                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                     No. 06-50049
               Plaintiff-Appellant,              D.C. No.
               v.                            CR-05-00698-RTB
SHARON ANN JENKINS,                             ORDER
              Defendant-Appellee.              AMENDING
                                              OPINION AND
                                               AMENDED
                                               OPINION

        Appeal from the United States District Court
           for the Southern District of California
         Roger T. Benitez, District Judge, Presiding

                   Argued and Submitted
          February 15, 2007—Pasadena, California

                     Filed July 17, 2007
                 Amended September 25, 2007

   Before: William C. Canby, Jr. and Sidney R. Thomas,
  Circuit Judges, and Suzanne B. Conlon,* District Judge.

                  Opinion by Judge Canby;
               Partial Dissent by Judge Conlon




  *The Honorable Suzanne B. Conlon, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.

                              13107
13110               UNITED STATES v. JENKINS


                          COUNSEL

Bruce R. Castetter, Neville S. Hedley, Assistant United States
Attorneys, San Diego, California, for the plaintiff-appellant.

Martin G. Molina, San Diego, California, for the defendant-
appellee.


                            ORDER

   The majority opinion filed by this court on July 17, 2007,
slip op. at 8677, is amended as follows:

  At slip op. p. 8687, delete the second and third sentences
on the page and the included citations and parentheticals (thus
deleting the material beginning “The fact that separate
charges . . .” and ending “. . . from associated individuals.”),
and insert the following passage in place of the deleted passage:1

      The government relies on United States v. Martinez,
      785 F.2d 663 (9th Cir. 1986). Martinez cited United
      States v. Robison, 644 F.2d 1270, 1272 (9th Cir.




  1
   The passage to be amended may also be found at 2007 WL 2034037
*4, second paragraph with headnote number [9].
                   UNITED STATES v. JENKINS                13111
    1981), for the proposition that, if a second charge is
    unrelated to the first, a presumption of vindictiveness
    does not arise. Martinez, 785 F.2d at 669. Robison,
    however, made clear that relatedness of the charges
    “is neither dispositive nor essential to prove vindic-
    tiveness.” Robison, 644 F.2d at 1272 (citations omit-
    ted); accord Groves, 571 F.2d at 454 (stating that the
    fact that a second charge is unrelated is not “control-
    ling in any case” or “dispositive on the question of
    vindictiveness”). Although Martinez certainly sup-
    ports the proposition that the mere filing of a second,
    unrelated charge after a first charge does not give
    rise to a presumption of vindictiveness, we do not
    read Martinez as holding that a presumption of vin-
    dictiveness can never arise when the second charge
    is unrelated to the first. And Martinez depended in
    large part on the fact that “Martinez could have exer-
    cised no right in the [first] Colorado trial that would
    have affected the [subsequent] Arizona indictment.”
    Martinez, 785 F.2d at 670; see also Robison, 644
    F.2d at 1272 (finding that “Robison has failed to
    demonstrate any connection between the exercise of
    procedural rights in prior prosecutions and the fed-
    eral prosecution challenged here.”). Here, in con-
    trast, Jenkins’ exercise of her right to testify that she
    thought she was once again smuggling aliens can
    easily be viewed as triggering the filing of the alien
    smuggling charges.

  The petition of the United States for rehearing en banc is
pending and has not been ruled on. No additional petitions for
rehearing may be filed because of this amendment.


                          OPINION

CANBY, Circuit Judge:

  The United States appeals the district court’s dismissal of
an indictment of Sharon Ann Jenkins for alien smuggling. The
13112              UNITED STATES v. JENKINS
ground of dismissal was the appearance of vindictive prosecu-
tion.

   Jenkins was apprehended twice for attempting to cross the
U.S.-Mexico border while driving a vehicle containing
undocumented aliens. Both times, Jenkins stated that she had
been paid to drive the car across the border. She was not
charged with any crime. Almost three months later, Jenkins
was apprehended while attempting to cross the border as a
passenger in a vehicle containing marijuana. She stated that
she had been paid to drive the car, which she believed con-
tained illegal aliens, across the border. Jenkins was charged
with importation of marijuana. At trial, she testified in her
own defense and maintained that she believed the vehicle in
which she had been a passenger contained illegal aliens
because she had been paid on two previous occasions to
smuggle aliens. While the jury was deliberating, the govern-
ment filed alien smuggling charges against Jenkins in connec-
tion with her first two border apprehensions.

   The district court found that the prosecutor’s conduct cre-
ated the appearance of vindictive prosecution because the
alien smuggling charges were brought only after Jenkins exer-
cised her right to testify in her own defense at her separate
marijuana smuggling trial. We affirm. We conclude that,
because the government could have prosecuted Jenkins for
alien smuggling well before she presented her theory of
defense at the marijuana smuggling trial, the timing of the
charges created the appearance of vindictiveness. The govern-
ment’s assertion that its case against Jenkins was much
stronger after her in-court admission does not suffice to dispel
the appearance of vindictiveness. We therefore conclude that
the indictment should be dismissed.

         I.   Factual and Procedural Background

   On October 19, 2004, Sharon Ann Jenkins, a United States
citizen, attempted to enter the United States at the San Ysidro
                   UNITED STATES v. JENKINS               13113
port of entry, driving a white Mazda. The officer inspecting
her vehicle discovered two non-citizens concealed in the
trunk. When questioned, Jenkins stated that she had been
offered $400 by a man named Pablo in exchange for bringing
the undocumented individuals into the country.

   The next day, Jenkins attempted to enter the United States
driving a Dodge Caravan. The inspecting officer discovered
two non-citizens concealed in the back of the vehicle. Jenkins
was issued Miranda warnings, waived her rights, and stated
that she was driving the vehicle across the border in exchange
for $100 from a man named Pablo. Jenkins said that she did
not know that the car contained illegal aliens, but that she was
aware that it is illegal to transport undocumented individuals
into the United States. The government did not press charges
at that time against Jenkins for the October 19 and October 20
incidents.

   On January 9, 2005, Jenkins attempted to enter the United
States as a passenger in a 1989 Dodge Ram van driven by her
husband. A search of the van uncovered marijuana concealed
in the interior panels, speaker compartment, and radio com-
partment of the van. Jenkins was given Miranda warnings and
waived her rights. She stated that she had been paid $500 by
a woman named Maria to bring an undocumented alien across
the border, and that she believed the vehicle contained an
undocumented alien. Jenkins also said that she had been paid
by a man named Pablo to smuggle aliens on two previous
occasions, and that she had been apprehended. The agent
interviewing Jenkins on January 9 possessed records detailing
her previous alien smuggling arrests.

   Jenkins was charged with importing marijuana in violation
of 21 U.S.C. §§ 952, 960. At trial on April 6, 2005, Jenkins
testified that she did not know that the van contained mari-
juana because she believed she was smuggling undocumented
aliens. She stated that she had met Maria, the woman who
paid her to drive across the border on January 9, through
13114                 UNITED STATES v. JENKINS
Pablo, the man who previously had hired her to smuggle
aliens. Special Agent Chase testified that when he questioned
Jenkins on January 9, she told him that she had attempted
unsuccessfully to smuggle aliens on two previous occasions.

   The jury began deliberation on April 6 but did not reach a
verdict by the end of the day.1 At 4:46 p.m., the government
filed a complaint charging Jenkins with smuggling one of the
undocumented aliens involved in the October 20, 2004, inci-
dent. Jenkins subsequently was indicted for smuggling all
four of the individuals involved in the October 19 and 20 inci-
dents. She pled not guilty to the alien smuggling charges.

   Jenkins moved to dismiss the alien smuggling indictment
on the ground of vindictive prosecution, arguing that the
charges were brought only after she elected to testify in her
defense at the marijuana importation trial. The Assistant
United States Attorney who filed the alien smuggling charges
against Jenkins testified at the motion hearing. He conceded
that the United States could have charged Jenkins with alien
smuggling both at the time of her October apprehensions and
at the time that the marijuana charges were filed, but he
asserted that Jenkins’s in-court testimony greatly strengthened
the government’s case.

   The district court granted Jenkins’s motion to dismiss the
indictment. The court noted that the government had been
aware of Jenkins’s alien smuggling activities well before it
decided to file charges, and that Jenkins’s in-court testimony
was not vital to the government’s case. The court explained
that its ruling was a “prophylactic” measure intended to pre-
vent the chilling of a defendant’s ability to take the witness
stand. The government filed an unsuccessful motion for
  1
   The next day, the jury informed the court that it could not reach a
unanimous verdict. Jenkins was retried and convicted, and her conviction
was affirmed on appeal. United States v. Jenkins, 2006 WL 3803372 (9th
Cir. 2006). She is serving a 63-month sentence.
                    UNITED STATES v. JENKINS               13115
reconsideration of the district court’s decision. This appeal
followed.

        II.   Jurisdiction and Standard of Review

   We have jurisdiction under 28 U.S.C. § 1291. The standard
of review of a district court’s decision whether to dismiss an
indictment for vindictive prosecution is unsettled in this cir-
cuit. United States v. Hernandez-Herrera, 273 F.3d 1213,
1217 (9th Cir. 2001). We have reviewed vindictive prosecu-
tion cases de novo, for abuse of discretion, and for clear error.
Id.

   We conclude that the district court’s decision should be
reviewed de novo because the issue presents a mixed question
of law and fact. The trial court first determines whether the
prosecutor’s course of conduct appears motivated by a desire
to punish the defendant for exercising a legal right. The court
then decides whether the prosecutor has come forth with suf-
ficient evidence to dispel any appearance of vindictiveness.
Because our review of these determinations “requires us to
consider legal concepts in the mix of fact and law,” de novo
review is appropriate. United States v. Martinez, 785 F.2d
663, 666 (9th Cir. 1986) (reviewing vindictive prosecution
claim de novo) (quotations and citation omitted); see also
United States v. Bridges, 344 F.3d 1010, 1014 (9th Cir. 2003)
(motion to dismiss an indictment for improper or outrageous
government conduct is reviewed de novo); United States v.
Fuchs, 218 F.3d 957, 964 (9th Cir. 2000) (decision whether
to dismiss an indictment for prosecutorial misconduct is
reviewed de novo).

                       III.   Discussion

   [1] The government violated Jenkins’s right to due process
of law if it filed the alien smuggling charges to penalize her
for exercising a protected statutory or constitutional right. See
United States v. Goodwin, 457 U.S. 368, 372 (1982). Jenkins
13116               UNITED STATES v. JENKINS
may establish prosecutorial vindictiveness by producing direct
evidence of the prosecutor’s punitive motivation towards her.
See United States v. Gallegos-Curiel, 681 F.2d 1164, 1168
(9th Cir. 1982). Alternatively, she is entitled to a presumption
of vindictiveness if she can show that the alien smuggling
charges “were filed because [she] exercised a statutory, proce-
dural, or constitutional right in circumstances that give rise to
an appearance of vindictiveness.” Id. This case involves the
latter situation, as the record contains no direct evidence of
the government’s improper motivation. Cf. United States v.
Hollywood Motor Car Co., Inc., 646 F.2d 384, 388 (9th Cir.
1981) (finding actual vindictiveness when government threat-
ened to bring additional charges against defendants if they
exercised their right to request change of venue), rev’d on
other grounds, 458 U.S. 263 (1982) (per curiam).

  A.    Whether the filing of alien smuggling charges
        created the appearance of vindictiveness

   [2] To establish a presumption of vindictiveness, Jenkins
need not show “that the prosecutor acted in bad faith” or that
he “maliciously sought” the alien smuggling indictment.
United States v. Groves, 571 F.2d 450, 453 (9th Cir. 1978);
see also United States v. Ruesga-Martinez, 534 F.2d 1367,
1369 (9th Cir. 1976) (“We do not intend . . . to impugn the
actual motives of the United States Attorney’s office in any
way.”). Rather, she must demonstrate a reasonable likelihood
that the government would not have brought the alien smug-
gling charges had she not elected to testify at her marijuana
smuggling trial and present her theory of the case. Gallegos-
Curiel, 681 F.2d at 1169 (“[T]he appearance of vindictiveness
results only where, as a practical matter, there is a realistic or
reasonable likelihood of prosecutorial conduct that would not
have occurred but for hostility or a punitive animus towards
the defendant because he has exercised his specific legal
rights.”) (citing Goodwin, 457 U.S. at 373, 384). The mere
appearance of prosecutorial vindictiveness suffices to place
the burden on the government because the doctrine of vindic-
                       UNITED STATES v. JENKINS                     13117
tive prosecution “seeks[s] to reduce or eliminate apprehension
on the part of an accused” that she may be punished for exer-
cising her rights. Ruesga-Martinez, 534 F.2d at 1369. As the
district court noted, the “prophylactic” doctrine is designed, in
part, “to prevent chilling the exercise of [legal] rights by other
defendants who must make their choices under similar cir-
cumstances in the future.” United States v. DeMarco, 550
F.2d 1224, 1227 (9th Cir. 1977).

   [3] The case before us presents an unusual situation
because the government’s alien smuggling case essentially
was open and shut even before Jenkins testified in court. The
government’s evidence prior to Jenkins’s in-court confession
included: (1) her October 19 admission that she had been paid
by a man named Pablo to smuggle aliens, (2) her October 20
admission that Pablo had paid her $100 to drive a car across
the border and that she was aware of the illegality of alien
smuggling, and (3) her January 9 admission that she had
smuggled aliens on October 19 and 20 and had been appre-
hended.2 Indeed, the government admitted that prior to Jen-
kins’s testimony it “had enough to go forward, unquestion-
ably,” and that it “could have brought charges earlier on.” In
these circumstances, the government’s decision to press
charges only after Jenkins asserted a reasonably credible
defense to the marijuana importation charges raises, at the
very least, a “reasonable or realistic likelihood” that the gov-
ernment’s decision was motivated by a retaliatory purpose.
We therefore conclude that the government’s conduct created
the appearance of vindictiveness.

   [4] We are sensitive to the government’s concern that the
dismissal of charges resulting from a defendant’s in-court
admission may hamstring prosecutorial efforts. This might be
  2
   Jenkins made the second and third statements after being given warn-
ings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The police
report describing the first statement does not indicate whether Jenkins was
Mirandized.
13118               UNITED STATES v. JENKINS
a different case if the government had not been equipped with
Jenkins’s previous admissions at the time of her in-court testi-
mony. But the government had more than enough evidence to
proceed with the alien smuggling charges prior to Jenkins’s
decision to testify. See Groves, 571 F.2d at 453-54 (finding
appearance of vindictiveness when government knew all of
the facts relating to the second charge against the defendant
at the time the first charge was brought, but only brought the
second charge once the defendant moved to dismiss the first
charge under the Speedy Trial Act). We therefore find it
appropriate to place the burden on the government to justify
its course of conduct.

   Finally, we reject the government’s argument that, because
the alien smuggling and marijuana importation charges do not
arise out of the same nucleus of operative fact, the doctrine of
vindictive prosecution is inapplicable. The government relies
on United States v. Martinez, 785 F.2d 663 (9th Cir. 1986).
Martinez cited United States v. Robison, 644 F.2d 1270, 1272
(9th Cir. 1981), for the proposition that, if a second charge is
unrelated to the first, a presumption of vindictiveness does not
arise. Martinez, 785 F.2d at 669. Robison, however, made
clear that relatedness of the charges “is neither dispositive nor
essential to prove vindictiveness.” Robison, 644 F.2d at 1272
(citations omitted); accord Groves, 571 F.2d at 454 (stating
that the fact that a second charge is unrelated is not “control-
ling in any case” or “dispositive on the question of vindictive-
ness”). Although Martinez certainly supports the proposition
that the mere filing of a second, unrelated charge after a first
charge does not give rise to a presumption of vindictiveness,
we do not read Martinez as holding that a presumption of vin-
dictiveness can never arise when the second charge is unre-
lated to the first. And Martinez depended in large part on the
fact that “Martinez could have exercised no right in the [first]
Colorado trial that would have affected the [subsequent] Ari-
zona indictment.” Martinez, 785 F.2d at 670; see also Robi-
son, 644 F.2d at 1272 (finding that “Robison has failed to
demonstrate any connection between the exercise of proce-
                      UNITED STATES v. JENKINS                    13119
dural rights in prior prosecutions and the federal prosecution
challenged here.”). Here, in contrast, Jenkins’ exercise of her
right to testify that she thought she was once again smuggling
aliens can easily be viewed as triggering the filing of the alien
smuggling charges. The government itself recognizes that it
brought the alien smuggling charges only because Jenkins
admitted to them during the marijuana importation trial.
Therefore, to the extent that we consider the relatedness of
charges important to our analysis, this factor does not fore-
close application of the doctrine of vindictive prosecution.

  B.    Whether the government rebutted the presumption
        of vindictiveness

   [5] The presumption of vindictiveness raised by the prose-
cutor’s decision to file alien smuggling charges against Jen-
kins must be overcome by “objective evidence justifying the
prosecutor’s action.” Goodwin, 457 U.S. at 376 n.8. The pros-
ecution must show that the additional charges “did not stem
from a vindictive motive, or [were] justified by independent
reasons or intervening circumstances that dispel the appear-
ance of vindictiveness.” Gallegos-Curiel, 681 F.2d at 1168.3

   [6] The government argues that, even if the content of the
evidence against Jenkins was available all along, the evidence
was stronger once Jenkins testified in court. The Assistant
United States Attorney stated that Jenkins gave the govern-
ment “no choice but to bring charges” and that “to walk away
from [the opportunity] would be inexcusable.” Although a
confession in open court certainly added to the repertoire of
evidence against Jenkins, we find the government’s explana-
tion unpersuasive. As the district court noted, it was not nec-
essary to wait to file charges until Jenkins took the witness
  3
   “For example, if the victim of an assault has died since the return of
the first indictment, a subsequent indictment may properly charge the
accused with murder rather than assault.” Ruesga-Martinez, 534 F.2d at
1370 n.4 (citing Blackledge v. Perry, 417 U.S. 21, 29 n.7 (1974).
13120              UNITED STATES v. JENKINS
stand and confessed under oath: “cases for illegal alien smug-
gling in this district are proven on much less than that.”
Although we are reviewing the issue of vindictive prosecution
de novo, we recognize that the district judge is well-
positioned to relate how cases are usually conducted in his
district.

   [7] We also are unconvinced by the government’s argument
that it brought the alien smuggling charges precisely because
bringing them after trial would have seemed vindictive. From
the moment she was apprehended for smuggling marijuana,
Jenkins maintained that she believed she was smuggling
aliens and pointed to her October apprehensions. There was
no reason for the government to think that she would not con-
tinue with this defense at trial. If the government had been
concerned with appearing vindictive, it could have filed the
alien smuggling charges in January, when Jenkins first
asserted that she did not know she was smuggling marijuana.
We therefore conclude that the justifications offered by the
government do not suffice to dispel the appearance of vindic-
tiveness created by the timing of the alien smuggling charges.

                       IV. Conclusion

  For the reasons set forth above, the judgment of the district
court is AFFIRMED.



CONLON, District Judge, 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. U.S. 1986). I respect-
fully dissent from the majority’s conclusion that the alien
                    UNITED STATES v. JENKINS              13121
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 hus-
band. 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 know-
ing 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 Jen-
kins, the person providing the Dodge van loaded with mari-
juana 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 sub-
ject 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 exercis-
ing 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
13122               UNITED STATES v. JENKINS
stopped at the border on October 19 and 20, 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 con-
fessed in detail to those other crimes under oath. The credibil-
ity of the prosecutor’s explanation was not questioned by the
court.

   The district court dismissed the indictment because the tim-
ing of the alien smuggling charges immediately following
Jenkins’ testimony gave rise to an appearance of vindictive-
ness. It was the district court’s opinion the government had
sufficient information to prosecute Jenkins without her court-
room 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 con-
strued as casting doubt or indicating that I do not believe gov-
ernment’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 rea-
son given for finding an appearance of vindictiveness. The
prosecutive importance of Jenkins’ detailed in-court confes-
sion 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
                    UNITED STATES v. JENKINS               13123
detained in October 2004 and admitted the crime. The major-
ity concludes that charges could have been brought when Jen-
kins 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 sug-
gest a realistic likelihood of vindictiveness by the prosecutor.
Blackledge v. Perry, 417 U.S. 21, 27 (1974). There is no sug-
gestion that the prosecutor was actually motivated by vindic-
tiveness 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 real-
istic 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 district
judge acknowledged that his ruling dismissing the indictment
had “absolutely no relationship to reality.” There was no rea-
sonable 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.
13124              UNITED STATES v. JENKINS
  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 opin-
ion 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 con-
fession as merely adding to the repertoire of evidence against
her. However, purported admissions to law enforcement offi-
cers 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 con-
trast, 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 smug-
gling evidence against Jenkins became significantly stronger
with her in-court confession. Jenkins’ in-court confession pro-
vided an intervening circumstance justifying the alien smug-
gling charges. Gallegos-Curiel, 681 F.2d at 1168. Any
appearance of vindictiveness was adequately rebutted.
                   UNITED STATES v. JENKINS               13125
  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 discre-
tion. The United States Attorney has broad discretion in deter-
mining prosecutorial policies and priorities. United States v.
Goodwin, 457 U.S. 368, 380 n. 11 (1982); Bordenkircher v.
Hayes, 434 U.S. 357, 364 (1978). Charging decisions are
“particularly ill-suited to judicial review.” Wayte v. United
States, 470 U.S. 598, 607 (1985). The Supreme Court has
admonished that a prosecution’s deterrence value, and prose-
cution 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, evi-
dentiary problems, general or 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 selec-
tive 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 consti-
tutional responsibilities to enforce the nation’s laws. United
States v. Armstrong, 517 U.S. 456, 463 (1996), quoting Heck-
ler v. Chaney, 470 U.S. 821, 832 (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.
13126               UNITED STATES v. JENKINS
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 prosecutorial discretion. United States v. Grif-
fin, 617 F.2d 1342, 1348 (9th Cir. 1980) (“[n]othing in Black-
ledge 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 discre-
tion”). A prosecutor necessarily considers the quality and
strength of evidence in deciding when or whether to prose-
cute. 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.
