Bilecki Wins Suppression After NCIS Ignores Request for Counsel; Child-Abuse Charges Dismissed

Bilecki Wins Suppression After NCIS Ignores Request for Counsel; Child-Abuse Charges Dismissed

August 2023

Naval Station Norfolk, Virginia

Navy Electrician's Mate First Class – E-6

Allegations: UCMJ Article 120b Rape of a Child; UCMJ Article 120b Sexual Abuse of a Child

Facts

This was a Navy E-6 facing a referred general court martial on Article 120b rape of a child and sexual abuse of a child. The alleged victim was the biological daughter of our client's ex-wife. The alleged conduct was placed in 2015 to 2016, when the alleged victim was approximately six years old and our client was her stepfather in Washington State. Maximum exposure on conviction: life confinement, possible punitive discharge, federal sex offender registration, and federal felony record.

The Government's case rested on the alleged victim's account.

The matter was reported in March 2021, roughly five years after the alleged conduct, after the alleged victim disclosed to her mother and stepfather during a "stranger danger" conversation. A forensic interview followed in April 2021. The alleged victim's account in that interview described touching and rubbing only. By the Trial Counsel's January 2023 disclosure interview, twenty-two months later, the account had evolved to include digital penetration of both incidents. Trial Counsel later told the court on the record that the Government had no physical or corroborating evidence and that suppression of our client's NCIS statement "prevents the Government from corroborating the alleged victim's account in which there is a delayed report of nearly 5 years."

The NCIS statement was the Government's case.

Our client retained Bilecki. The defense team filed a Motion to Suppress under M.R.E. 304(f), the Fifth Amendment, Article 31(b), and the government-agent doctrine.

The motion focused on three events during the interrogation. Our client had clearly invoked counsel during the NCIS interrogation: "I do need a lawyer for this though, I think." NCIS continued questioning after the invocation. Our client's Victim Legal Counsel (assigned to him in a prior, separate matter where he had been the victim of a recording offense aboard his submarine) called back to NCIS during the interrogation, and the NCIS Special Agent sent the call to voicemail mid-interrogation, blocking our client's access to his own attorney while the questioning continued.

The interrogation recording carried additional defense leverage. NCIS had repeatedly invoked our client's father's child-pornography conviction. NCIS had used "we know it happened" assertions across multiple denials. The interrogation was conducted in the same NCIS room and by the same Special Agent who had built rapport with our client when he was the victim in the earlier recording case.

Tim Bilecki traveled to Naval Station Norfolk, Virginia for the Motion to Suppress hearing. In late August 2023, the Military Judge granted the Defense Motion to Suppress in full. The MJ's findings: NCIS "blatantly violated the accused unequivocal request for counsel"; the agents "knowingly and willingly prevented this Sailor from speaking to his attorney ... They do not get to decide the relationship between an attorney and the attorney's client"; the suppression remedy was "a harsh punishment but ... a required one due to the egregious nature of the violations and to properly deter police misconduct."

The Government filed an Article 62 / R.C.M. 908 interlocutory appeal three days later. Trial was stayed by operation of rule.

The Navy-Marine Corps Court of Criminal Appeals affirmed the Military Judge's suppression ruling. With the NCIS statement out of the case and no other corroborating evidence to support a five-year-delayed report, the Government dismissed.

No conviction. No sentence. No sex-offender-registration consequence from these charges.

Result: NCIS interrogation suppressed in full. Article 62 Government appeal denied at NMCCA. All Article 120b charges dismissed. No conviction. No SORNA.

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FAQ

Q: What did Bilecki establish at the suppression hearing?
The defense used the interrogation recording to show the request for counsel, the continued questioning and the handling of the lawyer’s incoming call. The judge found an unequivocal request for counsel and ruled that the agents had interfered with the Sailor’s access to his attorney. The statement was suppressed.

Q: What happened after the Government appealed?
The Navy-Marine Corps Court of Criminal Appeals upheld suppression. The Government had identified the statement as critical corroboration of the delayed allegation. With the statement excluded, it dismissed the charges. There was no conviction or sentence.