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 Sept. 19, 2006) (unpublished).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


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


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


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


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


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


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


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


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

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

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

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

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

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

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

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

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

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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