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_______ _______ __________ No. ACM S32687

_______ _______ __________ UNITED STATES Appellee

v. Caleb A. TATE S enior Airman (E

- 4 ) , U.S. Air Force, Appellant

________________________ Appeal from the United States Air Force Trial Judiciary

Decided 4 February 202 2

________________________ Military Judge: Colin P. Eichenberger

. S entence: Sentence adjudged 30 December 2020 by S p C M convened at Fairchild Air Force Base, Washington

. Sentence entered by military judge on 12 January 2021 : Bad

- conduct discharge, c onfinement for 45 days, forfeiture of $1,155.00 pay per month for 2 months
, and reduction to E

- 1

. For Appellant: Lieutenant Colonel Lance J. Wood , USAF. For Appellee: Major Brittany M. Speirs , USAF; Mary Ellen Payne, Esquire.
Before LEWIS, KEY, and ANNEXSTAD
, Appellate Military Judges

. Judge A NNEXSTAD delivered the opinion of the c ourt, in which Senior Judge LEWIS and Senior Ju dge KEY joined.

_______ _______ __________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30 .4.

_______ _______ __________ ANNEXSTAD , Judge:
A special court

- martial composed of a military judge convicted Appellant, in accordance wi th h is pleas and pursuant to a plea agreement (P A)
, of oneUnited States v. Tate , No. ACM S32687

2 s pecification of attempt ed possess ion of 3,4

- methylenedioxymethamphetamine, one specification of dereliction of duty on divers occasions , one specificatio n of wrongful use of a controlled substance ( Adderall ) on divers occasions, and three specification s of wrongful use of a controlled substance ( lysergic acid diethylamide
, 3, 4

- methylenedioxymethamphetamine, and p silocybin ) in violation o f Article s 80, 92 , and 112a , Uniform Code of Military Justice (UCMJ), 10 U.S.C. § § 880, 892 , and 912a. 1 , 2 The military judge sentenced Appellant to a bad

- conduct discharge, 45 days of confinement , forfeiture of $1,155 .00 pay per month for two months
, and reduction to the gr ade of E

- 1. 3 Appellant raises a single issue befor e this court : w hether the military judge abused his discretion when he denied Appellant’s motion to dismiss based on outrageous g overnment conduct which occurred during the seizure and search of Appellant ’s phone. Finding no error materially prejudicial to a substantial right of Appellant,

we affirm the findings and sentence.

I. B ACKGROUND In 2019, the Air Force Office of Special Investigations (AFOSI) at Fairchild Air Force Base (AFB), Washington, began investigating a group of A irmen for illegal drug activity. The group , which included Appellant and three other Air Force members, referred to themselves as the “Line Men
, ” because they all worked on the flight line and were members of the same mainte nance squadron. On 2 October 2019, AFOSI agents attempted to interv iew Appellant abouthis involvement in the illegal drug activity. Following a rights advisement, Appellant unequivocally invoked his right to counsel

. AFOSI agents subsequently informed Ap pellant of their authorization to s eize and search his cell phone. The interviewing agents then offered Appellant the “ opportunity ” to collect any phone numbers he need ed from his phone and informed him that he would not have access to his cell phone for an extended period of time once it was seized

. After Appellant wr o te down some phone numbers, AFOSI agents seized Appellant’s phone and continued to touch and swipe the screen in order to delay the

1 A ll of the offenses were committed in 2019 ; therefore , a ll references to the UCMJ are to the Manual for Courts

- Martial
, United States (2019 ed.).

2 In accordance with the plea agreement ( PA )
, Appellant conditionally plead ed guilty to all charges and specifications , preserving for appellate rev iew the issue of whether the case should be dismissed for outrageous g overnment conduct.

3 The adjudged sentence complied with the sentence limitations as detailed in the PA.United States v. Tate , No. ACM S32687

3 auto

- locking mechanism and e nsure the phone remained un loc ked. AFOSI agents then began to search the phone and make a record of incriminating evidence found on the phone

. Prior to trial, two motions were litigated. In the first motion, Appellant moved to suppress the results of the search of his phone

. 4 In the s econd motion, Appellant moved to dismiss all charges and specifications for Fifth Amendment 5 due process violations based o n outrageous g overnment conduct during the seizure and search of his phone. During the motions hearing and in support of both motion s , Appellant called five witnesses
, all of whom were special agents. The five witnesses included (1) two agents assigned at the detachment at Fairchild AFB who interviewed Appellant , Special Agent s (SA) JC and CW; (2) the Director of Criminal Investigations for the Third Field Region, SA LR; and (3) two additional agents who interviewed other suspects and potential witnesses.
Both SA JC and SA CW testified that they believed they could offer Appellant the opportunity to unlock his phone and gather contact i nformation as a technique to gain access to Appellant’s phone. Specifically, SA JC testified that this technique was discussed with both the local legal office and AFOSI headquarters as a tool agents could use to gain access to the phone. He further stated that he believed this technique was not proscribed by law, but instead was a creative and new technique that could be legally implemented. SA CW testified that although he was not part of the discussions
, he was aware that the technique was discussed amon g the local AFOSI detachment, the regional AFOSI office, and the local legal office. SA LR testified that “ it was a very high level conversation of what options might be available to conduct a search and seiz ure” of a cell phone based on a search authorization

. SA LR also testified that he advised the Fairchild AFOSI detachment about this technique and recommended they discuss it with the local legal office to ensure it complied with the current state of the law. On 28 September 2020, the military judge ruled in favor of Appellant’ s first motion an d suppressed the contents of the search of Appellant’s phone and all derivative evidence. Th e same day
, the mil itary judge denied Appellant’s m otion to d ismiss all charges and specifications , as is discuss ed further in this opinion

. Two days later, o n 30 December 2020, Appellant entered a conditional

4 Appellant did not communicate his passcode to the agents, he entered it in the phone himself and then the agents seized the phone before it could lock. The fact that Appellant unlocked his phone upon the suggestion of investigators after invoking his righ t to counsel formed the basis of his motion to suppress.

5 U.S. C ONST

. amend. V.United States v. Tate , No. ACM S32687

4 guilty plea to all charges and specifications and pursuant to the PA, specifically
preserv ed the motion to d ismiss for appellate review.

II. D ISCUSSION Appellant contends the military judge abused h is dis cretion when he denied his motion to d ismiss the charges and specifications based on outrageous
g overnment conduct. Specifically, Appellant argues that AFOSI agents intentionally violated his Fifth Amendment rights by using p replanned technique s to gain access to his locked phone . H e contends that the G overnment’s conductwas outrageous because he was “both coerced and pressured to waive his constitutional rights to unlock his phone” when he was asked by the AFOSI a gents if he wanted to retrieve contact information from his phone because he would likely not have access to the phone for “six to nine months.” He further argues that the G overnment ’ s conduct violated “fundamental fairness” and wa s “shocking to the univer sal sense of justice.” As a remedy, Appellant argues that this court should dismiss all charges and specifications against Appellant. We disagree.
A. Additional Background In his ruling on the motion to dismiss all charges and specifications, the military jud ge found that AFOSI agents scheduled interviews with all the “Line Men”

— including Appellant

— on 2 October 2019, and that prior to those interviews AFOSI agents had obtained authorization to search and seize each suspect ’ s cellular phone. The military judge concluded: The agents were generally aware of the holdings in United States v. Mitchell, 76 M.J. 413 (C.A.A.F. 2017) and United States v. Robinson, 77 M.J. 303 (C.A.A.F. 2018)
, which together held that if a phone is seized pursuant to a search authorization after the suspect has requested counsel, the [G] overnment may not request or require that suspect provide their phone’s passcode. The military judge further found that in an effort to get around the potential legal barriers imposed by the holdings in Mitchell and Robinson , the AFOSI agents had developed a plan through a series of discussions among the Fairchild AFB AFOSI detachment, the servicing AFOSI regional office, a nd the local office of the staff judge advocate. He explained in his ruling that the plan generally called for AFOSI agents to attempt to interview suspects individually and to inform them that they had authorization to seize and search the suspect’s phone if the suspect invoked his right to counsel. Next, the agentswould tell the suspect that AFOSI might have their phone for an extended period of time and would offer the suspect an opportunity to retrieve any needed phone numbers from the phone. The agents would require the suspect to keep the phone on the table, visible to the agents, and would retrieve the phone priorUnited States v. Tate , No. ACM S32687

5 to the suspect havin g the opportunity to lock it again. The military judge found that this tactic was used on Appellant and that none of the AFOSI agents thought the technique was illegal. The military judge concluded the evidence showed “that AFOSI attempted to dev elop a novel investigative technique, which involved some level of trickery or deception, in order to gain access to” Appellant’s phone. He also found
t hat the “technique was only carried out after the agents received clearance from both their regional lea dership and the servicing legal office.” The military judge explained that although he found the investigative technique

— as employed in this case

— violated Appellant’s Fifth Amendment rights, the agents “still exercised a reasonable amount of diligence deve loping the plan, did not intentionally commit any misconduct, and ultimately arrived at the plan through a mistaken interpretation of the law.” He also found that “the [G] overnment’s conduct was not outrageous, fundamentally unfair, nor shocking to the uni versal sense of justice such that it violated [Appellant’s] due process rights.”

B. Law We review a military judge’s ruling on a motion to dismiss for an abuse of discretion. United States v. Douglas , No. ACM 38935, 2017 CCA LEXIS 407,
at *19 (A.F. Ct. Crim. App. 15 Jun. 2017) (unpub. op.) (citing United States v. Gore , 60 M.J. 178, 187 (C.A.A.F. 2004) )

. “An abuse of discretion occurs when a court’s findings of fact are clearly erroneous or the decision is influenced by an erroneous view of the law.” Id . (citi ng United States v. Lubich , 72 M.J. 170, 173 (C.A.A.F. 2013)) . “The abuse of discretion standard is a strict one, calling formore than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly errone ous.” United States v. Lloyd , 69 M.J. 95, 99 (C.A.A.F. 2010) (internal quotations and citations omitted).Issues of whether an appellant’s due process rights were violated are questions of law that this court reviews de novo. United States v. Berkhimer , 72 M.J. 676, 680 (A.F. Ct. Crim. App. 2013) (citing United States v. Lewis, 69 M.J. 378, 383 (C.A.A.F. 2011)). In doing so, we will give “ substantial deference to the military judge’s findings of fact and will not overturn them unless they are clearly erroneous.” Id. (citing United States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005)). Outrageous government conduct occurs when the behavior of “l aw enforcement agents is so outrageous that due process principl e s would absolutely bar the [G] overnment from invoking judicial process to obtain a conviction . . . violating fundamental fairness, shocking the universal sens e of justice mandated by the Due Process Clause of the Fifth Amendment.” Id

. at 679

– 80 (quoting United States v. Russell , 411 U.S. 423, 431

– 32 (1973)). Such a situation hasUnited States v. Tate , No. ACM S32687

6been defined as a “unique, peculiar situation where the conduct of the government agents reaches the point of shock ing the judicial conscience.” United States v. Vanzandt , 14 M.J. 332, 342 (C

. M

. A

. 1982).

“ To meet the threshold standard of being fundamentally unfair or shocking, the accused must generally show the [G] overnment acted with coercion, violence or brutality to the person. ” Berkhimer , 72 M.J. at 680 (citing United States v. Patterson, 25 M.J. 650, 651 (A.F.C.M.R. 1987) )

. “We use the totality of the circumstances to determine whether the conduct of government agents

r eaches that level of outrageousness which would warrant a dismissal of charges.” United States v. Lawson
, No. ACM 32303 ( f rev), 1998 CCA LEXIS 283, at *6 (A.F. Ct. Crim. App. 10 Jun. 1998) (unpub. op.) (citing United States v. Bell , 38 M.J. 358, 373 (C.M. A. 1993) ) (citations omitted)

. Our superior court has “ long held that d ismissal is a drastic remedy and courts must look to see whether alternative remedies are available .” Gore , 60 M.J. at 187 (citations omitted). “ When an error can be rendered harmless, dismissal is not an appropriate remedy

. ” Id. (citations omitted )

. As it explained further
, “ [D] ismissal of charges is appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings .” Id . (citations omitted).
C. Analysis We have carefully reviewed the evidence of record and the military judge’s extensive and deliberate findings of fact and conclusions of law

. We begin our analysis by noting that Appellant does not argue on appeal that any of the militar y judge’s finding s of fact were clearly erroneous

. We also find that the military judge’s findings were adequately supported by the record and the testimony of the five witnesses called by Appellant in the motions hearing
, and we now adopt them as our own

. Furthermore, we find that the military judge correctly understood the law and that his application of the law to the facts of this case was not “outside the range of reasonable choices.” United States v. Criswell, 78 M.J. 136, 144 (C.A.A.F

. 2018 ) (citatio ns omitted).
On this lat t er point, we agree with the military judge that these allegations, under the totality of the circumstances, fall short of the level of outrageousness contemplated by our superior court, and do not rise to the point of sho cking the judicial conscience. See Vanzandt , 14 M.J. at 342 . As the military judge found, and the evidence supports, AFOSI acted with reasonable diligence to carry out a novel investigative technique that was only later determined by the military judge to violate Appellant’s Fifth Amendment rights. 6 We are not persuaded

6 We do not need to discuss the military judge’s ruling on the motion to suppress in order to determine whether the G overnment’s conduct was outrageous.United States v. Tate , No. ACM S32687

7 by Appellant ’s argu ment that the conduct by AFOSI was outrageous because it was intended to circumvent his constitutional rights. To the contrary
, the evidence leads us to conclude that the AFOSI ag ents subjectively believed they

we re acting within their legal bounds. In fact, the testimony explained precisely how AFOSI sought to act with due diligence by having multiple discussions with both their leadership and the servicing legal office to try and ensure this technique would fall within the parameters of the law. While their interpretation was later ad judged to have been wrong, their conduct does not meet the threshold standard of being fundamentally unfair or shocking under Berkhimer , especially i n light of the fact they followed the advice of not just their leadership, but that of legal counsel as well

. We see nothing in the record to indicate that the G overnment employed coercion, violence
, or brutality during the investigation of Appellant. Finally, e ven if we assume that the Government acted in an outrageous manner, Appellant has not demonstrated any actual prejudice. As we noted above, the military judge identified a violation of Appellant’s Fifth Amendment rights and granted Appellant’s motion to suppress

— suppressing the search of Appellant’s phone and all derivative evidence obtained from that search. The record also establishes that nothing the Government gained from the search

w as used to prosecute Appellant. Therefore, we conclude that the military judge’s ruling adequately cured any potential prejudice
, rendered any error harmless
, and correctly stated that dismissal was not the appropriate remedy

. See Gore , 60 M.J. at 187.

III. C ONCLUSION The findings and sentence as entered ar e correct in law and fact, and noerror materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and the sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court