanyl inside the center console. Grogan’s DNA was found on the gun. He was arrested three days later and did not talk with investigators.

Weeks later, he agreed to speak with investigators, including Detective Michael Volpe. Grogan attended a proffer session accompanied by his lawyer. During the proffer session, he agreed to provide information to the Government, and it agreed to review the information in consideration of a plea deal, though no promises of any deal were made. Grogan discussed the events of the day the inventory search occurred, the contraband found in the Dodge Journey, the incident at the Autosport Plus store, and the kidnapping.

Grogan signed a proffer agreement stating under what conditions the Government could use the information he provided during the proffer session for impeachment or as substantive evidence. The agreement stated:

Impeachment and Rebuttal Use. If your client testifies inconsistently with the proffer or otherwise presents offers or elicits evidence or asserts facts or theories inconsistent with the proffer at any trial, sentencing, or other legal proceeding, the Government may use the proffer to cross-­examine your client. Moreover, the proffer may be used for impeachment or as substantive evidence to rebut any evidence or argument inconsistent with the proffer offered by -­-­ or on behalf of your client … at any trial, sentencing, or other legal proceeding. These provisions are necessary to ensure that no court or jury is misled by receiving information inconsistent with that provided by your client in the proffer.

The parties failed to reach a plea deal, so they began preparation for trial. Grogan sought to have the evidence recovered during the inventory search of the Dodge Journey suppressed, arguing that the arrest warrant lacked factual and legal justification and that there was a lack of reasonable suspicion for searching the vehicle. The District Court denied the motion, and the case proceeded to trial on only the drug possession and firearm found in the vehicle, not the kidnapping or the shooting.

Against the advice of counsel, Grogan testified in his defense at trial. His strategy was to relitigate the denial of his motion to suppress, attacking the warrant and challenging the sufficiency, quality, and credibility of the Government’s evidence. He contended that there was no basis for investigating him on December 7 and that he “was not involved in” the kidnapping. In reference to the kidnapping victim, Grogan stated, “I don’t even know this boy.” Regarding the Autosport Plus incident, he testified that the incident “did not involve me,” and “I didn’t have anything to do with that situation.” He also characterized Pope as “very dishonest” and indicated that text messages “would discredit her testimony.”

On cross-­examination, Grogan admitted that he drove the Dodge Journey on the day of the inventory search, stating that he borrowed it from his cousin. He invoked his Fifth Amendment rights when the Government asked him whether he jumped out the window and fled when officers approached the house. He invoked his Fifth Amendment rights again when asked whether the firearm and drugs were his. To which the Government replied, “Okay” twice and “Okay, that’s fine.”

After cross-­examination, in reference to the Autosport Plus incident, Grogan stated, “I was just literally a standby-­er, and I didn’t have anything to do with that incident.”

However, to rebut his testimony, Volpe testified about Grogan’s statements during the proffer session. Volpe claimed that Grogan admitted to jumping out the window and that the firearm and drugs found in the vehicle belonged to him. Grogan also admitted to driving the Dodge Journey during the car chase after the Autosport Plus incident, and his passenger shot at the other vehicle during the chase, according to Volpe. During the proffer session, Grogan stated that “he loaned his Dodge Journey to Chance Young to be used in the kidnapping” the week prior to the inventory search because of a debt Grogan owed Young. Finally, Volpe testified that the kidnapping involved four perpetrators, and two of them had already been prosecuted.

Grogan was convicted on all three counts, and the District Court sentenced him to a total term of imprisonment of 185 months. Grogan timely appealed, challenging the admission of his proffer statements. 

Analysis

The Court began its analysis by reviewing the law governing plea negotiations, noting that statements made by a defendant are ordinarily not admissible at trial. Fed. R. Evid. 410. However, a defendant can agree “to waive the exclusionary provisions of the plea-­statement Rules.” United States v. Mezzanatto, 513 U.S. 196 (1995). For instance, a defendant can consent to the use in court of statements made during proffer sessions if he provides inconsistent evidence. See United States v. Shannon, 803 F.3d 778 (6th Cir. 2015). The Court stated that statements are inconsistent “only if the truth of one implies the falsity of the other.” Id. (quoting United States v. Krilich, 159 F.3d 1020 (7th Cir. 1998)). Impeaching a witness or “questioning his credibility and accuracy” is not necessarily inconsistent with an earlier admission of guilty by a defendant. Id. Impeachment becomes inconsistent testimony “when a defendant tries to create a contrary factual inference,” according to the Court. Id.

The Sixth Circuit employs a two-­step approach in determining whether the District Court properly admitted proffer statements, the Court stated. First, it interprets the proffer agreement de novo. Id. Second, if the proffer agreement is applicable, it reviews “for abuse of discretion the district court’s evidentiary rulings admitting [the] proffer statements, and [it] will not reverse unless an error affects a ‘substantial right.’” Id. (quoting United States v. Barrow, 400 F.3d 109 (2d Cir. 2005).

The Court explained the dispute before it as follows. The parties agreed that Grogan consented to the partial waiver of Rule 410 objections. Grogan contended that his proffer statements could not be introduced at trial because he did not testify inconsistently or present evidence or arguments that contradicted his proffer statements. The Government argued that Grogan did, in fact, testify inconsistently with respect to some statements when he invoked his Fifth Amendment rights at trial. It also argued that for all the evidence, specific statements and arguments made by Grogan during the trial contradicted his proffer statements.

The Court then addressed each of the proffer statements individually, starting with Grogan’s admission that he owned the drugs in the vehicle. When asked at trial about the drugs, he invoked his Fifth Amendment rights, which the Government argued means he “testified” inconsistently with his proffer statement in violation of the proffer agreement.

Invoking Fifth Amendment

The Court stated that the issue is whether invoking the Fifth Amendment “implies the falsity of a prior admission” and concluded that it does not, rejecting the Government’s argument. It reasoned that a defendant’s “refusal” to testify does not contain any “factual content” that could contradict a prior factual statement. To conclude that the invocation of the Fifth Amendment contradicts a prior factual statement requires the drawing of an inference or implication from the invocation, the Court explained. However, the Supreme Court has instructed that “no inference whatever can be legitimately drawn” from the invocation of the Fifth Amendment. Johnson v. United States, 318 U.S. 189 (1943) (noting a defendant “might well be entrapped if his assertion of the privilege could then be used against him”).

The Court also noted that the invocation of the Fifth Amendment often results in the jury inferring guilt. See Griffin v. California, 380 U.S. 609 (1965) (noting the defendant’s refusal to answer a question accords with guilt and is often interpreted by a jury in that way even if the prosecution cannot draw the same inference). But that aligns with what Grogan stated in his proffer session. So, even if an inference could be drawn from his invocation of the Fifth Amendment, “it would show consistency—not inconsistency” as the Government argued, the Court explained. Thus, because Grogan did not contradict his prior proffer statement by invoking the Fifth Amendment, the Court concluded that the admission of his proffer statement admitting to owning the drugs was improper.

Questioning Sufficiency of Prosecution’s Evidence

Aside from its Fifth Amendment argument, the Government also argued that Grogan’s direct testimony regarding the drugs was inconsistent with his proffer statement that he owned the drugs, and thus, admission of the proffer statement on the issue was proper. Specifically, the Government based this argument on Grogan’s following testimony: “However, once again, they are presenting to the Court that I’m a drug dealer and I’m a felon in possession of a firearm when the Government can’t prove how they became in possession of this firearm to even have knowledge of me being involved in anything that they’re presenting in court today.”

The Court framed the issue as follows: “does questioning whether the government can prove that you did something amount to a denial that you did it?” The Court cited to the Second Circuit’s opinion in United States v. Rosemond, 841 F.3d 95 (2d Cir. 2016), in which it said no, and the Court agreed with that court’s conclusion. The Rosemond Court explained that to hold otherwise, “would prevent defense counsel from challenging the Government’s lack of evidence on a particular element, even where the Government failed to introduce any evidence on a certain element.” In Rosemond, the Second Circuit compared “sufficiency arguments” to “credibility arguments” and explained that such challenges do not necessarily imply that an event did not occur, “only that the witness may not have seen or reported it accurately, and thus primarily implicate the Government’s burden of proving each element beyond a reasonable doubt.” 

Based on the foregoing rationale, the Court concluded that “Grogan neither made statements nor offered arguments inconsistent with his proffer that the drugs belonged to him.” Thus, the Court ruled that the District Court’s admission of the proffer statement was improper and an abuse of discretion.

Five Additional Proffer Statements

Grogan argued that five other proffer statements were improperly admitted by the District Court: “(1) that Grogan owned the firearm found in the borrowed car; (2) that Grogan jumped out of Pope’s window when he saw police coming; (3) that Grogan owned the wallet found in the same car; (4) that Grogan’s firearm was used in the shooting; and (5) that Grogan loaned the car ‘to be used in [a] kidnapping.’”

The Court ruled that four out of the five proffer statements were improperly admitted. Proffers (1) and (2) were improperly admitted based on the Court’s previous discussion on the invocation of the Fifth Amendment. Proffer (3) was improperly admitted because Grogan’s statement on this matter questioned the sufficiency of the evidence, as per Rosemond, but it did not contradict the earlier proffer statement, according to the Court. Proffer (5) was improperly admitted because nowhere “in the proffer does Grogan claim he knew the victim personally or even knew what the kidnappers planned to do once they left with his car,” so his trial testimony did not contradict that proffer statement, the Court concluded.

Proffer (4), however, was properly admitted because Grogan’s trial testimony contradicted his proffer statement, ruled the Court. At trial, he testified that the Autosport Plus shooting “did not involve” him and that he “was literally a standby-­er.” But in his proffer statement, he said that he was present at the store when the verbal altercation occurred, the he drove the vehicle, and that he drove it while the passenger fired at the other car. Thus, the Court ruled that proffer (4) was properly admitted.  

Harmful Error

The Court then turned to the issue of harmful error. An error is harmful if courts lack fair assurance “that the judgment was not substantially swayed by the error.” United States v. Craig, 953 F.3d 898 (6th Cir. 2020) (quoting Kotteakos v. United States, 328 U.S. 750 (1946)). That is, an error is harmless “unless it is more probable than not that the error materially affected the verdict.” United States v. Jaffal, 79 F.4th 582 (6th Cir. 2023). When evidence of guilt at trial is overwhelming, the error may be harmless. See United States v. Rogers, 118 F.3d 466 (6th Cir. 1997). In addition to the other evidence admitted at trial, courts must also evaluate the prejudicial effect of the improperly admitted evidence. Craig. The Court explained that “even if the evidence of guilt is sufficient, if the improperly admitted evidence is highly prejudicial, the error may be harmful. And since the government bears the burden of showing an error was harmless, if we are uncertain, ‘the tie goes to the criminal defendant.’” A.K. ex rel. Kocher v. Durham Sch. Servs., L.P., 969 F.3d 625 (6th Cir. 2020).

The Court focused its attention on the improperly admitted proffer statement on the drug ownership, and it further narrowed its focus to the impact the admission of Grogan’s drug-­ownership confession—that is, the proffer statement on that issue—had on the outcome of the trial. The Court observed that a confession is “extremely probative of guilt.” United States v. Wolf, 879 F.2d 1320 (6th Cir. 1989). In evaluating whether an improperly admitted confession is harmless, courts consider whether “it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” in the absence of the confession. Id. The Court stated that Sixth Circuit precedent instructs that confessions are likely harmful in cases where the prosecution emphasizes the admission or uses the admission “to add color to circumstantial evidence.” See Wolf.

Turning to the present case, the Court stated that the Government “did exactly that—it repeatedly relied on Grogan’s confessions in its closing statement,” asking the jury to listen “to even what Juan said, what Mr. Grogan said.” The Government proceeded to discuss each of Grogan’s proffer admissions. Based on the Government’s heavily reliance on his improperly admitted proffers and lack of direct evidence that he possessed the drugs, the Court concluded that it was “more probable than not that the error materially affected the verdict.” Thus, the Court ruled that the improper admission of the drug-­ownership proffer statement was harmful error and warranted a new trial.

Conclusion

Accordingly, the Court reversed Grogan’s convictions and remanded the case for further proceedings consistent with its opinion. See: United States v. Grogan, 127 F.4th 642 (6th Cir. 2025).

Editor’s note: Anyone interested in the topic of proffer statements made for the purpose of entering into a plea agreement, which never materializes, and are subsequently introduced into evidence at trial is encouraged to read the Court’s full opinion.  

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