United States v. Smyth

with whom Circuit Judges PREGERSON, NOONAN, and O’SCANNLAIN join:

I join in Judge NOONAN’s dissent from the court’s failure to take this case en bane because I am in general agreement with it. However, I write separately in order to point out several additional errors in the panel’s opinion that are equally or more serious. Judge Noonan explains convincingly why the panel is mistaken when it concludes that the district court erred in its imposition of rebut-table presumptions because they “improperly shifted the burden of proof from Smyth to the government in contravention of the treaty…