dissenting:
I respectfully dissent. I would vacate the defendant’s plea agreement and sentence and would remand, allowing the United States Attorney to re-indict and reconsider what charges to bring without the judge’s Sword of Damocles hanging over him. This necessarily would require also disqualifying the judge.
There is a fundamental principle at issue. The structural constitutional requirement that separation of powers be carefully maintained has been violated in this case. As the Supreme Court explained in United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), prosecutorial decisions are rarely reviewed by courts because such a review:
asks a court to exercise judicial power over a “special province” of the Executive. The Attorney General and United States Attorneys retain “broad discretion” to enforce the Nation’s criminal laws. They have this latitude because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to “take Care that the Laws be faithfully executed.” As a result, “[t]he presumption of regularity supports” their prose-cutorial decisions ... (citations omitted)
The need to protect the prosecutor’s discretion has resulted in strict rules on selective prosecution claims1 and limits on *800the judicial review of and participation in plea-bargaining.2 Prosecutors are afforded broad discretion over decisions to investigate,3 to allow plea bargaining,4 to determine whether to bring charges,5 and to decide what charges to bring.6
In this case, the district judge asked pointed questions about why the defendant had not been charged with a specific offense. The government then offered a reasoned explanation as to why it had not included a gun charge in the indictment (that the guns had not been recovered). The judge continued to press the issue, literally brow-beating the prosecutor, calling the government’s policy “absurd” and “asinine,” and instructing the prosecutor to “[s]hare that with your head of Criminal.” Reporter’s Transcript at 9, Feb. 17, 1998. Toward the end of the status conference, the judge explained how he saw his role in the charging process:
The last case I had that somebody raised havoc with me on the — the defendant did — ’that I was all over the prosecutor. But you know, as the judge, I think I do have some role to protect society. And if I think the prosecutor is doing an abysmal job, I do believe I’m able to comment on it. I’m not going to go pick the phone up, as some judges have in days gone by, call the head of the Criminal Division and say, “Hey, head of the Criminal Division, I want to tell you about your people.” I don’t make it a practice to do that. Instead, I tell you right here, and you’re not doing the job, in my view.
Id. at 40.
In a subsequent conference, after the government had brought in a superseding indictment adding an 18 U.S.C. § 924(c) count, the judge again explained his view of his role as “represent[ing] the community,” and that in this role he has observed that “We’re tired of armed bank robbery. We’re tired of guns. We don’t want them anymore; do you understand me? No more guns.” Reporter’s Transcript at 10, March 9,1998. He added:
Now, when the prosecutor files a charge, which charge was set forth here, which implicates guns, but does not in my view, track the will of Congress; namely, when you’re charging guns, you charge 924(c) also, you’re charging a(d) — 2113(d) count, you charged a 924(c). When they don’t do it, and they do it with some frequency, I’ll tell you, when they don’t do it, I want to know why they are not doing it. You’re doggone right ... I’m not backing off; okay? That’s my job ...
I only wish the prosecutor’s office had enough sense to charge appropriately. Then I don’t have to get involved. I would just like to sit back here.... *801Just sit here and rule on motions. Rule on the evidence. Rule on the instructions, and not say one thing. I earnestly believe that it is my job to look at the charges and to say, if there is a failing, what’s going on here ...
And if a Court just sits here when a prosecutor, to my way of thinking, mindlessly charges a 2113(d), and only that, if a judge just sits here, that judge, in my view, unequivocally is not doing his job. Just hang it up, judge. Because if you are that passive, then you shouldn’t be in that position. That’s my view.
Id. at 10-13.
This case puts the appellate court in an awkward position. We play a very limited supervisory role over the conduct of district court judges. I am acutely aware of our limitations. However, my review of the record persuades me that no measures short of what I recommend in this case can maintain the integrity of our system of justice and preserve the constitutionally required separation of powers.
The majority focuses principally on whether the judge was biased, but that is not where the principal focus should be.7 The judge assumed the role of prosecutor. He several times stated unequivocally that his role — his job — was to see that the prosecutor charged properly, that it was necessary for him — the judge — to do so to “protect the community.”
. See., e.g., United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (entitlement to discovery under a selective prosecution claim arises only after defendant makes a threshold showing that the *800government has failed to prosecute similarly situated suspects of other races).
. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Court held that there was no due process violation when the prosecutor threatened to indict the defendant on more serious charges if a guilty plea was not forthcoming. Discussing its reasoning, the Court noted that "[I]n our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand juiy, generally rests entirely in his discretion.” Id. at 364, 98 S.Ct. 663.
. See, e.g., United States v. Martinez, 785 F.2d 663, 670 (9th Cir.1986) (court’s review of claim of prosecutorial vindictiveness necessarily limited).
. See, e.g., United States v. Sustaita, 1 F.3d 950, 952 (9th Cir.1993) (decision to allow or preclude plea bargain within prosecutor’s discretion).
. See, e.g., United States v. Williams, 504 U.S. 36, 48, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) (prosecutor's ability to seek indictment from grand jury is independent of any judicial authorization).
. See, e.g., Hunter v. United States, 73 F.3d 260, 262 (9th Cir.1996) (per curiam) (when more than one statute proscribes the conduct at issue, choice of charges is left to prosecutor's discretion).
. The majority rationalizes that because the judge "engaged in a similarly inquisitive colloquy with the defense at the initial status conference,” (Maj. Op. at 796), this proved he was not biased toward one side or the other. Exercising his duty to protect the constitutional rights of the defendant, I suggest, is not only proper but required. It is not, however, proper for the judge to assume the role of prosecutor.