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

In an amended opinion (see eJournal # 83105 in the 2/19/25 edition), the court added a footnote. It again held that the admission of defendant-Grogan’s proffer confessing ownership of drugs was improper and harmful, requiring reversal of his convictions. It again 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. The footnote stated that Grogan did not challenge his conviction under count three of the indictment, FIP, so that conviction was unaffected by the court’s opinion. “But because counts one and three were grouped for guideline calculation purposes,” the court vacated his entire sentence and remanded for proceedings consistent with its opinion.