concurring in the judgment.
Like Justice Brennan, I believe that our precedents. mandate the conclusion that “a realistic likelihood of ‘vindictiveness’” arises in this context. Blackledge v. Perry, 417 U. S. 21, 27 (1974). The Assistant United States Attorney responsible for increasing the charges against respondent was aware of the initial charging decision; he had the means available to discourage respondent from electing a jury trial in District Court; he had a substantial stake in dissuading respondent from exercising that option; and he was familiar with, and sensitive to, the institutional interests that favored a trial before the Magistrate.
Moreover, I find no support in our prior cases for any distinction between pretrial and post-trial vindictiveness. As I have said before: “Prosecutorial vindictiveness in any context is still prosecutorial vindictiveness. The Due Process Clause should protect an accused against it, however it asserts itself.” Bordenkircher v. Hayes, 434 U. S. 357, 368 (1978) (dissenting opinion). And, as Justice Brennan points out, Bordenkircher does not dictate the result here. In fact, in Bordenkircher the Court expressly distinguished and left unresolved cases such as this one, “where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original [charges] had ended with the defendant’s insistence on pleading not guilty.” Id., at 360.
The Court’s ruling in Bordenkircher did not depend on a distinction between the pretrial and post-trial settings: rather, the Court declined to apply its prior opinions in Blackledge and North Carolina v. Pearce, 395 U. S. 711 (1969), because those cases involved “the State’s unilateral imposition of a penalty,” rather than “‘the give-and-take negotiation common in plea bargaining.’” 434 U. S., at *386362, quoting Parker v. North Carolina, 397 U. S. 790, 809 (1970) (opinion of Brennan, J.)- Here, as in Pearce and Blackledge, the prosecutor unilaterally imposed a penalty in response to respondent’s exercise of a legal right.
Adopting the prophylactic rule of Pearce and Blackledge in this case will not, as the Court would insist, undercut “the broad discretion entrusted to [the prosecutor] to determine the extent of the societal interest in prosecution.” Ante, at 382. “[T]he prosecutor initially ‘makes a discretionary determination that the interests of the state are served by not seeking more serious charges.’” Bordenkircher v. Hayes, 434 U. S., at 367 (dissenting opinion), quoting Hayes v. Cowan, 547 F. 2d 42, 44 (CA6 1976). Moreover, the Due Process Clause does not deprive a prosecutor of the flexibility to add charges after a defendant has decided not to plead guilty and has elected a jury trial in District Court — so long as the adjustment is based on “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original” charging decision. North Carolina v. Pearce, 395 U. S., at 726. In addition, I believe that the prosecutor adequately explains an increased charge by pointing to objective information that he could not reasonably have been aware of at the time charges were initially filed. Cf. ante, at 381.
Because I find that the Assistant United States Attorney’s explanation for seeking a felony indictment satisfies these standards, see ante, at 371, n. 2,1 conclude that the Government has dispelled the appearance of vindictiveness and, therefore, that the imposition of additional charges did not violate respondent’s due process rights. Accordingly, I concur in the judgment.