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 

2

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 Sept. 19, 2006) (unpublished).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). 
United States v. Foerster, No. 07-0093/AR 

3

 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 nontestimonial 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. 
United States v. Foerster, No. 07-0093/AR 

4

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. 
United States v. Foerster, No. 07-0093/AR 

5

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 
United States v. Foerster, No. 07-0093/AR 

6

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. 
United States v. Foerster, No. 07-0093/AR 

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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”). 
United States v. Foerster, No. 07-0093/AR 

8

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 
United States v. Foerster, No. 07-0093/AR 

9

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 
United States v. Foerster, No. 07-0093/AR 

10

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 
United States v. Foerster, No. 07-0093/AR 

11

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 courtmartial, “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 
United States v. Foerster, No. 07-0093/AR 

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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). 
United States v. Foerster, No. 07-0093/AR 

13

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 
United States v. Foerster, No. 07-0093/AR 

14

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). 
United States v. Foerster, No. 07-0093/AR 

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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; 
United States v. Foerster, No. 07-0093/AR 

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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, 
United States v. Foerster, No. 07-0093/AR 

17

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 
United States v. Foerster, No. 07-0093/AR 

18

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 
United States v. Foerster, No. 07-0093/AR 

19

admitting the forgery affidavit as a business record in this 

case. 

III. Decision 

 The decision of the Army Court of Criminal Appeals is 

affirmed.