A reminder to appellate counsel

No. 14-0660/AR. U.S. v. Michael C. Budka. CCA 20120435.  On further consideration of the granted issues (74 M.J. __ (C.A.A.F. Oct. 23, 2014)), and the briefs of the parties, we first conclude that the United States Army Court of Criminal Appeals did not abuse its discretion and did not violate the principle of party presentation, as outlined in Greenlaw v. United States, 554 U.S. 237, 243-44 (2008), when it summarily affirmed the finding of guilty to the offense of aggravated assault after the Government conceded that the factual predicate for that offense had not been met.  Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals may affirm only such findings of guilty as it finds correct in law and fact, and “[i]n considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.”  These factfinding powers are “unparalleled among civilian appellate tribunals,” and the decision in Greenlaw did not take those powers into consideration. United States v. Baker, 28 M.J. 121, 122 (C.M.A. 1989). Neither the Court of Criminal Appeals, nor this Court, is bound by government concessions. See United States v. Emmons, 31 M.J. 108, 110 (C.M.A. 1990); United States v. Hand, 11 M.J. 321, 321 (C.M.A. 1981); United States v. Wille, 9C.M.A. 623, 627, 26 C.M.R. 403, 407 (1958); United States v. McNamara, 7 C.M.A. 575, 578, 23 C.M.R. 39, 42 (1957); United States v. Patrick, 2 C.M.A. 189, 191, 7 C.M.R. 65, 67 (1953).

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