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United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001

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Tuesday, January 10, 2006

9:00 a.m.

United States v.	Jeremy T. Wilcox	No. 05-0159/AR
(Appellee)	(Appellant)

Counsel for Appellant: Capt Scott T. Ayers, JA, USA
Counsel for Appellee: Capt Michael C. Friess, JA, USA

Case Summary: GCM conviction of willfully disobeying a superior officer, violating a lawful general regulation by attending a Ku Klux Klan rally, larceny, and, under Article 134, UCMJ, wrongfully advocating anti-government and disloyal statements, and encouraging participation in extremist organizations while identifying himself as a U.S. Army paratrooper, and advocating racial intolerance by counseling and advising individuals on racist views. The U.S. Army Court of Criminal Appeals dismissed the violation of the lawful general regulation, and affirmed the remaining charges. Granted issue questions whether the specification under Article 134, UCMJ, is unconstitutionally overbroad as applied to the Appellant.

10:00 a.m.

United States v.	Christopher S. Bungert	No. 05-0423/CG
(Appellee)	(Appellant)

Counsel for Appellant: LCDR Nancy J. Truax, USCG
Counsel for Appellee: LCDR John S. Luce, Jr., USCG

Case Summary: SPCM conviction of dereliction of duty and various drug offenses. Granted issue questions whether plain error occurred when the military judge admitted evidence under R.C.M. 1001(b)(4) during the sentencing hearing that Appellant made baseless allegations against other crew members that caused a shut down of flight operations.

1:00 p.m.

United States v.	Tamez	No. 05-0382/NA
(Appellee)	(Appellant)

Counsel for Appellant: Capt Richard A. Viczorek, USMC
Counsel for Appellee: LT Craig A. Poulson, JAGC, USNR

Case Summary: Appellee moved to dismiss Appellant’s petition for grant of review as untimely. Specified issues ask:

(I) if a service member has executed a power of attorney regarding appellant rights, (A) what effect, if any, should this Court give to the provisions in a power of attorney that provide for appellate defense counsel to accept service of the decision of the Court of Criminal Appeals for purposes of starting the 60-day time period for filing a petition for grant of review under Article 67(b), UCMJ, and to decide whether to file a petition for grant of review or to waive the right under Article 67(a)(3), UCMJ, and (B) under what circumstances, if any, may appellate defense counsel decide not to petition this Court for review without first attempting to contact the appellant?

(II) when a service member has executed a power of attorney regarding appellate rights, and appellate defense counsel is unable to contact appellant, under what circumstances, if any, may counsel decide to forego filing any petition, including a “merits” petition?

(III) what are an appellate defense counsel’s responsibilities to appellant once counsel has been served with the decision of the Court of Criminal Appeals when a power of attorney regarding appellate rights has been executed by appellant, and when there is no such power of attorney?

(IV) if a petition is filed out of time, is appellant required to set forth the specific facts demonstrating good cause for late filing? (A) if appellant wishes to make a late filing, and such facts involve attorney-client communications, may counsel disclose those facts to the Court without violating the attorney-client privilege? And (B), if there appears to be a colorable claim of ineffective assistance of appellate defense counsel, or if counsel’s interests are otherwise potentially adverse to appellant’s, should the Judge Advocate General appoint another appellate defense counsel to represent the appellant with respect to the matter of the untimely filing?

2:00 p.m.

United States v.	Frank J. Osheskie	No. 05-0165/NA
(Appellee)	(Appellant)

Counsel for Appellant: LT Aimee M. Cooper, JAGC, USNR
Counsel for Appellee: Capt Roger E. Mattioli, USMC

Case Summary: GCM conviction of the unpremeditated murder of his infant daughter. Granted issues question whether (I) the lower court erred when it held that Appellant received the effective assistance of counsel for allegedly failing to investigate the facts of the case and a potential defense, and (II) whether the Appellant has been denied his right to a timely review of his conviction when almost five years passed from the conclusion of the court-martial to completion of review by the lower court.

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Wednesday, January 11, 2006

9:00 a.m.

United States v.	Patricia C. Madigan	No. 05-0417/AF
(Appellee)	(Appellant)

Counsel for Appellant: Capt John S. Fredland, USAF
Counsel for Appellee: Capt Jin-Hwa L. Frazier, USAF

Case Summary: GCM conviction of an Air Force nurse for dereliction of duty, wrongful possession of hydrocone, wrongful use of diazepam, and forgery of prescriptions. Granted issue questions whether the military judge erred by ruling that the purported positive blood lab test for diazepam was admissible when the Government denied the defense access to the evidence by destroying the blood sample.

10:00 a.m.

United States v.	Christopher P. Moffeit	No. 04-0442/AF
(Appellee)	(Appellant)

Counsel for Appellant: John S. Keffer, Esq.
Counsel for Appellee: Maj Steven R. Kaufman, USAFR

Case Summary: GCM conviction of receipt and possession of child pornography and use of a computer website to entice a child to engage in sexual activity. On appeal, the conviction for receipt and possession of child pornography was set aside. The U.S. Air Force Court of Criminal Appeals reassessed the sentence from a dishonorable discharge, confinement for 45 months, forfeiture of all pay and allowances and reduction to E-1 to a dishonorable discharge, confinement for 33 months, forfeiture of all pay and allowances and reduction to E-1. Granted issue questions whether the Court of Criminal Appeals abused its discretion in reassessing the Appellant’s sentence rather than ordering a rehearing on sentence.

1:00 p.m.

United States v.	Henry A. Magyari	No. 05-0300/NA
(Appellee)	(Appellant)

Counsel for Appellant: Capt Richard A. Viczorek, USMC
Counsel for Appellee: LT Craig A. Poulson, JAGC, USNR

Case Summary: SPCM conviction for the wrongful use of methamphetamine. Granted issue questions whether, in light of Crawford v. Washington, 541 U.S. 36 (2004), the Appellant was denied his Sixth Amendment right to confront the witnesses against him where the Government’s case consisted solely of Appellant’s positive urinalysis.

2:00 p.m.

United States v.	Timothy E. Miller	No. 04-0799/NA
(Appellee)	(Appellant)

Counsel for Appellant: James W. Volberding, Esq.
Counsel for Appellee: Maj Wilbur Lee, USMC

Case Summary: GCM conviction of violating a lawful regulation and wrongfully receiving and possessing child pornography. Granted issues question: (I) whether Appellant received ineffective assistance of appellate counsel in violation of the Sixth Amendment and R.C.M. 1202; (II) whether Appellant’s guilty plea was involuntary and therefore failed to meet the requirements of R.C.M. 910(d); and (III) whether Appellant received ineffective assistance of defense counsel in violation of the Sixth Amendment.