The opinion
GEWIN, Circuit Judge
(concurring specially):
It is clear to me that Judge Brown has reached the correct conclusion in his scholarly opinion in this case. Therefore, I concur in the result. However, in my judgment it discusses legal questions not necessary to a decision in the case before us. Valid assertions for a particular point of view are set forth forcefully in support of the legal concepts discussed, but I am not prepared to concur in all that is said.
As Judge Brown plainly states, if the unlawful presumption is eliminated, as the Leary decision mandates, there is no evidence 'whatever of one of the essential elements of the crime charged— knowledge of illegal importation. The appellant urges retroactive application of the Leary decision and after substantial consideration the government agrees in its final brief and on oral argument that the decision should be so applied. I think both the appellant and the government are correct. Absent some cogent and compelling reason not to apply the Leary decision retroactively, there is nothing else to decide.