United States v. Mckeon

738 F.2d 26 (2nd Cir. 1984)

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Nature of the Case

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Facts

Irish police in Dublin, found firearms in crates sent from New York that allegedly contained electric paper drills. The shipper of the crates was Standard Tools, which was owned by a Bernard McKeon (D). D was investigated, and several documents were found with D's fingerprints on them as well as those of his wife, Olive. D's first trial ended in a mistrial. The second trial, ended in a mistrial when the Government refused to produce classified documents regarding alleged foreign wiretaps. However, during the opening statement of that trial, the lawyer portrayed Mrs. McKeon as an innocent party and that the documents were not prepared on the Xerox machine that was at the bank where she worked. During the third trial, Mrs. McKeon was portrayed differently than at the second trial. D abandoned his theory of defense relating to the Xerox machine and was now willing to admit that the documents had been xeroxed at the bank. The Government moved to introduce evidence of the lawyer's opening statement in the second trial arguing that the statement was the admission of a party opponent under Rule 801(d)(2), D was convicted and appealed.