​We find the military judge’s colloquy with Appellant did raise a substantial basis to question the providency of Appellant’s guilty plea to striking CG with his “hands” rather than one hand, and that the military judge abused his discretion by accepting Appellant’s plea without modification. In order to find the guilty plea provident, a military judge must establish that the accused believes he is guilty of the offense to which he pleaded. See Murphy, 74 M.J. at 308. In this case, Appellant told the military judge that he could not remember the offense, but he believed he used one hand to strike CG, rather than both hands as charged and pleaded. Having developed this discrepancy, the military judge failed to resolve it. Indeed, the military judge’s comments as he transitioned to a discussion of potential defenses acknowledged that Appellant was only “potentially” guilty of using both hands, but possibly only used his “dominant hand,” and that Appellant was “telling” the military judge he used his dominant hand. We note that CG noticeably suffered injuries to the left side of her face and body, suggesting that Appellant was swinging at her with his right arm as he faced her. However, what is most significant is that the military judge elicited that Appellant doubted the specification he pleaded to accurately described what actually happened. This is more than the mere possibility of a conflict. See Watson, 71 M.J. at 58.

After the parties filed their original briefs, this court decided United States v. Livak, 80 M.J. 631 (A.F. Ct. Crim. App. 2020). Specifically, Livak established an aggregated 150-day standard for facially unreasonable delay from sentencing to docketing with the Court of Criminal Appeals for cases referred to trial on or after 1 January 2019. [W]e find no facially unreasonable delay under the Moreno and Livak thresholds. Because the CAAF has never held that the specific time standards in Moreno were the exclusive means by which an appellant could demonstrate facially unreasonable delay, we have considered whether the actual delays in this case were facially unreasonable. We find the Government exercised a reasonable degree of diligence. Finally, recognizing our authority under Article 66(d), UCMJ, 10 U.S.C. § 866(d), we have also considered whether relief for excessive post-trial delay is appropriate in this case even in the absence of a due process violation.

Appellee’s case is before us for a second time. In 2019, a general court-martial consisting of members with enlisted representation convicted Appellee, contrary to his pleas, of attempted rape of a child, rape of a child, and sexual abuse of a child. In 2021, this Court reversed Appellee’s convictions and authorized a retrial owing to implied bias of one of the members.2 In July 2021, the convening authority re-referred the same charges and specifications against Appellee to a general court-martial. The Government now appeals the following issue: Did the military judge abuse his discretion by excluding Appellee’s testimony during his first court-martial due to Government actions in the member selection process where: (a) this Court found the trial counsel’s recitation of voir dire answers was “an honest mistake,” and (b) under Harrison v. United States and United States v. Murray, suppression is only justified where illegal government action directly induced the accused’s testimony? We find that the military judge abused his discretion and reverse his decision.

This general principle is not a bright-line rule, however. Where a defendant’s prior testimony was induced after the prosecution put into evidence confessions or admissions that were illegally obtained, the testimony becomes the fruit of the proverbial poisonous tree and cannot be used against the accused at later proceedings.
. . . 
In the decades since Harrison, some jurisdictions, including our own, have expanded the logic of Harrison to other due process concerns, namely cases in which ineffective assistance of counsel directly results in an accused’s testimony.

As the military judge recognized, the actions of the Government related to the member selection process did not rise to the level of illegal government action, nor did those actions relate in any meaningful way to the legality of Appellee’s admissions to NCIS. While the standard of review may be the same, we are unwilling to equate a military judge’s error in the member selection process with the erroneous admission of evidence illegally obtained by government agents. There are different public policy interests at stake.
. . . 
[The MJ erred
     [because there was no prior testimony] tainted by the illegal actions of government agents.
        [there was a] good-faith mistakes of [the] trial judge.

[Here] the military judge abused his discretion in applying this Court’s decision in Murray to exclude Appellee’s prior testimony. Murray stands for the proposition that the Government should not benefit on rehearing from testimony that was the direct result of the denial of the accused’s right to effective assistance of counsel. We do not construe that decision to authorize the extension of Harrison’s exclusionary rule to an error (vice illegal activity) during the voir dire process.

​United States v. Murray, 52 M.J. 671 (N-M. Ct. Crim. App. 2000).

​Even if reliable evidence were presented that Appellee testified as a result of the inclusion of LT Alpha on the member panel, the military judge abused his discretion in applying this Court’s decision in Murray to exclude Appellee’s prior testimony.

 It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial.