United States v. Reese, 917 F.3d 177 (3d Cir. 2019). The Third Circuit issued this opinion today. As Judge Ambro’s opinion for the unanimous panel stated at the very beginning, “This is one of the rare cases in which the Speedy Trial Act, 18 U.S.C. §§3161–3174, requires that we vacate a conviction and remand for dismissal of the indictment.”
But Judges Ambro and Greenaway filed a separate concurring opinion. They wrote that opinion “to address a trend among our sister Circuits that appears to be expanding the doctrine of waiver by defendants under the Speedy Trial Act. To be clear, the Government has foregone any assertion that Reese waived his Speedy Trial Act challenge in this case by not raising the issue in its appellate brief or in oral argument. [Citation]. We nonetheless mention the trend and consider whether the doctrine of waiver would preclude Reese’s challenge in this appeal were that issue before us. We conclude it would not.” They then proceeded to elaborate on their position, citing cases from other Circuits in support.
Normally, an opinion that commands two out of three votes on a panel would be considered a majority opinion. Here, however, perhaps because, as the concurrence acknowledged, that opinion’s entire discussion was dicta, the unanimous opinion of the three judges (Judge Chagares was the third panel member) constituted the opinion of the Court, and the Ambro/Greenaway opinion was a concurrence. Certainly an unusual, but I suspect not unprecedented, circumstance.