A certificate of non existence of a record is not testimonial and therefore its admission was not error. The appellate court affirmed a jury conviction and sentence imposed by the district court for possession of cocaine with intent to distribute (21 U.S.C. § 841(a)(1)), and possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924 (c)(1)). The court held that under United States v. Cervantes-Flores (9th Cir. 2005) 421 F.3d 825, a State of Washington Department of Employment Security employee’s certificate of nonexistence of a record, which indicates that there was no record that the defendant had received taxable wages for the period in question, is not testimonial, and that its admission without cross-examination of the affiant therefore does not violate the Sixth Amendment Confrontation Clause. Davis v. Washington (2006) 547 U.S. 813, which limited its holding to factual situations involving police interrogation, does not undermine this court’s ruling in Cervantes-Flores.
Any Griffin error (Griffin v. California (1965) 380 U.S. 609) committed by the prosecutor during closing argument was harmless. The court also held that any violation of the defendant’s Fifth Amendment right to silence arising from a comment by the prosecutor in closing argument was harmless, where the allegedly violative comment was a single incident that served primarily to refute an implied claim by the defense of investigative carelessness, and was followed immediately by a curative instruction.