Bilecki Wins Full Acquittal After Exposing Affair Behind Army Sergeant’s Sexual-Assault and Extortion Case

Bilecki Wins Full Acquittal After Exposing Affair Behind Army Sergeant’s Sexual-Assault and Extortion Case

December 2021

Conduct: Torii Station, Okinawa, Japan. Trial: Schofield Barracks, Hawaii.

Army Sergeant – E-5

Allegations: UCMJ Article 120 Sexual Assault; UCMJ Article 127 Extortion; UCMJ Article 128 Assault Consummated by a Battery; UCMJ Article 128b Domestic Violence; UCMJ Article 130 Stalking; UCMJ Article 134 Indecent Language

Facts

The government took an Army Sergeant from Torii Station, Okinawa to a fully contested general court-martial at Schofield Barracks on six charges spanning six different Articles of the UCMJ. Article 120 sexual assault. Article 127 extortion. Article 128 battery. Article 128b domestic violence. Article 130 stalking. Article 134 indecent language. The headline allegation was that the Sergeant had threatened to expose his wife's affair unless she performed oral sex. By any measure, this was a career-ending charge sheet.

There was just one problem with the prosecution's case. The wife had been in an ongoing sexual relationship with an Air Force Technical Sergeant during the same months as the charged conduct. Same window. Same town. Same Article 120 timeframe. She was still married to our client and sleeping with another service member, and the other airman's chain of command knew about it because he had self reported.

Once the wife realized the affair was about to surface, the allegations followed. The extortion specification alleged that our client threatened to contact law enforcement unless she performed oral sex. The Article 120 was a recharacterization of a marital sex life that had ended exactly the way the marriage ended, with someone leaving. The stalking and battery charges were tacked on for impact.

Our client retained Bilecki after the GCM referral, with trial set at Schofield Barracks.

We filed and litigated an M.R.E. 412 motion to admit evidence of the wife's ongoing affair with another service member. The wife's Special Victim Counsel fought it. The prosecution fought it. After a closed Article 39(a) session, the Military Judge granted the motion. The panel was going to hear that the wife had been sleeping with another service member during the same months as the charged conduct, while still married to our client.

That single ruling changed what the panel was going to hear.

Tim Bilecki traveled to Schofield Barracks, Hawaii for the contested general court-martial. The cross-examination of the wife was the centerpiece. We walked her through the timeline of the affair, when it started, who she had told, who she had hidden it from, and what she stood to lose if it surfaced. By the time the cross was over, the panel had heard her own account of the motive to fabricate. The cross of the other airman put the affair on the record from his side, including the self report he had made to his own chain of command. We took the lead investigator through the holes in the timeline and the gaps in the documentary record the prosecution had built around the "extortion" theory. In closing, Bilecki brought the panel back to what the M.R.E. 412 ruling had allowed us to prove about the affair and the timing of the allegations. We argued that the Government had not proved the charged sexual assault or extortion.

The "extortion" theory required the panel to believe that a husband who had just discovered his wife's affair was the one shaking her down. The "stalking" theory required them to ignore years of marriage. The Article 120 required them to ignore everything else.

The panel did not.

Result: Full acquittal. Not guilty of all charges and specifications.

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FAQ

Q: What is M.R.E. 412 and why did it matter in this case?
Military Rule of Evidence 412 generally bars evidence of an alleged victim's sexual behavior. The rule has a constitutionally required exception when the proffered evidence is necessary to a fair trial under the Sixth Amendment Confrontation Clause, the Fifth Amendment Due Process Clause, or both. That exception is the path defense ran on this case to put the wife's ongoing affair with another service member in front of the panel. Once the panel could see her motive to fabricate, the prosecution's lack-of-consent theory collapsed.

Q: Why does an "extortion" charge get added to a sexual assault case?
The Government often piles charges on a sexual assault case to make the narrative look bigger than it is. Here "extortion" was the lack-of-consent theory. The prosecution argued the Sergeant had coerced his wife by threatening to expose her cheating. Adding stalking, battery, and indecent language widened the maximum confinement exposure on the charge sheet. Charge stacking is a common SHARP-era prosecution tactic that an experienced military defense lawyer can dismantle on cross-examination by working through the timeline of the underlying conduct and the inconsistencies between each spec.

Q: Can the same conduct support both an Article 120 charge and an Article 127 extortion charge?
Yes, and that is exactly what happened here. The prosecution used the alleged extortion threat as the lack-of-consent element of Article 120 and as a standalone Article 127 specification. Related specifications may raise separate questions of multiplicity and unreasonable multiplication of charges. Those questions depend on the offenses, their elements, the alleged conduct, and the requested remedy. Here, the defense attacked the common factual premise of the extortion and sexual-assault allegations and won acquittals on both. Defending the Article 127 specification meant defending the Article 120 specification. The cross of the wife on motive to fabricate, the cross of the other service member on the affair he had self reported to his own command, and the M.R.E. 412 ruling on the wife's affair all carried into both charges.