## Facts

- Irish police found firearms in crates shipped from New York to Dublin that were labeled as electric paper drills.
- The shipper was listed as “Standard Tools,” described as a fictitious corporation using the address of a Queens building owned by Bernard McKeon.
- Shipping and warehousing documents on Standard Tools letterhead were signed “John Moran”; fingerprints of McKeon and his wife were found on at least one document.
- McKeon told federal agents he merely rented space as a mail drop to Standard Tools after being approached by someone claiming to represent “John Moran.”
- A government expert concluded key shipping/warehousing documents were photocopies made on a Xerox machine at the bank where Olive McKeon worked; the defense was informed before the second trial.
- In opening at the second trial, defense counsel asserted a factual theory that McKeon innocently helped his tenant Moran and that Mrs. McKeon did not make the incriminating photocopies.
- In opening at the third trial, the same counsel acknowledged Mrs. McKeon made the photocopies but argued she did so innocently for someone else.
- The government introduced portions of counsel’s second-trial opening at the third trial as evidence of an inconsistent defense narrative, and the court disqualified that lawyer after the opening became part of the evidentiary record.
- After two mistrials, McKeon’s third trial ended in conviction for conspiracy to export firearms and acquittal on eight substantive export counts.

## Issues

1. When, if ever, may the government introduce a defendant’s prior-trial opening statement by defense counsel as substantive evidence (including as an admission)?
2. Whether the trial court properly disqualified defense counsel after admitting portions of counsel’s prior opening, making counsel a potential witness.

## Decision

- The Second Circuit affirmed the conviction.
- The court held there is no per se bar to admitting a prior opening statement by defense counsel as an evidentiary admission.
- The court approved a restrictive, case-by-case standard requiring clear inconsistency, a showing the statement was a deliberate tactical choice attributable to the defendant, and trial-court screening for unfair prejudice.
- Applying those conditions, the court held the second-trial opening was properly admitted because it directly conflicted with the third-trial opening on a material factual point and reflected a conscious defense-theory change.
- The court upheld disqualification of defense counsel because admission of the earlier opening placed counsel in the position of a potential witness and raised advocate-witness and jury-confusion concerns.

## Legal Principles

- Attorney statements may qualify as party admissions under Federal Rule of Evidence 801(d)(2) when they assert facts inconsistent with the party’s position at a later proceeding and are fairly attributable to the client.
- Because opening statements are predictive and may reflect good-faith misestimation, their use as admissions requires safeguards rather than automatic admissibility.
- A prior opening may be admitted only if:
  - it contains a clear, direct factual assertion inconsistent with a later factual assertion at a subsequent trial;
  - the statement reflects a deliberate tactical decision (or otherwise is fairly attributable to the defendant), not mere mistake or speculation; and
  - the trial court determines probative value is not substantially outweighed by unfair prejudice under Federal Rule of Evidence 403, considering potential chilling effects on defense advocacy.
- When counsel’s prior statements become evidence such that counsel may need to explain or be examined about them, disqualification may be warranted under the advocate-witness rule to protect trial integrity.

## Conclusion

The Second Circuit held that a defense attorney’s prior-trial opening statement can be admitted as a party admission in limited circumstances when it reflects a deliberate, materially inconsistent factual theory, and it further held that admitting such a statement may justify disqualifying counsel who becomes a potential witness.


United States v. McKeon, 738 F.2d 26 (2d Cir. 1984)