RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 25a0023p.06

                    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 

(a)(1) and (b)(1)(B); possession
of a firearm in furtherance of a drug trafficking crime in violation of 

(c)(1)(A);
and possession of a firearm as a felon in violation of 

(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 to
arrive before approaching the home to execute an arrest warrant for Grogan. Grogan’s then-
girlfriend, J’Leshia Pope, lived in the home. She testified that when the officers arrived in search
of Grogan, he jumped out of the window and ran away. She identified Grogan’s Dodge Journey
as the car he drove on that day and said that she had not seen anyone else drive it.

       After Grogan fled, the agents impounded the car. During an inventory search, they found
a handgun on the floorboard. They also found a digital scale, plastic baggies, and a mix of
heroin and fentanyl inside a box in the center console. Agents also discovered a money order
 No. 22-3651                         United States v. Grogan                                 Page 3


receipt with Grogan’s name on it and a wallet with two driver’s licenses belonging to Grogan.
Grogan’s DNA was found on the firearm, along with the DNA of at least two unknown
individuals. He was arrested three days later and gave no statements to law enforcement at the
time of arrest.

        Several weeks later, Grogan agreed to speak with investigators, including Detective
Michael Volpe. They held a proffer session in which Grogan, accompanied by counsel, agreed
to provide information to the government.          And the government agreed to evaluate the
information to consider a plea deal, although it made no promises. Grogan and investigators
discussed his actions on the day of the inventory search, the items found in the car, the Autosport
Plus incident, and the kidnapping.

        Grogan signed a proffer agreement outlining when the government could use the
information he gave for impeachment or as substantive evidence:

        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.

R.94, Trial Tr., pp.424–25, PageID 805–06.

        Grogan and the government did not reach a plea deal. So the parties began preparing for
trial. Before trial, Grogan moved to suppress the evidence agents obtained during the Dodge
Journey inventory search. He challenged the arrest warrant against him for lacking factual and
legal justification and the car search for lacking reasonable suspicion.          The district court
disagreed and denied the motion. The case then moved forward to trial.

        Grogan testified against the advice of his lawyer. Grogan’s strategy was to relitigate the
motion to suppress, attacking the government’s warrants and challenging the sufficiency, quality,
and credibility of their evidence. He argued that the government had no basis for investigating
 No. 22-3651                       United States v. Grogan                                 Page 4


him on December 7. He testified that he “was not involved in” the kidnapping and detailed the
incident. R.94, Trial Tr., p.401, PageID 782. Referring to the kidnapping victim, Grogan said,
“I don’t even know this boy.” 

, PageID 783. As for the Autosport Plus incident,
Grogan testified that the incident “did not involve me,” and “I didn’t have anything to do with
that situation.” 

, PageID 785. Grogan also called Pope “very dishonest,” and
referenced text messages “that would discredit her testimony.” 

, PageID 777.

       On cross-examination, Grogan admitted to driving the Dodge Journey on the day of the
search, explaining that he borrowed the car from his cousin. When the government asked
Grogan if he jumped out the window of Pope’s home, he invoked the Fifth Amendment. When
the government asked if the firearm and drugs were his, Grogan again invoked the Fifth
Amendment. In response to the invocations, the government replied, “Okay” twice and “Okay.
That’s fine.” 

, PageID 788, 797.

       Grogan also said, referencing the kidnapping, “I could prove that I wasn’t involved in
anything.” 

, PageID 796. After cross-examination, Grogan said about the Autosport
Plus incident, “I was just literally a standby-er, and I didn’t have anything to do with that
incident.” 

, PageID 800.

       To rebut Grogan’s testimony, Detective Volpe testified about Grogan’s statements during
the proffer session. According to Detective Volpe, Grogan admitted that he jumped out of
Pope’s window as police approached the home, and that the wallet, firearm, and drugs in the car
were his. Grogan also admitted to driving the Dodge Journey in chase of a red pickup truck after
an argument at the Autosport Plus store, while another man shot at the pickup truck from the
vehicle’s passenger window. The firearm used in this incident was the same firearm that police
later recovered in the vehicle.

       According to the proffer, Grogan said “he loaned his Dodge Journey to Chance Young to
be used in the kidnapping,” the week before the search because of a debt that “Mr. Grogan owed
Chance Young.” 

, PageID 815. Detective Volpe also said that the kidnapping
involved four people, and two of them had been prosecuted for their roles in the kidnapping.
 No. 22-3651                        United States v. Grogan                                Page 5


       Grogan was found guilty on all three counts. The court sentenced him to a total term of
imprisonment of 185 months. Grogan timely appealed. He now challenges the trial court’s
admission of his proffers.

                                                II.

                                                A.

       A statement made during plea negotiations is ordinarily not admissible at trial. Fed. R.
Evid. 410.   But a defendant can agree “to waive the exclusionary provisions of the plea-
statement Rules.” United States v. Mezzanatto, 

 (1995). For example, a
defendant can consent to the government’s use of his proffer statements in court if he offers
inconsistent evidence. See United States v. Shannon, 

 (6th Cir. 2015).

       This court takes a two-step approach to deciding whether the district court properly
admitted a proffer. First, we interpret the proffer agreement de novo. 

 Second, if the proffer
agreement applies, we “review for abuse of discretion the district court’s evidentiary rulings
admitting [the] proffer statements, and we will not reverse unless an error affects a ‘substantial
right.’” 

 (quoting United States v. Barrow, 

 (2d Cir. 2005) (further citation
and quotation marks omitted)). So we review de novo the kind of inconsistency the proffer
agreement requires, but otherwise review the evidentiary ruling for abuse of discretion. See id. at
783.

       Both parties agree that Grogan approved of a partial waiver of Rule 410 objections, and
Grogan does not challenge the validity of the proffer agreement per se. Rather, Grogan argues
that the government could not introduce his proffers at trial because Grogan did not testify
inconsistently or present evidence or arguments that contradicted his proffer. The government
has two theories in response: first, it contends, with respect to some statements, that Grogan
testified inconsistently when he invoked the Fifth Amendment at trial; second, it argues, for all
the evidence, that specific statements and arguments made during the trial contradicted his
proffers. We reject the government’s first theory. On the second, we find that only one of
Grogan’s trial statements contradicted his proffers under the agreement.
 No. 22-3651                        United States v. Grogan                                Page 6


       Statements are inconsistent “only if the truth of one implies the falsity of the other.”
Shannon, 

 (quoting United States v. Krilich, 

, 1025–26 (7th Cir.
1998)). Impeaching a witness or “questioning his credibility and accuracy” is not necessarily
inconsistent with a defendant’s earlier admission of guilt. 

 But impeachment crosses into
inconsistent testimony when a defendant tries to create a contrary factual inference. Id. at 786.

                                                B.

       We now consider the proffer admissions individually starting with the most important,
which is Grogan’s admission that he owned the drugs in the car.

                                                1.

       The government contends that Grogan’s invocation of the Fifth Amendment and refusal
to answer the government’s question about whether he owned the drugs conflicted with his
proffer statement. Recall that when the prosecution specifically asked Grogan whether the drugs
were his, he refused to answer—invoking the Fifth Amendment. The government says that
Grogan’s invocation of the Fifth Amendment amounted to a specific denial that he owned the
drugs. And according to the government, this means that Grogan “testified” inconsistently with
his proffer statement on the drug ownership.

       So the question is whether invoking the Fifth Amendment implies the falsity of a prior
admission. We think the answer is no. For one, a defendant’s refusal to testify has no factual
content that could contradict a purportedly different factual statement. Grogan wasn’t making a
factual statement.   It’s true that Grogan invoked the Fifth Amendment in response to the
government’s specific factual question. But this means only that the government’s argument
depends on drawing an inference or implication from Grogan’s invocation.

       And, simply stated, the Supreme Court has told us that “no inferences whatever can be
legitimately drawn” from invoking the Fifth Amendment. Johnson v. United States, 

, 196–97 (1943) (noting a defendant “might well be entrapped if his assertion of the privilege
could then be used against him”); see also DePew v. Anderson, 

 (6th Cir.
2002) (“As a general matter, a comment by the prosecution on a defendant’s failure to testify
 No. 22-3651                         United States v. Grogan                               Page 7


violates the Fifth Amendment.” (citing Griffin v. California, 

 (1965))). It’s true
that these cases were decided in a different context than this one, but we see no meaningful
difference in the application of the principle here.

       The inference is also backward here.            Usually, when a defendant pleads the Fifth
Amendment, the inference that we are concerned with is that the jury will infer guilt. See
Griffin, 

 (noting the accused’s refusal to answer a question accords with guilt and
is often interpreted by a jury in that way even if the state cannot draw the same inference);
Combs v. Coyle, 

, 281–82 (6th Cir. 2000). In other words, by invoking the Fifth
Amendment, a jury may naturally infer that Grogan was admitting that the drugs were his. But
that’s what he said in his proffer. So even if we could draw that inference, it would show
consistency––not inconsistency as the government alleges. In any event, no inference can be
drawn. See Johnson, 

. So by invoking his Fifth Amendment right in response to
the government’s questioning, Grogan did not contradict his proffer statement and its admission
on that ground was improper.

       To avoid this conclusion, the government argues that Grogan waived his Fifth
Amendment privilege against self-incrimination by testifying. But whether Grogan properly
invoked the Fifth Amendment only matters for whether the district court could compel him to
answer, not whether invoking the right provides inconsistent factual content in our context.
Indeed, Grogan’s invocation of the Fifth Amendment is what the government now contends
permitted the introduction of his proffer on the drugs.

       Regardless, the government forfeited any objection to Grogan invoking his Fifth
Amendment right when it didn’t raise the issue at trial. United States v. Russell, 

,
375 (6th Cir. 2022) (finding the “government’s failure to raise [an] argument below was…a
forfeiture” when the government raised the issue for the first time in its opening brief on appeal).
In fact, the government arguably consented to Grogan’s invocation at trial by responding
“Okay.” and “Okay. That’s fine.” R. 94, Trial Tr., pp.407, 416, PageID 788, 797. The
government now tries to reframe these responses as “merely acknowledg[ing] that Grogan had
asserted the privilege.” Appellee Br. at 16 n.2. In any event, the government forfeited the
argument by failing to raise it before the trial court. See Russell, 26 F.4th at 375.
 No. 22-3651                        United States v. Grogan                                Page 8


       We may review a forfeited issue for plain error. Id. at 374. But the government’s
argument still fails. To succeed, “the government must show that the forfeited error was clear
and affected its substantial rights.” Id. at 376 (citing United States v. Olano, 

, 733–
34 (1993)). The government argues the district court erred in allowing Grogan to invoke the
Fifth Amendment because when a defendant testifies, he cannot claim to be immune from cross-
examination on a matter he has elected to put in dispute through his direct testimony.

       But Grogan did not put his proffers in dispute through his direct testimony. Grogan’s
direct focused on discrediting the government’s warrants and its basis for investigating him. On
cross, Grogan invoked the Fifth Amendment only after he was asked about his ownership of the
drugs, evasion of police, and ownership of the firearm. So even if the government is correct that
Grogan cannot invoke the Fifth Amendment on matters he put in dispute, there was no plain
error because that did not happen. Grogan did not put his proffers in dispute.

                                                    2.

       Beyond Grogan’s invocation of the Fifth Amendment, the government points to some of
Grogan’s direct testimony as being inconsistent with his proffer on the drug ownership. Again,
the government can show inconsistency by demonstrating that Grogan’s evidence or arguments
at trial “implie[d] the falsity” of his proffers. Shannon, 

. The government points
to Grogan’s testimony stating:

       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.

R.94, Trial Tr., pp.395–96, PageID 776–77.        According to the government, this statement
amounts to an implicit denial that he possessed a firearm and owned the drugs found in the car.
Although it’s close, we disagree. Recall that Grogan’s testimony primarily tried to undermine
the sufficiency and reliability of the government’s evidence generally, not the accuracy of the
specific facts. And his main strategy was to try to question the integrity of the searches
themselves.
 No. 22-3651                          United States v. Grogan                             Page 9


        To that end, he questioned how the government had the firearm (which came from the
search of the car) and how it got any inkling that he participated in any criminal activity in the
first place. But his statement does not deny his drug dealing, his felon status, or his possession
of a firearm or drugs. Grogan’s statement speaks only to the sufficiency of the proof against him
and “the government’s responsibility to prove every necessary element of the offenses charged.”
United States v. Wood, 

 (6th Cir. 1986).

        So the issue comes down to this—does questioning whether the government can prove
that you did something amount to a denial that you did it? The Second Circuit has said no, and
we agree. See United States v. Rosemond, 

 (2d Cir. 2016). There, like here, a
proffer agreement allowed the government to introduce the defendant’s proffer statements if he,
either directly or impliedly, made “a factual assertion at trial that contradicts a statement made
during the proffer session.” 

. The defendant was on trial for murder and argued the
government had failed to prove his intent to murder the victim. 

. The court held this
sufficiency argument did not contradict the defendant’s proffers and trigger their admission. 

To hold otherwise, the court explained, “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.” 

 (internal quotation marks omitted).

        We agree. This view accords with Shannon, which distinguished between statements
questioning the “credibility and accuracy” of another witness’s testimony from statements that
denied a defendant’s guilt. 

. While the latter contradicts a proffer statement, the
former does not. See 

 The Second Circuit in Rosemond compared sufficiency arguments to
credibility arguments, explaining that “[s]uch attacks do[ ] not necessarily imply that the 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.” 

 (second alteration in original) (internal quotation marks omitted).
Grogan’s testimony that Pope was “very dishonest” is another example of him questioning the
credibility and accuracy of her testimony. R. 94, Trial Tr., p.396, PageID 777. But it does not
rise to the level of contradicting his proffers.
 No. 22-3651                         United States v. Grogan                             Page 10


       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.

                                                C.

       Grogan also points to five other proffers he claims the trial court erred in admitting:
(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.” R. 94, Trial Tr., pp.427–34, PageID 808–15.

       Proffers 1 & 2. Grogan invoked the Fifth Amendment when the government asked if he
owned the firearm and if he jumped out of Pope’s window. For the reasons outlined above,
Grogan’s invocation of the Fifth Amendment is not inconsistent with his proffer statements. So
admission of these statements was improper.

       Proffer 3. In his proffer, Grogan admitted the wallet found in the Dodge Journey
belonged to him. When asked about the wallet at trial, Grogan first said that “[t]he Government
was in no position to be in that vehicle.” R. 94, Trial Tr., p.407, PageID 788. When the
government continually asked about the wallet, Grogan returned to his contention that the agents
obtained it wrongfully, noting that the “wallet was not entered into the inventory report,” that he
had an “expectation of privacy in that vehicle,” and that “the evidence that the Government is
presenting is insufficient.” Id. at p.409, PageID 790. Eventually, Grogan admitted that the
driver’s licenses in the wallet were his.

       Again, Grogan’s statements question the sufficiency of the government’s evidence but do
not amount to a denial that he owned the wallet. If anything, his admission that his driver’s
licenses were in the wallet accords with his proffer. Grogan undeniably evaded the questions
about the wallet, but evasion does not amount to inconsistency. So admission of this proffer was
also improper.
 No. 22-3651                        United States v. Grogan                             Page 11


       Proffer 4. At trial, Grogan claimed the Autosport Plus shooting “did not involve” him
and that he “didn’t have anything to do with that situation. Not one part.” Id. at p.404, PageID
785. Later, Grogan clarified that he “was operating a Dodge Journey vehicle” during the
Autosport Plus incident but contended that “the government has failed to inform the jury that
[he] was not the participant of the actual incident that occurred.” Id. at pp.418–19, PageID 799–
800. Grogan continued that he “was literally a standby-er” and “didn’t have anything to do with
that incident.” Id. at p.419, PageID 800. But in his proffer, Grogan admitted he was present at
the store during the verbal altercation, that he drove the car, and that he followed the other car
while his passenger discharged the firearm.

       Grogan’s testimony that he was “not involved” contradicts this proffer. Grogan argues
this inconsistency was cured by his clarification that he was not involved in the shooting. We
disagree. This statement—which minimized his involvement to that of a mere “standby-er”—
contradicts his proffer statement, where he confirmed his active involvement in the car chase
while his passenger used his firearm to assault the other driver. The admission of this proffer
statement was not an abuse of discretion.

       Proffer 5.    In his testimony, Grogan also claimed he was “not involved in” the
kidnapping and “[didn’t] even know” the victim. R. 94, Trial Tr., pp.401–02, PageID 782–83.
Grogan questioned the government’s evidence of the kidnapping by challenging the judge’s
signature on the warrant, the police report it was based on, and an “impermissibly suggest[ive]”
photo array done with the victim. Id.

       The government argues this testimony contradicted Grogan’s proffer that he loaned his
borrowed car to one of the kidnappers to be used in the crime as repayment for a debt owed to
the kidnapper. It also argues Grogan’s testimony contradicted his proffer that the kidnappers
knew someone who had burglarized them and wanted Grogan to go with them to look for the
suspect, but Grogan refused and allowed them to use his car instead. But Grogan’s statements at
trial are not inconsistent with these proffers because one does not “impl[y] the falsity of the
other.” Shannon, 

. It may be true that Grogan loaned his car to the kidnapper
without personally knowing the victim or being involved with the kidnapping itself. Nowhere in
the proffer does Grogan claim he knew the victim personally or even knew what the kidnappers
 No. 22-3651                        United States v. Grogan                             Page 12


planned to do once they left with his car. So Grogan’s testimony at trial was not inconsistent
with his proffer and admission of the proffer was improper.

       The government suggests these five proffers may serve as background or res gestae
evidence.   Such evidence is admissible in limited circumstances to show conduct that is
“inextricably intertwined” with the charged offense. United States v. Clay, 

(6th Cir. 2012) (quoting United States v. Hardy, 

 (6th Cir. 2000)). But it is not
a backdoor to get around other evidentiary rules. 

 at 697–98. Evidence admissible under this
principle “contains severe limitations as to ‘temporal proximity, causal relationship, or spatial
connections’ among the other acts and the charged offense.” 

 at 698 (quoting Hardy, 

). Generally, this category includes evidence that “is a prelude to the charged offense, is
directly probative of the charged offense, arises from the same events as the charged offense,
forms an integral part of a witness’s testimony, or completes the story of the charged offense.”

 (quoting Hardy, 

).

       But the government does not explain why it needed to provide background except to
“rebut[] Grogan’s inconsistent testimony” that “the December 7th search of his Dodge Journey
was based on an invalid search warrant containing fraudulent allegations.” Appellee Br. at 26–
27. Nor does it explain why the proffer was the necessary vehicle to provide that background
evidence. If the government thought Grogan’s discussion of the warrants was improper, it
should have objected to his testimony rather than presenting evidence that violated the terms of
the proffer agreement.

                                               III.

       Even if the district court erred in admitting the proffers, we will not reverse unless the
error was harmful. An error is harmful if we lack fair assurance “that the judgment was not
substantially swayed by the error.” United States v. Craig, 

, 906 (6th Cir. 2020)
(quoting Kotteakos v. United States, 

 (1946)). Said differently, an error is
harmless “unless it is more probable than not that the error materially affected the verdict.”
United States v. Jaffal, 

, 602 (6th Cir. 2023) (quoting United States v. Warshak, 

 (6th Cir. 2010)).
 No. 22-3651                         United States v. Grogan                               Page 13


       If the evidence admitted at trial is overwhelmingly indicative of guilt, an error may be
harmless. See United States v. Rogers, 

 (6th Cir. 1997); see also United States
v. Murphy, 

 (6th Cir. 2001) (finding harmless error in light of “overwhelming”
other evidence of guilt); United States v. Haywood, 

 (6th Cir. 2002) (“Whether
the jury was ‘substantially swayed’ by the improper admission of evidence. . . in a criminal trial
generally depends on whether the properly admissible evidence of the defendant's guilt was
overwhelming.”). But it is not just about the other evidence admitted at trial. We must also
consider the prejudicial effect of the improperly admitted evidence. Craig, 953 F.3d at 907
(“[T]he inquiry cannot be merely whether there was enough to support the result, apart from the
phase affected by the error.     It is rather, even so, whether the error itself had substantial
influence.” (internal quotation marks omitted)). Here, both issues are at play. So 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., 

, 629 (6th Cir. 2020).

       Although we’ve found that the district court should not have admitted testimony about
several of the proffer statements, we focus on the admission of the proffer on the drug
ownership. As we explain, the prejudicial effect of that error was harmful enough to warrant a
new trial.

       Start with possession. The government had to prove that Grogan knowingly possessed
the drugs that police found in the car. See United States v. Coffee, 

 (6th Cir.
2006). That possession can be actual or constructive. United States v. Crump, 

, 298
(6th Cir. 2023). Here, there was no evidence of actual possession, so the government’s theory
was constructive possession.     Constructive possession requires the defendant to knowingly
exercise “ownership, dominion, or control” over either the contraband itself or the place he
concealed it. United States v. White, 

 (6th Cir. 1991) (internal quotation marks
omitted). But “[p]hysical proximity to drugs, or mere presence in an area where drugs are found,
is not sufficient.” 

 We employ the same test to show constructive possession of a firearm, so
firearms cases are instructive. See United States v. Gardner, 

 (6th Cir. 2007).
 No. 22-3651                         United States v. Grogan                            Page 14


In that context, we have found that, especially when the defendant is in nonexclusive possession
of a vehicle, the government must present some evidence beyond proximity for a jury to infer
constructive possession. United States v. Bailey, 

, 944 n.3, 947–48 (6th Cir. 2009);
United States v. Arnold, 

 (6th Cir. 2007) (finding constructive possession when
the victim saw the defendant with the gun shortly before police found the gun in the defendant’s
vehicle); United States v. Campbell, 

, 375–76 (6th Cir. 2008) (finding constructive
possession when a witness testified that there was no firearm in her vehicle before the defendant
got in, indicating he brought it with him).

       In Bailey, we held that the government presented insufficient evidence that Bailey
constructively possessed a firearm found in a vehicle that he was driving. 553 F.3d at 945–46.
The only evidence showing constructive possession was that Bailey drove the vehicle where
police found the firearm. 

 at 944–46. His fingerprints were not on the firearm. Id. at 946.
The vehicle was not his––he had borrowed it. Id. And someone else used the vehicle on the
night he was arrested and in the days before. Id. The government tried to argue that because
Bailey fled from the police, the jury could infer that Bailey fled to avoid being found with the
firearm. Id. at 945–46. But the court rejected that theory. Id. at 946. Bailey also had drugs in
his pocket, so evading arrest could just as likely been linked to evading detection of the drugs.
Id. Thus, “no juror could conclude beyond a reasonable doubt that the mere fact that Bailey was
driving the car meant that Bailey” possessed the gun. Id.

       This case is like Bailey––though the government’s evidence is stronger. Aside from
Grogan’s proffer admitting ownership of the drugs, the government’s primary evidence of
constructive possession was that police found the drugs in the vehicle he was driving. The
government never tested the drugs for Grogan’s DNA—which would have settled the issue.
R. 94, Trial Tr., pp.300–01, PageID 681–82. And although Grogan had borrowed the vehicle for
about a year total, Detective Volpe’s testimony indicated that seven days before his arrest,
Grogan had loaned it to his friends. Additionally, Grogan testified that he had just gotten the
vehicle out of the shop five or six days before his arrest. So Grogan was not in exclusive
possession of the vehicle in the week before the drug’s discovery—although it appears that he
had possession in the time frame immediately leading up to the search. Had the drugs been in
 No. 22-3651                        United States v. Grogan                                Page 15


plain view, the government may have shown that Grogan knew they were there. But they were
not. They were inside a box in the center console. And unlike prior cases finding constructive
possession, no one saw the drugs in Grogan’s hands, and no one could confirm when the drugs
entered the vehicle. See Arnold, 

; Campbell, 549 F.3d at 375–76.

       Here, the government argues that because Grogan drove the car, and it had his ID and a
bank receipt with his name on it inside, he must have also placed the drugs in the car. To be
sure, this is something, but it mostly shows proximity to the drugs. It’s not overwhelming
evidence of constructive possession. Grogan’s ex-girlfriend testified that he ran from police on
the day of his arrest. But like Bailey, this may have been an attempt to avoid discovery of
Grogan’s other contraband—––the firearm that did have his DNA on it. Under Bailey, without
Grogan’s proffer admitting ownership of the drugs, it is not clear that the “mere fact that
[Grogan] was driving the car meant that [he] had placed” the drugs in the center console. 

.

       But regardless of whether we think the government presented sufficient evidence of
constructive possession, we aren’t resolving that precise question here. Ultimately, we are
assessing the impact of admitting what was essentially Grogan’s drug-ownership confession. So
we evaluate the impact of the proffer statement in light of the strength of the remaining evidence
that we just discussed. See Craig, 953 F.3d at 907 (explaining the question is not “merely
whether there was enough [remaining evidence] to support the result” in isolation, but rather,
whether the error itself likely had a prejudicial effect on the verdict (internal quotation marks
omitted)).

       And to that, we find that 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.” Id. at 906 (quoting Kotteakos, 

).

       A confession, unlike other evidence, is “extremely probative of guilt.” United States v.
Wolf, 

 (6th Cir. 1989). To determine whether an improperly admitted
confession is harmless, we consider whether “absent” the confession, “it is clear beyond a
 No. 22-3651                         United States v. Grogan                               Page 16


reasonable doubt that the jury would have returned a verdict of guilty.” 

 Our precedent
indicates that confessions are likely to be harmful when the prosecution makes a point of
highlighting the admission or uses the admission to add color to circumstantial evidence. See 

at 1324–25 (holding that an improperly admitted voluntary confession “played too important a
role in this case to warrant a finding of harmless error,” especially when the prosecution relied
on it four times in closing argument); see also United States v. Zakhari, 

, 378 (6th
Cir. 2023) (reversing conviction after the wrongful admission of a confession of attempted
statutory rape because “the power of a confession” eclipsed other supporting evidence).

       The government did exactly that––it repeatedly relied on Grogan’s confessions in its
closing statement. The government encouraged the jury to “[l]isten to even what Juan said, what
Mr. Grogan said.” R.94, Trial Tr., pp.484, PageID 865. And worked through each of the proffer
admissions. Given the government’s heavy reliance on Grogan’s improperly admitted proffers,
and the lack of direct evidence aside from his confession showing possession of the drugs, we
find it “more probable than not that the error materially affected the verdict.” Jaffal, 79 F.4th at
602 (internal quotation marks omitted); see also Arizona v. Fulminante, 

(1991) (majority opinion) (“[C]onfessions have profound impact on the jury, so much so that we
may justifiably doubt its ability to put them out of mind even if told to do so.” (internal quotation
marks omitted)).

       Because the district court’s improper admission of Grogan’s proffer confessing
ownership of the drugs was harmful and requires reversal, we need not individually assess the
harmful effect of the other improper proffer admissions.

                                                IV.

       For the reasons stated, we REVERSE and REMAND for further proceedings consistent
with this opinion.