[kg_veteran]

There's no doubt from reading the opinion that the panel hearing the case wanted to reverse the trial court's ruling, but it couldn't because precedent in the 5th Circuit (set by another panel in the circuit) wouldn't allow it. That's why there's language in there where the author of the opinion bitches that all members of the panel should have been consulted before the prior panel issued an opinion which conflicted with that of another circuit (in this case, I think it was the 6th Circuit).

The specific quote you're referencing simply brings up an argument the prosecution could have (but didn't) raised. Because the Court didn't know whether the facts would support that argument or not, they really couldn't say how they would have ruled.