Montes-Andino

MEMORANDUM **

Montes-Andino waived his Miranda rights and gave a statement. Thus, “[a]s to the subject matter of his statements, [he had] not remained silent at all.” Anderson v. Charles, 447 U.S. 404, 408 , 100 S.Ct. 2180 , 65 L.Ed.2d 222 (1980). In his argument and cross-examination, defense counsel suggested that Montes-Andino’s candor, cooperation, and failure to admit to committing a crime during questioning evidenced a lack of criminal intent. On redirect and in rebuttal, the prosecutor could properly “ ‘probe [Montes-Andino’s] post-arrest statements and the surrounding circumstances under which they were made,” ’ to expose aspects of the interview, including his failure to protest, that contradicted the defense theory. United States v. Makhlouta, 790 F.2d 1400, 1404 (9th Cir.1986) (quoting United States v. Ochoa-Sanchez, 676 F.2d 1283, 1286 (9th Cir.1982)).

The trial court did not abuse its discretion in admitting the redacted tape of all three of Montes-Andino’s removal hearings. See United States v. Hicks, 103 F.3d 837, 843 (9th Cir.1996). The September 10 and 18, 2001, hearings were relevant to rebut Montes-Andino’s theory that he did not understand the prior…