                         UNITED STATES, Appellee

                                         v.

         James E. RANKIN, Hospital Corpsman Third Class
                      U.S. Navy, Appellant


                                  No. 06-0119
                        Crim. App. No. 200101441

       United States Court of Appeals for the Armed Forces

                         Argued October 18, 2006

                        Decided January 31, 2007

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined.

STUCKY and RYAN, JJ., did not participate.

                                     Counsel

For Appellant:    Lieutenant Brian L. Mizer, JAGC, USN (argued).

For Appellee: Lieutenant Craig A. Poulson, JAGC, USNR (argued);
Commander P. C. LeBlanc, JAGC, USN (on brief); Colonel R. F.
Miller, USMC.



Military Judge:    R. W. Redcliff



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rankin, No. 06-0119/NA


      Judge BAKER delivered the opinion of the Court.

      On February 14, 2001, a special court-martial composed of

officer members convicted Appellant, contrary to his pleas, of

unauthorized absence, in violation of Article 86, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 886 (2000).     The

adjudged and approved sentence included a bad-conduct discharge

and confinement for ninety-one days.    The United States Navy-

Marine Corps Court of Criminal Appeals affirmed.      United States

v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).       We

granted review to determine whether certain documents admitted

at trial to prove the unauthorized absence were testimonial

hearsay under Crawford v. Washington, 541 U.S. 36 (2004).1         We

hold that three of the four documents at issue were properly

admitted under Crawford and Davis v. Washington, 126 S. Ct. 2266

(2006) as nontestimonial hearsay.     The fourth document, a DD-553

military arrest warrant, arguably falls within the contours of

Crawford’s descriptions of testimonial evidence.      Nonetheless,

any possible error in admitting this document was harmless

beyond a reasonable doubt.    Therefore, we affirm.




1
    The specific issue granted was:

       WHETHER THE BUSINESS RECORDS ADMITTED INTO EVIDENCE
       OVER DEFENSE OBJECTION WERE TESTIMONIAL HEARSAY.


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United States v. Rankin, No. 06-0119/NA


                            BACKGROUND

     Appellant was tried for an unauthorized absence that began

on or about July 13, 1993 and ended with his apprehension by

civilian authorities on December 13, 2000.   During its case-in-

chief, the Government presented several documents containing a

variety of service entries showing, among other things, that

Appellant had been placed in the administrative status of

unauthorized absence, the dates on which the absence began and

ended, that his absence was terminated by apprehension by

civilian authorities, and that he was on active duty at the time

of the offense.   In all, some nine exhibits were admitted for

these purposes.

     On appeal to this Court, Appellant challenges the admission

of these documents as testimonial hearsay, citing Crawford, a

case decided after his trial and while his case was pending

before the Court of Criminal Appeals.    Although the granted

issue appears to reach all of the exhibits, Appellant, in his

brief and at oral argument, has limited the issue to the

admissibility of four specific documents, Prosecution Exhibits

(PE) 5, 6, 10, and 11.2

     PE 5 is a letter dated July 26, 1993, from the personnel

officer of the 1st Marine Expeditionary Brigade (MEB) in Kaneohe


2
  The relevant exhibits were originally PEs 1-10. PE 9 was
withdrawn. PE 4 was redacted and re-offered as PE 11.

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United States v. Rankin, No. 06-0119/NA


Bay, Hawaii to Appellant’s mother notifying her that her son had

been an unauthorized absentee since July 13, 1993 and imploring

her to urge her son to surrender to military authorities

immediately.

     PE 6 is a computer generated document apparently referred

to in administrative parlance as a “page 6,” as in page 6 of the

service record book.   This page 6, evidently generated by

Appellant’s original command, indicates that Appellant’s

unauthorized absence began July 13, 1993.

     PE 10 is a copy of a naval message dated December 27, 2000,

from the Navy Absentee Collection Information Center (NACIC),

Great Lakes, Illinois to all personnel support detachments in

Pearl Harbor.   In addition, several organizations are listed as

recipients for information purposes.   They include, among

others, the Navy Personnel Command, Millington, Tennessee; the

Defense Finance and Accounting Service, Cleveland, Ohio; and the

Fleet and Industrial Supply Center, Williamsburg, Virginia.

This message informed the recipients that Appellant, who had

been absent since July 13, 1993, was apprehended by civilian

authorities in Honolulu, Hawaii on December 13, 2000.   It

further indicates that Appellant was returned to the Transit

Personnel Unit in Pearl Harbor and requests that organization

inform NACIC of the ultimate disposition of Appellant’s




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United States v. Rankin, No. 06-0119/NA


situation whether by nonjudicial punishment, administrative

discharge, or court-martial.

        PE 11 is a copy of a form DD-553 entitled

“DESERTER/ABSENTEE WANTED BY THE ARMED FORCES.”      This form

originated with the Commanding General, 1st MEB, to the

Commanding Officer, Bureau of Navy Personnel, for distribution

to civilian law enforcement authorities.    This form contained a

physical description of Appellant, and it informed the

recipients that Appellant was an absentee from the armed forces

as of July 13, 1993 and had remained absent for at least thirty

days.

        The Government offered these exhibits as records of

regularly conducted activity under Military Rule of Evidence

(M.R.E.) 803(6) and as public records under M.R.E. 803(8).         Ms.

Miki Slocum, the civilian legal clerk who had been in possession

of Appellant’s record book, provided the foundational testimony

in support of the admissibility of all of the exhibits.       The

defense lodged a variety of objections including an assertion

that the documents were inadmissible hearsay.3      The military




3
 At trial, the defense made numerous objections to the documents
based on lack of personal knowledge on the part of the
foundation witness, authenticity, and the best evidence rule.
However, Appellant has not advanced any of those issues or
arguments on appeal in this Court, and thus our decision is
limited to the Crawford question presented.

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United States v. Rankin, No. 06-0119/NA


judge ruled that the requirements for the business and public

records exceptions had been met and admitted the documents.

                 TESTIMONIAL EVIDENCE UNDER CRAWFORD

     While Appellant’s case was pending review in the lower

court, the United States Supreme Court decided Crawford.      The

lower court, aware of the precedent, applied the rationale of

that case to the documents at issue here and concluded that

there had been no error committed in admitting them.     Rankin, 63

M.J. at 555.    Crawford held that the Confrontation Clause bars

the “admission of testimonial statements of a witness who did

not appear at trial unless he was unavailable to testify, and

the defendant had had a prior opportunity for cross-

examination.”   451 U.S. at 53-54.    The distinction struck in

Crawford was between testimonial and nontestimonial hearsay.

This Court subsequently applied the rationale of Crawford in

United States v. Scheurer, 62 M.J. 100, 104-06 (C.A.A.F. 2005)

and United States v. Magyari, 63 M.J. 123, 125-27 (C.A.A.F.

2006).

     In Scheurer, the issue was whether statements made

unwittingly to a co-worker were testimonial in nature.     62 M.J.

at 104.   We held that casual remarks to an acquaintance under

the circumstances presented were not testimonial since the

declarant had made the statements without contemplation that

they would be available for use at a later trial.      Id. at 105-


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United States v. Rankin, No. 06-0119/NA


06.   Similarly, in Magyari, we held that certain data entries in

lab reports admitted against the accused were nontestimonial.

63 M.J. at 127.   We reasoned under the circumstances presented

-- a routine batch test of random urinalysis samples -- that

the lab technicians “were not engaged in a law enforcement

function, a search for evidence in anticipation of prosecution

or trial.”    Id. at 126.   As in Scheurer and Magyari, this case

requires us to further define the meaning of “testimonial” in

the military context and as contemplated by the Supreme Court.

The question of whether the documents at issue here were

inadmissible hearsay under Crawford is a question of law that we

review de novo.

      Although the Supreme Court did not “spell out a

comprehensive definition of ‘testimonial’” in Crawford, it did

state that:   “Whatever else the term 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.

These are the modern practices with closest kinship to the

abuses at which the Confrontation Clause was directed.”

451 U.S. at 68.   Further, the Supreme Court identified examples

of “core” testimonial evidence, including:    1) ex parte in-court

testimony such as affidavits, custodial examinations, prior

testimony that the defendant was unable to cross-examine, or

“similar pretrial statements that declarants would reasonably


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United States v. Rankin, No. 06-0119/NA


expect to be used prosecutorially”; 2) extrajudicial statements

in formalized trial materials; and 3) “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.”   Id. at 51-52 (citations and quotation

marks omitted).   The Supreme Court also noted that the

“[i]nvolvement of government officers in the production of

testimony with an eye toward trial presents unique potential for

prosecutorial abuse . . . .”   Id. at 56 n.7.      Appellant asserts

that the documents at issue here fall into the third category.

     After our decision in Magyari, the Supreme Court decided

Davis, further defining the concept and analytic framework for

distinguishing between testimonial and nontestimonial hearsay.

In Davis, an emergency 911 operator received a call from

Michelle McCottry.   126 S. Ct. at 2271.     During the ensuing

conversation, the operator learned that McCottry was involved in

a domestic disturbance with her former boyfriend, the

petitioner, Adrian Davis, that Davis had just assaulted her, and

that he had just fled the scene.       During Davis’s trial for

violation of a domestic no-contact order, and over defense

objection, the government played the taped conversation between

McCottry and the 911 operator.   After noting that 911 operators

were at least agents of law enforcement and that the operator’s

questioning of McCottry was “interrogation in one sense,” the


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United States v. Rankin, No. 06-0119/NA


Supreme Court concluded that “the circumstances of McCottry’s

interrogation objectively indicate its primary purpose was to

enable police assistance to meet an ongoing emergency.”     Id. at

2274, 2277.    Thus, the Supreme Court concluded that her

statements to the operator were not testimonial.   Id. at 2277.

In other words, the primary purpose for making the statements

was something other than producing evidence with an eye toward

trial or prosecution.

     In the wake of Crawford and Davis, several federal courts

have addressed the testimonial nature of hearsay in the context

of the admissibility of warrants of deportation.   See, e.g.,

United States v. Bahena-Cardenas, 411 F.3d 1067, 1074 (9th Cir.

2005); United States v. Garcia, 452 F.3d 36, 41 (1st Cir. 2006);

United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.

2006).   In trials of aliens charged with entering the United

States without permission after having been deported, the

government generally offers into evidence a warrant of

deportation.    Among other things, the warrant contains an

attestation that a deportation officer observed the alien leave

the country after he was deported.    Challenges to these

documents based on Crawford have been uniformly rejected in that

the warrant of deportation is not testimonial “because it was

not made in anticipation of litigation” and because “it is

simply a routine, objective, cataloging of an unambiguous


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United States v. Rankin, No. 06-0119/NA

factual matter.”   Bahena-Cardenas, 411 F.3d at 1075.   Indeed, in

Magyari, we characterized the data entries by the lab

technicians the same way.   63 M.J. at 126.

     Consistent with Crawford and Davis, as well as federal case

law more generally, a number of questions emerge as 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.    First, was the statement at issue

elicited by or made in response to law enforcement or

prosecutorial inquiry?    Second, did the “statement” involve more

than a routine and objective cataloging of unambiguous factual

matters?   Finally, was the primary purpose for making, or

eliciting, the statements the production of evidence with an eye

toward trial?   As is evident from the Supreme Court’s primary

purpose analysis in Davis, in addressing the third category of

potential testimonial statements, the Crawford analysis is

contextual, rather than subject to mathematical application of

bright line thresholds.

     In applying this analysis to PEs 5, 6, and 10, we conclude

that the primary purpose for creating these documents was not,

as Appellant asserts, “to bring Appellant to trial.”    On its

face, PE 5, the letter to Apellant’s mother, belies any claim

that this document was generated for the purpose asserted by


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United States v. Rankin, No. 06-0119/NA

Appellant.   The letter simply notified Appellant’s parent that

he was an unauthorized absentee from the service and sought to

emphasize the seriousness of the situation.   Regarding PE 6, the

clerk, Ms. Slocum, testified that the information contained in

the page 6 was generated from Appellant’s original command’s

muster report.   The exhibit itself indicates that it was

prepared about eight days after Appellant’s absence began.    It

goes without saying that the commander has a significant

interest in accounting for the whereabouts of the members of his

command and knowing when a member is unaccounted for.   Again,

the claim that the primary purpose for preparing this page 6

under these circumstances was to produce incriminating evidence

for Appellant’s prosecution is unsupported in the record.4

Similarly, PE 10, the naval message appears on its face to have

been prepared and disseminated to the addressees for the purpose

of initiating the process of Appellant’s transition to military

control.   The addressees include organizations such as personnel

support detachments, the Navy Personnel Command, a supply center

and the finance service, all clearly administrative rather than

law enforcement entities.   It is true that the body of the

4
 We agree with Appellant that the Navy Military Personnel Manual
anticipates that this type of document could be used at a court-
martial. Bureau of Naval Personnel, Naval Military Personnel
Manual Article 1600-060 (Aug. 2002, updated Sept. 27, 2006).
Although this could be a use to which the document might be put,
our analysis concerns the primary purpose for creating the
document.

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United States v. Rankin, No. 06-0119/NA

message references disposition by court-martial, but it also

recognizes a variety of dispositions aside from criminal

prosecution.   The originator of the message simply requests that

it be informed regardless of what disposition is taken.

     PE 11 raises some of the concerns expressed in Crawford.

The DD-553 has qualities similar to an arrest warrant.    See

United States v. Khamsouk, 57 M.J. 282, 288 (C.A.A.F. 2002).

Moreover, the form gives a civilian peace officer the authority

to apprehend a military member specifically for the offense of

desertion.   Id.   Thus, it is reasonable to conclude that the

preparation of such a document has a significant prosecutorial

purpose.   Certainly, the primary purpose of such a document is

to facilitate the arrest of a suspect and thus it is generated

with an eye toward prosecution.    On the other hand, the form is

not necessarily generated for the purpose of producing

“evidence” for trial, so much as it is intended to produce the

suspect for trial.

     In any event, we need not ultimately conclude whether the

DD-553 in this case was “testimonial” in nature.   Even if

admission of the document was error, any information contained

in it that was relevant to the elements of the offense was

cumulative with the same type of information contained in the

other exhibits that we have concluded were not testimonial




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United States v. Rankin, No. 06-0119/NA

evidence.   Thus, any error in admitting the DD-553 into evidence

was harmless beyond a reasonable doubt.

                        THE ROBERTS ANALYSIS

     Having concluded, with the possible exception of exhibit

11, that the documents are nontestimonial, we move to the final

part of the analysis.   Appellant’s appeal is concerned only with

whether the exhibits at issue are testimonial or not, and he has

not challenged the admissibility of the exhibits under Ohio v.

Roberts, 448 U.S. 56 (1980).    Nonetheless, as we have held

previously, when the Crawford framework does not apply, “the

Ohio v. Roberts requirement for particularized guarantees of

trustworthiness continues to govern confrontation analysis for

nontestimonial statements.”    Scheurer, 62 M.J. at 106 (footnote

omitted).   Under the Roberts framework, nontestimonial hearsay

is admissible if:   1) “the statement falls within a firmly

rooted hearsay exception, or 2) it bears other particularized

guarantees of trustworthiness.”    Id. at 107 (citation and

quotation marks omitted).   Here, the military judge heard the

testimony of the foundation witness and admitted the exhibits

under the business records exception.   See M.R.E. 803(6).     As a

result, the military judge did not abuse his discretion in

admitting these documents as the business records exception is

firmly rooted.   Magyari, 63 M.J. at 128; see also United States

v. Bridges, 55 M.J. 60, 63 (C.A.A.F. 2001).


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United States v. Rankin, No. 06-0119/NA

                            DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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