United States v. Foerster , 65 M.J. 120 ( 2007 )

UNITED STATES, Appellee
v.
James H. FOERSTER, Staff Sergeant
United States Army, Appellant
No. 07-0093
Crim. App. No. 20040236
United States Court of Appeals for the Armed Forces
Argued May 1, 2007
Decided June 20, 2007
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: Captain Eugene Ham (argued); Lieutenant Colonel
Steven C. Henricks, Major Fansu Ku (on brief).
For Appellee: Captain Magdalena A. Acevedo (argued); Lieutenant
Colonel Michele B. Shields (on brief).
Military Judge: D. Wright
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Foerster, No. 07-0093/AR
Judge RYAN delivered the opinion of the Court.
A general court-martial composed of a military judge sitting
alone convicted Appellant, pursuant to his plea, of a single
specification and charge of larceny (on divers occasions), in
violation of Article 121, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 921 (2000). Contrary to his pleas, a panel
of officers convicted Appellant of making a false official
statement, larceny (nine specifications), and forgery (nine
specifications), in violation of Articles 107, 121 and 123,
UCMJ; 10 U.S.C. §§ 907, 921, 923. The panel sentenced Appellant
to twelve months of confinement, reduction to the grade of E-1,
forfeiture of all pay and allowances, and a bad-conduct
discharge. The convening authority approved only so much of the
sentence providing for a reduction in grade to E-1, confinement
for twelve months, and a bad-conduct discharge. The Army Court
of Criminal Appeals affirmed the findings of guilt and the
sentence as approved by the convening authority in a per curiam
opinion. United States v. Foerster, No. ARMY 20040236 (A. Ct.
Crim. App. Sept. 19, 2006) (unpublished).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE ERRED BY ADMITTING INTO
EVIDENCE, UNDER MIL. R. EVID. 803(6) AND 807, AND OVER
DEFENSE OBJECTION, THE AFFIDAVIT OF SERGEANT J.P. WHO DID
NOT APPEAR AT TRIAL IN CONTRAVENTION OF THE MIL. R. EVID.
AND CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004).
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In this case, we are asked to determine whether an
affidavit filled out by a victim of check fraud pursuant to
internal bank procedures and without law enforcement involvement
in the creation of the document is admissible as a non-
testimonial business record in light of Crawford v. Washington,
541 U.S. 36 (2004) and Davis v. Washington, 126 S. Ct. 2266(2006). We hold that the affidavit was nontestimonial and that
the military judge did not abuse her discretion in admitting it
as a business record under Military Rule of Evidence (M.R.E.)
803(6).1
I. BACKGROUND
While deployed in Iraq, Sergeant (Sgt) Jason Porter reported
to both his chain of command and to law enforcement that someone
had forged a number of his checks and cashed them. Sgt Porter’s
checking account was with the Fort Sill National Bank (FSNB) in
Fort Sill, Oklahoma. When Sgt Porter returned from deployment
he went to FSNB in an attempt to recover the fraudulently
withdrawn money. Pursuant to its own internal procedures, FSNB
required Sgt Porter to fill out a form, entitled “AFFIDAVIT OF
UNAUTHORIZED SIGNATURE (FORGERY AFFIDAVIT)” (forgery affidavit),
in order to get his money back.
1
The military judge ruled that the document was admissible as
either a business record or under M.R.E. 807’s residual
exception. As we hold that the document was admissible as a
business record, we need not address the residual exception.
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Sgt Porter filled in and signed the forgery affidavit.
FSNB, after researching and verifying the information,
reimbursed his account. FSNB retained the forgery affidavit in
its files.
By the time Appellant was brought to trial Sgt Porter was in
Kuwait for redeployment to Iraq. Sgt Porter’s commander
declined to return him for trial, citing Sgt Porter’s leadership
role, and his need to be present for predeployment training and
deployment.2 Consequently, Government counsel made it known that
they intended to admit the forgery affidavit at trial as a
business record.
Defense counsel filed a motion in limine arguing that the
forgery affidavit was inadmissible hearsay that failed to
satisfy the requirements of any exception. In the alternative,
defense counsel argued that the affidavit violated Appellant’s
rights under the Confrontation Clause of the Sixth Amendment.
The military judge held an Article 39(a), UCMJ, 10 U.S.C. §
839(a) (2000), session to determine the admissibility of the
forgery affidavit. She heard testimony from an FNSB vice
president regarding the bank’s standard operating procedures in
instances of check fraud. After considering the motions,
examining the document, hearing the FSNB vice president’s
2
Based on our conclusion that the document at issue is
nontestimonial, we do not address or assess the validity of the
military judge’s ruling that Sgt Porter was unavailable.
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testimony, and listening to counsel’s arguments, the military
judge ruled that the affidavit was admissible as a business
record. The military judge also concluded that “[s]ince a
business record is a firmly rooted hearsay exception no further
Confrontation Clause analysis is necessary.” The military judge
rendered this decision before the Supreme Court’s decision in
Crawford.
The military judge’s written findings of fact show that FSNB
required Sgt Porter to comply with specific internal bank
procedures before it would reimburse him. Sgt Porter was
required to personally appear at the bank, present valid
identification, and sign a sworn affidavit. The military judge
found that these procedures were in place to ensure that FSNB
was not being defrauded by the account holder.
The military judge found that the forgery affidavit was a
standard form used by FSNB when fraud occurred. The form had
blank spaces for Sgt Porter’s name, his checking account number,
and the check number, amount, and payee listed on each of the
forged checks. FSNB required Sgt Porter to sign the form five
consecutive times for comparison with his signature card, which,
per FSNB procedure, was kept on file. FSNB required Sgt Porter
to swear that neither he nor an authorized signatory signed the
listed checks or received any benefit from the checks. The
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military judge noted that the form did not request information
regarding who may have forged the checks.
The military judge found that FSNB’s procedure required a
senior bank official to verify the information in the forgery
affidavit and compare the signatures before authorizing
reimbursement, as a final step to prevent fraud. The forgery
affidavit was then kept on file for seven years, in accordance
with FSNB’s standard procedures.
The forgery affidavit form contains a provision authorizing
FSNB to turn the forgery affidavit over to law enforcement,
among others. The provision further includes an agreement by
the affiant to cooperate in any criminal or civil proceeding.
When Army Criminal Investigation Division (CID) agents
eventually requested the forgery affidavit signed by Sgt Porter
from FSNB, FSNB complied.
The military judge concluded that FSNB was a regularly
conducted business, that it was the regular practice of FSNB to
have forgery affidavits completed in instances of check forgery,
that FSNB followed standard operating procedures to verify the
affidavit’s accuracy before using it to reimburse Sgt Porter,
and that FSNB adopted the affidavit by first verifying the
contents and veracity of the affidavit and then reimbursing
funds based on its verification. She ruled that the facts
outlined above made the document a reliable business record.
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II. DISCUSSION
A. Confrontation Clause Analysis
Appellant argues that the forgery affidavit was
“testimonial,” and that its admission at trial violated his
Sixth Amendment right to confrontation, in light of Crawford and
Davis.3
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with witnesses against him.” U.S. Const. amend. VI.
In the context of out-of-court statements, this right applies to
“testimonial statements.” Davis, 126 S. Ct. at 2273. “Only
statements of this sort cause the declarant to be a ‘witness’
within the meaning of the Confrontation Clause.” Id. Whether a
document constitutes testimonial hearsay is a legal question we
review de novo. United States v. Rankin, 64 M.J. 348, 351
(C.A.A.F. 2007). We accept the military judge’s findings of
fact “unless they are clearly erroneous or unsupported by the
record.” United States v. Rader, 65 M.J. 30, 33 (C.A.A.F. 2007)
(citation omitted).
3
Appellant was convicted two weeks before the Supreme Court
decided Crawford. In Whorton v. Bockting, the Supreme Court
stated that “it is clear that Crawford announced a new rule.”
127 S. Ct. 1173, 1181 (2007). Because Crawford announced a “new
rule” we apply it here. See Griffith v. Kentucky, 479 U.S. 314,
328 (1987) (holding “a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases . . .
pending on direct review”).
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The Supreme Court has expressly declined to set forth an
all encompassing definition of “testimonial.” Davis, 126 S. Ct.
at 2273; Crawford, 541 U.S. at 68. As we previously recognized
in Rankin, 64 M.J. at 351, United States v. Magyari, 63 M.J.
123, 126 (C.A.A.F. 2006), and United States v. Scheurer, 62 M.J.
100, 105-07 (C.A.A.F. 2005), we are not, however, without
guidance. Crawford did state that “[w]hatever else the term
[testimonial] covers, it applies at a minimum to prior testimony
at a preliminary hearing, before a grand jury, or at a former
trial; and to police interrogations.” 541 U.S. at 68. At the
same time, Crawford recognized that the Sixth Amendment must be
interpreted with a focus on the fact that “the principal evil at
which the Confrontation Clause was directed was the civil-law
mode of criminal procedure, and particularly its use of ex parte
examinations as evidence against the accused.” Crawford, 541
U.S. at 50. The Confrontation Clause should not be read as a
wholesale nullification of the hearsay exceptions outlined in
the Military Rules of Evidence. See id. at 51 (stating “not all
hearsay implicates the Sixth Amendment’s core concerns”).
Under the civil-law mode of criminal procedure, “[j]ustices
of the peace or other officials examined suspects and witnesses
before trial,” and the “examinations were sometimes read in
court in lieu of live testimony . . . .” Id. at 43. The Marian
bail and committal statutes “required justices of the peace to
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examine suspects and witnesses in felony cases and to certify
the results to the court.” Id. at 43-44. Today, in lieu of
magistrates and justices of the peace, we have “examining police
officers . . . who perform investigative and testimonial
functions once performed by examining Marian magistrates.”
Davis, 126 S. Ct. at 2278 n.5.
Appellant argues that the forgery affidavit in this case is
testimonial because it was made and elicited with an “eye
towards prosecution.” A possible definition of “testimonial”
provided by the Court in Crawford focused on this circumstance:
“statements that were made under circumstances which would lead
an objective witness reasonably to believe that the statement
would be available for use at a later trial.” Crawford, 541
U.S. at 51-52.
After Davis’ addition of the contextual “primary purpose”
analysis to the testimonial/nontestimonial inquiry, this Court
decided Rankin. In Rankin, we identified several factors
“relevant in distinguishing between testimonial and
nontestimonial hearsay made under circumstances that would cause
an objective witness to reasonably believe that the statement
would be available for use at a later trial.” 64 M.J. at 352.
Those factors include: (1) whether the statement was elicited
by or made in response to law enforcement or prosecutorial
inquiry; (2) whether the statement involved more than a routine
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and objective cataloging of unambiguous factual matters; and,
(3) whether the primary purpose for making, or eliciting, the
statements was the production of evidence with an eye toward
trial. Id.
Appellant does not allege that the military judge’s
findings were clearly erroneous. Furthermore, we note that they
are supported by the record. Looking to those findings, we
address the factors outlined in Rankin.
First, the affidavit was made by Sgt Porter at the behest
of FSNB, in compliance with its own standard procedures, without
a request from, or the participation of, law enforcement or the
prosecutor. While the military judge recognized that Sgt Porter
reported the crime months earlier, during his deployment to
Iraq, his interaction with FSNB in creating the document was not
requested or directed by any military or civilian criminal
investigators. And although the document was later turned over
to law enforcement officials in response to a request from CID,
it was not “elicited by or made in response to” a “prosecutorial
inquiry.” Id.
Second, the document catalogs objective facts. The forgery
affidavit lists the check numbers, the amount of each check, the
payee on each check, five examples of Sgt Porter’s signature,
and his representation that he did not cash or benefit from the
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checks listed. The document does not identify Appellant as the
forger, but simply lists his name as payee on several checks.
The final question, whether the primary purpose of the
document was prosecutorial in nature, necessitates a contextual
analysis. Rankin, 64 M.J. at 352. Looking to the context in
which the document was drafted, FSNB’s primary purpose in
eliciting the affidavit was, as the military judge found and the
record supports, to ensure that it would not be defrauded by an
account holder. The record also demonstrates that Sgt Porter’s
primary purpose in filling out the affidavit was to be
reimbursed for the missing funds.
The affidavit did contain language allowing the document to
be turned over to law enforcement. But that does not change the
primary purposes for either eliciting or making the statement.
Nor is there authority to suggest that that fact, without more,
transforms a nontestimonial business record into a testimonial
statement. Rankin, 64 M.J. at 352 n.4 (noting that even where
it is anticipated that a statement could be used at a court-
martial, “our analysis concerns the primary purpose for creating
the document”).
In our view this affidavit is akin to other formal
documents that we and other courts have concluded are
nontestimonial, such as military personnel records, urinalysis
lab reports such as those described in Magyari, and deportation
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warrants. Rankin, 64 M.J. at 353; Magyari, 63 M.J. at 127;
United States v. Garcia, 452 F.3d 36, 41 (1st Cir. 2006).4 This
Court has recognized that the absence of evidence a document was
“generated for the purpose of producing ‘evidence’ at trial” is
important in determining whether it is nontestimonial. Rankin,
64 M.J. at 353. The military judge found that the document was
generated in order to prevent bank fraud. We see nothing
clearly erroneous in her finding.
Appellant further contends, citing United States v.
Sandles, 469 F.3d 508 (6th Cir. 2006), that any affidavit,
regardless of its primary purpose, is testimonial. Appellant
misapprehends the holding in Sandles. There, the court focused
on the government involvement in creating the affidavit and
concluded “an affidavit of a Government employee” is testimonial
in nature. Id. at 516. There is a distinct difference between
Sandles, where a government employee made an affidavit in the
4
See also United States v. Thornton, 209 F. App’x 297, 299 (4th
Cir. 2006) (concluding “that the fingerprint cards were not
‘testimonial,’ and that the admission of such business or public
records does not violate the rule in Crawford”); United States
v. Weiland, 420 F.3d 1062, 1077 (9th Cir. 2005) (holding public
records are not testimonial); United States v. Bahena-Cardenas,
411 F.3d 1067, 1074-75 (9th Cir. 2005) (concluding that a
“warrant of deportation is non-testimonial because it was not
made in anticipation of litigation, and because it is simply a
routine, objective, cataloging of an unambiguous factual
matter”), cert. denied, 126 S. Ct. 1652 (2006); United States v.
Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005) (stating that
documents in an immigration file are similar to nontestimonial
business records).
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course of her government employment for use by the prosecution
at trial, and the facts before us today, where the affiant is an
individual filling in the blanks on a form in the course of a
private financial transaction. This factual difference, not any
difference in the mode of analysis, leads to our different
result.
We recognize that the Supreme Court refers, at different
times, to “affidavits” as among those categories of out-of-court
statements that could be considered within the “core class of
‘testimonial statements.’” Crawford, 541 U.S. at 51-52. But we
do not believe that the Court intended that every document
labeled “affidavit” is, for that reason alone, a testimonial
statement. Rather, given the Court’s focus on the abuses at
which the Confrontation Clause was aimed, we believe that its
references to affidavits that would be presumptively testimonial
refer to ex parte affidavits developed: (1) by law enforcement
or government officials and (2) by private individuals acting in
concert with or at the behest of law enforcement or government
officials. Other affidavits remain subject to a contextual
analysis to determine whether they are, or are not, testimonial.
We find illuminating, in this regard, the history of the right
to confrontation as discussed in Crawford. Id. at 50-53.
The “ex parte examinations” against which the Confrontation
Clause was aimed, the fruits of which are presumptively
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testimonial, implicate a level of government involvement
entirely absent in either the eliciting or making of the forgery
affidavit.5 Under a contextual analysis, given the facts of this
case, the forgery affidavit was not testimonial, and the
Confrontation Clause is not implicated by its admission in
Appellant’s trial.
B. Business Record Hearsay Exception
A finding that the forgery affidavit is nontestimonial does
not end the analysis in determining whether it was error to
admit it. It must also be admissible under the Military Rules
of Evidence. In this case the military judge determined that
the forgery affidavit was admissible as a business record, under
M.R.E. 803(6). We review her ruling on this evidentiary matter
for an abuse of discretion. United States v. Datz, 61 M.J. 37,
42 (C.A.A.F. 2005).
5
Hammon v. Indiana also involved an affidavit. 126 S. Ct. 2266,
2272 (2006). In Hammon, all litigants agreed the affidavit was
testimonial. See id. at 2284 n.5 (Thomas, J., concurring in
part and dissenting in part). However, in contrast to the case
at bar where no law enforcement was involved and the affidavit
was drafted pursuant to internal bank procedures, the respondent
in Hammon conceded that the victim’s affidavit was made at the
behest of a police officer and was “useful only for obtaining a
criminal conviction.” Brief of Respondent at 46, Hammon, 126 S.
Ct. 2266 (No. 05-5705). The Solicitor General concurred in his
brief, stating that “a government-solicited affidavit, almost by
definition, is ‘[a] solemn declaration or affirmation made for
the purpose of establishing or proving some fact.’” Brief for
United States as Amicus Curiae Supporting Respondent at 14,
Hammon, 126 S. Ct. 2266 (No. 05-5705) (emphasis added)
(citations omitted).
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Military Rule of Evidence 803(6) allows for the admission
of business records that would otherwise be inadmissible hearsay
as long as the holder of the record is a business and the record
is “made at or near the time by, or from information transmitted
by, a person with knowledge,” is kept “in the course of a
regularly conducted business,” and it “was the regular practice
of that business” to make such records. M.R.E. 803(6). There
is no unavailability requirement under this rule. Id. Federal
courts, in analyzing the analogous federal rule, have held that
the business records exception should be “construed generously
in favor of admissibility.” Conoco Inc. v. Dep’t of Energy, 99
F.3d 387, 391 (Fed. Cir. 1996).
The question in this case is whether the forgery affidavit
can be considered a business record, made in the regular course
of FSNB’s business, when it was filled out and signed by Sgt
Porter, a third party.
In United States v. Grant, this Court stated that “a
document prepared by a third party is properly admitted as part
of a second business entity’s records if the second business
integrated the document into its records and relied upon it in
the ordinary course of its business.” 56 M.J. 410, 414
(C.A.A.F. 2002). We noted three requirements when a business
adopts a record prepared by another: (1) the record must be
procured by the second entity in the normal course of business;
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(2) the second entity must show that it relied on the record;
and (3) there must be “other circumstances indicating the
trustworthiness of the document.” Id.In this case, a proper foundation for admission of the
forgery affidavit as a business record was made by the FSNB vice
president, and the military judge made specific findings of fact
and conclusions of law with regard to each of the points
outlined in Grant. As discussed in more detail in the
background section, the military judge concluded that FSNB was a
regularly conducted business, that it was the regular practice
of FSNB to have forgery affidavits completed in instances of
check forgery, that FSNB followed standard operating procedures
to verify the affidavit’s accuracy before using it to reimburse
Sgt Porter, and that FSNB adopted the affidavit by first
verifying the contents and veracity of the affidavit and then
reimbursing funds based on its verification. The military judge
also received testimony from the FSNB vice president regarding
the specific procedures in place to ensure that the document was
made under reliable circumstances. She found that the forgery
affidavit in this case was developed pursuant to those
procedures.
The forgery affidavit was elicited pursuant to standard
FSNB procedures; therefore, it was procured in the normal course
of business. See, e.g., United States v. Console, 13 F.3d 641,
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656-57 (3d Cir. 1993) (holding internal accident reports were
business records); United States v. Jacoby, 955 F.2d 1527, 1537
(11th Cir. 1992) (stating “repetitiveness with which a record is
prepared is not the touchstone of admissibility under the
business records exception”).
The military judge also ruled that FSNB relied on the
record and adopted it as its own by using it to determine
whether to reimburse Sgt Porter. The federal courts have
determined that the act of using a document and relying on its
contents in the regular course of business is enough to satisfy
the business record exception. See United States v. Childs, 5
F.3d 1328, 1333-34 (9th Cir. 1993) (holding vehicle invoice
relied on by auto dealer admissible); United States v. Doe, 960
F.2d 221, 223 (1st Cir. 1992) (finding importation documents
provided by wholesaler and relied on by retailer were
admissible); United States v. Parker, 749 F.2d 628, 633 (11th
Cir. 1984) (holding foreign customs certificate relied on by
domestic import firm was admissible as a business record of the
firm). We cannot say that the military judge erred in finding
that FSNB relied on the forgery affidavit.
The military judge also concluded that the document bore
sufficient indicia of trustworthiness. She noted that Sgt
Porter was required to personally appear at FSNB and present
identification before the document was signed. FSNB also
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required that the forgery affidavit be made under oath. These
requirements, coupled with the comparison of the signatures on
the documents to Sgt Porter’s signature card, ensured that the
document was reliable and trustworthy. See Saks Int’l, Inc. v.
M/V “Export Champion”, 817 F.2d 1011, 1014 (2d Cir. 1987)
(reasoning that regularly conducted spot checks of vessel’s
cargo loading ensured that loading documents were reliable
business records).
Appellant alleges that the document was made in
anticipation of litigation and could not be trustworthy. While
a document prepared in anticipation of litigation could present
problems of trustworthiness, those problems do not exist in this
case. This forgery affidavit was drafted in the regular course
of business with a primary purpose of preventing fraud;
therefore, it was not drafted in anticipation of litigation.
See United States v. Feliz, 467 F.3d 227, 234 (2d Cir. 2006)
(reasoning business records “prepared in the ordinary course of
regularly conducted business . . . are ‘by their nature’ not
prepared for litigation.”) (citation omitted).
The military judge made specific findings of fact and
conclusions of law in accordance with M.R.E. 803(6) and our
decision in Grant. Her findings of fact were not clearly
erroneous. The military judge did not abuse her discretion in
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admitting the forgery affidavit as a business record in this
case.
III. Decision
The decision of the Army Court of Criminal Appeals is
affirmed.
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