The United States government (plaintiff) prosecuted Bernard McKeon (defendant) for illegally exporting firearms. The government's case rested on incriminating photocopies allegedly made by McKeon's wife. McKeon's first two trials ended in mistrial. The same attorney represented McKeon at both the second and third trials. The attorney's opening statement at the second trial asserted McKeon’s wife could not have made the photocopies. The attorney's opening statement at the third trial said McKeon’s wife innocently made the photocopies for another person who was the real gun exporter. The government introduced the earlier statement to show its inconsistency with the later statement, which the government argued implied McKeon’s consciousness of his guilt. The jury convicted McKeon. and he appealed to the United States Court of Appeals for the Second Circuit, arguing the judge should have excluded the attorney's previous opening statement.