When Your Victims’ Legal Counsel Cannot Help You: CAAF Decides United States v. Deremer

CAAF holds that a represented Marine had a statutory right to counsel at a second NCIS interview, then holds that nothing happens when investigators ignore it.

On July 23, 2026, the United States Court of Appeals for the Armed Forces (CAAF) decided United States v. Deremer, No. 25-0158/MC, 2026 CAAF LEXIS 616 (C.A.A.F. July 23, 2026), and every service member who reports a sex-related offense should understand what it says. The Court gave with one hand and took with the other. It held that 10 U.S.C. § 1044e entitled a Marine recruit to her Victims’ Legal Counsel (VLC) when Naval Criminal Investigative Service (NCIS) agents interviewed her a second time as a suspect. It then held that Congress supplied no remedy, so her statements stay in evidence. Deremer, 2026 CAAF LEXIS 616, at *3-*4.

The practical translation matters more than the doctrine. A VLC or Special Victims’ Counsel (SVC) can advise you. That counsel cannot keep investigators away from you and cannot suppress what you say when investigators leave your lawyer out of the room.

How the case arose

Private First Class Deremer reported to Marine Corps Recruit Depot Parris Island in June 2021 at the age of seventeen. Within two weeks she began reporting leg pain. Over the next five months she underwent extensive testing, including ankle imaging and MRIs of her knee, cervical spine, and brain, all of which came back unremarkable. In October 2021 a provider recommended administrative separation for a condition not amounting to a disability, which carries no disability benefits. The day after a provider noted that her symptoms were inconsistent with her account and recommended starting that separation process, she reported that she could not walk. Providers documented concerns about malingering in late October and again in November.

In November 2021 she told NCIS that a female recruit in her training platoon had sexually abused and harassed her. Her VLC and her uniformed victim advocate sat with her through that interview. At the end of it, the lead agent told her that if he needed to talk to her again he would go through her VLC. Deremer, 2026 CAAF LEXIS 616, at *4.

One recruit initially corroborated the account. Nearly a dozen others did not, and several said Deremer had been seen using her legs. The agent re-interviewed the corroborating recruit after advising her under Article 31(b), UCMJ, 10 U.S.C. § 831(b), and telling her she was suspected of conspiracy, false official statement, and obstruction of justice. She then changed her account. The parties described that change differently on appeal. The Government said she recanted outright and confirmed she had never witnessed an assault. The defense said she withdrew only what she claimed to have seen, explaining that she had not been wearing her glasses, and stood by what she had heard.

NCIS closed the sexual assault investigation as unsubstantiated in December 2021 and notified the command, the staff judge advocate, the sexual assault response coordinator, and the victim advocate. In February 2022 it opened a new investigation naming Deremer as the subject, and the same agent interviewed her again six days later. He did not contact her VLC, and the record shows that choice was deliberate. He told her she was looking at lying to a federal agent, and he assured her that initialing the rights form was not signing any rights away. She waived, initially held to her account, and changed it after the agent told her she would be charged with something if he still believed she was lying. Deremer, 2026 CAAF LEXIS 616, at *5-*6.

A week later trial counsel told the VLC what had happened. NCIS answered the VLC’s inquiry by explaining that his client had been interviewed under a different case control number and so had no right to a VLC. Deremer, 2026 CAAF LEXIS 616, at *6-*7. The Government later conceded that the VLC represented her continuously before, during, and after that interview.

A special court-martial convicted her of malingering and making a false official statement in violation of Articles 83 and 107, UCMJ, 10 U.S.C. §§ 883, 907. The military judge (MJ) denied the suppression motion from the bench, weighing her youth and relative inexperience, finding the agents used an appropriate tone, that she was rested, and that the interview ran about thirty-five minutes. The MJ never decided whether her rights waiver was knowing and intelligent, and never addressed what the missing VLC did to that question. Deremer, 2026 CAAF LEXIS 616, at *16 n.9.

What CAAF decided

A divided en banc United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) held that § 1044e reached the second interview, that NCIS knowingly violated it, and that the statements had to be suppressed. United States v. Deremer, 85 M.J. 546, 552, 554 (N-M. Ct. Crim. App. 2025). The Judge Advocate General of the Navy certified four issues. CAAF agreed with NMCCA on the first and rejected the rest.

The right exists. A second interview about whether the first report was true is a proceeding connected to the reporting and investigation of the alleged sex-related offense. NCIS could not end an attorney-client relationship by re-titling a file, and the Court endorsed NMCCA’s view that the NCIS policy has no foundation in law. Deremer, 2026 CAAF LEXIS 616, at *12 n.5, *13. The statute separately authorizes legal consultation about a victim’s own potential criminal liability arising from the report. 10 U.S.C. § 1044e(b)(1).

Waiving defense counsel did not waive VLC. The two rights come from different sources, attach at different moments, and serve different functions. Nobody advised Deremer of her VLC right or asked whether she wanted to proceed without it. Deremer, 2026 CAAF LEXIS 616, at *17.

No due process violation. Under United States v. Caceres, 440 U.S. 741, 752-53 (1979), the question is whether the individual reasonably relied on the right and suffered substantially from its violation. CAAF found no record evidence of reliance, noting that Deremer never asked for her VLC during the interview and had not pressed the reliance theory in her suppression motion. Deremer, 2026 CAAF LEXIS 616, at *19.

No suppression. Section 1044e names no remedy, and CAAF declined to supply one. Courts suppress for statutory violations that implicate Fourth or Fifth Amendment interests. Sanchez-Llamas v. Oregon, 548 U.S. 331, 348 (2006). Section 1044e protects no constitutional interest, because neither the Fifth nor the Sixth Amendment gives a victim a right to counsel. Deremer, 2026 CAAF LEXIS 616, at *23-*24. CAAF also refused to revive the old McOmber notification rule, which it had already overruled in United States v. Finch, 64 M.J. 118, 124-25 (C.A.A.F. 2006). Deremer, 2026 CAAF LEXIS 616, at *21.

Judge Sparks, joined by Judge Maggs, concurred in the judgment on a shorter path: a Marine who waives her right to “a lawyer” waives every lawyer, including her VLC. Deremer, 2026 CAAF LEXIS 616, at *25-*28 (Sparks, J., concurring in the judgment).

What this means if you are a service member

Reporting a sex offense does not immunize you. Investigators who come to doubt your account will turn the file around and question you as a suspect. Deremer confirms they can do that without calling your VLC first, and that your statements will be admitted anyway.

A VLC is not defense counsel. Your VLC represents your interests as a victim. Once investigators suspect you of an offense, you need independent defense counsel, and § 1044e(b)(1) expressly contemplates advice about seeking military defense services. Ask for it early, and ask in writing.

Article 31(b) is the protection that still has teeth. CAAF built its remedial analysis around the gap between a constitutional right and a statutory one. The right that produces suppression is the right to counsel and the right to silence under Article 31(b), UCMJ, 10 U.S.C. § 831(b). Invoke both, out loud, and stop talking.

Reassurances from an agent are not law. The agent told Deremer he would go through her VLC. He did not, and CAAF held the broken assurance produced no relief because she had not shown she relied on it. Treat nothing an investigator says as a commitment, including anything said about what a form does or does not do.

Witnesses need advice too. The recruit who initially backed Deremer’s account changed it after an agent advised her of her rights and named three felonies she was suspected of. Whatever the truth of that account, a witness in a military investigation can consult a lawyer before answering questions. Do it.

Build the record at the motion, not on appeal. Much of what CAAF held against Deremer traces to what her trial team did not put in front of the MJ. The Court found no evidence she relied on the agent’s promise, and it noted she had not raised that theory in the suppression motion. Suppression theories that are not raised with particularity can be lost.

Where this goes next

CAAF set aside the entire NMCCA decision, including the part that had set aside the false official statement conviction, and returned the record for a new Article 66, UCMJ, 10 U.S.C. § 866, review. It also declined to reach the fourth certified issue, which asked whether the malingering conviction survived suppression of the confession.

That disposition matters more than it looks. Because NMCCA resolved the case on § 1044e, it never ruled on the other suppression theories the defense had raised: that the MJ analyzed only voluntariness and never whether the waiver was knowing and intelligent; that government-created confusion defeated a knowing waiver; that the rights waiver was obtained by trickery; and that the confession itself was involuntary because the agent threatened prosecution. Those theories return to NMCCA now, alongside CAAF’s own observation that the MJ never made the knowing-and-intelligent finding.

Whether any of it changes the outcome is a separate question. The Government’s case on malingering rested on fifteen witnesses, extensive medical records, and photographs, and the false official statement charge rested on the first interview, where the VLC was present. The defense called no witnesses at trial.

CAAF closed with an invitation. Congress can amend § 1044e to authorize a remedy. The President can amend the definition of an involuntary statement in Mil. R. Evid. 304(a) to include § 1044e violations, exactly as it already includes Article 31 violations. Deremer, 2026 CAAF LEXIS 616, at *23-*24. Until one of them acts, § 1044e states a right that nobody has to enforce.

Talk to us before you talk to them

If NCIS, CID, OSI, or CGIS wants a second conversation with you, the moment to call a lawyer is before that conversation. That holds whether the file lists you as a victim, a witness, or a subject, and it holds no matter what an agent tells you about the form in front of you.

Cave & Freeburg, LLP handles courts-martial, investigations, and appeals across every service. See our pages on UCMJ investigations, what to do when you are under investigation, Article 120 court-martial defense, and pretrial motions practice. More case analysis appears on our Court-Martial Trial Practice Blog.

By Philip Cave and Nathan Freeburg at www.court-martial.com.