Sounds like a dissent to me...

BARKETT, J., specially concurring
No. 05-11329 D. C. Docket No. 03-80094-CR-DTKH UNITED STATES OF AMERICA, NATHAN DESHAWN FAUST, “There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account,” especially in the formulation of trial strategy. Winship, 397 U.S. at 364 (citing Speiser v. Randall, 357 U.S. 513, 525 (1958). Our Circuit’s Duncan rule severely compromises defendants’ ability to properly account for this margin of error, tailor an optimal trial strategy, or indeed formulate any minimally satisfying strategy whatsoever. Faced with multiple allegations supported by evidence of varying persuasiveness, Faust’s largely successful effort to escape guilt beyond a reasonable doubt could not preclude, and, in its successs, actually might have contributed to, his punishment for those acquitted offenses under a lesser standard of proof. I do not believe the Constitution permits this cruel and perverse result.

“[T]he government's ability to make its case vastly exceeds a defendant's ability to rebut
it. The financial resources of the prosecution and the ability of prosecutors to access police, informants, and experts usually are much greater than those of defendants' counsel. . . . [P]resentence reports often rely excessively on the prosecutor's files for their information . . . and hearsay evidence [there]in . . . or from confidential informants is difficult and costly to rebut. The absence of equal litigation resources thus makes the preponderance of evidence standard generate even more errors – errors that fall primarily on the side of deprivations of liberty for
individuals.” Restrepo, 946 F.2d at 675 (Norris, J., dissenting).