Bilecki Challenges Academy Cadet’s Recording and Obstruction Allegations; Case Ends Without Court-Martial

Bilecki Challenges Academy Cadet’s Recording and Obstruction Allegations; Case Ends Without Court-Martial

October 2022

United States Air Force Academy, Colorado

Air Force Cadet – C3C

Allegations: UCMJ Article 120 Sexual Assault; UCMJ Article 117a Wrongful Distribution of Intimate Visual Images; UCMJ Article 120c Indecent Recording and Distribution; UCMJ Article 131b Obstruction of Justice; UCMJ Article 133 Conduct Unbecoming an Officer; UCMJ Article 105a Wrongful Possession of False Identification

Facts

This was an Air Force Academy cadet whose AFOSI investigation opened on an Article 120 sexual assault report and could have referred to a general court martial with sex offender registration on conviction.

Four cadets shared a hotel room off base in late September 2021 at a Quality Inn near Garden of the Gods in Colorado Springs. The Government alleged that during the night our client and a fellow cadet had sex with the alleged victim, that our client recorded a portion of the sexual activity on Snapchat, that the Snapchat clip was later circulated to a group of fellow cadets at the Academy, and that the alleged victim later reported a sexual assault on the theory that she had been too intoxicated to consent. The Government also alleged that our client had used a fake ID to buy alcohol on the night in question, that he had been part of the Snapchat group that circulated the recording, and that he had deleted evidence after the investigation began.

AFOSI opened the investigation in late September 2021 and interviewed our client under Article 31 rights advisement. Our client retained Bilecki after the AFOSI interview and before any Article 15 paperwork dropped at the Air Force Academy.

The Article 120 sexual assault piece was the heaviest exposure in the case. A general court martial conviction on Article 120 carried possible dismissal track exposure for an officer or cadet, federal felony conviction, sex offender registration on conviction, and confinement. The Article 120c indecent recording and distribution piece carried its own sex offender registration framework on conviction at general court martial. The Article 117a intimate visual image piece carried federal felony exposure. The Article 131b obstruction piece and the Article 133 conduct unbecoming an officer piece compounded.

In May 2022, the Commandant of Cadets at the Air Force Academy notified our client of intent to impose Article 15 nonjudicial punishment on the residual six specifications. The Article 120 sexual assault piece did not refer. The Article 15 paperwork charged Article 105a (false identification), Article 117a (intimate image distribution), Article 120c (recording private areas), Article 120c (distribution of recording of private areas), Article 131b (obstruction of justice), and Article 133 (conduct unbecoming an officer).

We submitted the Article 15 Rebuttal Matters to the Commandant of Cadets in May 2022. The rebuttal conceded the Article 105a allegation up front and refused to litigate it. Defense work was on the residual five specifications.

The rebuttal then went to work on the consent record the Government's case rested on. The Government's intoxication theory ran on the alleged victim's later statement that she did not remember the night. The rebuttal put the contemporaneous record in front of the Commandant of Cadets in the order it actually played out. A pre incident text from the alleged victim to her own friend stating she was "drunk and going to hook up," and identifying by name which of the two male cadets in the room she planned to be with. A morning after Snapchat conversation between the alleged victim and the fellow cadet, in which she discussed the events of the night, expressed concern for the fourth cadet present, and showed contemporaneous memory of the encounter. And a set of pretext style recordings the alleged victim later made of the fellow cadet with the help of one of her friends, in which the fellow cadet, not our client, admitted to circulating the Snapchat clip to his own Snapchat group of fellow cadets, instructing the group members to delete it after the report came in, and running the cover up on the digital record himself.

The fellow cadet’s recorded admissions were central to our response to the dissemination, deletion and obstruction allegations. He described his own involvement in circulating the clip and having it deleted. Separately, the morning-after Snapchat conversation showed the complainant discussing details of the encounter. We used those details to challenge the later description of what she remembered; remembering parts of a night and having capacity to consent at a particular moment are different questions.

The rebuttal then separated our client from the fellow cadet on the dissemination and obstruction allegations on its own terms. The Snapchat group the Government had identified was sourced from a different cadet squadron, and our client was not a member. The cadet who ran the group and circulated the recording was the fellow cadet under investigation alongside our client. On the obstruction allegation against our client (deletion of the recording from the fellow cadet's phone), the rebuttal showed the deletion was done by the fellow cadet himself, on his own phone, after the alleged victim had confronted him.

The Commandant of Cadets imposed Article 15 punishment after the rebuttal. Our client appealed, and the appellate authority granted the appeal in part. The matter then routed to the disenrollment side of the Air Force Academy under USAFAI 36-3504. Our client submitted a Resignation in Lieu of Involuntary Disenrollment in late August 2022. The Superintendent accepted the resignation in September 2022 with a General, Under Honorable Conditions discharge. The DD-214 issued in October 2022.

Result: Article 120 sexual assault investigation declined. Article 15 only. General, Under Honorable Conditions discharge. No federal conviction, no SORNA.

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FAQ

Q: How did Bilecki separate the cadet’s conduct from the other cadet’s?
The rebuttal identified who belonged to the Snapchat group, who circulated the recording and who directed its deletion. It used the other cadet’s own recorded statements and the messages to answer the individual allegations. We conceded the false-ID allegation and concentrated the defense on the five disputed specifications.

Q: What happened after the rebuttal?
The Commandant imposed Article 15 punishment, and the appeal was granted in part. The cadet later resigned in lieu of involuntary disenrollment and received a General discharge under Honorable Conditions. The sexual-assault allegation did not proceed to court-martial, and the case ended without a court-martial conviction or sex-offender registration.