                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                     No. 06-50049
               Plaintiff-Appellant,
               v.                               D.C. No.
                                             CR-05-00698-RTB
SHARON ANN JENKINS,
                                                 ORDER
              Defendant-Appellee.
                                         
                      Filed March 4, 2008

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

                            Order;
               Dissent by Chief Judge Kozinski;
                Dissent by Judge O’Scannlain


                             ORDER

  Judge Thomas voted to deny the petition for rehearing en
banc and Judge Canby so recommended. Judge Conlon rec-
ommended granting the petition for rehearing en banc.

  The petition for en banc rehearing has been circulated to
the full court. A judge requested a vote on whether to rehear
the matter en banc. The matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. Fed R. App. P. 35.

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

                               1971
1972                UNITED STATES v. JENKINS
  The petition for rehearing en banc is DENIED.



KOZINSKI, Chief Judge, dissenting from the order denying
the petition for rehearing en banc:

   I join every word of Judge O’Scannlain’s well-reasoned
dissent, but I want to call particular attention to footnote 2. As
Judge O’Scannlain points out, there is no such thing as a
“smell test” when it comes to detecting prosecutorial miscon-
duct, as such a test would eviscerate the broad power that the
Constitution gives to the executive branch to make prosecu-
torial decisions. A test based on the olfactory apparatus of
each district judge, rather than on well-defined and closely
cabined legal standards, would give the district courts far too
much say over who gets prosecuted and when. That would be
wholly inconsistent with our role as impartial adjudicators,
and with the prosecutor’s independent authority to bring
charges.



O’SCANNLAIN, Circuit Judge, dissenting from the denial of
rehearing en banc, joined by KOZINSKI, Chief Judge, and
KLEINFELD, TALLMAN, CALLAHAN, BEA, M. SMITH,
Circuit Judges:

   The opinion in this case holds that the Fifth Amendment
bars prosecutors from charging a crime to which a defendant
unequivocally admits in the course of a trial for an unrelated
offense. Because it contradicts our precedent and creates a
split with our sister circuits, I respectfully dissent from our
order rejecting rehearing en banc.

                                I

  On October 19, 2004, Sharon Ann Jenkins drove a car
holding two undocumented aliens into the United States from
                   UNITED STATES v. JENKINS                1973
Mexico. United States v. Jenkins, 504 F.3d 694, 697-98 (9th
Cir. 2007). Upon being questioned at the border, and before
any Miranda warnings apparently were provided to her, Jen-
kins admitted that the passengers in the car were undocu-
mented aliens, and that she had been hired to bring them into
the United States. Id. at 697-98, 700 n.2. She was thereupon
released. Id. at 702. The next day, Jenkins once again
attempted to drive into the United States from Mexico with
two undocumented aliens. Id. at 698. Again she was stopped
at the border and, this time after Miranda warnings were
issued, she admitted that she had been hired to smuggle the
two aliens into the United States. Id. at 698, 700 n.2. Jenkins
again was released that day. Id. at 702. She was not immedi-
ately prosecuted for either offense. Id. at 698.

   Three months later, Jenkins attempted to cross the border,
only this time in a van loaded with 118.20 kilograms of mari-
juana. Id. Upon being stopped at the border, Jenkins stated
that she believed the van contained an undocumented alien
and had no knowledge of the presence of marijuana. Id. Jen-
kins was charged with the illegal importation of marijuana. Id.
At trial, Jenkins testified in her own defense that she believed
the van contained undocumented aliens, specifically citing her
two prior attempts to smuggle aliens. Id. Before the jury com-
pleted its deliberations, federal prosecutors charged Jenkins
with one count of alien smuggling, to which three other
counts were subsequently added; she was later indicted on the
charges. Id.

   Jenkins sought to dismiss the alien smuggling indictment
on the ground that the government was retaliating against her
for taking the stand in her own defense. Id. The government
argued that the charges were filed because of the content of
Jenkins’ testimony rather than the fact that she took the stand,
as her admission under oath to alien smuggling provided the
government with the smoking gun it needed to prosecute her
for the offenses. Id. The government acknowledged that it
“had enough [evidence] to go forward” on the alien smug-
1974                   UNITED STATES v. JENKINS
gling charges before Jenkins admitted to those crimes on the
stand. Id. at 698, 700. Her statements at the border were argu-
ably tainted by the Miranda violation at the first stop;1 with
Jenkins’ admission now on the record, the government con-
tends that it now has a winnable case. Id. at 698.

   The district court credited the government’s stated reasons
for bringing the new charges, indicating that the “ruling
should not in any way, shape or form be construed as casting
doubt or indicating that I do not believe the government’s
counsel.” Id. at 703. However, because the district court con-
cluded that the timing of the charges failed the “smell test,”2
the district court dismissed them as a “prophylactic” protec-
tion of Jenkins’ right to testify on her own behalf that had
“absolutely no relationship to reality.” Id. at 703-04.

   Holding that “the government had more than enough evi-
dence to proceed with the alien smuggling charges prior to
Jenkins’s decision to testify,” the opinion likewise presumed
that the government’s filing of the new charges was vindictive
and affirmed their dismissal. Id. at 699-702.

  Like Judge Conlon, who dissented on the grounds that there
was an insufficient showing of prosecutorial vindictiveness
and that acting on the defendant’s testimony was within pro-
secutorial discretion, id. at 703-05, I believe the opinion errs.

                                    II

   It is a well-established principle that courts should tread
  1
    Moreover, Judge Conlon’s dissent aptly notes, with respect to the state-
ments Jenkins made during the second stop, that “purported admissions to
law enforcement officers may be denied or challenged on a number of
grounds, including voluntariness and accuracy.” Jenkins, 504 F.3d at 704.
  2
    While we have great respect for the intuition of our district judges in
many settings, here the so-called “smell test” has no roots in this or any
court’s precedent of which we are aware.
                    UNITED STATES v. JENKINS                 1975
upon prosecutorial charging decisions with hesitation.
“[U]nder our system of separation of powers, the decision
whether to prosecute, and the decision as to the charge to be
filed, rests in the discretion of the Attorney General or his del-
egates, the United States Attorneys.” United States v. Edmon-
son, 792 F.2d 1492, 1497 (9th Cir. 1986). Accordingly, the
Supreme Court has recognized that “the decision to prosecute
is particularly ill-suited to judicial review” because courts are
incapable of competently assessing “[s]uch factors as the
strength of the case, the prosecution’s general deterrence
value, the Government’s enforcement priorities, and the
case’s relationship to the Government’s overall enforcement
plan.” Wayte v. United States, 470 U.S. 598, 607 (1985); see
also United States v. Armstrong, 517 U.S. 456, 465 (1996)
(noting that “[j]udicial deference to the decisions of [prosecu-
tors] rests in part on an assessment of the relative competence
of prosecutors and courts”). That is, because their perspec-
tives are limited to those cases over which they preside,
judges cannot feasibly determine how best to allocate pro-
secutorial resources, let alone weigh the strength of the prose-
cution’s evidence against such consideration.

   Yet that is precisely what the panel in Jenkins has done.
Absent any evidence of actual prosecutorial vindictiveness,
the opinion upholds the dismissal of the alien smuggling
charges based upon its assertion that the government already
had “more than enough evidence” to proceed with those
charges prior to Jenkins’ testimony, notwithstanding the gov-
ernment’s adamant position that it did not have enough evi-
dence to make the case worth pursuing. Jenkins, 504 F.3d at
700. By concluding that prosecutors should have sacrificed
the resources necessary to pursue the charges before Jenkins
admitted to the crimes under oath, the opinion oversteps our
judicial function and flies in the face of the Supreme Court’s
caution against encroaching upon prosecutorial charging deci-
sions by independently weighing the strength of the govern-
ment’s evidence.
1976                   UNITED STATES v. JENKINS
                                    III

                                    A

   The flaw in the opinion is that it broadens the doctrine of
presumed prosecutorial vindictiveness well beyond its tradi-
tional bounds. Under that doctrine, of course, a court may dis-
miss charges filed against a defendant in retaliation for his
exercise of a legal right. In the absence of sufficient evidence
of actual retaliatory intent, a court may presume prosecutorial
vindictiveness “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 exercised a specific legal
right.” United States v. Gallegos-Curiel, 681 F.2d 1164,
1168-69 (9th Cir. 1982).

   Given the Supreme Court’s admonition against judicial
oversight of prosecutorial charging decisions, it is not surpris-
ing that the doctrine of presumed vindictiveness has been sub-
stantially curtailed by this and other courts. Under one such
limitation, we have recognized that, “if the additional charge
aris[es] out of the same nucleus of operative facts as the origi-
nal charge, a presumption of vindictiveness is raised. If, how-
ever, the second charge is unrelated to the first, the
presumption does not arise.” United States v. Martinez, 785
F.2d 663, 669 (9th Cir. 1986) (internal quotation marks and
citations omitted); accord United States v. Groves, 571 F.2d
450, 454 (9th Cir. 1978) (upholding a presumption of vindic-
tiveness where new and old charges stemmed from the same
investigation and thus “grew out of the same set of facts”).3
  3
    Indeed, noting the “severity” of the doctrine of presumed vindictive-
ness, a plurality of the Supreme Court has implicitly affirmed the principle
that the doctrine does not apply where the prior and new charges stem
from distinct factual nuclei. See Wasman v. United States, 468 U.S. 559,
566 (1984) (“[T]he Court has been chary about extending the [ ] presump-
tion of vindictiveness when the likelihood of vindictiveness is not as pro-
nounced as in . . . Blackledge [v. Perry, 417 U.S. 21 (1974)].”).
                       UNITED STATES v. JENKINS                       1977
                                    B

   Two of our sister circuits have affirmed that principle. In
Williams v. Bartow, 481 F.3d 492 (7th Cir. 2007), the defen-
dant twice committed child molestation, once in 1990 and
once in 1996. Prosecutors declined to pursue charges for the
1990 incident because they determined that there was insuffi-
cient evidence; however, they brought charges for the 1996
incident. Id. at 495. At the ensuing trial, the victim of the
1990 molestation testified to the facts of that incident. Id. at
496. After Williams successfully moved for a new trial based
on ineffective assistance of counsel, prosecutors added a
charge for the 1990 incident in reliance of the victim’s testi-
mony. Id.

   The Seventh Circuit first noted that neither the Supreme
Court’s precedent nor its own had expressly addressed
whether presumed vindictiveness may apply “to situations
where the defendant is charged, post-appeal, on the basis of
different criminal conduct, as opposed to a heightened charge
on the basis of the same criminal conduct.” Id. at 502 (empha-
sis in original). The court held that “when the prosecutorial
conduct involves other criminal conduct, the defendant must
demonstrate actual vindictiveness rather than relying on the

   In Blackledge, Perry was tried and convicted for a misdemeanor stem-
ming from a prison altercation in which he was involved. 417 U.S. at 22.
When Perry obtained a new trial, the prosecutor indicted him for other
offenses stemming from the same fight. Id. at 22-23. After specifically
noting that “the indictment covered the same conduct for which Perry had
been tried and convicted,” id. at 23, the Supreme Court held that the
charges were presumptively retaliatory against Perry’s having pursued his
right to a new trial. Id. at 28-29.
   While Blackledge expressly was predicated on the charges having
stemmed from the same fight (and, hence, the same factual nucleus), the
prosecutors here proffer a valid explanation for the alien smuggling
charges; indeed, the district court credited their explanation. See Jenkins,
504 F.3d at 703 (noting that the government did not do “anything wrong”).
1978               UNITED STATES v. JENKINS
presumption [of vindictiveness].” Id. at 502 (emphasis in orig-
inal). Thus, the Williams court held that factual relatedness is
dispositive in assessing a claim of presumed vindictiveness, a
holding with which our opinion starkly conflicts. Id.

   Moreover, one of the key factual considerations in Williams
was that the prosecutor finally had the molestation victim’s
open court testimony, whereas “[p]reviously, he had only the
police report statements of the two very young children.” Id.
at 503. The facts of Williams and Jenkins are consistent. Both
cases involve prosecutors who subsequently acquired enough
evidence to proceed with a charge (or, in Jenkins, four
charges) that previously had been insufficient to merit the sac-
rifice of prosecutorial resources. Just as the prosecutors in
Williams obtained the testimony of the more mature victims,
the prosecutors in Jenkins were handed an unchallengeable
confession, which was what they lacked to make the charges
worth pursuing.

   For the same reason, Jenkins conflicts with the holding in
Humphrey v. United States, 888 F.2d 1546 (11th Cir. 1989).
In Humphrey, while the defendant appealed a conviction of
six counts of auto theft, prosecutors indicted him for an addi-
tional eleven counts of that offense stemming from “indepen-
dent acts.” Id. at 1547-49. He contested the second indictment
in part on a claim of prosecutorial vindictiveness. Id. The
Eleventh Circuit distinguished the Supreme Court’s holding
in Blackledge on the ground that it “addresse[d] the situation
of state retaliation by substituting a more serious charge for
the original charge.” Id. at 1549 (emphasis in original).
Rather, the court determined that in Humphrey, “[t]he charges
in the second indictment are not a substitution; indeed, they
are different charges based upon independent acts.” Id. Thus,
the court held that regardless of the “timing of the second
indictment,” the doctrine of presumed vindictiveness was
inapplicable. Id.
                      UNITED STATES v. JENKINS                      1979
                                   IV

   The Jenkins opinion is mistaken on another crucial point:
it was not Jenkins’ exercise of the right to testify that trig-
gered the subsequent charges; it was the content of that testi-
mony. We expressly held in United States v. Baker, 850 F.2d
1365, 1370 (9th Cir. 1988), that the content of a defendant’s
testimony on his own behalf can be used as the basis for a
new prosecution against him, because “a defendant can[not]
expect to admit with impunity a crime for which he or she is
liable.” We therefore affirmed the principle that “encouraging
a defendant to immunize oneself from other criminal conduct
by testifying at a trial was never the intent of the fifth amend-
ment.” Id. By conferring upon Jenkins the right to testify
about her past crimes with immunity from subsequent prose-
cution, the Jenkins opinion flatly contradicts our holding in
Baker and creates the preposterous rule that a defendant can
shield himself from future prosecution for unrelated crimes by
openly admitting to them on the stand.

   Indeed, while Jenkins would not have admitted to alien
smuggling had she not testified, the same can be said for her
having elected to plead not guilty or to have raised a defense
in the first place. Accordingly, there is no limiting principle
to the newly promulgated rule in Jenkins: so long as the pros-
ecutors have “enough evidence” to bring charges before a trial
is initiated for an unrelated crime, subsequent prosecution is
barred if new evidence is acquired in the exercise of a consti-
tutional right.4 Such a broad “but for” test has no place in
assessing whether to supplant prosecutorial charging
discretion—our task is to assess only whether there is a “real-
istic likelihood” that the alien smuggling charges “would not
have occurred but for hostility or a punitive animus” stem-
  4
   Cf. United States v. Bryser, 95 F.3d 182, 187 (2d Cir. 1996) (rejecting
the “absurd result that incriminating statements may not be used as evi-
dence because they were made otherwise in aid, or under the umbrella, of
a constitutional right”).
1980                   UNITED STATES v. JENKINS
ming from the exercise of a right. Under the rule properly cre-
ated by Baker, prosecutors could feel overwhelming animus
toward a defendant who admits to crimes on the stand, but fil-
ing unrelated charges in response does not give rise to a pre-
sumption of vindictiveness, as such is a legitimate
prosecutorial consideration. Cf. Blackledge, 417 U.S. at 27
(“[T]he Due Process Clause is not offended by all possibilities
of increased punishment . . . but only by those that pose a
realistic likelihood of vindictiveness.”).5

                                    V

   The Jenkins opinion also creates a split with three of our
sister circuits on a corollary rule. Just as presumed vindictive-
ness is improper where new and old charges stem from dis-
tinct factual nuclei, such presumption is available only where
the severity of an indictment—i.e., the crimes charged for the
same underlying conduct—is increased following a defen-
dant’s successful appeal. See United States v. Burt, 619 F.2d
831, 836 (9th Cir. 1980) (“In most cases, [vindictive prosecu-
tion] involves a showing that the prosecutor has re-indicted
the defendant and increased the severity of the charge, after
the defendant has exercised a statutory or constitutional
right”).

  That rule has been adopted by three of our sister circuits.
See United States v. Peoples, 360 F.3d 892 (8th Cir. 2004);
United States v. Perry, 335 F.3d 316 (4th Cir. 2003); United
  5
   Similarly, the Court has held, “The possibility that a prosecutor would
respond to a defendant’s pretrial demand for a jury trial by bringing
charges not in the public interest that could be explained only as a penalty
imposed on the defendant is so unlikely that a presumption of vindictive-
ness certainly is not warranted.” United States v. Goodwin, 457 U.S. 368,
384 (1982) (emphasis in original). It is just as unlikely that prosecutors
sought to punish Jenkins for testifying in her own defense. Absent some
other evidence, the only reasonable conclusion is that prosecutors
responded not to the fact of her testifying but to the content of her testi-
mony, which lies outside the scope of Fifth Amendment protection.
                    UNITED STATES v. JENKINS                1981
States v. Miller, 948 F.2d 631 (10th Cir. 1991) (holding that
Blackledge is generally limited to its facts); but cf. Johnson v.
Vose, 927 F.2d 10 (1st Cir. 1991). The Eighth Circuit has
gone even further than us in holding that a “presumption of
vindictiveness arises only when the prosecutor chooses to
bring a more serious charge against a defendant in a second
trial.” Peoples, 360 F.3d at 896.

   In Jenkins, the new charges were not filed following a suc-
cessful appeal, nor did the prosecutors seek to increase the
severity of the marijuana importation indictment. The opinion
fails to provide any rationale for deviating from this general
rule.

                               VI

   In addition to the multiple splits created by the Jenkins
opinion, rehearing of this case is necessary because of the
dangerous precedent it has set. Jenkins will have the perverse
result of compelling prosecutors to rely on ever-weaker evi-
dence in bringing charges, lest they lose the opportunity ever
to pursue those charges. That incentive is particularly strong
when dealing with recidivist criminals, who are most likely to
have committed unrelated offenses in the past, yet those are
precisely the suspects for whom the government should have
utmost discretion in investigating and prosecuting.

   Such danger is precisely why we must not overstep the
clear judicial boundary cautioning us against engaging in a
judicial assessment of whether the government had “sufficient
evidence” to pursue criminal charges on flimsier evidence.
Thus, the rule propounded by our sister circuits in Williams
and Humphrey, from which Jenkins has recklessly split, is a
crucial prophylactic against tempting judges from supervising
prosecutorial charging decisions.

                              VII

  The opinion’s holding that Jenkins can shield herself from
prosecution by admitting to unrelated crimes during trial is
1982               UNITED STATES v. JENKINS
unprecedented, creates multiple inter-circuit splits, and will
disrupt the government’s ability to manage its criminal
caseload by impermissibly encroaching upon prosecutorial
discretion.

  For the foregoing reasons, I respectfully dissent from our
unfortunate decision not to rehear this case en banc.
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