## Facts

- Rowland Chester Thomas, codefendant Weeks, and Echols were charged with robbing a bank in Tuskegee, Alabama on December 1, 1976.
- Echols pleaded guilty and testified for the government; Weeks invoked the Fifth Amendment and did not testify at trial.
- Echols testified Weeks planned the robbery, that Thomas waited in a car at Weeks’s apartment, drove Echols and Weeks to the bank, and later picked them up after the robbery.
- Thomas testified he had not discussed any robbery, followed Weeks to Weeks’s apartment after being waved down, agreed to drive Weeks and Echols to the post office and bank, dropped them off, and then visited a friend, claiming no knowledge of any robbery plan.
- At the close of the preliminary hearing, Weeks allegedly made an out-of-court statement exculpating Thomas (to the effect that Thomas “didn’t have anything to do with it”).
- Thomas sought to introduce that statement through testimony of a U.S. magistrate; the district court excluded it as hearsay.
- The jury convicted Thomas and Weeks; only Thomas appealed, arguing the statement was admissible under Federal Rule of Evidence 804(b)(3).

## Issues

1. Whether Weeks was “unavailable” under Rule 804(a) because he invoked the Fifth Amendment at trial.
2. Whether Weeks’s statement exculpating Thomas qualified as a “statement against penal interest” under Rule 804(b)(3) when viewed in context.
3. Whether corroborating circumstances clearly indicated the statement’s trustworthiness as required when offered to exculpate an accused.
4. Whether exclusion of the statement was prejudicial error requiring reversal.

## Decision

- The Fifth Circuit reversed Thomas’s conviction and remanded.
- The court held Weeks was unavailable because he asserted the privilege against self-incrimination and did not testify.
- The court held Weeks’s statement fell within Rule 804(b)(3) because, in context, it tended to subject Weeks to criminal liability despite exculpating Thomas.
- The court found sufficient corroborating circumstances clearly indicating trustworthiness, including the formal setting and the statement’s consistency with Thomas’s defense.
- The court concluded the exclusion was not harmless because the case depended heavily on credibility and the government’s proof of Thomas’s knowing participation.

## Legal Principles

- A declarant who invokes the Fifth Amendment privilege against self-incrimination and does not testify is “unavailable” for purposes of Rule 804(a).
- A statement may qualify as “against penal interest” under Rule 804(b)(3) if, in context, it tends to expose the declarant to criminal liability, even if it also exculpates the accused.
- When an accused offers a third party’s statement to exculpate the accused under Rule 804(b)(3), admission requires corroborating circumstances that clearly indicate the statement’s trustworthiness.
- Erroneous exclusion of admissible exculpatory hearsay is reversible when it substantially affects the defense in a case that turns on witness credibility and contested intent or knowledge.

## Conclusion

The Fifth Circuit held that a non-testifying codefendant’s exculpatory statement, made in a formal judicial setting and carrying self-inculpatory implications, was admissible under Rule 804(b)(3) with adequate corroboration; excluding it was prejudicial, requiring reversal and remand.


United States v. Thomas, 571 F.2d 285 (5th Cir. 1978)