dissenting in part:
I concur in the majority’s statement of jurisdiction, as well as the conclusion that de novo is the appropriate standard of review. Whether the circumstances of this case created an appearance of vindictiveness requires a mixed consideration of legal principles and the facts of record. United States v. Martinez, 785 F.2d 663, 666 (9th Cir.1986). I respectfully dissent from the majority’s conclusion that the alien smuggling indictment was properly dismissed by the district court.
I. Background
Sharon Ann Jenkins was arrested on January 9, 2005, at the Otay Mesa port of entry in a Dodge van driven by her husband. Concealed in the van were 118.20 kilograms (more than 260 pounds) of marijuana. Jenkins told a border officer she believed she was smuggling illegal aliens, and denied knowing there was marijuana in the van. Three months later, she testified at trial on the drug charges that she believed she and her husband were smuggling an undocumented alien into the United States, not drugs. She testified that several months before the drug arrest, she twice smuggled illegal aliens into the United States in exchange for money. According to Jenkins, the person providing the Dodge van loaded with marijuana was introduced to her by the person who hired her to smuggle aliens on two recent occasions, October 19 and 20, 2004.
Indeed, Jenkins was stopped at the border twice with undocumented aliens hidden in her vehicle two months before the drug stop. On both prior occasions, she was questioned, she admitted she was paid to drive the car across the border, and she was released. A criminal complaint charging alien smuggling was not filed against her until later the same day she testified at her drug trial. The indictment that is the subject of this appeal followed several weeks later.
II. Dismissal of the Indictment
Jenkins moved to dismiss the indictment relating to alien smuggling on a vindictive prosecution theory: the government brought the alien smuggling charges in retaliation for exercising her right to testify at her drug smuggling trial. According to the district court, the United States had all the information it needed to prosecute her for alien smuggling when she was stopped at the border on October 19 and *70320, almost five months earlier. The United States responded that the alien smuggling charges were initiated only after Jenkins admitted under oath that on two occasions, she attempted to smuggle undocumented aliens into the United States for money. The supervising Assistant United States Attorney, who approved the alien smuggling charges, testified at the hearing. He explained to the district court that he approved prosecution based on the content of Jenkins’ testimony, not her decision to testify. The decision to prosecute was made when she confessed in detail to those other crimes under oath. The credibility of the prosecutor’s explanation was not questioned by the court.
The district court dismissed the indictment because the timing of the alien smuggling charges immediately following Jenkins’ testimony gave rise to an appearance of vindictiveness. It was the district court’s opinion the government had sufficient information to prosecute Jenkins without her courtroom confession. (“Cases for illegal alien smuggling in this district are proven on much less than that”), 163. The court characterized its decision as “prophylactic” to insure that a defendant’s right to testify and defend herself is not “chilled.”
At the initial hearing on this issue, the district court stated, “my ruling should not in any way, shape, or form be construed as casting doubt or indicating that I do not believe government’s counsel, or that I believe that they did anything improper.” At a later hearing on the government’s motion to reconsider, the court reiterated that the government did not do “anything wrong.” But the timing of the alien smuggling charges did not pass the “smell test” and gave the appearance of being “coercive.” The sequence of events was the only reason given for finding an appearance of vindictiveness. The prosecutive importance of Jenkins’ detailed in-court confession to alien smuggling was given no weight. The district court relied instead on its opinion that the government could have filed alien smuggling charges when Jenkins was first detained in October 2004 and admitted the crime. The majority concludes that charges could have been brought when Jenkins was arrested in January 2005 for drug smuggling and claimed she believed she was smuggling undocumented aliens. In the view of both the majority and the district court, the prosecutor’s explanation was insufficient to dispel an appearance of vindictiveness.
III. Analysis
A. An appearance of vindictiveness was not established
Prosecutions are prohibited under circumstances that suggest a realistic likelihood of vindictiveness by the prosecutor. Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). There is no suggestion that the prosecutor was actually motivated by vindictiveness or engaged in any improper conduct to punish Jenkins for testifying at her drug trial. Jenkins successfully staked her claim on the timing of the alien smuggling charges immediately after she testified to create an appearance of retaliation for exercising a constitutional right.
It is true that Jenkins need not show that the prosecutor actually acted in bad faith or maliciously. United States v. Ruesga-Martinez, 534 F.2d 1367, 1369 (9th Cir.1976). But the appearance of vindictiveness results only if there is a realistic or reasonable likelihood of retaliatory conduct. United States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th Cir.1982). Jenkins failed to establish that there was a realistic or reasonable likelihood that alien smuggling charges were brought to punish her for taking the witness stand. The *704district judge acknowledged that his ruling dismissing the indictment had “absolutely no relationship to reality.” There was no reasonable basis to conclude the government likely would have filed alien smuggling charges absent Jenkins’ unequivocal in-court confession to those crimes, just to punish her for taking the stand.
B. The government rebutted any appearance of vindictiveness
There was a clear relationship between Jenkins’ in-court confession and the ensuing alien smuggling charges. The prosecutor was entitled to reevaluate his decision to prosecute Jenkins in light of new information: Jenkins’ confession under oath. The district court did not question the credibility of the prosecutor’s explanation for the timing of the charges. There is no evidence to suggest the prosecutor’s explanation was pretextual. The district court recognized Jenkins’ in-court confession was “that last piece of evidence” making a solid case a “slam dunk” one. Nonetheless, the district court applied a subjective “smell test” based on timing and its opinion that the government did not really need Jenkins’ in-court confession to prosecute her. The district court equated the purported admissions Jenkins made to border officers with her detailed confession under oath.
The majority minimizes the value of Jenkins’ in-court confession as merely adding to the repertoire of evidence against her. However, purported admissions to law enforcement officers may be denied or challenged on a number of grounds, including voluntariness and accuracy. As the majority notes, there is no indication Jenkins was given Miranda warnings before her first statement to law enforcement officers. In contrast, trial testimony under oath is virtually unchallengeable and easy to present without the necessity of bringing in law enforcement officers to testify about statements taken on three different occasions.
The prosecutor explained that the quality of the alien smuggling evidence against Jenkins became significantly stronger with her in-court confession. Jenkins’ in-court confession provided an intervening circumstance justifying the alien smuggling charges. Gallegos-Curiel, 681 F.2d at 1168. Any appearance of vindictiveness was adequately rebutted.
C. Dismissal of the indictment preempted prosecutorial discretion
The dismissal of the indictment was predicated on a finding that the government did not need Jenkins’ in-court confession to file alien smuggling charges; the charges could have been filed either when she was apprehended with the aliens, or two months later when she was stopped with the marijuana and claimed she thought she was just smuggling aliens again. This reasoning “second guesses” matters of prosecutorial discretion. The United States Attorney has broad discretion in determining prosecutorial policies and priorities. United States v. Goodwin, 457 U.S. 368, 380 n. 11, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Charging decisions are “particularly ill-suited to judicial review.” Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). The Supreme Court has admonished that a prosecution’s deterrence value, and prosecution priorities and plans “are not readily susceptible to the kind of analysis the courts are competent to undertake.” Id. The prosecutor is in the best position to evaluate the costs and benefits of a particular strategy, allocation of resources, evidentiary problems, general *705or specific deterrence values, and prosecution priorities. These considerations are all inherent in the executive branch functions of United States Attorneys. Substituting the conventional wisdom of judges as to when charges could or should be filed inappropriately preempts the prosecutor’s role.
The Supreme Court has addressed similar issues in selective prosecution cases. In invoking judicial power over the United States Attorney to preempt an executive function, the government is presumed to have properly exercised its constitutional responsibilities to enforce the nation’s laws. United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), quoting Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The presumption of regularity in a prosecutorial decision is strong and must be overcome with clear evidence. Id. Here, the prosecutor’s explanation was not accorded a presumption of regularity. Rather, the majority accepts the district court’s opinion that Jenkins’ in-court confession was not vital to the government’s case, so alien smuggling charges could have been filed either when she was apprehended with illegal aliens, or two months later when she was apprehended and claimed she thought the contraband was human, not drugs.
The doctrine of vindictive prosecution does not diminish the principle of prosecu-torial discretion. United States v. Griffin, 617 F.2d 1342, 1348 (9th Cir.1980) (“Mottling in Blackledge presumed to give a defendant a free ride for separate crimes he may have committed, or to prevent a prosecutor from bringing new charges as a result of changed or altered circumstances which properly bear on prosecutorial discretion”). A prosecutor necessarily considers the quality and strength of evidence in deciding when or whether to prosecute. Here, the prosecutor admittedly had sufficient evidence to bring alien smuggling charges against Jenkins before she testified, but he chose not to. His conclusion that Jenkins’ in-court confession greatly strengthened the alien smuggling case and his decision to file a criminal complaint on these charges fell within the bounds of prosecutorial discretion.
I would reverse the dismissal of the indictment.