No Inference from Fifth Amendment Invocation: Sixth Circuit Narrows Proffer-Waiver “Inconsistency” and Reverses Conviction in United States v. Grogan

Introduction

In United States v. Grogan, No. 22-3651 (6th Cir. Mar. 27, 2025), the Sixth Circuit set important limits on the government’s use of a defendant’s proffer statements when the defendant has signed a partial waiver under Federal Rule of Evidence 410. The panel (Judges White, Stranch, and Nalbandian, with Judge Nalbandian writing) held that:

• A defendant’s invocation of the Fifth Amendment during cross-examination is not “inconsistent” testimony that triggers a proffer-waiver clause allowing admission of proffer statements.
• Defense arguments that challenge the sufficiency of the government’s evidence or attack witness credibility do not, without more, contradict a proffer in the way that permits rebuttal use under a standard proffer agreement.
• Only true factual contradictions open the door; here, just one proffered topic (the defendant’s role in a car-chase shooting) was properly admitted. The others—including a critical confession to owning the drugs—were admitted in error.
• Because the government heavily relied on the wrongfully admitted confession in closing argument and the remaining evidence of constructive possession was not overwhelming, the error was not harmless; the court reversed and remanded for a new trial on two counts and vacated the sentence.

The case arises from an inventory search of a Dodge Journey that yielded a handgun, drug-distribution paraphernalia, and a heroin/fentanyl mixture. After failed plea negotiations, the defendant testified, attacking the validity of warrants and the sufficiency of the evidence. The district court allowed the government to use statements from his proffer session; the Sixth Circuit concluded that most of those admissions were improperly admitted and prejudicial.

Summary of the Opinion

• Rule 410 Waiver Interpreted: The court applied a two-step framework. It interpreted the proffer agreement de novo and reviewed the evidentiary ruling for abuse of discretion.
• No “Inconsistency” from Fifth Invocation: Invoking the Fifth Amendment on cross-examination does not provide factual content and gives rise to no permissible inference. Therefore, it cannot be treated as “inconsistent” testimony under a Mezzanatto-style proffer waiver.
• Sufficiency/Credibility Arguments Not “Inconsistent”: Arguing that the government has not proved its case, or impeaching a witness’s credibility, does not imply the falsity of a prior proffer admission and does not trigger rebuttal use of the proffer.
• One True Contradiction: The defendant’s testimony minimizing his role in the Autosport Plus chase/shooting contradicted his proffered admission that he drove the car while his passenger fired from the window; that proffer was properly admitted.
• Res Gestae Not a Backdoor: The government cannot invoke “background” or “inextricably intertwined” evidence doctrine to circumvent proffer-agreement limitations.
• Harmless Error: Wrongfully admitting the defendant’s drug-ownership confession was not harmless given its powerful probative force and the government’s heavy reliance on it. The court reversed the convictions on Counts 1 and 2 and remanded; the unchallenged felon-in-possession conviction (Count 3) stands, but the sentence was vacated due to grouping.

Case Background

• Charges: Possession with intent to distribute fentanyl/heroin mix (21 U.S.C. § 841), possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)), and felon in possession (18 U.S.C. § 922(g)(1)).
• Facts: During surveillance related to an earlier kidnapping and an Autosport Plus altercation that escalated into a car chase with shots fired, law enforcement arrested Grogan and conducted an inventory search of his Dodge Journey. They found a handgun on the floorboard and drugs with packaging materials in the center console, along with ID documents bearing Grogan’s name. Grogan’s DNA was on the gun; the drugs were not tested for DNA.
• Proffer: With counsel, Grogan entered a proffer session governed by a Rule 410 waiver allowing the government to use statements for impeachment or to rebut “evidence or argument inconsistent with the proffer.” No plea deal resulted.
• Trial: Over counsel’s advice, Grogan testified, focusing on attacking the warrants and the sufficiency of the evidence. On cross, he invoked the Fifth Amendment when asked whether the drugs and gun were his and whether he had jumped out a window to avoid police. The prosecution then introduced multiple proffer statements (including a drug-ownership admission). The jury convicted on all counts.

Detailed Analysis

Precedents Cited and How They Informed the Decision

• Rule 410 and Waivers:
  • United States v. Mezzanatto, 513 U.S. 196 (1995): Defendants may waive Rule 410’s exclusionary protections; such waivers are enforceable.
  • United States v. Shannon, 803 F.3d 778 (6th Cir. 2015): Established the Sixth Circuit’s two-step approach (contract interpretation de novo; evidentiary ruling for abuse of discretion) and the “inconsistency” standard—statements are inconsistent only if the truth of one implies the falsity of the other.
  • United States v. Krilich, 159 F.3d 1020 (7th Cir. 1998): Quoted in Shannon for the “truth implies falsity” yardstick.
• Fifth Amendment and Inferences:
  • Johnson v. United States, 318 U.S. 189 (1943): No inferences may be drawn from invocation of the privilege.
  • Griffin v. California, 380 U.S. 609 (1965); DePew v. Anderson, 311 F.3d 742 (6th Cir. 2002): Prosecutorial comment on a defendant’s silence violates the Fifth Amendment.
  • United States v. Russell, 26 F.4th 371 (6th Cir. 2022): Failure to object below is forfeiture; plain-error standards apply on appeal.
• Sufficiency/Credibility vs. Contradiction:
  • United States v. Rosemond, 841 F.3d 95 (2d Cir. 2016): Sufficiency arguments do not contradict a proffer for waiver-triggering purposes; aligns with Shannon’s distinction between credibility attacks and factual denials.
• Constructive Possession:
  • United States v. Coffee, 434 F.3d 887 (6th Cir. 2006); United States v. Crump, 65 F.4th 287 (6th Cir. 2023); United States v. White, 932 F.2d 588 (6th Cir. 1991); United States v. Gardner, 488 F.3d 700 (6th Cir. 2007): Framework for actual vs. constructive possession; mere proximity is not enough.
  • United States v. Bailey, 553 F.3d 940 (6th Cir. 2009): Insufficient evidence of constructive possession in a nonexclusive vehicle context; presence and flight alone did not prove dominion or control.
  • United States v. Arnold, 486 F.3d 177 (6th Cir. 2007); United States v. Campbell, 549 F.3d 364 (6th Cir. 2008): Examples where additional evidence beyond proximity supported constructive possession.
• “Background” or Res Gestae Evidence:
  • United States v. Hardy, 228 F.3d 745 (6th Cir. 2000); United States v. Clay, 667 F.3d 689 (6th Cir. 2012): “Inextricably intertwined” evidence is narrowly confined; not a backdoor to avoid other rules.
• Harmless Error and Confessions:
  • Kotteakos v. United States, 328 U.S. 750 (1946); United States v. Craig, 953 F.3d 898 (6th Cir. 2020); United States v. Jaffal, 79 F.4th 582 (6th Cir. 2023); United States v. Warshak, 631 F.3d 266 (6th Cir. 2010): Articulate the harmless-error standard for evidentiary errors in criminal cases.
  • United States v. Wolf, 879 F.2d 1320 (6th Cir. 1989); United States v. Zakhari, 85 F.4th 367 (6th Cir. 2023); Arizona v. Fulminante, 499 U.S. 279 (1991): Confessions have uniquely powerful prejudicial force; improper admission is often not harmless, especially when emphasized in closing argument.

Legal Reasoning and Application

The court first read the proffer agreement’s operative language—permitting impeachment or rebuttal use if the defendant “testifies inconsistently with the proffer or otherwise presents … evidence or asserts facts or theories inconsistent with the proffer”—against Sixth Circuit precedent defining inconsistency as requiring that “the truth of one implies the falsity of the other” (Shannon).

• Fifth Amendment Invocations Are Not “Inconsistent” Statements:
  • A refusal to answer contains no factual content and therefore cannot contradict a prior factual admission.
  • Johnson and Griffin bar drawing any inference—exculpatory or inculpatory—from a defendant’s invocation. Even if one could draw an inference, the natural inference would typically be inculpatory and thus consistent with the proffer, not contradictory.
  • The government forfeited any argument that Grogan could not invoke the privilege after testifying by failing to object at trial. Even under plain-error review, there was no clear error: Grogan’s direct did not put his proffer statements in dispute, so cross-examination on those topics did not eliminate his Fifth Amendment privilege.
• Sufficiency and Credibility Attacks Do Not Trigger Waiver:
  • Grogan’s testimony questioning how the government obtained the firearm and whether the state had proved its case did not assert contrary facts; it targeted the adequacy of proof and the credibility of witnesses.
  • Following the Second Circuit’s Rosemond, the court explained that sufficiency challenges do not imply that the event did not occur; they implicate only the prosecution’s burden of proof. This aligns with Shannon’s credibility/accuracy-versus-factual-denial divide.
• Proffer-by-Proffer Rulings:
  • Drug ownership: Improperly admitted. Neither the Fifth Amendment invocation nor Grogan’s sufficiency remarks contradicted the proffer admission.
  • Firearm ownership; jumping out the window: Improperly admitted. Fifth Amendment invocation is not inconsistency.
  • Wallet ownership: Improperly admitted. Grogan challenged the legality and sufficiency of the search but ultimately acknowledged the IDs were his; no factual contradiction.
  • Autosport Plus shooting involvement: Properly admitted. Grogan’s statements that he had “nothing to do with” the incident and was a mere “standby-er” directly contradicted his proffer that he drove during the chase while his passenger fired the gun.
  • Kidnapping: Improperly admitted. Denying personal involvement or knowledge of the victim did not contradict the proffer that he loaned the car to others who carried out the kidnapping; both could be true.
• Res Gestae Not a Workaround:
  • The “inextricably intertwined” doctrine is narrow and requires close proximity or necessary context for the charged offense. The government did not show why these proffers were necessary background to the drug and firearm-in-furtherance charges, particularly given the proffer agreement’s constraints.
• Harmless Error:
  • Focus was on the drug-ownership confession. Without it, the constructive-possession case—drugs hidden in a console within a nonexclusively used vehicle—was not overwhelming under Bailey and related authorities.
  • Critically, the government highlighted the confession repeatedly in closing argument, underscoring its centrality. Given the unique power of confessions (Wolf, Zakhari, Fulminante), the error “more probably than not” affected the verdict.

Impact and Forward-Looking Implications

• Proffer Waivers Cabined by “True Contradiction”:
  • Within the Sixth Circuit, the government may not use a defendant’s proffer solely because the defendant:
    • Invokes the Fifth Amendment on cross-examination; or
    • Makes sufficiency-of-evidence arguments or attacks witness credibility.
  • Only factual assertions that, if true, make the proffer false, open the door.
• Trial Practice—Preservation Matters:
  • Prosecutors who believe a testifying defendant has waived the Fifth on specific topics must object or seek to compel answers; silence risks forfeiture.
  • Defense counsel can structure testimony to challenge the state’s proof and witness credibility without triggering a proffer waiver—so long as the testimony does not assert contrary facts.
• Plea Negotiations and Drafting of Proffer Agreements:
  • Standard “impeachment or rebuttal” clauses are enforceable but will be read narrowly to avoid swallowing Rule 410’s core protection and to respect the Fifth Amendment.
  • If the government expects to use proffer statements broadly, agreements must be drafted with care; even then, constitutional limits and Sixth Circuit doctrine may bar use absent true factual contradiction.
• Constructive Possession Cases—Evidentiary Demands:
  • Grogan underscores that in nonexclusive-vehicle scenarios, additional evidence tying the defendant to contraband (e.g., DNA on drugs, eyewitness observations, exclusive control immediately before discovery) materially strengthens the case.
  • IDs or receipts in a car show proximity, not dominion; prosecutors should build records beyond mere access or presence.
• Confession Use at Trial:
  • Because confessions carry outsized weight, improper admission is likely to mandate reversal, especially when highlighted in summation. Courts and counsel should be vigilant about limiting instructions and adherence to waiver terms.
• Alignment with Other Circuits:
  • The decision aligns with the Second Circuit’s Rosemond on sufficiency challenges and with longstanding Supreme Court doctrine (Johnson, Griffin) on the non-inferability of meaning from Fifth Amendment invocations.
  • By explicitly applying the “truth implies falsity” test to Fifth-invocation scenarios, the Sixth Circuit adds clarity likely to influence negotiations and trial strategy throughout the circuit.

Complex Concepts Simplified

• Rule 410 and Proffer Agreements:
  • Rule 410 generally bars the use of plea discussions and related statements at trial.
  • Under Mezzanatto, defendants can waive these protections in limited ways—commonly allowing use of proffer statements if the defendant later contradicts them at trial.
• What Counts as “Inconsistent”:
  • It is not enough that the defendant disputes the government’s proof or attacks a witness.
  • To be inconsistent, the defendant must assert a fact that, if true, makes the proffer false.
• Fifth Amendment Invocation:
  • When a defendant invokes the Fifth Amendment, courts and juries may not draw inferences about guilt or innocence from that silence.
  • Silence isn’t a factual statement and cannot contradict a prior factual admission.
• Constructive Possession:
  • A person constructively possesses contraband if they knowingly exercise ownership, dominion, or control over it or the place where it is found.
  • Mere proximity or presence in a shared car is usually not enough without more.
• “Inextricably Intertwined” or Res Gestae Evidence:
  • Limited doctrine allowing admission of conduct that directly completes the story of the charged offense.
  • Not a way to bypass other exclusionary rules or contractual limits in proffer agreements.
• Harmless Error:
  • Even if a court errs, a conviction stands unless the error likely affected the verdict.
  • Confessions are so persuasive that their improper admission often requires reversal, especially if the prosecution emphasizes them.

Conclusion

United States v. Grogan meaningfully refines how Rule 410 proffer waivers operate in the Sixth Circuit. The court draws a firm line: neither a testifying defendant’s invocation of the Fifth Amendment nor defense counsel’s sufficiency and credibility attacks constitute “inconsistent” statements or arguments that unlock the government’s use of proffer admissions. Only true factual contradictions do. The ruling also reinforces that “res gestae” cannot circumvent a proffer agreement’s limits and that improperly admitted confessions will rarely be harmless, particularly when they serve as the centerpiece of the government’s closing argument.

Practically, Grogan preserves the defense’s ability to contest the adequacy of proof without fear of automatically opening the proffer door, while reminding prosecutors to preserve objections to Fifth Amendment invocations and to develop evidence of constructive possession beyond mere proximity in nonexclusive-vehicle cases. On remand, with the drug-ownership confession excluded, the government’s case will likely hinge on tightening the constructive-possession proof. More broadly, Grogan advances a clear, administrable rule for trial courts applying proffer waivers: ask whether the defendant has made a factual assertion that, if true, makes the proffer false. If not, the proffer stays out.

The opinion thus sets a significant precedent: No inference may be drawn from a defendant’s Fifth Amendment invocation to trigger a proffer waiver, and challenges to the sufficiency or credibility of the government’s evidence—without more—are not “inconsistent” within the meaning of standard proffer agreements. That clarification will guide plea negotiations, trial strategy, and evidentiary rulings throughout the Sixth Circuit.

Disposition

• Reversed and remanded for a new trial on Counts 1 (drug trafficking) and 2 (§ 924(c)).
• Count 3 (§ 922(g)(1)) conviction stands (unchallenged), but the entire sentence is vacated and remanded due to Guidelines grouping.