What is the standard of review for vindictive prosecution?

While we have yet to settle on a standard of review for vindictive prosecution, see United States v. Montoya, 45 F.3d 1286, 1291 (9th Cir.1995), we do not need to here, as Malkus's claim of prosecutorial vindictiveness fails whether our review is for abuse of discretion, clear error, or de novo. When, as here, there is no evidence of actual vindictiveness, "cases involving increased charges or punishments after trial are to be sharply distinguished from cases in which the prosecution increases charges in the course of pretrial proceedings." United States v. Gallegos-Curiel, 681 F.2d 1164, 1167 (9th Cir.1982); see also United States v. Brooklier, 685 F.2d 1208, 1215-16 (9th Cir.1982). At the pretrial stage, a prosecutor's assessment of the boundaries of his case may not yet have crystallized. See United States v. Goodwin, 457 U.S. 368, 381, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). In addition, defendants may be

Id. at 381-82, 102 S.Ct. 2485. Accordingly, a presumption of vindictiveness is not warranted here,

[179 F.3d 802]