UNITED STATES of America, Plaintiff-Appellant, v. Tallice ANDREWS and Thurston Brooks, Defendants-Appellees, 612 F.2d 235

BEN C. GREEN, Senior District Judge. In this action we are called upon to consider the question of “prosecutorial vindictiveness” under the principles enunciated by the Supreme Court in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). On November 16,1975 defendants Tallice Andrews and Thurston Brooks were stopped and arrested at the Detroit Metropolitan Airport. Also stopped and arrested with defendants was one Fannie Braswell. On November 8, 1976 all three individuals were jointly indicted for narcotics and firearms offenses under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(

b) respectively. On December 29, 1976 defendants Andrews and Brooks were arraigned before a United States Magistrate and were remanded without bail as requested by government motion. They appealed that ruling to the District Court, and on January 11, 1977 both defendants were admitted to bail. On January 13, 1977 the Grand Jury returned a superseding indictment charging the three defendants (Andrews, Brooks and Braswell) with an additional conspiracy count pursuant to 21 U.S.C. § 846, alleging a conspiracy to violate 21 U.S.C. § 841(a)(1).

The conspiracy alleged covered the period of November 15-16, 1976, and incorporated the substantive count offense of possessing heroin with intent to distribute as the crime intended to be committed. Defendants Andrews and Brooks thereafter moved to dismiss the superseding indictment. They contended that the indictment was procured in retaliation for their exercising the constitutionally protected right to seek bail, and as such was the product of prosecutorial vindictiveness prohibited under Pearce-Blackledge. The District Judge granted the motion and dismissed the conspiracy count. United States v.

Andrews, 444 F.Supp. 1238 (E.D.Mich.,1978). In his opinion the District Judge held that “Due process of law requires that even the appearance of vindictiveness must be absent from judicial proceedings.” (emphasis added). Id., p. 1239.

In construing Pearce and Blackledge he further held: Courts have interpreted this language to mean that in the context of a colorable claim of prosecutorial vindictiveness the prosecutor must justify his or her actions in the same manner as would a judge under Pearce by some fact or event, unrelated to the defendant’s exercise of his rights, of which the prosecutor learns after the initial charge. U. S. v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976); U. S. v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974); U. S. v. Gerard, 491 F.2d 1300 (9th Cir. 1974). Sefcheck v. Brewer, 301 F.Supp. 793 (S.D.Iowa 1969).

Consistent with Pearce and Blackledge, these courts’ inquiries have not been directed at whether actual retaliation was shown, but whether the appearance of vindictiveness exists, see also U. S. v. Johnson, 537 F.2d 1170 (4th Cir. 1976). As a corollary of these holdings, the justification for the increased charge must dispel the appearance, not the actuality, of vindictiveness. Id., p. 1240 (emphasis as in original).

It appears from the District Judge’s opinion that the prosecution explained the circumstances of obtaining the superseding indictment: . by pointing out that the prosecutor in this case was inexperienced and did not realize that she should or could have sought a conspiracy' indictment.

This, in combination with a moratorium on the work of the Grand Jury in this District, due to challenges to the validity of the composition of those juries, and vacation schedules in the prosecutor’s office, it is argued, prevented the presentation of testimony concerning a conspiracy to the Grand Jury until two days after the defendants’ bond motion was decided. Government counsel has represented that but for the moratorium and scheduling difficulties she would have presented the conspiracy evidence to the Grand Jury in mid-December, prior to the time defendants filed their bond motion. Id., p. 1241.

It is not clear from the District Judge’s opinion whether he credited such testimony, in that he found the reasons given to be legally insufficient, holding:. That the government failed to charge a conspiracy prior to defendants’ assertion of the right to bail because of inexperience, mistake and difficulties with Grand Jury scheduling does not alter the fact that the increased charge “appears vindictive.” If left uncorrected, such action would undoubtedly chill the assertion of Constitutional rights. Id., p. 1243.

In making such determination the District Judge expressed the view that the only factors which would sustain a superseding indictment under the facts of this action were changed circumstances or newly discovered evidence, without fault on the part of the government. Id., pp. 1241, 1244. The District Judge’s overall approach to this question of prosecutorial vindictiveness is exemplified by the following from the concluding portions of his opinion. The cases previously cited demonstrate the systemic concerns involved in any motion to dismiss an indictment for prosecu-torial vindictiveness.

The Court is called upon in a motion such as this to determine whether the actions of the prosecutor are likely to engender a chilling effect on the exercise of Constitutional or statutory rights. Where, as here, there is an appearance of retaliatory vindictiveness the law imposes a heavy burden on the prosecution to justify its conduct in a manner that not only removes doubt as to actual vindictiveness, but puts at rest fears that the exercise of important rights will be deterred.

The justification offered by the government here fails to provide a “neutral explanation” apparent from the record which satisfies the requisite test. U. S. v. Sturgill, [563 F.2d 307 (6th Cir. 1977)] supra, at 309. Id., p. 1244 (emphasis added). We believe that the District Judge’s

interpretation of Pearce and Blackledge is too narrow, and do not find in those decisions support for the proposition that “appearance of vindictiveness” is a proper standard against which prosecutorial conduct is to be measured. Accordingly, the decision below must be vacated. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), involved the question of an increased penalty upon resentencing. In that action the defendant appealed his original conviction, obtained a reversal, was retried and again convicted, and sentenced more severely upon the second conviction.

The Supreme Court held that due process prohibits actual vindictiveness in resentencing and “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.” Id., p. 725, 89 S.Ct., p. 2080.

Further holding that “In order to assure the absence of [retaliatory] motivation, we have concluded that whenever a judge imposes a more severe sentence upon a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding,” id., p. 726, 89 S.Ct., p. 2081 and failing to find any such justification in the record, the Supreme Court ordered vacation of the second sentence.

The rationale of Pearce was extended to prosecutorial conduct in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In Blackledge the defendant was convicted in state court on a misdemeanor assault charge. When he exercised a statutorily granted right to demand trial de novo on appeal, the prosecutor obtained a felony assault indictment based upon the same conduct.

Upon review before the Supreme Court it was held that the prosecution’s unexplained “upping the ante”, id., p. 28, 94 S.Ct. 2098 violated the defendant’s due process rights, even in the absence of any evidence that the prosecutor acted in bad faith or maliciously.

Returning to the holding in Pearce, the court reiterated that since the fear of vindictiveness may deter the exercise of constitutional rights a defendant is entitled to be free of apprehension of retaliatory motivation on the part of state authorities in response to the exercise of such rights and that “Due process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered appellate process.” Ibid. In the course of the Blackledge opinion the court reviewed its holdings in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1973) and Chaffin v.

Styn-chcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1972), each of which involved unsuccessful attempts by a defendant to have a greater sentence upon a second trial set aside under the decision of Pearce. In distinguishing those decisions the court observed that in Colten sentence was imposed by a different judge so that there was little possibility that “personal vindictiveness” was involved, while in Chaffin trial was to a jury which was unaware of the earlier proceeding so that the danger of vindictiveness was de minimis. Blackledge v. Perry, supra, 417 U.S. pp. 26-27, 94 S.Ct. 2098.

In Colten the Supreme Court had spoken of due process being violated' if an increased sentence was imposed “as purposeful punishment”, 407 U.S. 104, 116, 92 S.Ct. 1953, 32 L.Ed.2d 584, while .in Chaffin the concept that a jury was highly unlikely to penalize a defendant for exercising a right of appeal was emphasized. 412 U.S. 17, 26, 93 S.Ct. 1977, 36 L.Ed.2d 714. In Chaffin the argument that the mere imposition of a harsher sentence would have a “chilling effect” on the future exercise of constitutional rights was rejected. 412 U.S. 17, 29-35, 93 S.Ct. 1977, 36 L.Ed.2d 714.

In our opinion, the foregoing decisions are not supportive of the concept of “appearance of vindictiveness” being an appropriate standard to be applied in this case, nor do they require imposition of the limited exceptions to the Pearce-Blackledge rule recognized by the District Court.

We cannot equate the Supreme Court’s language in Pearce and Blackledge concerning apprehension of a realistic likelihood of vindictiveness with a rule turning on “appearance of vindictiveness”, particularly in light of the references in Colten and Chaffin to due process violations by purposeful punishment or penalization of a defendant in retaliation for the exercise of constitutional rights. While our conclusion in this regard is drawn primarily from the face of the Pearce and Blackledge rulings, it is reinforced by the Supreme Court’s latest examination of those authorities in Bordenkircher v.

Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). In Bordenkircher the court had under review this court’s decision in Hayes v. Cowan, 547 F.2d 42 (6th Cir. 1978), granting a writ of habeas corpus by reason of prose-cutorial vindictiveness in obtaining a superseding indictment. The defendant therein had been charged in a one-count indictment with forgery.

He had been advised, promised, warned, or threatened by the prosecution (depending on what coloration one chooses to apply to the facts) that if he “did not intend to save the court the inconvenience and necessity of a trial and taking up this time” by pleading guilty with a prosecution recommendation for a five-year sentence he would also be charged as an habitual offender and face a possible life sentence. 547 F.2d 42, 43. He refused to plead to the forgery indictment, the prosecution obtained a second indictment adding the habitual offender charge, and the defendant was convicted on both counts.

The Supreme Court reversed the grant of habeas corpus, ruling that an increase in charges as a part of the “give-and-take” of plea bargaining contained no element of punishment or retaliation, that there was a “mutuality of advantage” available to each of the parties regarding avoidance of trial, and that because the defendant was free to accept or reject the prosecution’s offer the conduct of the prosecutor in adding the more serious charge could not be considered as vindictive. Bordenkircher v. Hayes, supra, 434 U.S. at p. 363, 98 S.Ct. 663.

While this is the pivotal point of Bordenkircher, and thus plainly distinguishes that action on its facts, we do not believe that we can ignore the Supreme Court’s approach to Pearce and Blackledge therein by reason of that circumstance (as we have been urged to do by appellees). In the course of the Bordenkircher opinion the Supreme Court stated: This Court held in North Carolina v. Pearce, 395 U.S. 711, 725 [, 89 S.Ct. 2072, 23 L.Ed.2d 656], that the Due Process Clause of the Fourteenth Amendment “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no

part in the sentence he receives after a new trial.” The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a “realistic likelihood of ‘vindictiveness.’ ” Blackledge v. Perry, 417 U.S., at 27 [94 S.Ct. 2098]. Id., p. 362, 98 S.Ct., p. 667.

The Court further spoke of Pearce and Blackledge as representing the “imposition of penalty” upon a defendant, ibid., and stated: 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., p. 363, 98 S.Ct., at p. 667. We believe it to be noteworthy that in its references to and quotation from Pearce and Blackledge the majority in Bordenkircher did not refer to the broader aspects of those earlier rulings regarding the defendant’s perception of the conduct in question — “apprehension of vindictiveness”. Justice Blackmun, writing for a three-member dissent, stated that the majority opinion “is departing from, or at least restricting, the principles established in North Carolina v.

Pearce, 395 U.S. 711 [, 89 S.Ct. 2072, 23 L.Ed.2d 656] (1969) and in Blackledge v. Perry, 417 U.S. 21 [, 94 S.Ct. 2098, 40 L.Ed.2d 628] (1974).” Id., pp. 365, 366, 98 S.Ct., p. 669. We believe that any such restriction is merely to the limits that Pearce and Blackledge were intended to occupy and beyond which they have been taken in many instances by the lower courts, and that the Bordenkircher

interpretation of Pearce and Blackledge is a clear indication to the trial courts that the doctrine developed in those rulings is to be confined to its intended scope. There is a significant distinction between the facts of this case and those of Pearce and Blackledge. In Pearce and Blackledge there was a substitution of charges — the same conduct on the part of the defendant was the basis for the diverse sentences imposed in Pearce and underlie both the misdemeanor and felony charges in Blackledge.

In this case the same conduct is not the basis for both the original indictment charging the substantive offenses and the superseding indictment adding the conspiracy count. The conspiracy charge, although arising from the same total factual pattern from which the substantive counts arise, is a separate and distinct offense with elements different from those of the substantive counts. Thus, we are here concerned with the addition rather than the substitution of charges.

The distinction between substitution of charges and addition of charges brings into play one of the considerations of the Pearce decision which has been carried forward into the ruling below. In Pearce the Supreme Court held that in order to vindicate a more severe sentence following a second trial the sentencing judge must do so “based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original [trial].” 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656.

The District Judge applied a similar limitation in this, ease, holding that the only exception to the bar of “appearance of vindictiveness” would be “lack of existence of essential elements of the increased offense at the time of [the] original indictment or where the government, through no fault of its own, discovers new evidence of which it was unaware at the time of the original charge.” 444 F.2d 1238, 1241. We believe that such ruling fails to take into account the difference between substituting charges and adding charges.

In a case such as Pearce, once sentence is imposed the sentencing court has made a final decision as to the appropriate punishment for the offense of which the defendant was convicted. In a Blackledge situation the course of alleged criminal conduct will support only a single charge, with the prosecution having the option of charging the defendant under different provisions of the law carrying varying penalties. The bar of double jeopardy would preclude more than one such offense being charged.

Once the judgment is made as to which penal statute is to be invoked the full extent of prosecutorial discretion has been exercised. Under either of those circumstances, absent an explanation encompassing factors unknown or nonexistent at the time the original decision was made it could fairly be assumed that the sole factor intervening between such decision and the shift to a more punitive position — the defendant’s exercise of a protected right — played a

part in the determination. Hence, a reasonable apprehension of the realistic likelihood of vindictiveness might arise. The same cannot be said as regards addition of charges. In this case, when the defendants were charged with the two substantive offenses the full extent of prosecutorial judgment and/or discretion had not been exercised. The possibility of indictment for conspiracy (an entirely separate offense containing essential elements different from those of the substantive offenses) remained, unhampered by any considerations of double jeopardy. Just as in Bordenkircher v.

Hayes, supra, in which the prosecution initially withheld charging the defendant with an offense directly related to that alleged in the initial indictment, the prosecution in this case had not exhausted its arsenal of potential charges with the initial indictment. This subtle but critical distinction between the addition of charges as .contrasted with the substitution of charges has been recognized in other cases considering Pearce-Blackledge challenges. The Fifth Circuit has spoken to this matter in Hardwick v. Doolittle, 558 F.2d 292 (1977) and Jackson v. Walker, 585 F.2d 139 (1978) .

In Hardwick the defendant was originally indicted for and convicted of bank robbery and aggravated assault on three policemen during the course of the robbery. The conviction was set aside on appeal. Before retrial a different prosecutor obtained a superseding indictment adding two new counts — robbery of a bank customer and assault on another individual. In considering the defendant’s motion to dismiss the new charges on the basis of prosecutorial vindictiveness the court focused on the fact that they were added and not substituted charges.

The court then held: Though these latter two events occurred in the same overall time interval as the acts covered by the first two indictments, they were different and distinct activities and thus were the subjects of discretionary prosecutorial decisions which up to then had not been made. These charges were not harsher variations of the same original decision to prosecute as in Blackledge. .

The apprehension of vindictiveness which controlled the decision in Blackledge had no effect on prosecutorial discretion because there the decision to prosecute Perry for this very assault on his fellow prisoner had already been made.

On the other hand, if we were to adopt apprehension of vindictiveness as opposed to vindictiveness in fact to be the standard by which we judge whether new prosecutions for different criminal activities may be initiated, we would render the prosecutor’s discretion meaningless in every case in which a defendant is initially indicted for less than all the violations his alleged spree of activity would permit. In such a situation, it is enough that a prosecutor, who decides to add charges to a prior indictment, prove that he did not in fact act vindictively.

The test is to be applied to the prosecutor’s actions rather than the defendant’s reactions. 558 F.2d 292, 302. The court ruled that in the circumstances of that case: While Hardwick has made a prima facie case by showing that the number of crimes charged against him as a result of this episode was doubled after he had succeeded in setting aside the original convictions, the prosecutor may rebut this prima facie proof by establishing his reasons for adding the two new charges were other than to punish a pesky defendant for exercising his legal rights. Id., p. 301.

Among the “explanations which would negate vindictiveness” were included “mistake or oversight in the initial action [and] a different approach to prosecutorial duty by the successor prosecutor.” Ibid. Jackson v. Walker, supra, differs from Hardwick in that in Jackson the charges which were added in a reindictment following a successful appeal arose from the same basic conduct which underly the original charges, whereas in Hardwick the added charges were based upon different facts, albeit events which occurred in the same basic criminal episode.

In responding to a Pearce-Blackledge challenge to the second indictment the Fifth Circuit drew upon its decision in Hardwick, again making clear that the fact that these were added rather than substituted charges called for a reasoned

interpretation and application of the Supreme Court precedents. The Jackson court remanded the action to be reconsidered by the district court applying a “balancing test” drawn from the principles of Hardwick as more fully articulated in its opinion. That “balancing test” involved a weighing of the “ ‘freedom of appeal’ interest of defendants against the ‘freedom of discretion’ interest of the prosecutor,” 585 F.2d 139, 144, a task which the court recognized may be a complicated one. Id., pp. 145, 149. In United States v.

Ricard, 563 F.2d 45 (2nd Cir. 1977), the defendant was originally charged with the misdemeanor of taking two books of money orders from the mail. Subsequent to the filing of a motion to suppress which was contested by the government and the day after defense counsel was advised that if the defendant did not plead guilty a superseding indictment would be sought a felony count was added to the charges. Following conviction on the felony count a Pearce-Blackledge prosecutorial vindictiveness issue was raised on appeal.

In rejecting that argument the Second Circuit held: Appellant argues that the prosecutor’s action in filing the superseding indictment created the apprehension of vindictiveness, and that accordingly Pearce and Blackledge require reversal of his conviction, despite the absence of any proof of a vindictive motive. However, even if the circumstances of this case arguably pose a realistic likelihood of the apprehension of prosecutorial vindictiveness and bring into play the principles of Pearce and Blackledge, this by no means mandates reversal.

Unlike Blackledge, in this case the prosecutor was able to justify the increase in charges brought against appellant. Another attorney had originally handled the case and filed the information charging a misdemeanor. The case was later assigned to her, and when she reviewed the file several weeks before the trial date, she realized that the facts warranted adding a felony charge. As Judge Griesa held, and as the facts adduced at trial showed, this was a reasonable step for the prosecutor to take. Id., p. 48. Similar views are expressed and the same result was arrived at by the Eighth Circuit in United States v.

Partyka, 561 F.2d 118 (1977). In that action within two weeks of a successful appeal the prosecution doubled the number of narcotics offenses charged against the defendant. In rejecting a prosecutorial vindictiveness challenge to the second indictment the court held: We do not read Perry as taking away from prosecutors their traditional and proper discretion in deciding which of multiple charges against a defendant are to be prosecuted or whether they are all to be prosecuted at the same time. .

In other words, we do not think that Perry holds that if at a given moment a prosecutor is in a position to indict a defendant on two separate felony charges he must indict on both charges at the same time unless he cares to assume the risk that if a prosecution on one charge only aborts as a result of defense efforts, it will be held that he has been guilty of vindictive prosecution if he promptly obtains an indictment on the other charge. Id., p. 124. Primary among the authorities relied upon by appellees and drawn upon by the District Judge are the decisions in United States v.

Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (D.C.Cir.1974), and United States v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976). Each of those rulings is distinguishable from the case before us for both involved substitution of charges under circumstances where double jeopardy would bar prosecution for the first and second offenses charged against the defendants. We must, however, recognize that those decisions contain very broad and strong language (which could be considered as dicta) which must be considered as philosophically incompatible with our views of Pearce and Blackledge and the

interpretations placed upon those rulings in the other appellate decisions previously reviewed herein. Additionally, the rationale of Ruesga-Martinez together with its “appearance of vindictiveness” language has been extended by the Ninth Circuit to invalidate added as well as substituted charges. United States v. DeMarco, 550 F.8d 1224 (1977); United States v. Alvarado-Sandoval, 557 F.2d 645 (1977); United States v. Groves, 571 F.2d 450. Insofar as the Jamison ruling and the foregoing Ninth Circuit authorities can be construed as supportive of the view that “appearance of vindictiveness” is a proper standard under Pearce and Blackledge and/or represent an

interpretation of those authorities differing from that adopted herein we must respectfully decline to follow such decisions. Similarly, we cannot concur in the view that inexperience of counsel cannot be an acceptable excuse for failure to include all charges in an original indictment, Ruesga-Martinez at p. 1370, nor agree that only events after the initial indictment can be looked to in order to dispel apprehension of prosecutorial vindictiveness, Jamison at pp. 416-417. We are in agreement with the basic approach of the Fifth Circuit to this issue of prosecutorial vindictiveness.

However, we prefer to articulate the controlling propositions in a slightly different fashion. The basic premise must proceed from the proposition that we are primarily concerned with the realistic likelihood of vindictiveness in the prosecutor’s conduct, Blackledge v. Perry, supra, bearing in mind that resolution of such issue must take into account a reasonable apprehension of retaliatory motivation on the part of the defendant, North Carolina v. Pearce, supra.

Proceeding from that premise, if the prosecution substitutes charges increasing the potential severity of the punishment to which the defendant is exposed, such substitution of charges creates a prima facie case of prosecutorial vindictiveness which can be overcome only by showing that intervening circumstances, of which the prosecution could not reasonably have been aware created a fact situation which did not exist at the time of the original indictment. Such a standard places primary emphasis on the apprehension of retaliatory motivation — the perception of the defendant.

If the prosecution adds new charges arising from criminal conduct relatively distinct from that underlying the original charge the defendant must show actual vindictiveness in the bringing of the added charges, although a prima facie case may be made out by the mere fact of the added charges if no plausible explanation is offered by the prosecution. This standard focuses on the intent of the prosecutor.

The third possibility, and the one pertinent to the facts of this case, concerns the addition of a new charge for a different and distinct offense which was a different and distinct consequence of the same basic conduct underlying the original charge. In that event, the fact of the added charges would make out a prima facie case of prosecutorial vindictiveness, but such prima facie case would be subject to rebuttal by the prosecution offering evidence of facts which reasonably explain or justify the action taken and negate any inference of vindictiveness in fact.

This standard takes into recognition both the perception of the defendant and the intent of the prosecutor, and if the trial court is not satisfied as to the plausibility or substantiality of the government’s explanation the reasonable apprehension of vindictive motivation may be given controlling weight. It is clear from the District Judge’s opinion that the standard which he applied is that which we deem applicable to a substitution of charges. Also, as previously noted, it is not clear whether the District Judge resolved the question of the credibility of the prosecution’s explanation.

We, therefore, reverse and remand for redetermination under the appropriate standard as set forth herein. . A defense challenge to the legality of that stop and search is the subject of a separate opinion of this court. United States v. Andrews, 600 F.2d 563 (6th Cir. 1979). .

While it does not appear from the record or from the opinion of the District Judge, in argument to this Court both sides appear to agree that the government’s request that the defendants be held without bail was predicated upon representations to the Magistrate and District Judge that Fannie Braswell had turned state’s evidence, had been threatened, and had been placed in the federal witness protection program. The government’s opposition to the defendants’ ultimately successful attempt to be released on bail has been characterized as “vigorous.” .

Again while it does not appear from the record, it was represented at oral argument before this court by the government counsel involved in the District Court proceedings that the error in failing to include the conspiracy count was noted by the supervising attorney for the prosecutor involved. . The District Judge did state that “the Court does not find that the action of the prosecutor was malicious, nor does it question her integrity.” Id., p. 1243. . In this respect this action is factually closer to Bordenkircher v. Hayes, supra, than it is to Pearce and Blackledge. .

In dealing with this aspect of the case in Blackledge the Supreme Court did not specifically address the question of what circumstances would justify substitution of a more serious charge by reason of the fact that there was no evidence on that point in the record. In a footnote it was stated “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.” 417 U.S. 21, 29, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628. .

It could be said that the defendants’ assertion of a constitutional right in this case effectively deprived the government of the opportunity to use the possibility of added charges as a “bar-gaming chip” in the course of plea-bargaining, as sanctioned by Bordenkircher.

While courts have often condemned government prosecutors for overindicting, the result reached by the District Judge could inevitably lead to prosecutors obtaining initial indictments containing every count the facts could conceivably sustain, for fear that a defendant’s assertion of some protected right which the government would be required to oppose would create a virtually insurmountable obstacle to the obtaining of a superseding indictment adding counts to those initially set forth in an original indictment of reasonable scope. . In that respect Jackson is more closely related to this action. .

The government explained the failure to include all charges in the first indictment as an effort to protect an informant’s identity. From a reading of the facts of the case, and considering that the informant’s identity was disclosed at the first trial, that excuse appears to be somewhat tenuous. . From examination of the authorities cited to us in this action and further research into the question it appears that the concept of “appearance of vindictiveness” may well originate in the Ruesga-Martinez decision. .

In Jamison defendants originally charged with second degree murder were reindicted for first degree murder following declaration of a mistrial. The defendant in Ruesga-Martinez was charged under a felony provision of the immigration laws when he refused to waive trial before a magistrate, having originally been charged with a misdemeanor applicable to the same acts of unlawful entry and reentry. . The District Judge also relied upon United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976) with regard to the appearance of vindictiveness.

That case, which involved reindictment upon failure of a plea bargain, draws heavily upon Jamison in support of its conclusion, which we consider to be representative of the incorrect application of Pearce and Blackledge. Further, the continued viability of Johnson is very questionable, as its views of prosecutorial discretion vis-a-vis plea bargaining appear to be inconsistent with the ruling in Bordenkircher v. Hayes, supra. . We believe that the differences are more matters of semantics than substance, and the same results would probably obtain under both approaches. .

Inadvertence and prosecutorial inexperience wopld be within the range of explanations blunting a claim of prosecutorial vindictiveness. . This approach is consistent with this Court’s prior decisions regarding questions of prosecutorial vindictiveness. In United States v. Sturgill, 563 F.2d 307, 309 (6th Cir. 1977), it was recognized that if “a neutral explanation appeared on the record” the bringing of a more serious charge was constitutionally permissible. In Hayes v. Cowan, 547 F.2d 42, 44—45 (6th Cir. 1978), reversed on other grounds Bordenkircher v.

Hayes, supra, it was stated that a “strong inference” of vindictiveness may arise from the unexplained imposition of more serious charges.