Bilecki Defends Naples Sailor in Sexual Assault Investigation; Retention and Later Honorable Discharge

Bilecki Defends Naples Sailor in Sexual Assault Investigation; Retention and Later Honorable Discharge

July 2024

NSA Naples, Italy

Navy Air Traffic Controller Second Class – E-5

Allegations: UCMJ Article 120 Sexual Assault; parallel Florida civilian sexual battery charge

Facts

This was a Navy Air Traffic Controller Second Class at NSA Naples staring down three tracks at once. An Article 120 sexual assault investigation routed through the Office of Special Trial Counsel as a covered offense. An Other Than Honorable administrative separation queued up behind the OSTC track. And a parallel Florida civilian sexual battery matter arising from a Largo Police Department investigation in Pinellas County. Worst case across the tracks: years of confinement on a referred court martial, a mandatory punitive discharge on conviction of a qualifying sexual-assault offense, federal sex offender registration, and an OTH separation from the Navy.

The case was thin and the Government had time on its side.

The complainant reported to Largo PD in February 2023, six months after the alleged conduct on a night in August 2022. Largo PD transmitted its report to NCIS that summer. NCIS opened a joint reactive investigation. The case routed to NCIS Naples in August 2023 when our client PCS'd to Italy. By the time the Government's case was ready to move, the night was more than a year and a half in the rearview.

Our client retained Bilecki at the investigation stage, before any charging decision.

The defense had two pieces that ran together.

The first piece was the wrong man story. Our client's account from the start was that he had not gone back to the apartment that night. His account in the investigative interview was clear and consistent. The documentary record of the night did not place him where the alleged victim said he was.

The second piece was the Government's hearsay problem. The Government's case was that on the night in question our client had digitally penetrated a civilian woman who was asleep on a living room air mattress in the apartment of a fellow Sailor's friend. The only Sailor purportedly present was a fellow shipmate from the carrier who admitted he had passed out at some point in the night. What the Government had from him was not what he saw. It was what the alleged victim told him the next morning. That is hearsay. That is not a percipient corroborating witness.

We submitted a defense package to OSTC Pacific surfacing the wrong man account, the hearsay problem in the Government's only corroborating witness, the six month delay in the alleged victim's first report, and the documentary record of the night that did not place our client where she said he was.

OSTC declined court martial referral.

The defense still had to address the proposed administrative separation and the parallel civilian case.

The command also pursued administrative separation, and the defense challenged that process. The board never convened. Our client was retained and continued serving until his later end of active service, when he received an Honorable discharge.

The Largo Police Department civilian case was dismissed.

Result: OSTC declined court-martial referral. The administrative separation board never convened, and the Sailor was retained. The Largo Police Department case was dismissed. He later completed his active service and received an Honorable discharge.

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FAQ

Q: Why did the other Sailor's account matter?
He could repeat what the complainant told him the next morning, but he had passed out and had not witnessed the alleged act. Bilecki made that distinction clear in the submission to OSTC. It mattered when evaluating how much independent support the accusation had. A complainant's testimony can support a conviction without a second eyewitness, and some out-of-court statements are admissible. Here the defense challenged what this particular witness could actually establish.

Q: Did the criminal decision resolve the entire matter?
No. After OSTC declined referral, Bilecki still had to address the proposed separation. The board never convened and our client was retained. The parallel Florida civilian case was dismissed. He later completed his active service and received an Honorable discharge.