U.S. v. McKeon
| Citation | 738 F.2d 26 |
| Decision Date | 20 June 1984 |
| Docket Number | D,No. 834,834 |
| Parties | 15 Fed. R. Evid. Serv. 1409 UNITED STATES of America, Plaintiff-Appellee, v. Bernard McKEON, Defendant-Appellant. ocket 83-1340. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Joseph Calluori, New York City (Michael Kennedy, Michael Kennedy, P.C., New York City, on the brief), for defendant-appellant.
Marion J. Bachrach, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., Ronald DePetris, Chief Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for plaintiff-appellee.
Before OAKES, VAN GRAAFEILAND and WINTER, Circuit Judges.
Following a trial before Judge Platt and a jury, appellant Bernard McKeon was convicted in the Eastern District of New York on one count of conspiracy to export firearms in violation of 18 U.S.C. Sec. 371. McKeon was acquitted of eight substantive counts concerning the illegal exportation of firearms. The trial was McKeon's third on these charges, the first two having ended in mistrials. At issue on appeal is Judge Platt's admission into evidence at the third trial of portions of the opening statement made by McKeon's lawyer at the second trial and the resulting disqualification of that lawyer.
We affirm.
On October 31, 1979, Irish police in Dublin found firearms in crates sent from New York supposedly containing electric paper drills. The alleged shipper of the crates, "Standard Tools," was a fictitious New York corporation which gave as its address a building in Queens, New York, owned by Bernard McKeon.
Officials of the United States Customs Service investigated the origin of the seized shipment and unearthed several shipping and warehousing documents relating to the shipment signed by one "John Moran." On at least one of these documents, which bore the Standard Tools letterhead, they discovered fingerprints of McKeon and his wife, Olive McKeon. After learning that McKeon owned the building given by Standard Tools as its mailing address, Customs Service agents interviewed him. McKeon told the agents that he had rented space to Standard Tools for use as a mail drop, explaining that this arrangement had been worked out after he had been approached on the street by John Moran or a party claiming to represent John Moran.
McKeon's first trial on federal firearms charges took place in December, 1982 and ended in a mistrial when the jury was unable to reach a verdict. Prior to McKeon's second trial, a government handwriting and photocopy expert concluded that warehousing and shipping documents supposedly prepared by representatives of Standard Tools, were photocopies produced on the xerox machine located in the bank in which Olive McKeon worked. The defense was apprised both of the expert's identity and his conclusions. In his opening statement at the second trial, Michael Kennedy, McKeon's lawyer 1 told the jury that the evidence would show that McKeon had innocently helped build packing crates for his tenant, John Moran, and that Moran alone was responsible for the Standard Tools' shipment of weapons. Kennedy then declared:
With reference to the place where Olive McKeon works, expert testimony is going to be brought in to show that the Xerox machine ... where Mrs. McKeon worked is not--I repeat--is not the same kind of Xerox machine that prepared any of the Standard Tools Xeroxed documents.
The evidence will also indicate that Mrs. McKeon had absolutely nothing to do with this case other than doing what many wives do, which is, picking up mail and opening it. That is the extent, the sum and substance of her involvement.
The second trial ended in a mistrial before the conclusion of the prosecution's case-in-chief when the defense moved for access to classified documents regarding alleged foreign wiretaps. As a consequence, the expert testimony promised by Kennedy in his opening statement was never offered.
Kennedy's opening statement at the third trial depicted Olive McKeon's role in the events differently than had his opening statement at the second trial. At the third trial, Kennedy told the jury that Bernard McKeon gave his wife the warehouse receipt and some Standard Tools stationery so that she might make two photocopies on the stationery using the bank's xerox machine. This was done, Kennedy said, as a favor to John Moran. He thus continued to picture Bernard McKeon as the innocent dupe of John Moran.
The next day, outside the presence of the jury, the prosecution moved to introduce as evidence the above-quoted portion of Kennedy's opening statement from the second trial. Arguing that the statement was the admission of a party-opponent under Fed.R.Evid. 801(d)(2), the prosecution suggested that it should be imputed to McKeon for any of the following reasons: (i) it was a statement in which McKeon had "manifested his adoption or belief in its truth," id. 801(d)(2)(B); (ii) it was "a statement by a person authorized by [McKeon] to make a statement concerning the subject," id. 801(d)(2)(C); and (iii) it was "a statement made by [McKeon's] agent ... concerning a matter within the scope of his agency," id. 801(d)(2)(D). The government argued that the inconsistencies in Kennedy's statements were relevant to prove McKeon's consciousness of guilt under Fed.R.Evid. 404(b). Judge Platt ruled that Kennedy's opening statement at the second trial was admissible as an admission under Rule 801(d)(2).
Judge Platt's ruling precipitated another urgent issue, namely, whether Kennedy could continue as McKeon's trial counsel. N.Y.Jud.Law, Disciplinary Rule 5-102(A) (McKinney 1975) of the Code of Professional Responsibility requires that when "it is obvious that [a lawyer] ... ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial." The prosecution argued that since Kennedy "ought" to be called as a witness to explain the difference between the two opening statements, he could not continue as trial counsel. To counter this argument, McKeon expressed his willingness (through Kennedy) to waive his right to call Kennedy as a witness. McKeon (again through Kennedy) was unwilling, however, to waive his right to have Kennedy argue the credibility of any witness (including McKeon) regarding testimony concerning conversations between the witness and Kennedy which might have prompted Kennedy to portray events differently at the two trials. Judge Platt believed the proffered waiver insufficient to resolve the Disciplinary Rule 5-102(A) problem since, if Kennedy argued the credibility of such a witness, he would implicitly be arguing his own credibility as an unsworn witness. As a last resort, Judge Platt offered to hear Kennedy ex parte and in camera on the reasons for the change in opening statements, but his offer was not accepted.
After ruling that Kennedy could not continue as trial counsel, Judge Platt adjourned the proceedings so that McKeon could obtain independent legal advice. When court reconvened, McKeon indicated his decision to proceed pro se. He refused both to take an interlocutory appeal of the disqualification decision or to retain other counsel, asserting that Kennedy was the only lawyer he wished to represent him and that he and his wife could tolerate no further delay in the resolution of the matter. After extensive questioning to determine whether McKeon understood the consequences of his decision, Judge Platt concluded that McKeon's waiver of his right to counsel was valid. The trial then went forward with McKeon conducting his own defense, although Kennedy was free to advise McKeon or make legal arguments outside the presence of the jury. 2
As part of its case-in-chief, the government introduced the above-quoted portions of Kennedy's opening statement from the second trial. It also put on its expert witness in photocopying, James Kelly, who testified that between the second and third trials he met a former student, Jim Horan, and told him that he, Kelly, had been hired by the prosecution to testify at the third McKeon trial. Horan had been hired as the expert witness for the defense; until his meeting with Kelly, the defense had believed that the prosecution's expert witness would be one Peter Tytell, another former Kelly student. In summation, the prosecution argued that so long as the defense believed that Horan and Tytell would offer conflicting testimony about the xerox machine on which the copies were produced, it was prepared to contend that Olive McKeon did not xerox the warehouse receipt. Once it discovered that the teacher, Kelly, would dispute his pupil, Horan, at the third trial, the defense elected to present a different version of the facts--viz. that the receipt had been xeroxed by Olive McKeon at her workplace but for innocent reasons. The prosecution's summation dwelt at length on the change in stories as manifested by the opening statements, arguing that it established McKeon's consciousness of guilt.
This appeal followed McKeon's conviction on a single count of conspiracy.
The parties agree that the evidentiary use against a criminal defendant of his counsel's argument to a jury in an earlier trial is without direct precedent. Although guidance is found in the rules and underlying policies of the law of evidence, the issue raises a number of difficulties since it touches upon numerous sensitive areas including: communications between criminal defendants and their attorneys, the privilege against self-incrimination, fear of impeachment by a prior conviction, the work product, legal theories and trial tactics of the attorney, the freedom of the attorney to engage in uninhibited and robust advocacy, the right to counsel of one's choice, and the usual issues of relevance, confusion and unfair prejudice as well.
We begin with the general proposition that "[s]tatements made by an attorney concerning a matter within his...
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