              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
                   R.Q. WARD, J.A. FISCHER, D.C. KING
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                          TYREL M. CAIN
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300392
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 17 June 2013.
Military Judge: Col James K. Carberry, USMC.
Convening Authority: Commanding General, 3d Marine Division
(-)(Rein), Okinawa, Japan.
Staff Judge Advocate's Recommendation: Maj K.T. Carlisle,
USMC.
For Appellant: CDR Suzanne M. Lachelier, JAGC, USN.
For Appellee: Maj David N. Roberts, USMC; LT Ian D.
MacLean, JAGC, USN.

                          11 September 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of wrongfully
distributing cocaine on divers occasions, wrongfully using
cocaine on divers occasions, and wrongfully introducing cocaine
onto an installation with intent to distribute on divers
occasions, in violation of Article 112a, Uniform Code of
Military Justice, 10 U.S.C. § 912a. The military judge
sentenced the appellant to confinement for twenty months,
forfeiture of all pay and allowances, reduction to pay grade
E-1, and a dishonorable discharge. The convening authority (CA)
approved the sentence as adjudged and, pursuant to a pretrial
agreement (PTA), suspended all confinement in excess of sixteen
months for the period of confinement served plus six months
thereafter. Additionally, pursuant to the PTA, the CA deferred
and then waived for a period of six months from the date of the
CA’s action all automatic forfeitures, provided a dependent’s
allotment was established.

     The appellant’s sole assignment of error is that the record
of trial is incomplete because it did not include sealed
evidence relating to the seizure of the appellant’s vehicle, the
legal basis for the Government’s withholding of such evidence,
the grounds for the military judge’s in camera review of such
evidence, or a waiver from the appellant of his due process
right to review of such evidence. On 15 April 2014, after
receipt of the appellant’s brief and assignment of error, we
granted the Government’s motion to attach the sealed materials
in question to the record.

      Having carefully considered the record of trial and the
submissions of the parties, we are convinced that the findings
and the sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant occurred.1

                                   Factual Summary

     On 24 January 2013, law enforcement agents of the Drug
Enforcement Agency (DEA) arrested the appellant and seized his
car after surveillance observed the appellant purchasing
cocaine. Seizure of the appellant’s car led to discovery of 3.5
grams of cocaine and a rolled dollar bill,2 which supported
subsequent cocaine-related charges.

        At a RULE  COURTS-MARTIAL 802, MANUAL FOR COURTS-MARTIAL, UNITED
                    FOR
STATES (2012 ed.), pretrial conference, trial counsel submitted a
bench brief to the military judge requesting that reports
relating to the DEA’s seizure of the appellant’s car be sealed.3

1
    Arts. 59(a) and 66(c), UCMJ.
2
    Record at 62-63.
3
    Id. at 8.
                                          2
Trial counsel argued such documents might reveal sensitive DEA
procedures or expose a confidential informant. Without
objection from defense counsel, the Government submitted these
reports to the military judge for an in camera review.
Following his review, the military judge determined that the
documents should be sealed and thusly summarized for the record:

        MJ: I found that there was nothing in the materials
        that was extenuating or mitigating that would enure to
        the benefit of the accused, and I granted the sealing
        of these documents. Is that accurate?
        DC: Yes, sir.

        MJ: I further   inquired with [defense counsel] whether
        or not he had   any objection. And, [defense counsel],
        you indicated   that you had not. Is that still the
        case?
        DC: Yes, Your   Honor.   It is.

        MJ: Very well. I’ll note that there’s nothing
        particularly -- there’s nothing aggravating about this
        material as well. And it will not be a factor in my
        determination of the appropriate sentence in this
        case. Very Well.
        ATC: Yes, sir.

        MJ: Thank you.
        DC: Yes, Your Honor.4

     After the discovery ruling, the appellant pled guilty to
Charge I and all three specifications thereunder.

                                  Analysis

     At trial the appellant pled guilty unconditionally and
entered into a PTA with the Government. “An unconditional
guilty plea generally waives all pretrial and trial defects that
are not jurisdictional or a deprivation of due process of law.”
United States v. Jones, 69 M.J. 294, 299 (C.A.A.F. 2011)
(citation omitted). Contrary to the appellant’s assertion on
appeal, an incomplete trial record does not present a
jurisdictional defect. See United States v. Gaskins, 72 M.J.
225, 230 (C.A.A.F. 2013) (cautioning against misinterpreting
dicta in United States v. Henry, 53 M.J. 108, 110 (C.A.A.F.
2000) and supporting the proposition that an incomplete trial

4
    Id. at 9.
                                      3
record is not a jurisdictional defect); see also United States
v. Ballan, 71 M.J. 28, 32 (C.A.A.F. 2012). Thus, we review
whether the military judge’s decision to seal the DEA reports
without defense review deprived the appellant of due process.

     The procedural posture of the case at the time the military
judge granted the Government’s request to seal the documents
negates any inference that the decision interfered with the
appellant’s due process right to prepare a defense. The
military judge summarized his decision for the record
immediately prior to the entry of pleas. At the time it was
clear the appellant had elected to enter into a PTA with the
Government. The trial defense counsel expressly stated that he
did not object to sealing the documents and the appellant then
entered an unconditional guilty plea. The military judge found
nothing aggravating, extenuating, or mitigating in the material
and stated it would not factor into his sentence determination.
Upon our review of the record, including the sealed materials,
we are convinced the military judge’s ruling did not infringe
upon the appellant’s due process rights. The Government’s
action to attach the sealed materials to the record moots the
appellant’s argument regarding completeness of the record.
Moreover, the appellant’s unconditional guilty plea at trial
waives appellate review of any error relating to the military
judge’s in camera review of the documents.

                           Conclusion
     The findings and the sentence as approved by the CA are
affirmed.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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