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Lieutenant Commander found NOT GUILTY Following Suppression Of Key Evidence

April 19, 2023, U.S v. O-4, General Court-Martial, United States Navy, Norfolk Naval Station, Virginia. A highly decorated combat veteran and O-5 Navy Seal Team XO accuses an O-4 LCDR of sexual assault. When the O-5 (who was also a LCDR at the time of the alleged incident) meets with NCIS and reports the alleged sexual assault, he refers to the evening with the LCDR as a "slumber party" and makes several references to his intent to get drunk on tequila and wine and to have a "party", especially since his girlfriend had broken up with him that same weekend. The LCDR was the only one who was invited to this "party" and had arrived to the O-5's home on a Sunday afternoon. The O-5 is already intoxicated by the time the LCDR arrives. Four days later, the O-5 accuses the LCDR of committing sexual assault by performing oral sex on him while he was asleep, and that the assault takes place in his upstairs bedroom. NCIS conducts an investigation against the LCDR in which the Government later prefers a charge and specification for performing oral sex on the O-5 "while he was asleep". The LCDR denies the allegation and retains Mr. Gapasin to represent him. The Government's primary piece of evidence is an oral wire intercept, also known as a pretext phone call, made by the O-5 against the unsuspecting LCDR. The Government argues how the oral wire intercept contains certain admissions by the LCDR. Interestingly though, evidence reveals that the O-5 had destroyed critical NEST video evidence of the entirety of the evening which would have taken place just hours before the alleged oral sex. Gapasin demonstrates how the destruction of the video evidence takes place within the same 2 hour time frame at which the LCDR had texted the CDR, requesting to see what was on the video recording that evening when the LCDR was intoxicated. After the LCDR asks about the video cameras, the O-5's demeanor changes.  What was supposedly a fun evening turns into an allegation of sexual assault against the LCDR. Gapasin files an extensive motion requesting the Court to suppress the oral wire. Gapasin litigates the motion in an Article 39(a) Motions Hearing and successfully litigates the motion. The entirety of the oral wire is suppressed from trial. The Government then files an interlocutory appeal of the ruling to the Navy Court of Appeals and the ruling is upheld. After a 6-month appeal, the case is then returned to the trial level without the suppressed oral wire. At trial, Gapasin exposes numerous inconsistencies in the O-5's testimony and previous statements he had given to NCIS and to prosecutors. Contrary to the XO's claim, Gapasin's cross-examination on the XO reveals that he is not asleep when he claims the client allegedly performs oral sex on him. RESULT: Client found NOT GUILTY of Sexual Assault. NO Confinement, NO Federal Conviction, and NO Sex Offender Registration.

Ernesto Gapasin