United States v. Ingram — Waiver Analysis

Background

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.