Bilecki Challenges Prior-Arrest and Snapchat Evidence; Korea Assault Case Ends in Chapter 10 Discharge

Bilecki Challenges Prior-Arrest and Snapchat Evidence; Korea Assault Case Ends in Chapter 10 Discharge

December 2022

Camp Humphreys, Republic of Korea

Army Staff Sergeant – E-6

Allegations: UCMJ Article 128 Assault (3 specifications); UCMJ Article 104a Fraudulent Enlistment

Facts

An Army Staff Sergeant at Camp Humphreys was facing a referred general court-martial on three Article 128 assault specifications arising from the Camp Humphreys Super Gym brawl in summer 2021, plus an Additional Charge under Article 104a fraudulent enlistment based on five undisclosed prior civilian arrests on his 2019 reenlistment paperwork. The allegations exposed him to years of confinement, a punitive discharge and a federal criminal conviction. The fraudulent-enlistment charge created a second problem: the panel deciding the assault allegations could be told about earlier arrests for violent offenses, even though those cases had been dismissed.

It was summer 2021 in Korea. USFK gathering restrictions were still in force. Roughly a hundred and fifty Soldiers, possibly more, were at an outdoor party at the gazebo outside the Super Gym at Camp Humphreys. Military Police on scene told attendees the gathering went against the COVID guidelines and documented the warning. The Soldiers were not supposed to be there. The brawl that broke out in the middle of it was on video.

The Government alleged that our client was the assailant on the video, that he had struck an SGT in the face with a Hennessy bottle, and that the SGT had been kicked and stomped while on the ground in the fetal position. The alleged victim's documented injuries were a forehead laceration, a fractured orbital floor, and damage to eyesight. Multiple Government witnesses identified our client by his street name, his physical description, the large silver chain he was alleged to have been wearing, and his barracks room number. One Government witness identified him from a photo lineup.

The Government also identified a Snapchat post attributed to our client from October 2021, two and a half months after the brawl. The Government's theory was that the post showed our client intoxicated, wearing the same silver chain visible in the brawl video, offering a thousand-dollar reward for the whereabouts of two unrelated individuals named "Ham" and "John-John," and threatening them. The targets of the Snapchat threats were not the alleged victim of the Super Gym brawl. The Government noticed the Snapchat for use under M.R.E. 404(b) for "intent, motive, lack of mistake, plan, and identity."

A separate Article 128 specification arose from a different night. The Government alleged that in June 2021, outside Mojitos in the Ville off post, our client had struck a PV2 from his unit in the face while the PV2's attention was elsewhere. The PV2's girlfriend was alleged to have captured the assault on her own video and identified our client by name.

Then the Government found the prior arrests.

In November 2019, our client had reenlisted at Fort Bragg, North Carolina. The reenlistment contract included a sworn statement that he had never been arrested, cited, charged, or held for any violation of any law. The Government's case was that the statement was false. The Government had pulled five undisclosed prior civilian arrests for violent offenses: aggravated assault with a deadly weapon and assault by strangulation in North Carolina, and three Texas arrests including aggravated assault and aggravated assault with a deadly weapon, the El Paso 2010 booking docket of which the Government had pulled directly from the El Paso County Sheriff's Office. None of the prior arrests had resulted in conviction. All had been dismissed. The Government nonetheless filed an Additional Charge under Article 104a fraudulent enlistment, alleging knowing false representation on the reenlistment contract.

Charges were preferred in April 2022. The Article 32 PHO Report came back recommending trial by general court-martial on all three Article 128 specifications. The Additional Charge was preferred in late July 2022. Both charges were referred to general court-martial in August 2022. Trial was set for January 2023.

Our client retained Bilecki after the case was referred to GCM and trial was set.

We filed two motions ahead of the November 2022 motions session.

The Motion to Sever Charges argued that the Article 104a charge could not be tried in front of the same panel that would decide the Article 128 specifications without poisoning the panel. The flyer for an Article 128 GCM that listed five undisclosed civilian arrests for violent offenses, four of them violent assaults, would prejudice the panel into seeing our client as a violent recidivist before being sworn, even though every one of those arrests had been dismissed and none had resulted in conviction. The Government opposed severance but conceded the core point: the prior arrests were not admissible to prove the charged conduct.

The Motion in Limine under M.R.E. 404(b) targeted the Snapchat threat videos the Government wanted in front of the panel. The videos were post-conduct, targeting unrelated victims, made months after the charged conduct, with no factual link between the targets of the threats and the alleged victims of either Article 128 specification. We walked the Court through the timing, the unrelated targets, and the absence of any link between the threats and the charged conduct. The Snapchat videos were pure character and propensity. The Government's response conceded the motion in its case in chief, reserving the videos only for rebuttal if the defense put on character for peacefulness.

The motions practice drove the dismissal.

In December 2022, with both motions briefed and the Government already conceding evidentiary ground on each one, the Convening General signed an R.C.M. 604 order withdrawing and dismissing Specification 2 (the aggravated assault with a dangerous weapon, the bottle to the head of the SGT) and Specification 3 (the aggravated assault inflicting grievous bodily harm, the orbital fracture and eyesight damage). The Government walked away from its two heaviest specifications before trial. What remained was Specification 1, the Mojitos sucker punch, and the Article 104a fraudulent enlistment specification.

Six days later, in mid-December 2022, we submitted a Chapter 10 Request for Discharge in Lieu of Trial by Court-Martial. The Convening General approved it. All remaining specifications were dismissed without prejudice. The Soldier was discharged Under Other Than Honorable Conditions and reduced to E-1. No transfer to the Individual Ready Reserve. No federal conviction. No findings.

Result: All charges dismissed. Chapter 10 discharge approved with an Other Than Honorable characterization and reduction to E-1. No federal conviction.

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FAQ

Q: Why did Bilecki ask for separate trials?
The fraudulent-enlistment allegation depended on earlier arrests that had ended without convictions. We argued that trying it with the assault charges would invite the panel to treat those arrests as proof that our client was a violent person. The motion asked the judge to prevent that prejudice. The Government opposed separate trials but acknowledged that the arrests could not prove the charged assaults.

Q: What happened to the Snapchat videos?
We challenged the connection between those later threats and the two earlier assault incidents. The people addressed in the videos were not the alleged assault victims. The Government agreed not to use the videos in its main case, while reserving a possible rebuttal use if the defense introduced character evidence of peacefulness.

Q: How did the case end?
The convening authority withdrew and dismissed the two most serious assault specifications before trial. Bilecki then submitted a Chapter 10 request to resolve the remaining charges through discharge. It was approved. Our client received an Other Than Honorable discharge and reduction to E-1, but no court-martial conviction.