opinion: Rafael Capella RIVERA et al., Petitioners, Appellees, v. Tomas CONCEPCION, Warden, et al., Respondents, Appellants.
  No. 72-8024.
  United States Court of Appeals, First Circuit.
  Submitted Oct. 27, 1972.
  Decided Nov. 6, 1972.
  J. F. Rodriguez-Rivera, Acting Sol. Gen. and Americo Serra, Asst. Sol. Gen., for respondents on motion for stay.
  Luis F. Abreu Elias, Rio Piedras, P. R., for petitioners on memorandum in opposition to motion for stay.
  Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
  ALDRICH, Senior Judge.
  Petitioners were convicted in the Superior Court of Puerto Rico in August 1970, after some 23 trial days, of violating the Commonwealth’s Explosives Law, 25 L.P.R.A. § 492, and for conspiracy, 33 L.P.R.A. § 161. They sought bail pending appeal from the Superior Court, but after a prompt evidentiary hearing this was refused. The Supreme Court of Puerto Rico denied bail in May 1971. In December 1971 petitioners again applied to the Superior Court. In their motion they stated that, although ordered by the court, the transcript of their trial had not been prepared, and that such lengthy incarceration without bail and an opportunity to press their appeal was a denial of due process.
  In May 1972, their motion not having been acted upon, petitioners sought ha-beas corpus in the United States District Court. Alleging that they were good bail risks, being lifelong residents of Puerto Rico with no prior criminal record, that there had been no articulated findings and determination that their appeals were frivolous, and that the court stenographers had yet to commence the preparation of their transcript, petitioners claimed a denial of due process. Not wishing to exercise jurisdiction before petitioners had fully exhausted their local rights, the district court ordered them to make a further application to the Supreme Court of Puerto Rico. Petitioners did this, calling the court’s attention to the fact that it was now over two years and the stenographers had yet to commence the transcript. The court denied bail, without a hearing, with the conclusory statement that the appeal was frivolous and that it would be dangerous to the community to allow petitioners to be at large. It did, however, order preferential treatment for the preparation of their transcript.
  After this decision, petitioners renewed their claims in the district court and the court entered an order that they be released on bail upon a setting of the amount needed. In support of its order the court cited the decision in United States ex rel. Keating v. Bensinger, D.C. Ill.1971, 322 F.Supp. 784, to the effect that it is a violation of a defendant’s Eighth Amendment rights to refuse bail arbitrarily, and that arbitrariness is to be presumed when no supporting reasons were furnished. The Commonwealth sought a stay of this order in this court, and we granted such with a request for a further report of facts from the district court.
  This report has now been received. It shows the following. It is the practice in the Puerto Rico Superior Court to have transcripts prepared in chronological order. At the time petitioners’ transcript was requested there were sixteen cases ahead, some of which still remain. We infer that the practice is for the stenographers to prepare transcripts only-in such time as is available after their regular courtroom duties. Even with the order of preference, the court found, it is not expected that petitioners’ transcript will be completed until May 1973. Briefs must then be written. Even if the Court were to expedite the hearing it would seem unreasonable (this is our estimate, not the district court’s; it made none) to expect a decision before September 1973, at which time petitioners will have been in jail for three years.
  This court on a number of occasions has taken the position that since the right to bail pending appeal is not absolute, a request by a defendant for release on bail implies an undertaking to prosecute the appeal expeditiously. Upon a fair showing of lack of diligence we have revoked bail regardless of the merits of the appeal. This rule should work both ways. If an appellate court directly, or through the agency of the trial court, refuses bail to an appellant, there should be an implicit obligation on the part of those in authority to permit, and where necessary to assist, in the prompt prosecution and disposition of the appeal. Thus in Odsen v. Moore, 1 Cir., 1971, 445 F.2d 806, where a state prisoner, over a period of months, wrote to the clerk of court inquiring as to the state of his appeal, protesting that nothing was being done by court-appointed counsel, and was “consistently informed by the clerk that all complaints of inaction must be directed to counsel of record”, we said that this was equivalent to holding a case “under advisement for an unconscionable period, as in Dixon v. Florida, 388 F.2d 424 (5th Cir. 1968) and Morgan v. State of Tennessee, 298 F.Supp. 581 (E.D.Tenn.1969)”, and deprived defendant of due process. 445 F.2d at 807.
  The district court, picking up the language of “consistently complaining,” felt that the Commonwealth had not been derelict because, petitioners had not made a request for preference. It rested its decision to grant bail upon the Puerto Rico courts’ failure to live up to the requirements of the Bensinger case. At least one member of this court has doubts as to the correctness of Bensin-ger, but none of us has doubts about the correctness of the court’s order. We do not attach the significance it did to counsel’s failure to request preference. It must be self-evident that a defendant who appeals and who seeks bail pending appeal does not wish to stay in jail, and at the least desires his transcript as quickly as possible. The Puerto Rico courts cannot but be aware of their practice with respect to transcripts, and the general consequences thereof. Moreover, as above appears, the consequences to these particular petitioners were fully brought to their attention.
  It is true that the Supreme Court of Puerto Rico has found — although in what manner does not appear —that petitioners’ appeals are frivolous. It is also true that the crimes of which petitioners have been found guilty are manifestly reprehensible, and a danger to the community. The finding of guilt, however, so far is only provisional. Petitioners, having appealed, are entitled to have that finding reviewed and their guilt finally passed upon by the full process of law. We, too, do not enjoy the thought of guilty defendants filing frivolous appeals, if that be the ease. But two years of total inaction, however occasioned, while they remain incarcerated seems more than enough. Nor is it to be overcome by a present exercise of diligence and treated as if it had not occurred. Any such rule would mean that a defendant may be freely given improper consideration until the system, or the parties at fault, are caught out. We see no reason to stay further the order of the district court, and we do not. The district court should determine the appropriate amount of bail to assure petitioners’ presence. At this stage the Commonwealth is entitled to no more.
  The stenographer — there were three in all —who did the bulk of the reporting is no longer in tlie employ of the Commonwealth and has left Puerto Rieo, making a special problem. It is not, however, the only problem.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama