What is the test for finding that the government violates due process if it files additional criminal charges to penalize a defendant for exercising protected statutory or constitutional right?

The government violates due process if it files additional charges "to penalize [the defendant] for exercising a protected statutory or constitutional right." United States v. Jenkins. 504 F.3d 694,699 (9th Cir. 2007). Love "may establish prosecutorial vindictiveness" of this sort either "by producing direct evidence of the prosecutor's punitive motivation" or by "show[ing] that the [additional] charges 'were filed because [he] exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness.'" Id. (quoting United States v. Gallegos-Curiel. 681 F.2d 1164,1168 (9th Cir. 1982)). Because Love has presented "no direct evidence of the government's improper motivation," only the appearance of vindictiveness is at issue here. See id.