dissenting:
I respectfully dissent. I would remand for reinstatement of the dismissed count.
I.
The remedy applied by the majority is more drastic than that provided by the exclusionary rule, for it would exclude not merely evidence of crime but the government’s right to seek prosecution on the charge itself. It is a charge which a duly constituted grand jury has found to have been supported by probable cause and of which Andrews may actually be guilty.
There is no suggestion in the record here that the grand jury was not properly constituted, or that the indictment was not proper on its face or that it was procured by fraud. It is true that case law suggests such a right where there is evidence of selective prosecution, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). However, no racial, religious or other invidious class-based discrimination is even hinted at here. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962).
The majority’s decision here represents an intrusion into an area historically reserved to the executive branch, and which in my view can be justified only by concerns more fundamental and conduct more egregious than are present here. The Constitution itself provides the necessary checks and balances to guard against prose-cutorial vindictiveness, real or imagined, by interposing the grand jury system between persons accused of crime and their accusers:
The institution of the grand jury is deeply rooted in Anglo-American history. In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by “a presentment or indictment of a Grand Jury.” Cf. Costello v. United States, 350 U.S. 359, 361-62, 76 S.Ct. 406, 407-408, 100 L.Ed. 397 (1956). The grand jury’s historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U.S. 665, 686-687, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972).
Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers *463appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. “It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919).
The scope of the grand jury’s powers reflects its special role in insuring fair and effective law enforcement. A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated. Rather it is an ex parte investigation to determine whether a crime has been committed and whether the criminal proceedings should be instituted against any person. The grand jury’s investigative power must be broad if its public responsibility is adequately to be discharged. Branzburg v. Hayes, supra, at 700, 92 S.Ct. at 2666; Costello v. United States, supra, at 364, 76 S.Ct. at 409.
United States v. Calandra, supra, 414 U.S. at 342-44, 94 S.Ct. 613, at 617-18, 38 L.Ed.2d 561 (footnotes omitted).
I would not rule out the possibility that the problem perceived here might become so pervasive or systemic as to invoke the protection of the Due Process Clause. I am therefore unable to agree with my colleague, Judge Merritt, that Pearce and Blackledge are necessarily limited to post-conviction proceedings or to cases where double jeopardy values are implicated. Neither am I, however, willing to confine Bordenkircher to its facts, as would my colleague, Judge Keith. I believe that we should consult the wisdom of both, but that we are bound in this case by neither.
II.
The right allegedly chilled here is the Eighth Amendment right to bail. It is a right which is purely collateral to the right of the defendant to a fair trial. It is a precious right to be sure, but a limited one. It has nothing to do with guilt or innocence. It is also a right whose protection already has a plain, speedy, efficient remedy.
The right to bail is not unqualified. The Eighth Amendment only forbids “excessive bail.” It has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. Carlson v. Landon, 342 U.S. 524, 545-46, 72 S.Ct. 525, 536-537, 96 L.Ed. 547 (1952). Thus while a defendant has an unquestionable right under the Eighth Amendment and a statutory right under 18 U.S.C. § 3146(d) to petition the court for release in non-capital cases, bail may properly be denied altogether if the defendant has threatened the lives of the witnesses against him, a circumstance at least suggested at the bond determination proceedings here. Mr. Justice Douglas recognized the need to deny bail on such occasions:
In my view the safety of witnesses, should a new trial be ordered, has a relevancy to the bail issue. Keeping a defendant in custody during the trial “to render fruitless” any attempt to interfere with witnesses or jurors may, in the extreme or unusual case, justify denial of bail. (Citations and footnotes omitted).
Justice Douglas, sitting as Circuit Justice in Garbo v. United States, 82 S.Ct. 662, 668, 7 L.Ed.2d 769, rehearing denied, 369 U.S. 868, 82 S.Ct. 1137, 8 L.Ed.2d 274 (1962). To like effect in our circuit, see United States v. Wind, 527 F.2d 672 (6th Cir. 1975); United States v. Bigelow, 544 F.2d 904 (6th Cir. 1976). See also, Mastrian v. Hedman, 326 F.2d 708 (8th Cir. 1964), cert. denied 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982.
While the underlying facts in Borden-kircher v. Hayes sufficiently differ from those here to persuade me that it is not controlling, still its logic and language are highly persuasive. The chilling effect of the allegedly vindictive conduct in Pearce, Blackledge and Hayes was upon the defendant’s right to contest by trial the truth of *464the charges against him. If there are different levels of sensitivity to different constitutional rights, surely those which affect truth-finding are foremost, and yet Bor-denkircher v. Hayes clearly tolerates such a chilling effect when necessary to preserve the perceived benefits of plea bargaining. In this sense, at least, I find some merit in the government’s view that the government’s stake in whether a defendant is free on bond pending trial is not as great as it was in Blackledge, and hence that due process does not require the rule of Blackledge or Pearce here. The majority opinion acknowledges this to some extent but concludes that each case must turn on its facts.
In short, I am not convinced that a Supreme Court which decided Pearce, Black-ledge and Hayes would exact such a sanction here where the exercise of the right is less likely to affect the prosecution’s vital interest and thus invite abuse.
III.
The majority opinion assumes that a defendant will be less likely to seek bail if he believes that by so doing the prosecution will retaliate by increasing the charges against him. I respectfully suggest that while such a result is possible, reality says he will not be chilled. While the majority’s concern is with the prospective chilling effect upon future defendants, it is still noteworthy that Andrews and Brooks were in fact admitted to bail and that the prosecu-trix did not seek to revoke it after the superceding indictment was returned.
In Chaffin v. Stynchcombe, 412 U.S. 17, 29, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973), Justice Powell carefully considered the “chilling effect” in determining whether the Due Process Clause should bar a jury from rendering a higher sentence on re-trial following a reversal of a prior conviction. There, speaking for the majority, Justice Powell held that jury sentencing was, like plea bargaining, a legitimate practice not barred merely because it might have a “discouraging effect on the defendant’s assertion of his trial rights.” 412 U.S. at 31, 93 S.Ct. at 1985. At the same time he realistically analyzed the “chill factor” from the viewpoint of the defendant. He concluded, as I would here, that “we doubt that the ‘chill factor’ will often be a deterrent of any significance.” 412 U.S. at 33, 93 S.Ct. at 1986. The realities here pose, in my judgment, a deterrent of even lesser significance.
First, to be chilled, the defendant, in hesitating to seek bail, must anticipate that if he is successful, the prosecutor will seek additional, or enhanced, charges. Next, he must anticipate that the grand jury will find probable cause and return an indictment. Then he must anticipate that in trial the jury will convict him of the additional charge. Finally, he must anticipate that having been found guilty, the judge will give him a more severe sentence because of the additional count in the indictment. It is true that competent defense counsel may advise him of these possibilities, much as he would advise the defendant when deciding whether to plead or stand trial, to testify or to remain silent, to cooperate with the police or to follow any number of alternative courses of action. I seriously doubt, however, that this possible consequence, so far down the road, will actually chill and thus deter his action, when measured against the more immediate benefit of freedom pending trial.
On the other hand, while the compelling desire for immediate freedom will no doubt be the strongest instinct in the defendant, there is at least one other strongly persuasive consideration of great strategic appeal to defendant’s counsel which can reasonably be expected to offset the fear of heavier charges. Every defense lawyer knows that each day of freedom for the client, accompanied by demonstrated capability for reform, enhances the chances for ultimate freedom or at least adds to the weight of evidence that the defendant is not a probation risk should he be convicted. Thus it is altogether realistic to expect that the defendant’s counsel will urge that defendant seek bail even at the risk of retaliation. The long period of time which normally exists between arrest and ultimate *465sentence, if spent on bail, provides the defendant the most compelling argument for a lighter sentence if he can, by obtaining employment, supporting his family, and engaging in therapy, persuade the sentencing judge that he is a reformed man and that it would be both unnecessary and unprofitable to return him to confinement.
My judicial instinct says that almost invariably the defendant will opt for immediate freedom, if he can get it. He will not be chilled or deterred from seeking bail by the implied threat of additional charges. He will take the cash and let the credit go, and his attorney will in all likelihood recommend that course. Justice Powell’s observation in Chaffin have even more compelling logic here.
IV.
Apart from whether a defendant is likely to be chilled or discouraged from seeking admission to bail by the threat of vindictiveness, a further question is whether the prosecutor is likely to be deterred from such a course of conduct by the prophylactic rule of dismissal. He may. A more likely result, however, is that the proposed rule will have the undesired effect either of blunting prosecutorial discretion by fostering timidity, or of providing a strong incentive to prosecutors to “throw the book” at a defendant at the first opportunity as the safest way to avoid a charge that a later addition of counts was vindictive. Either reaction is less than desirable. For every defendant whose rights the majority may wish to protect, there will be many others who stand to be prejudiced by the almost inevitable effect of the rule which the majority would create.
The dilemma which the majority rule poses for the prosecutor is real indeed. If he honestly believes his own motives are free from vindictiveness, how may they appear to the trial judge who must apply an objective standard? How will the court of appeals view it? Why should he risk such accusations and enmesh himself in collateral evidentiary hearings when he can avoid it all by charging the defendant to the hilt at the outset?
The record in this case provides a classic example of the dilemma. There was testimony at the bond revocation hearing that a confidential source had reported that the defendant had threatened a witness. It does not appear whether the trial judge credited this testimony for, though he heard it, he made no finding with respect to it. We do not know if in fact the defendants threatened the witnesses, or if the confidential informer was reliable, or if the prosecutor completely believed him. Nevertheless, this intelligence had to create in the prose-cutrix’s mind some apprehension of danger to the witness and to the prosecution of her case.
The government has also claimed that the Assistant United States Attorney did not originally seek to indict on a conspiracy because of her inexperience. It contends that she would in all events have sought the new indictment before the defendants, appealed denial of bail but could not because the composition of the grand jury itself was then under challenge and because, after that problem was resolved, her scheduled time before the grand jury had been preempted by higher ranking attorneys in her office. Although the trial judge expressly declined to find her action to be malicious or to question her integrity, he made no findings concerning the truth of these claims.
The facts here demonstrate as well as any others the problem of attempting to draw the fine line between what is vindictiveness or retaliation and what is righteous indignation or an appropriate discretionary response to a perceived danger. It is the essence of discretion that it may properly be exercised in different ways and likewise appear differently to different eyes. The discretion to charge persons accused of crime is the function of the executive branch acting through the prosecutor, historically protected from abuse by the interposition of the grand jury. There are undoubtedly many occasions when the exercise of that discretion may subject the executive branch to the danger of appearing *466vindictive or arbitrary or unjust. For the most part, however, correction should lie in the political process to which the executive is subject. Correction in the area of executive discretion should only rarely be a judicial function.
Chief Justice Burger addressed this precise question as a circuit judge in Newman v. United States, 382 F.2d 479 (D.C.Cir. 1967):
An attorney for the United States, as any other attorney, however, appears in a dual role. He is at once an officer of the court and the agent and attorney for a client; in the first capacity he is responsible to the Court for the manner of his conduct of a case, i. e., his demeanor, deportment and ethical conduct; but in his second capacity, as agent and attorney for the Executive, he is responsible to his principal and the courts have no power over the exercise of his discretion or his motives as they relate to the execution of his duty within the framework of his professional employment.
* * *
To say that the United States Attorney must literally treat every offense and every offender alike is to delegate him an impossible task; of course this concept would negate discretion. Myriad factors can enter into the prosecutor’s decision. Two persons may have committed what is precisely the same legal offense but the prosecutor is not compelled by law, duty or tradition to treat them the same as to charges. On the contrary, he is expected to exercise discretion and common sense to the end that if, for example, when one is a young first offender and the other older, with a criminal record, or one played a lesser and the other a dominate role, one the instigator and the other a follower, the prosecutor can and should take such factors into account; no court has any jurisdiction to inquire into or review his decision.
It is assumed that the United States Attorney will perform his duties and exercise his powers consistent with his oath; and while this discretion is subject to abuse or misuse just as is judicial discretion, deviations from his duty as an agent of the Executive are to be dealt with by his superiors.
The remedy lies ultimately within the establishment where power and discretion reside. The President has abundant supervisory and disciplinary powers-including summary dismissal-to deal with misconduct of his subordinates; it is not the function of the judiciary to review the exercise of executive discretion whether it be that of the President himself or those to whom he has delegated certain of his powers.
382 F.2d 481-82 (footnotes omitted).
The application of the foregoing logic to the facts here is plain indeed. Even if she misconceived the danger which the defendants might pose to government witnesses, it was not surprising for the prosecutrix to desire to avoid that risk by opposing bail or by seeking the additional charge if she believed it was warranted. As Newman teaches, a proper exercise of prosecutorial discretion necessarily includes a personal, even subjective, evaluation of culpability in deciding what charges to seek from the grand jury. If public policy of lenity in seeking grand jury indictments is to be encouraged, there must be some room for further repair to the grand jury where the initial impression of the defendant’s conduct has proved too optimistic. A prosecutor may be quite willing to believe the law is adequately vindicated by one or two substantive drug charges but may reasonably decide it does not when it later appears that the defendants are willing to threaten or harm witnesses to avoid conviction.
V.
My most fundamental objection is that the pre-trial procedures mandated by the majority opinion are wasteful of time, will unnecessarily delay the trial and are altogether out of proportion to the problem which is perceived.
If there were present here some genuine issue of selective prosecution based upon racial or religious or other invidious class-*467wide bias, or some question of fraud in the procurement of the indictment, I could join in the creation of a rule to prevent it, however difficult it might be of application. Even the problem of defining vindictiveness should not deter us from creating the rule, if it is otherwise justified. However, we should not embark on such a course without first measuring its need and effect in terms of the overall impact such a rule would have upon the administration of justice generally. The truth is, however, that the majority opinion creates needless complication and further uncertainty in the already overburdened processes leading from arrest to trial.
Defense counsel, to avoid a charge of ineffective assistance, will be induced to challenge every superseding indictment for fear of waiving any claim that it was procured because of vindictiveness. Where not raised by the defense, the trial court, fearful of the plain error rule or of later collateral attack, may raise one issue sua sponte.
Applying the rule will be difficult in practice. For all practical purposes, I am unable to distinguish the standard of “appearance of vindictiveness” applied by the district court from “reasonable likelihood of vindictiveness” where the trial judge, following Blackledge, must apply an objective standard. I can see little or no difference between the “heavy burden” which the district court said was upon the government and the majority rule which somehow rules out “mistake,” and requires “only objective, on-the-record explanations.” In my opinion, an “appearance of vindictiveness” means no more nor less than “realistic likelihood of vindictiveness” judged on an objective basis.
If the defendants prevail following the hearing as here, the government has a right of appeal under 18 U.S.C. § 3731. The result, regardless of success, is delay. As this opinion is written, nearly five years have transpired since the alleged offenses and arrest of Tallice Andrews and Thurston Brooks in November, 1975. It is true that not all delays are due to this litigation, but it has since March, 1978 played a substantial role in that delay. The majority rule places a heavy burden upon district courts without sufficient promise of benefit to justify it.
While a corresponding right to interlocutory appeal by the defendant probably does not exist where the trial judge denies such motions, there remains the serious problem of diversion of judicial and legal resources to determine the issue, with its own concomitant delay. More important, there remains the uncertainty which the issue interjects into the trial and into the appeal which, with mechanical certainty, now follows nearly all convictions. The issue must be reviewed. Three judges of the court of appeals must consider whether the trial judge’s factual findings are clearly erroneous; if not, whether he abused his discretion; and finally, whether he applied the correct standard of law in a field where substantial disagreement obviously exists.
If the court of appeals concludes that the count should have been dismissed, there remains the further question whether trial on the excluded count, with its different evidence and instructions, so prejudiced the defendants that they must be retried on the remaining counts. Those who may view this possibility as theoretical need only to look to the original panel decision in United States v. Sutton, 605 F.2d 260 (6th Cir. 1979), rehearing en banc pending, which would have reversed all convictions because of what the majority conceived was the transferred prejudice of the impermissible count. The problem is real indeed for everyone at the trial level, trial judge, prosecutor and defense counsel.
VI.
The defendants already have fully adequate remedies to protect their right to bail. These remedies should largely dissipate any effect of truly unjust retaliatory action by the prosecutor.
Part I of this dissent points out that the defendants have the constitutional protection provided by the grand jury system to stand between them and their accusers. That system guarantees that, regardless of *468the motives of the prosecutor, the charges against them will be supported by probable cause before they must face them. Thereafter, the defendants can seek dismissal if the proofs are insufficient to support the charge. The jury, being unpersuaded, can acquit them. Finally, if the defendants are convicted, the Court itself stands as an effective shield against the effects of any perceived prosecutorial vindictiveness.
Likewise the defendants have a speedy and effective remedy if the prosecutor should seek to increase bail because of the increased charges. There is some significance, at least, in the fact that the prosecu-trix did not do so here and that so far as this record shows, defendants remain free on bail. Defendants quickly appealed from the magistrate’s remand without bail, were granted a hearing, and received prompt relief from the district court. 18 U.S.C. § 3147 (a) provides for district court review of an order of detention. Section 3147(b) provides as well for expedited appellate review. A denial of a motion to reduce bail under section 3147(a) is a final decision for purposes of immediate appeal. 28 U.S.C. § 1291. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951).
Existing statutory provisions protecting the rights to bail are both speedy and effective, as shown by the facts of this case. They accord a fair hearing at which any impermissible motive of the prosecutor can be challenged. Speedy appeal is provided for and does not interrupt the orderly advance of litigation to trial. Finally, the trial does not need to proceed under the apprehension that error in determining the motion to quash may render the validity of the ultimate verdict uncertain.
CONCLUSION
I would vacate the order of the district court and remand for reinstatement of the conspiracy count.