UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 22-3651 │ v. │ │ JUAN R. GROGAN, │ Defendant-Appellant. │ ┘

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:21-cr-00085-1—Donald C. Nugent, District Judge.

Argued: October 10, 2024

Decided and Filed: February 3, 2025

Before: STRANCH, WHITE, and NALBANDIAN, Circuit Judges _________________

COUNSEL ARGUED: Tyler Becker, WILLIAMS & CONNOLLY LLP, Washington, D.C., for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Tyler Becker, Harsha Sridhar, WILLIAMS & CONNOLLY LLP, Washington, D.C., for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. _________________

OPINION _________________

NALBANDIAN, Circuit Judge. A jury convicted Juan Grogan of possessing a firearm as a felon, possessing a firearm in furtherance of drug trafficking, and possessing fentanyl with intent to distribute. At trial, the judge allowed the government to admit testimony about a series of statements that Grogan made during a proffer session. The statements concerned his No. 22-3651 United States v. Grogan Page 2

ownership of drugs, a firearm, and a wallet, and his involvement in a shooting and a kidnapping. On appeal, Grogan argues the admission of this evidence was an error.

Under the proffer agreement, the government could introduce a particular statement from the proffer session if Grogan testified or presented arguments inconsistent with that statement. Grogan contends admission of the evidence was an error because neither of these conditions were met. We agree with him that at least some of these statements should not have been admitted. And because the error was not harmless, we REVERSE.

I.

On February 18, 2021, a grand jury indicted Grogan on three counts: possession of fentanyl with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and possession of a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Law enforcement originally investigated Grogan based on two incidents. The first began as a verbal altercation in an Autosport Plus store and led to a car chase during which shots were fired. The other was a kidnapping. But Grogan’s trial concerned his possession of drugs and a firearm found in his Dodge Journey, not the kidnapping or the shooting.

Agents discovered the drugs and firearm during an inventory search on December 7, 2020. While surveilling Grogan in relation to the shooting and kidnapping, Detective Kyle Evans saw Grogan drive the Dodge Journey to a house, leave for about an hour, and then return. Grogan was the only person he saw go in or out of the car. Evans then waited for other agents