with whom
POLITZ, Circuit Judge, joins, dissenting:The concept of prosecutorial vindictiveness potentially encompasses all prosecutorial action at every stage of a criminal proceeding. Because the balance of interests between the defendant and the State is shifting throughout the proceeding, it is hardly surprising that no satisfactory standard for assessing allegations of vindictiveness has been devised. Instead of attempting to develop a single standard to control vindictiveness, courts should, following Goodwin, recognize the critical differences between pretrial and posttrial prosecutorial vindictiveness.' If courts take account of this distinction, and adopt a prophylactic rule to protect the defendants’ overriding interests during the posttrial period, they will spare defendants the “grisly choice” imposed by the risk of posttrial vindictiveness.
Note, Prosecutorial Vindictiveness in the Criminal Appellate Process: Due Process Protection After United States v. Goodwin, 81 Mich.L.Rev. 192, 200 (1982) (footnote omitted) [hereinafter cited as Michigan Note]. Because the majority of the Fifth Circuit today decides to ignore the critical importance of the defendants’ interests in the posttrial period and put defendants to the “grisly choice”11 must respectfully dissent.
I present an argument now slightly different from that of the panel opinion. First, the Court sitting en banc need not attempt to harmonize old Fifth Circuit precedent. Second, subsequent to the panel opinion I became aware of the Michigan Note cited above, and I am completely persuaded by the thoughtful analysis it offers.
The problem of potential prosecutorial vindictiveness has troubled the court for years. It places in conflict two principles central to our criminal justice system. On one hand, criminal defendants should be free to exercise their legal rights; on the other hand, the prosecutor’s function requires considerable discretion in indicting, plea bargaining, prosecuting, and so on. The conflict between these two competing goals has led courts to articulate ad hoc, case-by-case rules and has generated unfortunate misnomers that have clouded reasoned discussion of the actual issues. Recently, however, the Supreme Court in United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), articulated a uniform' treatment that eliminates the need for ad hoc decisionmaking. In order to understand Goodwin adequately, I must first place it in context by discussing the Supreme Court cases preceding it. Then I shall discuss the impact of Goodwin on these earlier decisions. Finally, I shall explain the result I believe Goodwin dictates in this case.
I. EVOLUTION OF A DOCTRINE
The basic problem addressed under the rubric of prosecutorial vindictiveness can be simply stated: What should a court do when a prosecutor takes a step harmful to a criminal defendant after that defendant exercises a legal right? The answer to this question varies depending on whether the reviewing court focuses on prosecutorial discretion and the desire to convict criminals, or on due process and the desire to protect individual rights. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Supreme Court focused on due process values. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Court focused on prosecutorial discretion. These three cases resulted in a tension not resolved until Goodwin. I will discuss these three cases briefly.
A. Pearce, Blackledge, and Due Process
An emphasis on the freedom of criminal defendants to exercise legal rights led the Supreme Court twice to prohibit actions harmful to criminal defendants after such an exercise. In North Carolina v. Pearce, supra, a criminal defendant successfully appealed his conviction. Upon retrial he was *1367given a more severe sentence than he had received at his first trial. The Supreme Court held that such an increase in punishment would be allowed only when the reason for the increase appears in the record, and that the reason “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” 395 U.S. at 726, 89 S.Ct. at 2081.
Blackledge, supra, extended the same basic idea to a prosecutor. In Blackledge the defendant was initially tried and convicted of a misdemeanor in state district court and exercised a statutory right to a trial de novo in the state superior court. The prosecutor then indicted the defendant on a felony charge for the same behavior. The Blackledge Court extended Pearce and held that the reindictment violated the due process clause. The Court also noted:
This would clearly be a different case if the State had shown that it was impossible to proceed on the more serious charge at the outset, as in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500. In that case the defendant was originally tried and convicted for assault and battery. Subsequent to the original trial, the assault victim died, and the defendant was then tried and convicted for homicide. Obviously, it would not have been possible for the authorities in Diaz to have originally proceeded against the defendant on the more serious charge, since the crime of homicide was not complete until after the victim’s death.
Blackledge, 417 U.S. at 29 n. 7, 94 S.Ct. at 2103 n. 7.
Blackledge used the phrase “prosecutorial vindictiveness” to describe the problem it sought to remedy. In retrospect, that was an unfortunate choice of words, because it suggests that the problem was merely one of renegade prosecutors attempting to punish valid assertions of constitutional rights. Indeed, due process clearly prohibits actual vindictive punishment of a defendant’s assertion of a constitutional right, but Black-ledge saw “prosecutorial vindictiveness” as a much more systemic problem:
[I]f the prosecutor has the means readily at hand to discourage such appeals — by “upping the ante” through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defendants will brave the hazards of a de novo trial.
There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that “since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” 395 U.S., at 725, 89 S.Ct. at 2080. We think it clear that the same considerations apply here.
Id. 417 U.S. at 27-28,2 94 S.Ct. at 2102.
Thus it is clear that the doctrine of prosecutorial vindictiveness in Blackledge was not intended to provide a remedy for past wrongs. Instead, it was intended to remove any deterrent bar to future defendants contemplating whether to assert a protected right. Blackledge stands squarely in the due process protecting mode.
B. Bordenkircher and Prosecutorial Discretion
The Supreme Court’s next word on the subject was in the prosecutorial discretion mode. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), held that there was no violation of due process when a prosecutor filed more severe *1368charges after the defendant refused to plead guilty to lesser charges. Bordenkircher did not purport to overrule Black-ledge, but rather chose to emphasize some factors Blackledge mentioned only in passing and to deemphasize some of the key points I just discussed from Blackledge.
Thus, in Bordenkircher the Court emphasized the societal interest in plea bargaining and the prosecutor’s need for discretion in charging decisions. As a corollary, the Court placed less emphasis on the need to promote due process. In fact, the Court went so far as to state a slightly revisionist view of the thrust of Blackledge:
The Court has emphasized 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, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, 417 U.S., at 26-28, 94 S.Ct., at 2101-02.
Id. 434 U.S. at 363, 98 S.Ct. at 668. Needless to say, this is perhaps a less-than-faithful account of what Blackledge actually says on the cited pages. In any event, Bordenkircher quite clearly is a decision in the prosecutorial discretion mode.
C. Confusion in the Circuits
After Bordenkircher, the prosecutorial vindictiveness doctrine was in disarray. Blackledge and Bordenkircher had articulated two distinct guiding principles, always in conflict, with both always present and neither carrying with it any intrinsic limiting precept. Blackledge stood for the right of criminal defendants to be free to exercise legal rights without fear of reprisals through vindictive exercises of prosecutorial discretion. Bordenkircher stood for the pragmatic recognition for the need of prosecutors to have discretion in bringing additional or different charges. The circuit courts had obvious and understandable difficulty in melding the two conflicting goals of Blackledge and Bordenkircher. See generally, Michigan Note, supra, at 200-08. This situation remained unclear until Goodwin.
II. GOODWIN TO THE RESCUE
A. Reconciling Blackledge and Bordenkircher
In United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), the Supreme Court finally brought coherence to the field by harmonizing the two competing interests of free exercise of legal rights and the need for prosecutorial discretion. Goodwin accomplished this feat not by holding that one interest was of greater virtue than the other, but by recognizing that each interest has an area of primacy. Goodwin articulated a pretrial/posttrial distinction and held that in the pretrial context, the need for prosecutorial discretion was foremost.
Goodwin involved a criminal defendant facing misdemeanor charges for assault. Goodwin refused to plead guilty to the misdemeanor and requested a trial by jury. The prosecutor then reindicted Goodwin for a felony charge for the same incident. The Court in Goodwin squarely held that in the pretrial context the prosecutor has the discretion to increase charges after a defendant’s exercise of a right except for the purpose of punishing that exercise. The question we must now face is what constraints remain on a prosecutor’s discretion to increase charges outside the pretrial context. Though Goodwin does not explicitly address that question, when it is viewed in the context of Blackledge and Bordenkircher it provides an implicit but ample answer.
B. The Posttrial Presumption
Goodwin contributed a phrase to the judicial vocabulary at least as unfortunate as Blackledge’s “prosecutorial vindictiveness”: Goodwin described Pearce and Blackledge as creating a “presumption of vindictiveness.” Thus, another way of stating the question implicitly answered by Goodwin is: *1369When does a presumption of vindictiveness arise?
A compelling answer to this question can be found by looking to the rationale Goodwin used to avoid a presumption in the pretrial context. The Court relied on Blaekledge for the proposition that a presumption of vindictiveness should arise only in instances “that pose a realistic likelihood of ‘vindictiveness.’ ” Blaekledge, 417 U.S. at 27, 94 S.Ct. at 2102. With that in mind, the Court explained Pearce and Blaekledge as follows:
Both Pearce and Blaekledge involved the defendant’s exercise of a procedural right that caused a complete retrial after he had been once tried and convicted. The decisions in these cases reflect a recognition by the Court of the institutional bias inherent in the judicial system against the retrial of issues that have already been decided. The doctrines of stare decisis, res judicata, the law of the case, and double jeopardy all are based, at least in part, on that deep-seated bias. While none of these doctrines barred the retrials in Pearce and Blaekledge, the same institutional pressure that supports them might also subconsciously motivate a vindictive prosecutorial or judicial response to a defendant’s exercise of his right to obtain a retrial of a decided question.
Goodwin, 102 S.Ct. at 2490-91. In distinguishing the pretrial context, the Court noted all of the compelling reasons a prosecutor might have for increasing charges pretrial. The court then stated, “Thus, 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. at 2493. It is certainly true that once a prosecutor has finalized his charges enough that he or she is willing to go to trial on them, the needs for charging discretion tend to be much less, see, Michigan Note, supra, at 212-13, and the likelihood of vindictiveness much greater.
Finally, the Court distinguished the burden to the government from asserting the right at stake in Goodwin — the right to a jury trial instead of a bench trial — from that in Pearce and Blaekledge:
[BJefore either a jury or a judge the State must present its full case against the accused and the defendant is entitled to offer a full defense. As compared to the complete trial de novo at issue in Blaekledge, a jury trial — as opposed to a bench trial — does not require duplicative expenditures of prosecutorial resources before a final judgment may be obtained. Moreover, unlike the trial judge in Pearce, no party is asked “to do over what it thought it had already done correctly.” A prosecutor has no “personal stake” in a bench trial and thus no reason to engage in “self-vindication” upon a defendant’s request for a jury trial. Perhaps most importantly, the institutional bias against the retrial of a decided question that supported the decisions in Pearce and Blaekledge simply has no counterpart in this case.
102 S.Ct. at 2494 (footnotes omitted). The factors justifying a presumption in Black-ledge and Pearce certainly exist in any posttrial assertion of a legal right.
Another answer to the question of when a presumption arises can be found by looking to the holding in Goodwin; no presumption of vindictiveness arises in the pretrial context. The obvious negative inference from this holding is that such a presumption does arise in the posttrial context. This conclusion is bolstered by looking at Goodwin relative to Pearce, Blaekledge, and Bordenkircher. As the Court explained in Goodwin, it granted certiorari to clarify the scope of Pearce and Blaekledge. 102 S.Ct. 2487. Pearce and Blaekledge were cases involving a presumption of vindictiveness, and as Goodwin repeatedly noted, they were posttrial cases. Bordenkircher declined to apply a presumption and, as Goodwin noted, it was a pretrial case. Thus we have something considerably more powerful than a mere negative inference. Goodwin claimed to be partitioning the procedural universe between Pearce and Blaekledge, the posttrial presumption cases, and Bor*1370denkircher, the pretrial prosecutorial discretion case. Because Goodwin drew the partitioning line at trial, I can only conclude that Goodwin mandates a presumption of vindictiveness in the posttrial context.
In short, though Goodwin does not explicitly so hold, I believe it clearly stands for a dual proposition. Pretrial, no presumption of vindictiveness is justified. Posttrial, any “upping the ante” by the prosecutor after a defendant’s exercise of a legal right gives rise to a presumption of vindictiveness. Goodwin harmonized Blaekledge and Bordenkircher by drawing a bright line at trial. Pretrial, Bordenkircher reigns supreme; posttrial, Blaekledge holds sway. This dual sovereignty should obviate the need to apply an unclear, unpredictable, unpalatable case-by-case analysis.
C. Rebutting the Presumption
The final question is what to do with a presumption of vindictiveness once it arises. How can it be rebutted? It is at this point that the two misnomers in this doctrine combine forces to wreak havoc on careful analysis. The “presumption” is no more an evidentiary presumption than the parol evidence rule is an evidence rule. And “vindictiveness” refers not to the actual motive, but rather to the perception of a defendant considering asserting a legal right. The question in determining whether a “presumption” should arise might be stated: “Would a criminal defendant trying to decide whether to assert a legal right look at the facts of the instant case and presume the prosecutor had acted vindictively?” Thus, the question in dispelling a presumption is whether an unrelated party looking at the facts of the instant case would be persuaded that the prosecutor did not act vindictively. The question most emphatically is not whether the prosecutor was actually vindictive.
This conclusion gains firm support from Goodwin. First, Goodwin endorses the continuing vitality of the deterrence goal of Pearce and Blaekledge, which makes the prosecutor’s actual motive irrelevant. Second, in discussing rebuttal, Goodwin calls for objective evidence, also making actual motive irrelevant. I will discuss these two points briefly.
1. Deterrence Lives After Goodwin.— Pearce and Blaekledge were seeking to articulate a rule that would prevent prosecutors from deterring exercises of legal rights by criminal defendants by making them fearful of retaliation. In a deterrence scheme, the prosecutor’s actual motive is irrelevant; the operative question is not the state of the prosecutor’s mind, but rather, the state of mind of a defendant contemplating the exercise of a legal right. Bordenkircher recast this motivation as one solely of avoiding actual vindictiveness. Goodwin, while acknowledging the importance of actual vindictiveness in the Bordenkircher -ruled pretrial context, see, e.g., 102 S.Ct. at 2492 n. 12; id. at 2494, also acknowledged that the deterrence rationale of Pearce and Blaekledge survives in the posttrial context.
The most evident support for this position is the simple fact that Goodwin as a whole supports a Blaekledge presumption in the posttrial context. See supra Part II.B. More specifically, the Court described the purpose of a Blaekledge presumption as one “that would free defendants of apprehension of such a retaliatory motivation on the part of the prosecutor.” 102 S.Ct. at 2490. Apprehension of a retaliatory motive can certainly exist in the' factual absence of such a motive.
2. Rebutting the Nonpresumption. — The Court’s view of the true nature of the “presumption" is made most clear by its discussion of what will, and will not, suffice to rebut the presumption. First, the Court repeatedly emphasized the irrelevancy of actual motive when a presumption of vindictiveness arises.
Unlike Bordenkircher, however, there is no evidence in this case that could give rise to a claim of actual vindictiveness; the prosecutor never suggested that the charge was brought to influence the respondent’s conduct. The conviction in this case may be reversed only if a pre*1371sumption of vindictiveness — applicable in all cases — is warranted.
102 S.Ct. 2493 (emphasis in original, footnote omitted). The Court further stated:
In this case, however, the Court of Appeals stated: “On this record we readily conclude that the prosecutor did not act with actual vindictiveness in seeking a felony indictment.” [U.S. v. Goodwin] 637 F.2d [250] at 252. Respondent does not challenge that finding. Absent a presumption of vindictiveness, no due process violation has been established.
Id. at 2494-95. Thus, even in the face of a factual finding, supported by the record, of no actual vindictiveness, a “presumption of vindictiveness” would still establish a due process violation. No mere evidentiary presumption concerned with the presence or absence of actual vindictiveness would function in that manner.
This conclusion is further reinforced by the indications the Court gave of what would rebut the presumption. The presumption when it arises is based on Pearce and Blackledge. As the Goodwin Court noted, the Pearce “Court applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” Id. at 2489. In discussing Black-ledge, the Court noted that “[t]he presumption again could be overcome by objective evidence justifying the prosecutor’s action.” Id. at 2490 n. 8. The Goodwin Court also quoted Blackledge’s example of Diaz, where “it was impossible to proceed in the more serious charge at the outset.” Id. (quoting Blackledge, 417 U.S. at 29 n. 7, 94 S.Ct. at 2103 n. 7). The Goodwin Court summarized Blackledge and Pearce as establishing a presumption that could not be rebutted “unless the prosecutor comes forward with objective evidence to show that the increased charges could not have been brought before the defendant exercised his rights.” Id. at 2488.
If the presumption of vindictiveness were intended to be a mere evidentiary presumption of actual vindictiveness, it would relate to that very subjective, “complex and difficult to prove,” id. at 2489, question of motive. In that case, there would be no point in restricting rebuttal evidence to objective evidence — subjective evidence is perfectly acceptable to establish subjective motive. There certainly would be no point in requiring a showing that “the increased charges could not have been brought before the defendant exercised his rights.” Id. at 2488 (emphasis added). The only point of such restrictions would be to dispel any apprehension of vindictiveness. Indeed, I believe such a conclusion to be inescapable after Goodwin.
D. Goodwin meets Krezdorn
In short, the rule for the posttrial context can be easily stated after Goodwin. In the posttrial context, a so-called presumption of vindictiveness arises any time the prosecutor “ups the ante” after a defendant exercises a legal right. Upping the ante certainly includes a possibility of increased sentence, but need not be limited to that. See Blackledge, 417 U.S. at 29 n. 6, 94 S.Ct. at 2103 n. 6. The presumption may be rebutted only by objective evidence showing that the increase charges could not have been brought until after the defendant exercised the legal right.
With this rule in mind, it is a simple matter to dispose of this case. Appellee Krezdorn successfully appealed his first conviction. The prosecutor then upped the ante by reindicting for a more serious crime. Thus a presumption arises. The only explanation for the increased charges was that the panel opinion in Krezdorn’s first appeal, in dicta, reminded the prosecutor of a long-standing rule of evidence. This certainly and definitely does not constitute objective evidence that the charges could not have been brought before Krezdorn’s first successful appeal. Due process, therefore, requires that the additional charges be dismissed and the decision of the district court be affirmed.
CONCLUSION
As is clear by now, my analysis of the problem of prosecutorial vindictiveness differs considerably from that of the majority of the Fifth Circuit. The result I would *1372reach in this case plainly differs. The underlying concerns also differ. I place more emphasis on preventing prosecutorially induced apprehension of vindictiveness so that a criminal defendant may freely exercise the rights granted him by law. The majority places more emphasis on the prosecutor’s need for discretion in charging and limits that discretion solely by prohibiting actual vindictiveness.
Because the majority’s rule places upon defendants the “grisly choice,” see supra note 1, I believe it is bad policy and would dissent solely upon that ground. More important, however, is my firm belief that the Fifth Circuit is being less than true to the scheme established by Goodwin. I believe Goodwin, though' not totally explicit, establishes a pretrial/posttrial distinction. In the posttrial arena, due process and the Supreme Court command us to be most solicitous of the possibility of an apprehension of vindictiveness in order to preserve the integrity of the protections imbedded in our criminal justice system. The majority appears to me to be unduly solicitous of the expediency required to secure criminal conviction. I believe that Goodwin, the Constitution, and fundamental notions of fairness dictate that expediency not be our first priority. Accordingly, I respectfully dissent.
. Michigan Note, supra, at 200 n. 194.
. Perhaps to emphasize that it was referring to apprehension of vindictiveness rather than actual vindictiveness, the Court used the word “vindictiveness” in quotes. See, e.g., 417 U.S. at 26, 27, 94 S.Ct. at 2101, 2102.