Ross

MEMORANDUM **

Amber Nicole Ross and Anthony J. Sutton appeal their convictions and sentences following a jury trial for conspiracy, armed bank robbery, and use of a firearm during a crime of violence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We affirm the convictions and Sutton’s sentence, but grant a “limited remand” with respect to Ross’s sentence pursuant to United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.2005) (en banc), and United States v. Moreno-Hernandez, — F.3d -, -, 2005 WL 1560269 , *9 (9th Cir. July 5, 2005).

1. The district court did not abuse its discretion by admitting testimony regarding Ross’s decision to invoke her rights to counsel and to remain silent. Although the “silence” testimony was otherwise inadmissible, it was not error under Federal Rules of Evidence 401 and 402 to admit the testimony because Ross’s counsel “opened the door” while cross-examining FBI Special Agent Auther by eliciting testimony that created the false impression that the FBI for some nefarious reason refused to give Ross a polygraph test. Nor was the evidence unduly prejudicial; it was limited to an explanation as to why the FBI did not give…