dissenting.
Convicted defendants are confined promptly after being sentenced, unless “a substantial question of law or fact [is] likely to result in” reversal or a reduction in imprisonment to less than the anticipated duration of the appeal. 18 U.S.C. § 3143(b)(1)(B). Even district judges who perceive a “substantial question” lurking do not believe that the question is “likely” to produce reversal — if they believed this, they would have acquitted the defendant. The self-critical role in which § 3143(b)(1)(B) casts a district judge justifies non-deferential appellate review and the conclusion that “likely” means a middling probability. See, e.g., United States v. Bilanzich, 771 F.2d 292 (7th Cir.1985); United States v. Greenberg, 772 F.2d 340 (7th Cir.1985).
Willingness to review the record independently does not imply, however, that we disregard the views of the jury and the district judge. Review of an order granting or denying release on bail pending appeal previews the substantive appeal. And the standard on this appeal may be highly deferential. When, for example, the question is whether the evidence supports the verdict, we take all facts and inferences in the light most favorable to the prosecution, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and then ask whether any reasonable juror could have found these facts and inferences sufficient. Jackson v. Virgi*744nia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). At this preliminary stage, the degree of our respect for the jury’s conclusion is no less; perhaps we owe extra deference, because we lack a complete record. Hence the district judge’s views are invaluable. In this case the judge wrote: “I don’t believe there is an [sic] substantial question of fact, really, in the ease.” He let Eaken out on bail only because: “I can’t say that two circuit judges won’t disagree with me.” United States v. Shoffner, 791 F.2d 586, 588 (7th Cir.1986), repudiates that approach. Take away the erroneous reason and the finding remains: like the jury, the judge believed the facts sufficient. Lacking a transcript of the trial, or even the briefs on Eaken’s appeal, we are in no position to disagree.
Eaken’s appeal (No. 92-4073) was docketed on December 21,1992. He had 40 days to file his brief on the merits. Circuit Rule 31(a). That time passed without a brief or a motion for an extension. More than four months have elapsed without a brief; Eaken has contented himself with resisting the United States’ appeal (No. 93-1362) seeking his interim incarceration. His delay leaves us in the dark when acting on the prosecutor’s appeal. More: § 3143(b)(1)(B) calls for defendants to spend the appeal in jail if the district judge finds that “the appeal is ... for the purpose of delay”. Judge Baker wrote: “I think all Mr. Boyer [Eaken’s lawyer] may achieve is to delay the evil day.” Counsel’s lassitude in filing a brief hardly dispels this concern.
During 1985 Eaken, a lawyer, embezzled some $200,000 from an estate he was administering, diverting the funds to three bank accounts, only one of which was in his name. Needless to say, he did not report these ill-gotten gains as income or pay income taxes. So much is conceded. The jury convicted Eaken of both tax evasion and failure to file the appropriate tax return. 26 U.S.C. §§ 7201, 7203. As far as I can see, Eaken contests only the conviction for tax evasion. In responding to the United States’ appeal Eaken did not mention the conviction for failure to file. We must take it, then, that this conviction is invulnerable. It means that Eaken faces imprisonment no matter what happens to his conviction for tax evasion— and correspondingly that there is no “substantial question of law or fact likely to result in” imprisonment for less time than the appellate process will require.
The statutory maximum sentence for tax evasion is five years, and the district judge ordered Eaken to serve that entire time. The statutory maximum for failure to file is one year; Eaken thus has a lot to gain if we reverse the conviction for tax evasion. But is he likely to win freedom from confinement? Having concluded that these events and this offender deserved five years’ imprisonment, the district judge is unlikely to let Eaken off lightly if we hold that the crime is not technically tax “evasion.” Eaken’s full sentence was five years in prison for tax evasion and a suspended sentence, plus two years’ probation, for failure to file. If this court should reverse the conviction for tax evasion, it would vacate the sentence for failure to file and remand for reconstruction of the sentencing package. E.g., United States v. Thomas, 788 F.2d 1250, 1260 (7th Cir.1986). The district court then would un-suspend the sentence and impose imprisonment appropriate to the offense.
In deciding whether eliminating the tax evasion conviction would eliminate Eaken’s imprisonment — or reduce by more than four-fifths the total imprisonment — the district judge is likely to consult the Sentencing Guidelines, even though this is a pre-Guide-line offense. And the Guidelines treat failure to file and tax evasion all but identically, with the sentence determined largely by the loss to the tax collector rather than by statutory pigeonholes. The base offense level for tax evasion comes from a table of lost tax revenues. U.S.S.G. §§ 2T1.1(a), 2T4.1. The base offense level for failure to file a tax return comes from the same table, minus one level. U.S.S.G. § 2T1.2(a)(1). The specific offense characteristics for the two crimes are identical. U.S.S.G. §§ 2T1.1(b), 2T1.2(b). The message from the Guidelines: if Eaken deserved the statutory maximum of five years under § 7201, he deserves the statutory maximum of one year under § 7203. *745Eaken belongs in prison until that year has run.
My colleagues believe that this prediction involves mind reading or, worse, usurpation of the district judge’s role. Some element of prediction is inevitable. Section 3143(b)(1)(B) says that the defendant shall be released if
the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
If the judicial officer makes such findings, such judicial officer shall order the release of the person ... except that in the circumstance described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence.
Because Eaken does not challenge the conviction for failure to file (and has no chance of success if he does), subparagraphs (B)(i) and (B)(ii) do not apply. Thus we must ask whether a decision setting aside the tax evasion conviction, but leaving the failure-to-file conviction in place, is “likely to result in ... (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total time already served plus the expected duration of the appeal process.” I have tried to make this prediction and conclude that a rational sentencer would require Eaken to serve time in prison. By condemning my effort and declining to undertake their own, my colleagues are spurning a statutory duty. If a prediction is best made with the benefit of the district court’s views, then we should remand to obtain them. But the majority does not solicit the district court’s views; instead it affirms.
For what it is worth, I doubt that a reduction from five years to one is “likely”. “Any person who willfully attempts in any manner to evade or defeat any tax” commits the crime of tax evasion. 26 U.S.C. § 7201 (emphasis added). The “elements of § 7201 are willfulness; the existence of a tax deficiency ...; and an affirmative act constituting an evasion or attempted evasion of the tax”. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965). Parceling the proceeds of the embezzlement among three accounts, two of which lacked Eaken’s name, was an “affirmative act.” Whether by that act Eaken wilfully attempted to evade the tax depends on his intent: was he trying to hide the money from the beneficiaries of the will, from the court administering the estate, from the tax collector, or from all of these? Without taking leave of its senses, the jury could answer: “from all of these.” That makes the evidence sufficient.
Eaken relies on United States v. Mesheski, 286 F.2d 345 (7th Cir.1961), which reversed a conviction under § 7201 of a tax preparer who embezzled monies that his clients owed to the IRS and did not pay taxes himself on the booty. Whatever one can say about that pre-Sansone decision, it does not hold that a jury is forbidden to treat the use of bank accounts under other names as tax evasion; Mesheski did not involve multiple bank accounts. Such a step is a common device to hide income from the tax collector, and one would suppose a paradigm of “evasion.” We have cited Mesheski exactly once, characterizing its facts as embezzlement plus “mere passive failure to pay.” United States v. Conley, 826 F.2d 551, 557 (7th Cir.1987). A properly instructed jury concluded that Eaken took an “affirmative act” to evade taxes. Given the respect we owe to verdicts in criminal cases, I do not think it “likely” that a panel of this court will reverse.
Once again in closing: even if I am wrong about the tax evasion count, Eaken owes the United States a year of his life for failure to file his tax return for 1985. Under § 3143(b)(1) he must start serving that time now. ■