Admission of incriminating statements defendant made at a proffer session; FRE 410; Waiver; Whether defendant offered evidence or arguments “inconsistent” with his proffers; Whether invoking the Fifth Amendment implies the falsity of a prior admission; Whether defendant’s direct testimony that he was not a drug dealer or a felon in possession was inconsistent with his proffer statement that he owned the drugs in a vehicle; United States v Rosemond (2d Cir); Whether the proffers were admissible as res gestae evidence; Whether error was harmless

The court held that the admission of defendant-Grogan’s proffer confessing ownership of drugs was improper and harmful, requiring reversal of his convictions. It concluded that invoking the Fifth Amendment does not imply a prior admission was false and that “questioning whether the government can prove that” a defendant did something does not amount to a denial that defendant did it. Grogan was convicted of FIP, possessing a firearm in furtherance of drug trafficking, and possessing fentanyl with intent to distribute. Before trial, he made several statements at a proffer session, including an admission that he owned the drugs found in a car. The government used this evidence at trial. Grogan argued that its admission was contrary to the proffer agreement, which provided that a particular statement from the proffer session could be introduced only if he “testified or presented arguments inconsistent with that statement.” The government argued as to some statements that he “testified inconsistently when he invoked the Fifth Amendment at trial[.]” The court disagreed. It noted that “a defendant's refusal to testify has no factual content that could contradict a purportedly different factual statement.” And Supreme Court precedent provides “that ‘no inferences whatever can be legitimately drawn’ from invoking the Fifth Amendment.” The government also argued his testimony that he was not a drug dealer or a felon in possession was inconsistent with his proffer statement that he owned the drugs. The court found that it was a “close” call but disagreed. “Grogan’s testimony primarily tried to undermine the sufficiency and reliability of the government’s evidence generally, not the accuracy of the specific facts.” The question became “does questioning whether the government can prove that you did something amount to a denial that you did it?” The court agreed with the Second Circuit in Rosemond that it does not. “Because Grogan neither made statements nor offered arguments inconsistent with his proffer that the drugs belonged to him, the trial court’s admission of the proffer statement was improper and an abuse of discretion.” The court also held that some of the other challenged statements were improperly admitted. Further, it rejected the government’s argument that the proffers were admissible as res gestae evidence. Finally, it found that the error was not harmless where “even if the government’s remaining evidence makes it implausible that anyone else owned the drugs, its heavy reliance on the proffer––a confession in which Grogan admits the drugs were his––undermines our confidence that ‘the judgment was not substantially swayed by the error.’” Reversed and remanded.