Bilecki Wins Acquittals on Kidnapping and Eleven Domestic-Violence Counts; Lesser Convictions Remain

Bilecki Wins Acquittals on Kidnapping and Eleven Domestic-Violence Counts; Lesser Convictions Remain

May 2023

Conduct: Hizumi (off post near MCAS Iwakuni) and MCAS Iwakuni, Japan. Trial: Camp Foster, Okinawa, Japan.

Marine Gunnery Sergeant – E-7

Allegations: UCMJ Article 120 Rape; UCMJ Article 125 Kidnapping; UCMJ Article 128b Domestic Violence (13 specifications)

Facts

This was a Marine Gunnery Sergeant facing a referred general court martial in Okinawa with fifteen specifications across the most serious tiers of UCMJ exposure. Article 120 rape. Article 125 kidnapping. Thirteen specifications of Article 128b domestic violence, including six strangulation allegations and allegations involving a push, a knife, a threat, hair pulling, blows to the head, and a digital sexual act.

Maximum exposure on conviction as charged: life without parole on the rape specification, plus decades of confinement on the kidnapping and the thirteen Article 128b specifications, mandatory dishonorable discharge, and federal sex offender registration.

The Government alleged that across an eight month window between late 2021 and summer 2022, our client had strangled his spouse on multiple occasions, struck her with a glass bottle and his fist on a single August 2022 night, threatened her with a kitchen knife, sexually penetrated her by placing her in fear that she would be subjected to death, and held her against her will at the family residence on a separate June 2022 night.

The conventional move on a charge sheet like this is to plead. Take a sentence cap. Take the discharge. Take the confinement. Get out.

Our client retained Bilecki post referral. Tim Bilecki traveled to MCB Camp Foster, Okinawa for the contested members trial across May 2023. We tried it in full. Article 120 rape, Article 125 kidnapping, all thirteen Article 128b specifications. We did not narrow the contest. We made the Government try every charge in front of members and prove every element of every specification.

The pretrial fight was the M.R.E. 412 motion. The defense moved to admit evidence of the alleged victim's extramarital relationship with an Army Master Sergeant she had met in summer 2022, the lifestyle stakes she had built around Iwakuni (two clinic and grooming businesses, the social hub of the spouse community), and a piece of physical evidence the alleged victim had created herself the day of the alleged August 2022 conduct: a set of nipple piercings she had gotten just before the encounter. The Government opposed. After Article 39(a) sessions, the Military Judge ruled in the defense's favor under M.R.E. 412(b)(1)(C) constitutional exception. The motion put the alleged victim's motive to fabricate and the lifestyle stakes she would lose in front of the panel.

The defense expert team did the rest of the pretrial work. Dr. Stephen Sweeney, forensic psychologist. William Oettinger of Metadata Forensics, digital forensics. Dr. Gabriel Holguin, consultant. Ms. Jacqueline Miller, SAFE examination and strangulation expert. The Convening Authority denied production of Ms. Miller at trial. The defense filed a Motion to Compel Production. The motion practice carried into trial.

Trial ran two and a half weeks of cross examination, expert testimony, and motion practice. The cross of the alleged victim was the centerpiece. We walked her through the timeline of the affair, who she had told and who she had hidden it from, the businesses and lifestyle she had built around Iwakuni, the nipple piercings she had gotten the day of the August 2022 encounter, the bank account changes she had made the same day, and the inconsistencies between her account to Government investigators and her account on the stand.

Mid-trial, the defense filed a Renewed Motion for Mistrial / Prosecutorial Misconduct. The Government had not begun translating Spanish-language text messages from the spouse's phone until four days before trial, and was dropping new translated material throughout. On a day in early May 2023 the Government recessed citing a migraine, then drafted an eleven page bench brief overnight to revive evidence the Military Judge had previously limited. The defense's R.C.M. 915 motion put the pattern in front of the Military Judge.

Charge I, Article 120 rape: NOT GUILTY of rape. LIO conviction of sexual assault by placing in fear.

Charge II, Article 125 kidnapping: NOT GUILTY.

Charge III, thirteen specifications of Article 128b: NOT GUILTY on eleven of thirteen. LIO convictions on two: assault consummated by a battery on one and aggravated assault by causing substantial bodily harm on another.

Of fifteen charged specifications, the members returned full or partial acquittals on every single one. The Marine was acquitted of the charged strangulation offenses. He was acquitted of kidnapping. The conviction on Charge I narrowed from rape to sexual assault by placing in fear.

The members adjudged 412 days of confinement, reduction to E-3 and a dishonorable discharge. Our client received 233 days of confinement credit, leaving 179 days beyond that credit. The lesser sexual-assault conviction still required a dishonorable discharge.

Result: NOT GUILTY of rape. NOT GUILTY of kidnapping. NOT GUILTY on eleven of thirteen Article 128b specifications. Convicted of the lesser offense of sexual assault by placing in fear and two lesser assault offenses. 412 days, mandatory DD, E-3.

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FAQ

Q: Why did Bilecki fight to admit the relationship evidence?
The defense argued that the affair, the complainant’s plans in Iwakuni and the timing of her actions were relevant to motive and to testing her account. Tim litigated that request under M.R.E. 412, obtained a ruling admitting the evidence and used it in cross-examination. The ruling concerned this evidence and its relevance in this trial; it was not permission to attack her character generally.

Q: What did the members decide?
They acquitted the Marine of kidnapping and eleven of the thirteen domestic-violence specifications. On the other three specifications, they convicted him of lesser offenses, including sexual assault by placing in fear rather than rape. The sentence was 412 days of confinement, reduction to E-3 and a dishonorable discharge. He received 233 days of confinement credit. The acquittals substantially narrowed the case, but serious convictions and a punitive discharge remained.

Q: How did the defense respond to late evidence during trial?
Bilecki challenged the continuing disclosure of translated Spanish messages and the prosecution’s effort to revive evidence the judge had limited. The renewed mistrial motion put those objections before the judge while the trial was underway and preserved the disputes in the record.