United States v. Krilich

Robert Krilich (defendant) developed properties. To finance an apartment complex, Krilich needed assured support from the mayor. Krilich sponsored a hole-in-one contest at the ninth hole of a local country club and used it as a cover for a bribe to the mayor, so that the National Hole-in-One Association would provide insurance paying the prize if someone made a hole in one. The mayor’s son appeared to win the prize, but Krilich had simply taken the ball and slipped it into the hole to fake a hole in one. Krilich admitted this in a proffer agreement with a United States attorney. The proffer included a conditional waiver permitting the prosecutor to use Krilich’s statements against him at trial if Krilich presented a position inconsistent with the proffer, either through his own testimony or evidence presented through others’ testimony. At trial, Krilich’s counsel elicited a variety of testimony on cross-examination. Several witnesses stated the ninth hole was close to and clearly visible from the clubhouse. Under the counsel’s questioning, two witnesses stated they were at the ninth hole when the shot was made but did not think Krilich was present. Krilich’s counsel also elicited testimony from the vice president of Krilich’s company that he knew of no bribes paid in connection with company projects. The prosecutor used some of the statements in the proffer against Krilich at trial, and Krilich was convicted. Krilich appealed, arguing that the district court erred in allowing the prosecutor to use the contents of the proffer against him because the evidence was elicited on cross-examination rather than through Krilich’s own witnesses.