with whom KELLY, Associate Judge joins concurring in part and dissenting in part:
I concur fully in the statement of Judge Kelly.
Reduced to bare essentials the facts here are that appellant (on a record devoid of a Bordenkircher prosecutorial notice of rein-dictment 1) elected to go to trial (exercising a constitutional right) and that the government, on the day of trial, obtained a continuance and reindicted so as to “up the ante.” These facts form the foundation for the “realistic likelihood of vindictiveness” condemned in the Blackiedge-Pearce2 line of *402cases. See United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974). As I read these cases further, once the appearance of vindictiveness has surfaced under these circumstances, it is the prosecutor who has the burden of negating vindictiveness — a burden which, in the instant case, the government would have the opportunity to attempt to meet on the remand for a hearing that Judge Kelly would offer. Yet, it is the majority of the court here that has exercised the prerogative of the prosecutor. Having solemnly pronounced that “the record contains nothing to indicate that the prosecutor was in any way treating appellant more harshly for the assertion of a right recognized in Blackledge and Pearce,3 the majority proceeds further to conclude that the added penalty was justifiable because of the prosecutor’s reevaluation of the severity of the offense. Even if it were true that the prosecutor could reevaluate (which he could not do in the absence of intervening events, or new evidence of which the government was unaware at the time of the first indictment, see Jamison, supra at 310, 505 F.2d at 417), it is the government, not this appellate court, which is charged with making the showing.4
Moreover, the need for a remand is highlighted by the majority’s somewhat obscure reference to the holding in Bordenkircher. I cannot determine whether the majority finds that narrow decision controlling, or merely somewhat controlling; in any event, I think it is stretching things a bit to suggest that a prosecutor, in order to immunize enhanced charges from the appearance of vindictiveness under Bordenkircher, is not required to have made a public record of the plea bargain threat. Thus, as the majority concedes, the Supreme Court observed that the prosecutor in Bordenkircher clearly set forth at the outset of the plea bargaining negotiations his intent to rein-dict in the event of an election to go to trial. Id. at 360,98 S.Ct. at 666. The Court further observed:
This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant’s insistence on pleading not guilty. [Id. (footnote omitted; emphasis added).]
If there is room for further doubt, I would add that the basic rationale underlying the Bordenkircher opinion is the importance of a public record in plea negotiations.
In the instant case, on the remand that Judge Kelly suggests, the government would have the opportunity to present evidence in an attempt to bring this case under Bordenkircher. The dissent is not suggesting that this court “create ... a new category of cases” but merely that we apply existing law on the basis of sufficient facts developed in the proper forum. That is what remands are for.
. See Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).
. See Biackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
These decisions are based upon the possibility that a defendant might be the victim of vindictiveness and the requirement that a defendant be freed of the apprehension of such retaliatory motivation.
. Our circuit court in Jamison, supra, 164 U.S. App.D.C. at 310, 505 F.2d at 417, used very similar language in reaching the opposite result:
Since this record is devoid of any illumination of the reasons why the first degree murder charge was brought, we can only conclude that the reindictment of appellants for first degree murder [after mistrial on an earlier indictment for second degree murder] denied them due process and that their convictions of that charge cannot stand.
. See Pearce, supra, 395 U.S. at 726, 89 S.Ct. at 2081:
[T]he factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy ... may be fully reviewed on appeal.