Missing Messages and Two Evidence Rulings Precede Dismissal of Fort Drum Sexual Assault Charges

Missing Messages and Two Evidence Rulings Precede Dismissal of Fort Drum Sexual Assault Charges

March 2025

Fort Drum, New York

Army Corporal – E-4

Allegations: UCMJ Article 120 Sexual Assault; UCMJ Article 128 Assault Consummated by a Battery

Facts

An Army Corporal at Fort Drum was facing a referred general court-martial on Article 120 sexual assault and Article 128 assault consummated by a battery, with the Article 120 routed through the Office of Special Trial Counsel as a covered offense. Maximum exposure on a referred Article 120 sexual assault conviction at general court-martial: years of confinement, possible Dishonorable Discharge, federal felony record, and sex offender registration.

The Government alleged that on a December 2022 night at Fort Drum our client had digitally penetrated a fellow Soldier without consent and unlawfully kissed her neck. The case had a CID search authorization on our client's phone, the alleged victim's outcry to a friend the next morning, the alleged victim's medical exam, and a developing DNA file. OSTC preferred. The Convening Authority referred to a general court-martial.

Our client retained Bilecki at the CID investigation stage.

Patrick Eller ran the phone.

Eller pulled the full text record between our client and the alleged victim during the relevant window. The Government's CID search authorization affidavit had quoted the texts during that window and had left out about half of them. The text the Government had cited as the alleged victim's distress reaction read very differently with the texts on either side of it included.

We filed a Motion to Suppress on the affidavit. The Military Judge denied the motion at the trial level, but the documentary record on the omission and on what Eller's forensic work had surfaced was on the record, and the affiant's credibility was on it.

Dean Wideman, the defense DNA expert, took the USACIL DNA report and the alleged victim's account apart, side by side. The pattern Wideman documented from the Government's own DNA work did not line up with the alleged victim's account of the conduct.

The two M.R.E. 412 motions ran in parallel.

The first sought permission to present evidence of a documented prior abusive relationship the alleged victim had been in with a married Soldier, a relationship with documented physical violence, threats with a firearm, and a BAH fraud overlap that gave the alleged victim a documented motive to fabricate to the witness she had first disclosed to. The Military Judge granted the motion under the constitutionally required exception. The second M.R.E. 412 motion sought permission to introduce the alleged victim’s sexual relationship with that same outcry witness, plus four images of the alleged victim. The Military Judge granted that motion as well, on the same constitutionally required ground.

Days before the contested general court-martial trial week, the Convening General signed a memorandum withdrawing and dismissing both Charge I (Article 120 sexual assault) and Charge II (Article 128 assault consummated by a battery), without prejudice.

For an Army Corporal who walked into the case with an OSTC-preferred Article 120 sexual assault charge, a CID search authorization, an outcry, a medical exam, a developing DNA file, with the trial week set, that was a different ending than the one the Government was driving toward.

Result: Article 120 and Article 128 withdrawn and dismissed without prejudice before trial. No trial or conviction. No SORNA.

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FAQ

Q: Why did the missing messages matter even though the suppression motion was denied?
Eller's examination gave Bilecki the surrounding messages that had been left out of the search affidavit. They changed the context of the message the government relied on. Losing the suppression motion did not make that fuller conversation disappear; the defense still had it available to challenge the accusation and the investigation.

Q: What changed after the two evidence rulings?
The defense obtained permission to present evidence bearing on motive and the relationship with the first outcry witness. Along with Wideman's DNA analysis and the full messages, those rulings substantially strengthened the defense preparing for trial. The government withdrew and dismissed both charges days before trial. The dismissal was without prejudice, so it was not an acquittal or an absolute bar to bringing charges again.