concurring:
Although the question is certainly not free from doubt (and the doubt may be “substantial”), I join in the panel’s discussion of 18 U.S.C. § 3143(b)(2) and in the result reached here. I am not sure, however, that our discussion will make anything easier for Judge Sharp or for his colleagues on the district bench. Whatever we may say about it, the language of the statute does seem to require a district judge to place a bet against himself when he elects to release a convicted defendant on bail. The reversal rate for criminal appeals in this circuit in 1985 was 5.0%, and as a statistical matter the likelihood of reversal in any particular case seems unpromising in the extreme. For this reason, this court — and others — have sought to give a meaning to “substantiality” which draws its essence from something other than the probabilities. Nonetheless, one still seems to be peeking at those probabilities out of the corner of one’s eye.
I would hope, therefore, that at least as our understanding of the subject deepens, we could be increasingly deferential to the district court in these matters. The intangibles are so significant in sorting out “close” cases from “not-so-close” cases that the district court is far better placed than we to make that judgment. And, again whatever we say, our own “independent” evaluation must smack of prejudgment of the main appeal. With these cautionary notes, I join in the disposition made here by the panel.