Invoking right to counse-Cave & Freeburg, LLP

United States v. Rivera, NMCCA No. 202400304 (Nov. 13, 2025)

Court: Navy-Marine Corps Court of Criminal Appeals Panel: Senior Judge Gross (author), Chief Judge Daly, Judge de Groot Result: Affirmed

What Happened

On October 14, 2022, Private First Class Nathan Rivera attended a party at Marine Corps Base Camp Lejeune. Rivera took two tabs of LSD before arriving and drank alcohol throughout the night. Most guests drank heavily — one partygoer, Navy Hospital Corpsman Third Class (HM3) Charlie, consumed approximately 16 shots of hard liquor.

After HM3 Charlie put a sick Corporal Bravo to bed, she returned to the living room. Rivera made unwanted advances toward her, making her uncomfortable, so she left and lay down on the floor next to Cpl Bravo’s bed. She woke to Rivera penetrating her anally, then vaginally, without her consent. She screamed for Cpl Bravo, who did not respond. After Rivera stopped, she woke Cpl Bravo, left the house, and went to the naval hospital for a Sexual Assault Forensic Examination. DNA testing confirmed Rivera’s semen in her vagina.

The NCIS Interrogation

NCIS agents transported Rivera to the field office the same day. Before questioning him, SA Foxtrot told Rivera that his commanding officer would be “more understanding when they’ve got the full picture.” SA Foxtrot then read Rivera his rights under Article 31(b), UCMJ and Miranda.

When Rivera said he was “iffy” on right number three — the right to counsel — SA Foxtrot explained it, but added a “SVU speech”: invoking the right to counsel was “not like the shows” where a lawyer shows up with a briefcase, and that if Rivera “lawyered up,” the agents would “basically won’t have a conversation” with him and would “just go with what we’ve got.”

Rivera waived his rights and spoke with agents. He ultimately admitted he entered Cpl Bravo’s room, found Cpl Bravo unresponsive, and penetrated HM3 Charlie vaginally while he believed she was asleep.

The Suppression Motion

Before trial, Rivera moved to suppress his statements. He submitted an affidavit claiming SA Foxtrot’s explanation led him to believe the right to counsel did not apply to Marines or NCIS interrogations. The military judge denied the motion after a 17-page ruling, finding:

• SA Foxtrot told Rivera of his right to counsel six times
• SA Foxtrot never stated the right did not apply to Rivera or Marines
• SA Foxtrot’s “SVU” comment accurately described logistics — if a suspect invokes the right to counsel, NCIS ends the interview
• Rivera’s age (22), education (college-level mechanical engineering), military experience (2.5+ years), and test scores (GT 126, AFQT 92/99) showed he was intelligent and capable of understanding his rights

Trial Outcome

Rivera pleaded guilty to using LSD. A jury convicted him of one count of sexual assault (vaginal penetration) but acquitted him of two additional sexual assault specifications. The military judge sentenced Rivera to 48 months confinement, reduction to E-1, and a dishonorable discharge.

The Appeal

Rivera argued the military judge abused his discretion by:

1. Finding SA Foxtrot’s statements were “true”
2. Misapplying the law by citing cases about interrogation tactics (permissible post-advisement) in the context of the rights advisement itself

The court rejected both arguments. The appellate judges found SA Foxtrot’s “SVU” comment addressed the logistics of invoking counsel — not whether the right existed at all — and that SA Foxtrot repeatedly reaffirmed the right even after making the comment. The court distinguished this case from United States v. Patterson, where an agent called the rights form “just a piece of paper” and actively told the suspect he wasn’t being accused of anything — conduct far more deceptive than what Rivera experienced.

Even if the military judge cited an inapplicable legal principle, the court held it made no difference: the military judge correctly found Rivera understood his rights and validly waived them. The findings and sentence were affirmed.