UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM S32687

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UNITED STATES

Appellee

v.

Caleb A. TATE

Senior Airman (E-4), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary 

Decided 4 February 2022

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Military Judge: Colin P. Eichenberger.

Sentence: Sentence adjudged 30 December 2020 by SpCM convened at 

Fairchild Air Force Base, Washington. Sentence entered by military 

judge on 12 January 2021: Bad-conduct discharge, confinement 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 ANNEXSTAD delivered the opinion of the court, in which Senior 

Judge LEWIS and Senior Judge KEY joined. 

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

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ANNEXSTAD, Judge:

A special court-martial composed of a military judge convicted Appellant, 

in accordance with his pleas and pursuant to a plea agreement (PA), of one 
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2

specification of attempted possession of 3,4-methylenedioxymethamphetamine, one specification of dereliction of duty on divers occasions, one specification of wrongful use of a controlled substance (Adderall) on divers occasions, 

and three specifications of wrongful use of a controlled substance (lysergic acid 

diethylamide, 3,4-methylenedioxymethamphetamine, and psilocybin) in violation of Articles 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 grade of E-1.3

Appellant raises a single issue before this court: whether the military judge 

abused his discretion when he denied Appellant’s motion to dismiss based on 

outrageous government 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. BACKGROUND

In 2019, the Air Force Office of Special Investigations (AFOSI) at Fairchild 

Air Force Base (AFB), Washington, began investigating a group of Airmen 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 maintenance squadron. 

On 2 October 2019, AFOSI agents attempted to interview Appellant about 

his involvement in the illegal drug activity. Following a rights advisement, Appellant unequivocally invoked his right to counsel. AFOSI agents subsequently 

informed Appellant of their authorization to seize and search his cell phone. 

The interviewing agents then offered Appellant the “opportunity” to collect any 

phone numbers he needed 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 wrote down some phone numbers, AFOSI agents seized Appellant’s phone and continued to touch and swipe the screen in order to delay the 

 

1 All of the offenses were committed in 2019; therefore, all 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 pleaded guilty 

to all charges and specifications, preserving for appellate review the issue of whether 

the case should be dismissed for outrageous government conduct.

3 The adjudged sentence complied with the sentence limitations as detailed in the PA.
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auto-locking mechanism and ensure the phone remained unlocked. 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 second motion,

Appellant moved to dismiss all charges and specifications for Fifth Amendment5 due process violations based on outrageous government conduct during 

the seizure and search of his phone. During the motions hearing and in support 

of both motions, 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 Agents (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 information 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 among 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 

seizure” 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 and suppressed the contents of the search of Appellant’s phone and all 

derivative evidence. The same day, the military judge denied Appellant’s motion to dismiss all charges and specifications, as is discussed further in this 

opinion. Two days later, on 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 right 

to counsel formed the basis of his motion to suppress.

5 U.S. CONST. amend. V.
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guilty plea to all charges and specifications and pursuant to the PA, specifically 

preserved the motion to dismiss for appellate review.

II. DISCUSSION

Appellant contends the military judge abused his discretion when he denied his motion to dismiss the charges and specifications based on outrageous 

government conduct. Specifically, Appellant argues that AFOSI agents intentionally violated his Fifth Amendment rights by using preplanned techniques

to gain access to his locked phone. He contends that the Government’s conduct 

was outrageous because he was “both coerced and pressured to waive his constitutional rights to unlock his phone” when he was asked by the AFOSI agents 

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 Government’s conduct violated “fundamental fairness” and was 

“shocking to the universal 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 judge 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, and 

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 agents 

would 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 prior 
United States v. Tate, No. ACM S32687

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to the suspect having 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 develop a novel investigative technique, which involved some level of trickery or deception, in order to gain access to” Appellant’s phone. He also found 

that the “technique was only carried out after the agents received clearance 

from both their regional leadership 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 developing 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 universal 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. (citing United States v. Lubich, 72 M.J. 170, 173 

(C.A.A.F. 2013)). “The abuse of discretion standard is a strict one, calling for 

more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” 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 “law enforcement agents is so outrageous that due process principles would absolutely bar 

the [G]overnment from invoking judicial process to obtain a conviction . . . violating fundamental fairness, shocking the universal sense 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 has 
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been defined as a “unique, peculiar situation where the conduct of the government agents reaches the point of shocking 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 

reaches 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 dismissal 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 

military judge’s findings 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) (citations omitted).

On this latter 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 shocking 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 Government’s conduct was outrageous. 
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by Appellant’s argument 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 agents subjectively believed they 

were 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 adjudged to have been wrong, their conduct does not meet 

the threshold standard of being fundamentally unfair or shocking under 

Berkhimer, especially in 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 Government employed coercion, violence, or brutality during the investigation of Appellant.

 Finally, even 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 

was 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. CONCLUSION

 The findings and sentence as entered are correct in law and fact, and no 

error 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