Bilecki Challenges Age, Messages and Camera Evidence; Seven GCM Specifications Dismissed

Bilecki Challenges Age, Messages and Camera Evidence; Seven GCM Specifications Dismissed

July 2023

Marine Corps Base Hawaii, Kaneohe Bay

Marine Corporal – E-4

Allegations: UCMJ Article 120b Sexual Assault of a Child (2 specifications); UCMJ Article 134 Wrongful Possession of Child Pornography; UCMJ Article 120 Sexual Assault Without Consent (3 specifications); UCMJ Article 131b Obstructing Justice

Facts

A Marine Corporal at MCB Hawaii, Kaneohe Bay was facing a referred general court-martial on seven specifications across four UCMJ Articles. Article 120b sexual assault of a child (2 specifications) against a fifteen-year-old. Article 134 wrongful possession of child pornography. Article 120 sexual assault without consent (3 specifications) against two separate adult complainants. Article 131b obstruction of justice. Maximum exposure on conviction: decades of confinement, mandatory Dishonorable Discharge, federal sex offender registration, and federal felony record.

The Government's case had three different alleged victims and three different fact patterns.

The Government alleged that our client had had a sexual relationship with a fifteen-year-old high school student, that the digital images supporting the Article 134 specification had been recovered from his phone, and that he had then disposed of dash cameras and home security cameras to obstruct the investigation. Government witnesses identified our client. Government experts produced DNA results and forensic phone reviews. NCIS had recorded interviews with all three alleged victims and undercover communications.

The case was referred to general court-martial in spring 2023.

Our client retained Bilecki and we worked the case across each alleged victim and each major Government exhibit.

On the Article 120b specifications, the alleged victim was a high school student. The defense theory was mistake of fact as to age. She presented as eighteen on Snapchat. She had purchased vape products that could lawfully be sold only to customers aged twenty-one or older. Three Marines who video chatted with her, including our client, all believed her to be eighteen. Our client introduced her to coworkers, conduct inconsistent with knowing she was fifteen. The Government's M.R.E. 414 motion to admit the Article 120b conduct as propensity evidence was contested by defense Motion in Limine on the shifting age representations.

On the Article 120 specifications arising from a Tinder hookup at a parking lot off the Pali Highway, we surfaced contemporaneous text messages from the adult complainant celebrating the date ("found a winner," "6 figure job") that hours later turned to "got blocked" with no contemporaneous report of assault. The Honolulu Police Department had declined prosecution. A state Temporary Restraining Order petition resolved out of court without a TRO issuing. The complainant herself had told Trial Counsel she had had sex with another service member the day before the encounter, identifying an alternate DNA contributor the Government never tested.

On the separate Article 120 specification involving our client's spouse, her account of the alleged conduct emerged only after Trial Counsel's unrecorded interview the day before the recorded NCIS interview, on a timeline we could surface to the panel.

On the Article 131b obstruction allegation, the Government's case had our client destroying dash cameras and home security cameras post-apprehension. We produced primary source evidence: the equipment had been shipped to our client's parents' home in Oregon by POD after a vacancy order forced our client's barracks move, and was photographed intact at the parents' home.

The Government's principal witness on the Article 131b obstruction was a former civilian and military loss prevention officer who had become a Marine CID Special Agent during his cooperation with the Government in this case. He had recorded our client without disclosing that the cameras were on, telling our client "it's not even on" while they were. The defense Motion to Suppress framed him as a de facto government agent and moved to exclude his recorded statements under M.R.E. 304 and Article 31(b).

Defense expert consultants in child psychology were retained on the Article 120b mistake of fact theory. The motion practice produced Government filings on M.R.E. 404(b), M.R.E. 412, and false-exculpatory-statement instructions. The Article 39(a) motions session was set for mid-July 2023.

The day before the motions session, the parties signed a Memorandum of Plea Agreement.

The Convening Authority dismissed every referred specification. Article 120b Sexual Assault of a Child Specifications 1 and 2: dismissed. Article 134 Possession of Child Pornography: dismissed. Article 120 Sexual Assault Without Consent Specifications 1, 2, and 3: dismissed. Article 131b Obstructing Justice: dismissed. The Government preferred a single new specification for plea purposes: an Article 128 simple battery, "unlawfully and with some force touch" the high school student.

Tim Bilecki traveled to MCB Hawaii, Kaneohe Bay for the Summary Court-Martial. The plea was entered at the Summary Court-Martial.

The Marine pleaded guilty to one specification of simple battery at a summary court-martial, which imposed a reprimand. The negotiated disposition did not trigger sex offender registration for our client.

Result: All seven GCM specifications dismissed. Plea to a single simple battery at Summary Court-Martial, with a reprimand. No SORNA.

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FAQ

Q: What supported the mistake-of-age argument?
The defense identified the age she displayed on Snapchat, her purchases of age-restricted products and the accounts of three Marines who believed she was eighteen. We also pointed to our client’s willingness to introduce her to coworkers. Those facts supported his claimed honest and reasonable belief that she was at least sixteen. The greater charges were dismissed by agreement; no judge made a contested finding that the defense had been proved.

Q: How did Bilecki answer the obstruction allegation?
We located the supposedly destroyed cameras at his parents’ home in Oregon and produced photographs showing them intact. They had been shipped there after his required move. We also challenged the recorded statements and the Government cooperator’s role in obtaining them. Those were concrete evidentiary issues ready for the motions hearing when the parties reached an agreement.

Q: What was the negotiated disposition?
Every specification referred to the general court-martial was dismissed. The Marine pleaded guilty to one new simple-battery specification at a summary court-martial and received a reprimand. That disposition avoided the sex-offender-registration consequences at issue in the original charges. It was still an adverse finding for battery, rather than an acquittal of all misconduct.