What Happened in Gonzalez

Marine PFC Joel Gonzalez pleaded guilty to conspiracy, wrongful disposition of military property, and larceny for stealing and selling aviation headsets worth over $1,200 each from his helicopter squadron. Facing debt and an impending separation, he abused his role as an expeditor to exploit gaps in supply oversight. None of that is remarkable.

What distinguished his case was what came after. Gonzalez cooperated extensively. He completed three proffer sessions with NCIS agents and trial counsel totaling approximately eleven hours. He submitted a written proffer naming fourteen Marines allegedly involved in the same scheme. He surrendered his phone and turned over a detailed binder he had created documenting how the acquisition system could be manipulated. His plea agreement promised that if trial counsel found his assistance substantial, a letter would go to the convening authority, triggering a reduction of his confinement from thirty months to eight.

Trial counsel never sent the letter. Gonzalez served thirty months while the court of appeals ultimately found his sentence plainly unreasonable and reduced all confinement above eight months.

How Plea Agreement Bad Faith Harms the Individual

The arithmetic of what Gonzalez lost is straightforward: twenty-two additional months of confinement that his cooperation had contractually earned him. But plea agreement bad faith inflicts a second injury that appellate relief cannot repair.

When a service member signs a plea agreement, they surrender the right to trial, to confrontation, and to the presumption of innocence. They do so because a government attorney—operating under ethical obligations to the court and to the institution—stands across the table and implicitly commits to perform. When that attorney withholds a benefit without rational justification, they signal to the accused—and to every service member watching—that legal agreements are conditional on prosecutorial convenience. That signal lingers well past any corrective ruling.

The Systemic Damage: Other Cases, Other Clients

Gonzalez’s cooperation was not abstract. It targeted fourteen other Marines. Those prosecutions depended, in part, on a cooperating witness willing to testify—a commitment Gonzalez made contractually and fulfilled in practice. When trial counsel withheld the substantial assistance letter partly because Gonzalez might not appear to testify if released, they punished him for a breach he had never committed and expressly promised to avoid.

Senior Judge Harrell’s concurrence reached a pointed conclusion: trial counsel’s refusal was not rationally related to any legitimate government end. That finding matters beyond Gonzalez. Defense counsel now cite this case in negotiations. Future cooperators factor it into the decision to come forward. Prosecutors inherit a credibility deficit they did not earn. The caseload of investigations that require cooperation to succeed grows harder, not because witnesses lack information, but because they no longer trust that cooperation pays.

What Trial Counsel Owe the System—Not Just the Case

Military prosecutors represent the United States, an institution with interests beyond winning. Those interests include the integrity of the plea agreement process, the credibility of substantial assistance incentives under R.C.M. 1109(e)(2), and the long-term functioning of military justice as a system that service members trust enough to engage with honestly.

Plea agreement bad faith—whether deliberate or the product of narrow, self-serving reasoning—corrodes all three. Defense and prosecution counsel must be able to negotiate agreements they both intend to honor. When one side treats a signed agreement as advisory, the adversarial system does not sharpen; it collapses inward.

The Lesson Gonzalez Leaves Behind

The court corrected the sentence. It cannot correct the time Gonzalez lost, the investigations that stalled, or the precedent now embedded in the record about what happens when trial counsel acts without rational justification.

For military legal professionals, the case is a clear marker. Substantial assistance provisions carry real obligations. Plea agreement bad faith is reviewable—and when courts find it, the damage extends to every future negotiation that follows. The profession’s credibility depends on lawyers keeping their word, not because rules compel it, but because justice cannot function any other way.

Citation: United States v. Gonzalez, NMCCA No. 202500333 (N-M. Ct. Crim. App. Mar. 6, 2026) (unpublished).

Facing a Court-Martial or Plea Agreement Issue? Get Independent Counsel.

If you are a service member navigating a court-martial, evaluating a plea agreement, or questioning whether the Government has honored its commitments to you, the stakes are too high to rely solely on assigned military counsel. The attorneys at Cave & Freeburg, LLP bring more than 65 combined years of military law experience to every case. As former military defense lawyers and a veteran-owned firm, Philip D. Cave and Nathan P. Freeburg understand exactly what is at stake when a plea agreement unravels or a convening authority fails to act in your favor. They answer only to you—not to the chain of command. Whether you are stationed stateside or overseas, Cave & Freeburg represents service members across all branches at courts-martial, in administrative proceedings, and on appeal. Call 703-298-9562 or 202-931-8509 for a free consultation, or visit www.court-martial.com.

An enlisted panel convicted Staff Sergeant David Ingram of attempted sexual abuse of a child, attempted receipt of child pornography, and solicitation of child pornography distribution. The charges arose from messages Ingram exchanged on the Whisper app with an adult decoy posing as a fifteen-year-old as part of a “to catch a predator” operation. The military judge sentenced him to a bad-conduct discharge, 15 months of confinement, and reduction to E-1.

Ingram raised four assignments of error on appeal. The court affirmed on all grounds.

The Waiver Issue (Assignment of Error III)

What Happened at Trial

The military judge gave the panel two erroneous instructions. First, she told the panel it could consider evidence bearing on the “believability of the accused” — even though Ingram never testified. Second, she misphrased the witness-opinion instruction, telling the panel it “may not consider [such evidence] as evidence that a crime did not occur” — language that arguably shifted the burden of proof.

Before the instructions went to the panel, the military judge gave both parties over an hour to review the proposed written instructions and held an R.C.M. 802 conference where counsel discussed them. The government placed one objection on the record. Defense counsel said nothing. After the military judge finished reading the instructions to the panel, she asked defense counsel directly: any objections? Any additional instructions? Defense counsel responded “No, Your Honor” both times.

The Majority’s Waiver Holding

Judge Steele, writing for the court, held that defense counsel’s repeated “No, Your Honor” responses expressly and unequivocally acquiesced to the instructions, constituting waiver of all objections under United States v. Davis, 79 M.J. 329 (C.A.A.F. 2020). Under Davis, when a military judge asks whether counsel has objections or requests for additional instructions and counsel answers in the negative, that response waives all instructional objections — foreclosing appellate review entirely. The majority added that even absent waiver, the instructional errors caused no prejudice to Ingram.

Judge Pond’s Concurring Opinion

Judge Pond concurred in the result but wrote separately to flag a serious structural problem that the majority’s analysis left unaddressed.

The Core Concern

Judge Pond acknowledged that Davis controls and that the facts here compel a finding of waiver. But he argued that the broad language in Davis — treating any general “No, Your Honor” as waiver of all objections to all instructions — warrants reconsideration or clarification by CAAF in light of a significant change in the statutory landscape.

What Changed After Davis

When CAAF decided Davis in 2020, the Courts of Criminal Appeals (CCAs) still possessed broad discretion under Article 66, UCMJ, to review the entire record and affirm only findings they found “should be approved.” That authority functioned as a safety valve — CCAs could pierce waiver and notice plain instructional errors even when defense counsel failed to object. Congress eliminated that authority in the FY2021 National Defense Authorization Act by removing the “should be approved” language from Article 66. The CCAs now “may affirm only such findings of guilty as the Court finds correct in law and in fact.” A valid waiver renders a case correct in law, leaving the CCA without authority to act.

The Practical Consequence

Judge Pond argued that Davis combined with the amended Article 66 has effectively killed plain error review of instructional errors in courts-martial. The only path now runs through ineffective assistance of counsel claims — and that, Judge Pond explained, sets a much harder bar to clear. Plain error requires showing an obvious error materially prejudicing a substantial right. Ineffective assistance of counsel requires showing performance so deficient it violated the Sixth Amendment. These are distinct standards that can produce different outcomes. An error can be plain and obvious — and the result of the judge’s oversight, not counsel’s — without rising to constitutionally deficient representation.

The Responsibility Problem

Judge Pond emphasized that the military judge, not the parties, bears the primary duty to correctly instruct the panel. R.C.M. 801 and 920 place that responsibility squarely on the judge. The military judge receives special certification by reason of education, training, and judicial temperament. Yet Davis, as applied post-NDAA, effectively transfers the burden of catching instructional error to defense counsel. When counsel misses an error the judge introduced, Davis forecloses review — even though the judge, not counsel, bears the independent duty to get the instructions right.

The “No Magic Words” Problem

Judge Pond also noted that CAAF has stated “there are no magic words to establish affirmative waiver” and courts should look for a purposeful decision on the record. Yet the standard Benchbook colloquy — “Does either side object to any of these instructions?” / “No, Your Honor” — has become exactly that: magic words that trigger categorical waiver regardless of context, the length and complexity of the instructions, or whether the specific error was ever discussed or contemplated. Judge Pond argued that a brief formulaic colloquy more likely reflects oversight than deliberate choice, especially where the instructions span over twenty pages.

The Davis Precedents Were Distinguishable

Judge Pond traced the cases Davis relied upon — United States v. Wall, United States v. Smith, and United States v. Rich — and noted that in each, waiver rested on something more than a general “no objection.” In Wall, defense counsel had specifically requested the challenged instruction and then twice declined an opportunity to object to it. In Smith, defense counsel had spelled out the elements at issue in closing argument, then confirmed the instructions were adequate. In Rich, the record showed the defense had actually considered requesting a specific instruction and deliberately decided not to. None of those records resembled the bare “No, Your Honor” that Davis elevated into universal waiver doctrine.

The Call for Reconsideration

Relying on United States v. Allbery, 44 M.J. 226 (C.A.A.F. 1996), Judge Pond urged CAAF to reconsider or clarify Davis in light of the changed statutory framework. He suggested that in cases where the record reflects only a general acquiescence to lengthy and complex instructions — with nothing more — plain error review better accounts for the balance between the military judge’s independent duty to instruct correctly and counsel’s responsibility to object. He pointed specifically to United States v. Killion, 75 M.J. 209, 218 (C.A.A.F. 2016) (Ohlson, J., dissenting), where a similar scenario led one judge to conclude that a general “No” to a general inquiry should trigger plain error, not waiver.

Bottom Line

The majority applied Davis mechanically and found waiver, then affirmed on the merits regardless. Judge Pond agreed with that result but used this case to raise a doctrinal alarm: Congress stripped the CCAs of their safety valve just as CAAF gave waiver its broadest possible reading. The combination leaves accused servicemembers with no meaningful appellate remedy for even obvious instructional errors unless they can prove their defense counsel performed at a constitutionally deficient level — a consequence, Judge Pond argued, that neither Davis nor its predecessors actually intended.

United States Army Court of Criminal Appeals — Summary Disposition (25 Feb 2026)

Procedural Posture

PFC Elijah T. Munn pleaded guilty at a special court-martial to attempted patronage of a prostitute under Article 80, UCMJ. Pursuant to a plea agreement, the government moved to dismiss:

• Attempted sexual assault of a child (Article 80/120b), and
• Patronizing a prostitute (Article 134),

with dismissal “without prejudice to ripen into prejudice” upon completion of appellate review. The military judge granted the motion and entered findings consistent with the agreement.

Appellant assigned no error. This means neither the military judge, the trial lawyers, nor the appellate lawyers caught the issue. The Army Court did.

Core Jurisdictional Issue

The special court-martial lacked subject matter jurisdiction over the specification alleging attempted sexual assault of a child.

Under Article 18(c), UCMJ and R.C.M. 201(2)(D), only general courts-martial may exercise jurisdiction over:

• Articles 120(a)-(b), 120b(a)-(b), and
• Attempts thereof under Article 80.

The specification at issue alleged conduct encompassing all elements of Article 120b(b), UCMJ.

Accordingly, referral to a special court-martial was legally impermissible.

MUNN-20250252-SUMMARY DISPOSITI…

Because jurisdiction cannot be waived, the military judge’s conditional dismissal of that specification was ultra vires and void.

Disposition

The Army Court:

• Dismissed the attempted sexual assault of a child specification for lack of jurisdiction;
• Affirmed the remaining guilty finding and sentence.

Importantly, the court found the guilty plea to attempted patronage provident because the plea agreement independently barred further prosecution of the sexual assault specification, notwithstanding the defective conditional dismissal.

Legal Significance

This case reinforces several structural principles in military justice:

1. Subject matter jurisdiction is non-waivable.
2. Improper referral cannot be cured by plea agreement mechanisms.
3. Appellate courts will correct jurisdictional defects even where no error is assigned.
4. Plea agreements cannot bootstrap jurisdiction where Congress has withdrawn it.

The decision tracks precedent such as Henderson and reflects the post-2013 NDAA jurisdictional limitations on sexual assault offenses.

Litigation Parallels: Cave & Freeburg

The issues in Munn fall squarely within the type of appellate terrain that experienced military appellate litigators routinely navigate—particularly:

1. Jurisdictional Defects at Referral

Cave and Freeburg have litigated cases involving:

• Improper referral to special courts-martial,
• Structural defects affecting subject matter jurisdiction,
• Non-waivable jurisdictional limitations under Article 18 and R.C.M. 201.

They understand that jurisdictional error is not merely procedural—it is structural and voids the proceeding as to the affected offense.

2. Plea Agreement Litigation Post–Military Justice Act

Munn illustrates the complexity of modern plea agreements:

• Conditional dismissals,
• Ripening clauses,
• Appellate-contingent terms,
• Government non-referral provisions.

Cave and Freeburg have litigated the enforceability and interpretation of plea agreement terms, particularly:

• Whether a plea remains provident when a material term fails,
• Government withdrawal provisions,
• Ultra vires judicial actions affecting contractual protections.

The appellate question here—whether the plea remains provident despite jurisdictional invalidity of a dismissal—is precisely the kind of nuanced appellate issue requiring deep familiarity with Article 45, R.C.M. 910, and appellate standards of review.

3. Structural Error vs. Harmless Error

This case required distinguishing:

• Void action for want of jurisdiction,
• Valid findings on unaffected specifications,
• Whether the jurisdictional defect tainted the plea.

That analytical separation—surgical rather than sweeping—is characteristic of sophisticated appellate advocacy.

4. Protecting the Client from Collateral Exposure

A central concern in Munn was whether the accused remained protected from reprosecution despite the void dismissal. The court relied on the plea agreement’s non-referral language to conclude he was protected.

Experienced appellate counsel understand that:

• Jurisdictional dismissal alone may not bar reprosecution,
• Contractual plea protections may provide independent safeguards,
• The appellate record must clearly establish those protections.

That layered protection analysis is precisely where seasoned appellate counsel add value.

Why Appellate Experience Matters in Cases Like This

Cases like Munn are not about factual disputes. They turn on:

• Statutory interpretation,
• Structural jurisdiction,
• Plea agreement enforceability,
• De novo review standards,
• Appellate preservation doctrine.

Effective appellate litigation in this domain requires:

• Mastery of Articles 18, 80, 120b,
• R.C.M. 201 and 907 jurisprudence,
• CAAF precedent on jurisdiction,
• Familiarity with post-2013 NDAA reforms.

Cave and Freeburg’s background in military appellate litigation equips them to:

• Identify jurisdictional defects even when unassigned,
• Frame structural error arguments precisely,
• Protect clients from unintended collateral consequences,
• Preserve issues for CAAF review,
• Craft arguments that distinguish void actions from harmless procedural missteps.

Bottom Line

United States v. Munn demonstrates how technical jurisdictional errors can alter the legal landscape of a case even when the accused pleads guilty and assigns no error.

Appellate litigation in this area is highly specialized. It requires deep knowledge of statutory jurisdiction, modern plea agreements, and military appellate standards. Counsel experienced in litigating jurisdictional defects and plea agreement enforcement—such as Cave and Freeburg—are positioned to recognize and exploit these issues to secure the most favorable lawful outcome available.

The Government’s Interlocutory Appeal

In ScottGeorge, the Government invoked Article 62(a)(1)(B), UCMJ, to challenge a military judge’s order suppressing statements obtained during an NCIS interrogation. Article 62 allows the Government to appeal certain rulings that exclude evidence constituting substantial proof of a material fact. Unlike typical appeals, however, Article 62 proceedings occur while the court-martial is still ongoing. Once the Government files the appeal, the trial is paused, and the appellate court reviews the ruling based on the existing record.

This procedural posture places a significant burden on the parties. The appellate court does not reevaluate the case from the beginning. Instead, it reviews the military judge’s ruling for abuse of discretion and considers the evidence in the most favorable light to the prevailing party at trial—here in ScottGeorge, the accused. The Government must demonstrate not just that the judge could have ruled differently, but that the ruling was clearly erroneous in fact or law, or that it represented an unreasonable application of the law to the facts.

The Military Judge’s Suppression Ruling

The suppression dispute focused on Article 31(b), UCMJ, which mandates that investigators inform a servicemember of the right to remain silent and specify the nature of the accusation before questioning. The goal of the rule is to make sure that a servicemember understands the subject of interrogation and can make an informed choice about whether to speak with investigators.

The military judge found that NCIS agents did not meet this requirement. Although the investigators mentioned offenses such as extortion and sexual abuse, the warnings did not specifically inform the accused about the particular incident under investigation. The judge concluded that the advisement lacked enough detail to alert the accused to the conduct being examined.

The record also showed that the accused expressed confusion during the advisement. He asked questions indicating that he believed the investigators wanted to question him about a different matter—specifically, a positive urinalysis. Instead of clarifying the accusations, the agents told him that they would explain the allegations only if he waived his rights. The military judge concluded that this approach undermined the purpose of Article 31(b) and prevented the accused from making an informed waiver.

Investigators later tried to fix the problem with a second advisement and a so-called cleansing warning. However, the military judge decided that the effort did not fix the initial violation. The same agents continued the interrogation without a meaningful break and without adequately correcting the earlier failure to inform the accused about the allegations. As a result, the judge suppressed the statements.

Why the Appellate Court Affirmed the Ruling

On appeal, the Navy–Marine Corps Court of Criminal Appeals upheld the suppression order. The court highlighted that the key question was not whether the appellate judges might have made a different decision, but whether the military judge abused his discretion.

The court ruled that the judge acted well within that discretion. First, the warnings given by investigators did not clearly specify the particular conduct under investigation, leaving the accused unsure about the focus of the questioning. Second, the record showed genuine confusion on the part of the accused, supporting the judge’s conclusion that the advisement failed to inform him of the allegations. Third, the surrounding circumstances did not fix the issue. Unlike cases where suspects already understand the nature of the charges from earlier discussions or investigative steps, the evidence here showed no independent basis for the accused to understand the scope of the investigation.

Finally, the court agreed that the later cleansing warning did not sufficiently remedy the earlier violation. Since the same investigators immediately continued questioning without clearly fixing the earlier defect, the military judge reasonably concluded that the subsequent advisement did not restore the accused’s ability to make an informed decision.

Viewed under the deferential abuse-of-discretion standard required in Article 62 appeals, the appellate court found that the military judge’s factual findings were supported by the record and that his interpretation of Article 31(b) law was reasonable. The court therefore rejected the Government’s appeal and upheld the suppression of the statements.

Experience Matters in Article 62 Litigation

Cases like ScottGeorge demonstrate how quickly a court-martial can turn into complex appellate litigation when the Government files an Article 62 appeal. Defense counsel must analyze the record, defend the military judge’s ruling under the strict abuse-of-discretion standard, and present persuasive appellate arguments while the underlying trial remains pending.

Cave & Freeburg have extensive experience litigating precisely these types of proceedings. The firm has represented accused servicemembers in government appeals under Article 62 as well as extraordinary writ litigation before the military appellate courts. That experience includes defending favorable suppression rulings, challenging improper government attempts to overturn trial-level decisions, and navigating the intricate procedural rules that govern interlocutory appeals in courts-martial.

Effective advocacy in these cases requires more than just trial skills. It demands a deep understanding of military appellate jurisdiction, standards of review, evidentiary law, and the strategic consequences of appellate intervention during trial. By combining trial litigation with sophisticated appellate practice, Cave & Freeburg offer the focused representation needed to protect an accused’s rights when the Government attempts to use appellate procedures to reverse critical rulings.

The decision in ScottGeorge highlights an important point: when a military judge carefully reviews the evidence and applies the law, appellate courts will defer to that judgment. Skilled defense attorneys play a vital role in making sure those rulings withstand government challenges and that the accused is fully protected by the procedural safeguards within the military justice system.