A US Naval Special Warfare operator trains with the Maritime Raid Force, 31st Marine Expeditionary Unit, on Okinawa, Japan, Aug. 16, 2021. Key evidence in a sex assault case against a Navy officer accused of violating a sleeping SEAL has been tossed by a military appellate tribunal. US Navy photo by Mass Communication Specialist 1st Class Eric Chan.
Military prosecutors hoping to convict a Navy supply officer for fellating a sleeping SEAL have suffered a serious setback.
A unanimous ruling handed down Dec. 9 in Washington, DC, by a tribunal at the US Navy-Marine Corps Court of Appeals tossed a confession allegedly uttered by Lt. Cmdr. Ricardo Angel Rivera.
Rivera was arraigned on April 11 on a sole count of sexual assault.
It remains unclear if the prosecutors will appeal the ruling to the next highest appellate review, the US Court of Appeals for the Armed Forces. They have until early February to put their case on the docket. They didn’t return Coffee or Die Magazine messages seeking comment.
Naval Special Warfare operators perform a military free-fall jump during Operation Noble Defender in Savoogna, Alaska, on Sept. 15, 2022. US Navy photo by Lt. Matt Cecala.
Coffee or Die's attempts to reach Rivera also weren’t successful. His listed email address no longer works, and a call to his cell phone was met with a man saying, “wrong number.”
His military defense attorney didn’t respond to Coffee or Die’s inquiry for comment, and his civilian counsel, Philip Cave, said, "No comment."
A reservist from Pennsylvania, Rivera was on active-duty orders with Logistics Support Unit 18, assigned to the Expeditionary Combat Readiness Center — the ECRC — in Virginia Beach when the SEAL team XO invited him to what was described as a “team-building” session involving drinks and a meal at his home.
The SEAL is cloaked as Lt. Cmdr. “November” in court filings.
Coffee or Die does not name alleged sexual assault victims.
On Aug. 31, 2021, US Naval Special Warfare operators clear the weather deck of the vehicle cargo ship Pililaau during a helicopter assault force simulation, during the Malabar 2021 exercise in the Pacific Ocean. US Navy photo by Ensign Amara Timberlake.
Rivera arrived around 2:30 p.m. and the two men began knocking back tequila. They washed dinner down with two more bottles of wine, then watched movies until 11 p.m.
The SEAL XO offered his couch to Rivera, and then he retired alone to his own bedroom.
The SEAL team XO later told authorities that he was awakened around 5:35 a.m. the next morning to Rivera performing fellatio on him.
It took his brain a few seconds to process what was happening, and then he smacked Rivera’s head away.
Rivera said he should probably go. The SEAL XO agreed, and the reservist left.
Navy SEALs demonstrate winter warfare capabilities at Mammoth Lakes, California, on Dec. 9, 2014. US Navy photo.
The next day, the SEAL XO texted Rivera about what he termed the “most fucked up experience of my life.”
The SEAL threatened to make an unrestricted sexual assault complaint if he ever heard of Rivera doing that to anyone again. He told the ECRC officer that they weren’t friends, and their relationship was now only based on “official business.”
“I do not want your apology nor do I care how you feel,” the SEAL wrote. “Do not ask me any questions about this and do not bring it up to me. In fact, do not respond to this text with anything other than an indication that you understand what I have said.”
“I understand. It won’t ever happen again,” Rivera responded, and he later deleted the SEAL XO’s personal number from his phone.
Naval Special Warfare operators test underwater propulsion equipment at Naval Air Station Key West in Florida on May 9, 2022. US Navy photo by Mass Communication Specialist 1st Class Alex Perlman.
A week later, the SEAL reported the alleged assault and provided a statement to the Naval Criminal Investigative Service.
According to the ruling, NCIS began working with the XO to lure Rivera into making an incriminating statement.
Rivera later recalled that one day in November, the SEAL suddenly phoned him at least four times in the span of a few minutes. The reservist suspected the calls might be coming from the XO because of the displayed area code, but he no longer had the full number and wasn’t sure.
No one left a message, but Rivera soon received a call from a number he recognized. It was the line for the deputy operations officer at the SEAL XO’s team. He told Rivera to phone the XO immediately.
Rivera thought that must mean official business, so he rang the XO, kicking off a 12-minute conversation.
A US Navy SEAL completes a water jump during a Special Boat Team 12 maritime craft air delivery system training exercise off San Diego, California, on Feb. 26, 2008. US Navy photo by Seaman Matthew Syberg.
The XO reminded Rivera that he’d once been assigned to the same SEAL team before he was farmed out to the ECRC, and that he’d taken steps to assist him.
Rivera began uttering comments like, “I don’t know why,” and, “I can’t explain it,” and, “I am sorry,” as the conversation continued.
But then about nine minutes into the talk the SEAL reminded him about his senior position within the team.
“I am the XO of a SEAL team. I am responsible for everyone at that command. What really scares me is that you are going to do it to someone junior who doesn’t know how to take care of themselves,” he said.
US Navy SEALs conduct a High Altitude Low Opening (HALO) airborne operation in support of exercise Arctic Edge 2022 in Deadhorse, Alaska, on March 4, 2022. US Army photo.
And that's when Rivera allegedly blurted out, “I’m sorry I violated you by sucking your dick. Okay?”
“I am sorry,” Rivera continued, “that I woke — that I violated you by sucking your dick while you were sleeping.”
“I am sorry that I busted my ass to keep you at the command, because I think if I hadn’t done that, if I hadn’t waived you into that billet that is actually supposed to be for [a] SEAL, because I thought you were an honorable man. I’m sorry for that,” the XO concluded, and the call ended.
Prosecutors thought they had a confession they could ride into court, but the trial judge disagreed, and the appellate panel backed him.
Sailors from Special Boat Team 12 conduct boat operations supporting a SEAL team during their maritime operation training cycle in the Pacific Ocean on July 14, 2011. US Navy photo by Mass Communication Specialist 3rd class Adam Henderson.
To understand their reasoning means coming to terms with both military law and the unique culture of the armed forces.
Under the Uniform Code of Military Justice, no superior can interrogate a junior suspect without first informing him of the nature of the accusation. If that’s not done, then any confession that flows from the ruse can’t be used in court.
That’s because a suspect being interrogated must be afforded a reasonable understanding that he’s talking to someone who is acting like a cop, or a service member who can discipline him.
Rivera and the SEAL officer were both lieutenant commanders posted to different units, but what really was playing out was a superior-subordinate relationship within the SEAL team, the appellate justices ruled.
Naval Special Warfare operators man a Diver Propulsion Device during high-altitude dive training on Sept. 3, 2022, off California. US Navy photo by Mass Communication Specialist 2nd Class Alex Perlman.
The SEAL XO was already selected for promotion to commander, and Rivera was slated to rotate back to the same team after a boots-on-the-ground deployment, at which point his accuser would be above him in the team’s pecking order, they said.
Executive officers often wield exceptional power within a unit, especially because they always have the ear of the commander.
And in the first exchange of texts, the XO clearly asserted that he was the boss and all future exchanges were “official business,” they added.
The military prosecutors had argued that even if there was the semblance of a superior-subordinate relationship, the SEAL wasn’t acting in his official capacity as executive officer when he made the call that triggered Rivera's confessions, and that’s what should matter.
A Naval Special Warfare operator conducts pre-dive checks on underwater propulsion equipment before training at Naval Air Station Key West in Florida on May 12, 2022. US Navy photo by Mass Communication Specialist 1st Class Alex Perlman.
But that’s not what was happening here, the justices countered.
The SEAL XO alone determined what was official and professional, and what wasn’t.
When the deputy operations officer told Rivera to call the XO, that didn’t sound like the start of a non-business conversation to Rivera.
To them, it seemed like the deputy operations officer was giving Rivera a lawful order, and he followed it, without knowing it was all a setup tied to an NCIS probe.
The tribunal said the prosecutors can keep the text exchange between the two officers as evidence, but Rivera’s alleged confessions embedded in the phone conversation were gone.
That doesn't mean that military prosecutors can't convict Rivera without the so-called confession. For example, they can still lean on direct testimony from the SEAL in court.
A SEAL operator trains in cold weather on May 4, 2022, near Fairbanks, Alaska. US Navy photo by Chief Mass Communication Specialist Paolo Bayas.
According to Rivera's military records, he was detached from Logistics Support Unit 18 on Jan. 31, 2022, and assigned as a reservist to Naval Supply Command in Washington, DC.
Commissioned through Officer Training Command in Pensacola, Florida, in 2007, he previously served at Mobile Operating Base in Djibouti; Naval Support Weapon Systems in Washington, DC; and on board the guided-missile cruiser Leyte Gulf.
He was promoted to lieutenant commander on May 28, 2021.
Rivera's decorations include two Joint Service Commendation Medals, the Navy and Marine Corps Commendation Medal, Achievement Medals from both the Navy and Army, and the Afghanistan Campaign Medal.
Carl Prine is a former senior editor at Coffee or Die Magazine. He has worked at Navy Times, The San Diego Union-Tribune, and Pittsburgh Tribune-Review. He served in the Marine Corps and the Pennsylvania Army National Guard. His awards include the Joseph Galloway Award for Distinguished Reporting on the military, a first prize from Investigative Reporters & Editors, and the Combat Infantryman Badge.
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