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Thomas v. United States

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Argued February 11, 2009

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and STEADMAN, Senior Judge.

Appellants Keith Thomas and Ron Herndon were tried jointly before a jury. Each was convicted of first-degree premeditated murder while armed and possession of a firearm during a crime of violence. The government’s proof at trial included four out-of-court statements that Thomas or Herndon had made to a relative or other acquaintance. To a greater or lesser degree, each of these statements inculpated not only its maker but also his co-defendant at trial. Two of the statements were admitted against both defendants on the trial court’s determination that they qualified under the hearsay exception for declarations against penal interest (in addition to being admissions of a party-opponent). The other two statements were admitted only against their maker, in one case with redactions to exclude incriminating references to the co-defendant. The principal issue in these consolidated appeals is whether the admission of these four statements violated appellants’ rights under either the Confrontation Clause of the Sixth Amendment as interpreted by the Supreme Court in Bruton v. United States*fn1 and Crawford v. Washington*fn2 — inasmuch as Thomas and Herndon did not testify and hence could not cross-examine each other about the statements — or Criminal Rule 14*fn3 as construed by this Court in Carpenter v. United States.*fn4

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