dissenting:
I do not join in the majority’s opinion because I think it is in conflict with controlling decisions of the Supreme Court. I think it also is in conflict with some of our own decisions which are binding on all of us until and unless altered by the court en banc. It also transgresses accepted principles of judicial restraint in the review of matters within prosecutorial discretion. It does not give adequate recognition to the principles which give rise to the doctrine of prosecutorial vindictiveness. And signifi*1232cantly it does not give full consideration to the facts and the findings of the district court in the instant case.
What the majority has done in this case is to foreclose for all time the prosecutor’s option to bring additional charges against a criminal defendant who has been successful on appeal unless it can be shown that the new charges arise from facts totally different from and unrelated to those upon which the original indictment was based. Ante at 1229. It matters neither how serious the criminal conduct engaged in by the defendant, nor how strong the evidence is against him. It does not matter that the appellate victory is based on an issue unrelated to the substantive offense such as improper jury selection, or improper jury instructions, or as here, improper evidentia-ry rulings. Nor does it matter what the public outcry is against the conduct charged or that the defendant showed no remorse for his conduct. The rule in this case — and a harsh one it is — which defense attorneys, defendants, and enlightened as well as grudging prosecutors alike must come to terms with is a simple one, but has costs associated with it that only a utopian society can afford. The majority’s ruling is absolute. Per se. Total. Complete. Unequivocal and Draconian. I do not believe that any decision of the Supreme Court or of this Circuit contemplates such substantial costs to be paid by the society when it is undisputed that .vindictiveness on the part of the prosecutor is lacking.
In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court held that a sentencing judge was precluded from imposing a harsher penalty on a criminal defendant upon retrial after successful appeal unless his reasons for doing so are stated affirmatively in the record. Similarly, Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) was an extension of this rule to prosecutors in their charging decisions. In Blackledge, the Court concluded that “due process also requires that a defendant be freed of apprehension of .. . a retaliatory motivation on the part” of the prosecutor, Id. at 28, 94 S.Ct. at 2102, just as he must be freed of the apprehension of retaliatory motivation on the part of the trial judge. North Carolina v. Pearce, 395 U.S. at 725, 89 S.Ct. at 2080.
United States v. Goodwin, - U.S. -, 102 S.Ct. 2485, 2495, 73 L.Ed.2d 74 (1982) is not to the contrary. In Goodwin, the Supreme Court held that a presumption of prosecutorial vindictiveness is not warranted where a prosecutorial response to a criminal defendant’s exercise of a procedural right occurred pretrial absent a showing that the prosecutor’s charging decision was motivated by a desire to punish him for exercising a legal right. So far, so good. There is no argument with the majority over these holdings. The point at which the majority and I diverge, however, is the glossy sheen to be placed on other dictum in Goodwin which states that “a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.” Id. - U.S. at -, 102 S.Ct. at 2493, 73 L.Ed.2d at 85. I read this dictum as suggesting only that a post-trial prosecu-torial decision to increase charges must be scrutinized more carefully than a pretrial decision lest the former was made to punish a defendant for exercising a legal right. That is all this dictum stands for.
Though it never explicitly acknowledges it, the majority construes this dictum to mean that an irrebuttable presumption of prosecutorial vindictiveness abounds whenever a prosecutor increases charges after a defendant has successfully appealed. See ante at 1229. One should not be mislead by the majority’s attempt to evaluate the prosecutor’s action in light of the standard that the presumption can be rebutted by objective evidence. Such an evaluation is no more than an empty gesture, for in light of today’s decision and in practically all cases where the prosecutor enhances charges upon remand of a ease after a defendant’s successful appeal, a defendant can allege statements which will tend to impute improper prosecutorial motive when the charges are based on the same nucleus of criminal conduct which gave rise to the original charge.
*1233This is why in our decisions we have held that “[a]n increase in the severity or number of charges if done without vindictiveness may [be justified by simple] explanation.” Hardwick v. Doolittle, 558 F.2d 292, 301 (5th Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801. When it is shown that the number of charges has been increased or the severity of the potential sentence has increased after a successful appeal, the criminal defendant has established a prima facie case. Id. But the prosecutor may rebut this prima facie case by demonstrating that his purpose for increasing the severity of the charges was ;due to some objective reason and not to punish a defendant for the exercise of a legal right. Id.
We have also indicated that explanations categorically sufficient to rebut a presump- . tion of vindictiveness include (i) mistake in the prosecutor’s initial action or charging decision, (ii) oversight in the first trial or charging decision made by the prosecutor, (iii) a different approach to prosecutorial duty by a successor prosecutor, (iv) a public demand for prosecution on the additional crimes alleged. . Id. at 301. This list is only illustrative, not exhaustive. What this amounts to and all the Supreme Court opinions discussing the doctrine of prosecutorial vindictiveness is a recognition that a presumption of vindictiveness is anything but irrebuttable. It can be overcome by showing that the prosecutor’s action was not prompted by impermissible motives.
Our decision in Jackson v. Walker, 585 F.2d 139 (5th Cir.1978) does not undermine our decision in Doolittle. It simply employs a balancing test of the prosecutor’s discretion and the defendant’s right to appeal when the prosecutor has added on charges which relate to the same basic criminal activity which was the subject of the original indictment. In applying this test, we simply determine whether we should forbid the prosecutor to increase the sentence because it may have a chilling effect on the exercise of a criminal defendant’s right to appeal or whether objective nonvindictiveness explanations can be given for the prosecutor’s action. It is a weighing of factors which we look to. Our examination of the prosecutor’s action necessarily looks to whether or not his action gives rise to a “realistic likelihood of vindictiveness.” Blackledge v. Perry, 417 U.S. at 27, 94 S.Ct. at 2102. (emphasis supplied). Thus, we reaffirmed in Jackson our insistence that “a court should not interfere with the prosecutor’s exercise of discretion unless a determination of actual vindictiveness is made. Jackson v. Walker, 585 F.2d at 148. (emphasis supplied).
' Our requirement in Jackson that a showing of actual vindictiveness be made actually foreshadowed Goodwin. In Goodwin, the Supreme Court emphasized that there was never a showing made in the district court that the prosecutor in that case had engaged in actual vindictiveness. See United States v. Goodwin, - U.S. at -, 102 S.Ct. at 2493, 73 L.Ed.2d at 85. Absent a showing of actual vindictiveness a court should be hard pressed to find that a prosecutor’s action has been vindictive, i.e., served to punish a defendant for the exercise of a legal right. Because of the majority’s complete disregard of the import of the decisions in Jackson, Doolittle, and Goodwin, my views would be portrayed to be at odds with the decisions themselves. Such is not the case, however. Time and again the Supreme Court has iterated that
The due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction.
To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the state to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’
Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604, 610 (1978) (citations omitted).
*1234Thus, I conclude that a presumption of vindictiveness cannot continue to operate when the prosecutor has shown that increased charges upon remand after a criminal defendant’s successful appeal were not prompted by an improper motive. It is only when the prosecutor acts out of a desire to punish a criminal defendant for an exercise of a legal right, can there actually be a “realistic likelihood of vindictiveness.”1 The core concern of all the decisions on prosecutorial vindictiveness is that the government not penalize a criminal defendant for exercising a constitutional right. That is all, plain and simple. No other fancy explanation of the decisions is needed.
Even the possibility of a harsher sentence, standing alone, is not impermissible.2 The “constitutional validity of higher sentences in the absence of vindictiveness” is not in doubt “despite whatever incidental deterrent effect they might have on the right to appeal.” Chaffin v. Stynchcombe, 412 U.S. 17, 29, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714, 725 (1973); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Parker v. North Carotina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Cf. McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711, 729 (1971).
Hence, when the inquiry is focused (as it should be) on the penal purpose of the prosecutor’s action in this case, it is clear that there is none. The district court explicitly found that “[i]n having the superseding indictment returned, the government was not concerned with increasing the amount of punishment to which the defendant would be exposed.” Frankly, I find it unnecessary to go beyond this' determination. If no impermissible motive can be attributed to the government in its reindictment of Krez-dorn, then its action passes constitutional muster. Implicit in this finding is a rejection of any contention of vindictiveness on the part of the prosecutor. The court also found as fact that the “primary, if not sole, purpose of the govermhent in having a superseding indictment returned was to overcome the Fifth Circuit’s objection to the [erroneous introduction of the 32 forgeries into evidence].” The district court further *1235explained and found that “the government’s purpose was to make evidence of these extraneous forgeries admissible as overt acts in a conspiracy between the defendant Krezdorn and a [co-conspirator].” The court also found that the prosecutor did not even think that the additional charge of conspiracy would result in Krezdorn receiving a punishment in excess of the one given him at the initial trial. What is even more interesting about the facts of this case is that this charging decision upon retrial could well be laid to this Court’s suggestion that the evidence possibly would be admissible in a conspiracy charge. United States v. Krezdorn, 639 F.2d 1327, 1331 n. 7 (5th Cir.1981).
Despite these rather clear factual findings, the majority chooses to uphold the legal conclusion of the district court that “[t]he fact that the prosecutor here is not concerned with increasing the defendant’s punishment or the fact that the defendant’s punishment may not be actually increased is not determinative.” With profound respect to the experienced district judge, I submit that this conclusion is profoundly wrong and the majority’s implicit adoption of it engenders the profoundest bewilderment. It simply makes no sense to say that there is present in this case prosecutorial vindictiveness — a constitutionally impermissible reaction of the prosecutor to punish a defendant after he has successfully appealed — and find it totally irrelevant for all practical purposes that the prosecution did not seek to punish Krezdorn for exercising his right of appeal, i.e., engage in prosecuto-rial vindictiveness. The prosecutor either did or he did not. But the majority, in upholding the district court, concludes that he did and did not. This, of course, makes no sense. Since the prosecutor offered an explanation which was eminently reasonable and fully credited by the district judge for his charging decision after retrial, this explanation should suffice. In fact, any other explanation for the prosecutor’s responsive action which is offered to rebut the presumption would seem to suffice because it is not motivated by a desire to punish. See Hardwick v. Doolittle, 558 F.2d at 301.
More than has been said need not be said. I think the majority reached the wrong conclusion on these facts. Additionally, the law as it now stands ought to .allow the prosecutor’s action here to go unchallenged, unchanged and unreprimanded in view of the total and complete absence of a finding of actual vindictiveness. Because the district court found quite clearly and well with the imprimatur of Rule 52(a) that the prosecutor was not motivated to punish Krezdorn for exercising a right to appeal, I would hold that the judge’s legal conclusion of prosecutorial vindictiveness is incompatible with his factual finding. It certainly does not permit us as an appellate court to disregard this factual finding and then leap to the dubious conclusion that the prosecutor’s action had to be, although in fact it was not, vindictive.
I must, therefore, respectfully dissent.
. Because I reach this conclusion based on the controlling precedent, it simply confounds common sense and good law practice to suggest, upon the facts of this or similar cases, that defendants or defense counsel will in the future fail to object at trial to what they consider prejudicial evidentiary submissions or to appeal what they consider clearly erroneous evi-dentiary rulings — the only standard by which an appellate court can reverse a questionable evidentiary ruling — out of some supposed apprehension of prosecutorial retaliation. That presumption is fallacious not only because of its untruth, but also because it wholly fails to consider the consequences of a defendant’s failure to object or appeal from what he considers prejudicial evidentiary rulings. The consequences are oppressive. A failure to object renders the issue unreviewable on appeal, a cost I think most competent counsel and defendants are unwilling to pay. Second, the stakes in a criminal trial are simply too high for a defendant to play possum on an erroneous evidentiary submission. For instance, without particular evidence, a jury might be bereft of any evidence upon which to peg a guilty verdict. Therefore, no counsel or defendant in his right mind would forego an objection since the possibility of acquittal is not remote.
Likewise, it would be foolhardy for counsel-to forego a non-frivolous appeal based on improper evidentiary rulings. A victory on appeal would have the same effect as a sustained objection at trial to an admission of evidence. Without the excluded evidence a conviction may stand a good chance of reversal based on evidentiary insufficiency, which would foreclose any possibility of additional charges or a new trial because of double jeopardy precepts. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
. Make no mistakes, I am not of the view that a prosecutor is free to do whatever he wants in the reindictment of a defendant upon remand after successful appeal. He is still to act in a manner consistent with the Constitution, the Canons of Ethics, and never in contravention of established legal principles, and rarely, if ever, should he be oblivious to departmental policy and the possibility of “fundamental unfairness” being dealt to the criminal defendant because of callous and careless action on the part of the prosecutor. Whatever reservations I express to giving the prosecutor carte blanche in his charging decisions upon retrial, and suggested constraints the legal profession places on him, the foremost concern of the Constitution is that he not endeavor to punish a criminal defendant for the exercise of a legal right. More constraints than these on the prosecutor’s discretion is a gratuity to the criminal defendant. But the prosecutor may always recall that he is to protect public interest, prosecute fairly but with zeal, persons indicted for criminal conduct.