While this is not technically an appeal from the action of the district court, but is an original application to this court, our function remains essentially one of review. As this court stated in Fiano v. United States, 9 Cir., 1958, 259 F.2d 135, 136: "But if we hold the appeal is not frivolous, we still have the question of whether defendant is a good risk to respond to further orders of the court in this case.

The Rule then authorized release on bail pending appeal only if a substantial question was presented for review; it now provides that bail may be allowed unless it appears that the appeal is frivolous or taken for delay. The purpose of the amendment was to liberalize the granting of bail pending appeal by establishing "a much lighter standard than the old one of `substantial question.'" Fiano v. United States, 259 F.2d 135, 136 (9th Cir. 1958), cert. denied 361 U.S. 964, 80 S.Ct. 593, 4 L.Ed.2d 545. See also Ward v. United States, 76 S.Ct. 1063, 1064-1065, 1 L.Ed.2d 25 (1956); United States v. Allied Stevedoring Corp., 76 S.Ct. 1068, 1069, 1 L.Ed.2d 23 (1956).

361 U.S. 964, 80 S.Ct. 593, 4 L. Ed.2d 545. A petition for a rehearing was also denied in the Supreme Court. 362 U.S. 925, 80 S.Ct. 668, 4 L.Ed.2d 744. See also Fiano v. United States, 9 Cir., 1958, 259 F.2d 135. Thereafter petitioner Louis Fiano applied for an order releasing him from custody, under the provisions of 28 U.S.C. § 2255, upon the grounds that his sentence was imposed in violation of the Constitution, and that the court was without jurisdiction to impose such sentence.

There has been no such finding in this case. For discussions of the various factors which might justify a denial of bail even where the appeal is not frivolous, see: Williamson v. United States, 2 Cir., 1950, 184 F.2d 280 (opinion by Justice Jackson granting bail to Communist Party leaders over objections of the Government that the questions were not substantial and that defendants would commit further violations of the same character); Christoffel v. United States, 1951, 89 U.S.App.D.C. 341, 196 F.2d 560; Blassingame v. United States, 9 Cir., 1957, 242 F.2d 313; United States v. Williams, 7 Cir., 1958, 253 F.2d 144; United States v. Wilson, 2 Cir., 1958, 257 F.2d 796; Fiano v. United States, 9 Cir., 1958, 259 F.2d 135; United States v. Thompson, D.C.S.D.N.Y. 1957, 152 F. Supp. 292; Note, Bail Pending Appeal in The Federal Courts, 32 N.Y.U. Law Review 557. See: Yanish v. Barber, 1953, 73 S.Ct. 1105; Ward v. United States, 1956, 76 S.Ct. 1063; Roth v. United States, 1956, 77 S.Ct. 17, 1 L.Ed.2d 34; Ellis v. United States, 1959, 79 S.Ct. 428, 3 L. Ed.2d 565.

Nevertheless, the trend since the 1956 amendment to Rule 46 has been toward liberalization of the allowance of bail and the burden is now upon the government to show that bail should be denied. United States v. Allied Stevedoring Corp. (1956), 76 S.Ct. 1068, 1 L.Ed. 2d 23; Ward v. United States (1956), 76 S.Ct. 1063, 1 L.Ed.2d 25; Rhodes v. United States (C.A.W.Va., 1960), 275 F.2d 78; D'Aquino v. United States (C.A. Cal., 1950), 180 F.2d 271; Bennett v. United States (C.A.Fla., 1929), 36 F.2d 475; Leigh v. United States (App.D.C., 1962), 82 S.Ct. 994, 8 L.Ed.2d 269; Fiano v. United States (C.A.Cal., 1959), 259 F.2d 135. It has been stated that the court should resolve any doubts in favor of the defendant.

I believe that by this provision of the rule that the Court is vested with discretion to deny bail pending appeal based on the ground that defendant is likely to ignore the obligation of his bond and flee the jurisdiction of the Court, or for other reasons is a poor bail risk. See, United States v. Esters, D.C., 161 F.Supp. 203; United States v. Wilson, 2 Cir., 257 F.2d 796; Blassingame v. United States, 9 Cir., 242 F.2d 313; Fiano v. United States, 9 Cir., 259 F.2d 135.           Applying the foregoing conclusions of law to the findings of fact herein, it is my opinion that the defendant should not be granted bail pending his appeal in this case.

In evaluating the dangerous propensities of a particular defendant, a court will of course consider the nature of the crime of which defendant has been convicted, as well as the nature of any prior convictions: the more serious the defendant's record, the greater the justification for denying release on appeal. In determining the question of future danger, however, a court should look to the circumstances of the particular defendant, and should not adopt an ironclad, mechanical policy of denying bail to all who commit a particular crime. (See Fiano v. United States (9th Cir. 1958) 259 F.2d 135, 137; accord In re William M. (1970) 3 Cal.3d 16 [ 89 Cal.Rptr. 33, 473 P.2d 737]; In re Minnis (1972) 7 Cal.3d 639 [ 102 Cal.Rptr. 749, 498 P.2d 997].) Courts have long recognized that a potential danger accompanying the granting of bail on appeal is that "[t]oo frequently, after the defendant has been admitted to bail, his interest apparently lags, the appeal drags, the bill of exceptions is not promptly settled and the record does not reach the appellate court as promptly as it should."

ent if the record discloses some rational basis for the Trial Judge's determination; and, since he is imbued with the atmosphere of the trial and has the "feel" of the case, his determination is entitled to great weight ( Fernandez v. United States, 81 S.Ct. 642, 644, 645, supra). Therefore, a defendant who challenges an order respecting bail is required "to show special reasons which justify disturbing the order;" every Judge sitting in review should give "great deference to the adverse action of the lower court" ( Petition of Johnson, 72 S.Ct. 1028, 1031); and, in the ordinary case, it has been held that upon the basis of a "cold record," the reviewing Judge or court should not disturb a bail order made by the Trial Judge, even though it has been made in reliance "upon oral representations of counsel, or the court's own observation, or even the `feel' of the atmosphere of the trial" ( Carbo v. United States, 288 F.2d 282, 286, supra; Fernandez v. United States, 81 S.Ct. 642, supra; Fiano v. United States, 259 F.2d 135). In the light of the applicable rules, we are constrained to disagree with the Justice below that there was no "reasonable foundation" for the action of the Trial Judge here in revoking relators' bail.