dissenting:
I dissent because the majority lose sight of the general rule that post-arrest silence may not be used against a defendant and improperly seek to bring the facts of this case within the limited exception to that rule set forth in Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980).
The Supreme Court, in Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), and United States v. Hale, 422 U.S. 171, 180-81, 95 S.Ct. 2133, 2138, 45 L.Ed.2d 99 (1975), held that it is a deprivation of due process to impeach a defend*1290ant’s testimony at trial with his post-arrest silence that followed Miranda warnings. In Doyle and Hale, the defendants elected to remain silent and said nothing to the officers who attempted to interrogate them.
The rule in Doyle does not apply, however, to cross-examination that “merely inquires into prior inconsistent statements.” Charles, 447 U.S. at 408, 100 S.Ct. at 2182.
Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.
Id. (Emphasis added.)
The facts of this case do not exactly fit the pattern of either Doyle or Charles. In Doyle, the defendant remained completely silent, while in Charles, the defendant’s testimony was clearly inconsistent with his prior statements. In contrast, Ochoa-Sanchez did not maintain strict silence after arrest. He made some post-arrest statements, less complete than his trial testimony but not inconsistent with it.1
During the detention following arrest, Ochoa-Sanchez was constantly reminded by the officers that he had a- right to remain silent, that he need not answer the questions put to him. Silence was invited and yet some response encouraged. Apparently, in an attempt at cooperation, the defendant gave some information. If, indeed, there were perceived inconsistencies between the incomplete responses elicited from the defendant upon arrest and the more complete story given at trial, the focus of the prosecution should have been to probe those inconsistencies as authorized by Charles. Instead, the cross-examination of Ochoa-Sanchez, the examination of the arresting officer, and the prosecution’s closing argument all focused on the silence of the defendant.
For example, on direct examination, the arresting officer was asked,
Q. Did [the defendant] attempt — did he say anything to you which indicated that he believed he had been set up in this transaction?
and he responded,
A. No, sir.
Q. Did he tell you he had met with the owner of the car in Tijuana shortly before driving to the Port?
A. No, sir.
Similarly, the cross-examination of the defendant focused on what he failed to say. Each of the pertinent questions is of the form, “You didn’t tell Agent Murray that . . .?”
In his closing argument, the prosecutor actively invited the jury to draw adverse inferences from Ochoa-Sanchez’s failure voluntarily to provide information to the arresting officers.2 The prosecutor made fanciful statements about what the hypothetical innocent man would say upon arrest.3 He implied that Ochoa-Sanchez *1291failed to display the degree of cooperation with the police that would demonstrate his innocence; without explaining to the jury that the officer had given Miranda warnings, and had carefully explained to the defendant that he had no obligation to tell the police anything at all.
The result reached by the majority rewards the defendant’s voluntary offering of some information, by permitting his impeachment at trial by improper use of his partial silence. A proper reading of Miranda, Doyle, and Charles belie such a result. I would reverse.
. Furthermore, Ochoa-Sanchez’s testimony at trial raises serious doubt as to whether he knowingly waived his right to remain silent. There appears to have been a significant language difficulty. The various quotes of his testimony in the majority opinion highlight this problem.
. This circuit has previously held that such comments in closing arguments are inappropriate. Bradford v. Stone, 594 F.2d 1294, 1296 (9th Cir. 1979).
. The Fifth Circuit applies the most expansive interpretation of the prosecutor’s right to impeach with post-arrest silence. See, e.g., Lofton v. Wainwright, 620 F.2d 74, 78 (5th Cir. 1980); see also United States v. Beechum, 582 F.2d 898, 906 (5th Cir. 1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). That circuit appears to allow post-arrest silence to be used whenever the defendant does not maintain total silence after arrest. Lofton, 620 F.2d at 78. Even when the post-arrest statements are not inconsistent with later testimony, but relate to different subjects, any omissions on the part of the defendant may be used to impeach him at trial. Beechum, 582 F.2d at 906. It is doubtful that even the Fifth Circuit, however, would permit the prosecutor’s comments in closing argument suggesting that an innocent man has an affirmative duty to inform.
Two other circuits appear to reject the Fifth Circuit’s rule for use of post-arrest silence. See Grieco v. Hall, 641 F.2d 1029, 1034-36 (1st Cir. 1981); United States v. Curtis, 644 F.2d *1291263, 270-71 and n. 4 (3d Cir. 1981). I am dismayed to see this circuit adopt a rule that I believe neither aids defendants nor promotes effective law enforcement.