Remand to NMCCA to decide issue not previously raised before that court

On the same day that I noted my perception that NMCCA was enjoying a very high affirmance rate this Term, CAAF's daily journal update included a summary disposition returning a case to the Navy-Marine Corps Court for consideration of an issue not previously raised there. That summary disposition reminded me that I had forgotten about CAAF summarily reversing the Navy-Marine Corps Court on occasion this term. I'll look at the numbers over the weekend to try to get a good handle on what has happened thus far this term.

In United States v. Lewis, __ M.J. ___, No. 08-0159/MC (C.A.A.F. May 13, 2008) (summary disposition), CAAF noted that the defense had raised a legal sufficiency issue before it that had not been considered by the Navy-Marine Corps Court. CAAF concluded that it "is appropriate for the court below to consider this issue initially. It granted review of "[w]hether the evidence is legally insufficient to support the conviction for conspiracy when the government purportedly failed to provide any evidence that the alleged overt acts occurred after the conspiratorial agreement arose." Id. CAAF set aside NMCCA's decision and returned the case to the Navy JAG for remand to the Navy-Marine Corps Court "for consideration of the issue raised for the first time before us." Id.