CA6: By testifying at trial searches were based on false evidence, def violated proffer agreement; govt should have objected, not violated it, too

Defendant’s trial testimony about his searches being based on falsities violated his proffer agreement, but, rather than objecting, the government’s putting in more evidence violated it, too. (But harmless error.) United States v. Grogan, 2025 U.S. App. LEXIS 7094 (6th Cir. Mar. 27, 2025):

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, 667 F.3d 689, 697 (6th Cir. 2012) (quoting United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000)). But it is not a backdoor to get around other evidentiary rules. Id. 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.” Id. at 698 (quoting Hardy, 228 F.3d at 749). 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.” Id. (quoting Hardy, 228 F.3d at 748).

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.