concurring in the denial of rehearing en banc:
I join in Judge Edwards' statement responding to the dissenters. I write additionally to set the record straight on United States v. Christine Meyer. In challenging the decision to reinstate the panel opinion in United States v. Christine Meyer, 816 F.2d 295 (1987), the dissenters mischaracterize the panel’s holding, and misconceive the facts of the case. More importantly, they misinterpret the relevant decisions of the Supreme Court and imply an effort on the part of the panel to subvert the impact of those Supreme Court cases. Their contentions are untenable.
In U.S. v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), the Supreme Court declined to adopt any per se rules regarding prosecutorial vindictiveness in the pretrial context. The Court determined that the per se rule applicable in the post-trial context was not suitable for pretrial situations. In post-trial cases, a presumption of vindictiveness will lie whenever the prosecutor “ups the ante” following a defendant’s exercise of a legal right. On the other hand, the Court refused to adopt a “per se rule” that in the pretrial context no presumption of vindictiveness can ever lie. The lesson of Goodwin is that proof of a prosecutorial decision to increase charges after a defendant has exercised a legal right does not alone give rise to a presumption in the pretrial context. The rationale supporting the Court’s teaching is that this sequence of events, taken by itself, does not present a realistic likelihood of vindictiveness. But when additional facts combine with this sequence of events to create such a realistic likelihood, a presumption will lie in the pretrial context. The critical question is whether the defendants have presented such facts— whether the defendants have shown that all of the circumstances, when taken together, support a realistic likelihood of vindictiveness and therefore give rise to a rebuttable presumption.
The panel’s opinion held that the defendants in this case presented evidence that *265could allow a court to find that there was a realistic likelihood of vindictiveness and that a presumption thus applied. The dissenters at times suggest that the panel “defied” Goodwin by holding that a prosecutor’s decision to up the ante following a defendant’s exercise of a legal right itself created a presumption of vindictiveness. The panel held no such thing. It enumerated four very specific factors not present in Goodwin that, when added to the prosecutor’s decision to increase charges, provided the extra circumstances to support -a realistic likelihood of vindictiveness — and therefore an allowable presumption of vindictiveness. Any suggestion that the panel’s opinion is more broad is just not so.
When the dissenters do acknowledge the panel’s inspection of the actual set of circumstances in the case, they attempt to dismiss them by referring to the prosecutor’s recognized interest in conducting plea negotiations. This reasoning is most strange, since there were no plea negotiations in this case. The government’s decision to increase charges did not occur in the context of plea bargaining. It occurred when the defendants refused to pay the fine assessed against all the other defendants involved and asked for trial. The panel’s decision explicitly recognizes that had the prosecutor informed the defendants during plea bargaining that they might face increased charges if they chose to go to trial, a court could not find prosecutorial vindictiveness. The dissenters’ inattention to this statement and to the actual facts of this case suggests most careless and frivolous evaluation of the panel opinion.