of what the government believed in good faith was his sham cooperation in the ramsey yousef matter and through his provision of false affidavits and testimony found to be incredible by a judge in the eastern district of new york in support of twenty to fifty five applications on behalf of fellow members  colombo crime family based on his considerable history the government's a client to make a rule thirty five motion on his behalf just over one year after the provision of that incredible testimony refusing to make a rule thirty five motion for somebody with this record even if he offers information that's useful is within the government's discretion image acting the government's refusal that just a court erred both legally and factually the district court erred legally and holding that way let it if the court based on its own balancing concluded that the government had not made a rational balancing of the cost of the benefits you in your brief you argue with the district court did was its own balancing but i'm not sure that's right and i'm and i'm hoping you can help me out it seems to me reading the district court's opinion that the district court considered the government's reasons and determined that they were either unsubstantiated by the record were not credible which seems to me would be a different thing well to me that that seems like the district judge first of all is digging under the government's reason but i don't believe that that's the test we submit that's not the test under way to underweight if the government offers what is a permissible reason which the government did here it offered actually several permissible reasons  that the district judge then can't go under those reasons and do its own balancing in this in this circumstance it can't second guess and said that permissible reasons the government wants the government states credible reason district court and i think in way because this is a i understand that that may feel this the satisfying but because this is a case where there was no cooperation agreement to limit the government's discretion in this matter and because under separation of powers principles as wade recognize that this is something quite analogous to a charging decision that this is something that is exclusively within the executives realm and it can only be narrowly reviewed for if there is the government is doing it for a clearly impermissible reason like race or religion or something where there's just absolutely no rational relationship but it didn't the government didn't in the courts apply that standard rationally related to any legitimate government and it did use quote took false credit right for the information about the nichols explosive because another person had provided that information to government officials that's a quote  came directly to the united states attorney's office to say mr scarper has this information things are put in motion by various people mr scarper himself and others who are acting on his behalf so the information gets to a place where the f b i ultimately thousand and fourteen that the origin of the information was current yes the origin of the information that the explosives were in nichols home was from scarpa but here's some critical things that i think come into play first it's from everyone who submitted on both sides both the fence and the government scarpa never told agent stern or the other f b i agent who interviewed him where the explosives were now there may be disputes as to why clemente say that scarpa insisted on having a cooperation agreement before he would give that information agent stern says that scarpa wanted in the fischel looking document and also the he wanted a cooperation agreement a scarper says look at that time at some point he says and look at that time i didn't have the full information but regardless he didn't give that full information and the question is from the government's perspective at the time when they're evaluating all of this what do they believe and in addition in the november two thousand and twelve oral argument that a different government attorney made reference to there being several inmates who actually had legitimate safety concerns who had indicated to the f b i in their further investigation scarpa was purposely fabricating some of what he told the f b i so this appears to be in the government's view part of the pattern that we saw with ramzi yousef where some information that was useful was conveyed but that that was there was an embellishment and there was a fabrication of stuff to make it more tantalizing for example so again when the question is under way did looking from the government's perspective as opposed to what would this be in a trial with proof beyond a reasonable doubt the government smits that even though we now understand we appreciate that mr starr scarper ultimately did provide the information it's just not enough especially in light of his egregious record and also i think one of the that is false credit refer there is purposeful fabrication as to some but we do give credit to mr scarper that he did ultimately through intermediaries provide the location of explosives those that are used are and are you now saying that scarpa did provide substantial assistance again under way to that that isn't enough he has to show that fast that we withheld the rule thirty five motion based on an impermissible reason and i think in this case it's hard to say because if you take scarper at his word for example if you look at the notes that he made at the time that he was supposedly getting the information from the echols scarpa is saying look nichols is telling me that his brother james was involved in the oklahoma city bombing he was arrested but not prosecuted james knows where the explosives are there is an imminent plot to have the bomb go off on the tenth anniversary things of that nature right so from the government's perspective substantial assistance isn't just getting the explosives it's getting james and scarper is in no way in a position to credibly testify against anyone and what of the record that i referred to and most importantly if we look at what the agent said in two thousand and twelve we're not looking at what i've just talked to the supervisor in the u s attorney's office in the eastern district who is in charge of reviewing whether to make a rule thirty five and he says they're not making it and most importantly that the conclusion of why they're not making it is because of his past history affidavit also relates that the government's i think most fulsome response was the april twenty eighth two thousand and ten letter in response to mr scarps requests for rule thirty five and in that the government relied extensively on mr scope as history and also the need in the district courts few no longer hold water doesn't that make some sense for it to be skeptical skeptical overall i would say i judge should have done is look at everything in the record because again there is a presumption of regularity here and i think in some of the cases that we cited like to pharaoh and a few of the others you'll see in a pattern the government will give five or six reasons for why it's fine to move and the district judge may have rejected reasons monna reason six or reason three but ultimately there's some poor reasoning that still holds and i don't think anyone can possibly dispute scopus record or that the government has an interest in making sure somebody with that  t record receives adequate punishment that there's finality in the judgement that were upholding the jury's verdict that there's closure to the murder victims families and remember he conspired to murder several people all of one except one died so these are reasons that the government had that are valid regardless of what agency earns may have said or not said seven years later i see that my time is running over so for all the reasons that i've stated here and in our briefs i ask that this court reverse the digit district hidden explosive components the posed a serious danger to public safety judge corman's decision should be affirmed because it appropriately recognized under the judicial powers of review identified wade versus united states that the government's refusal to american soil moreover the district court only reached this conclusion after a long and careful consideration of what it found to have been the government's largely implausible contradictory and factually unsupported excuses for refusing to support any sen scarpa substantial assistance the value of which was verified as accurate the moment the authorities found and safely removed explosive components from the exact location the defendant provided me out because it's difficult to see how how you can say that the government's refusal to follow substantial assistance mission here is not rationally related to a legitimate government and least the government articulated a legitimate government and so they said they pointed to several record severe any of the crimes a whole list of them and it is not the district court's job to weigh these and against the policies that you've articulated so how did the district court conclude on what basis that the government did not articulate a reason that's rationally related to religion and well primarily in the situation your honor i mean first of all this is not your standard making cases kind of cooperation to which there's more difference owed to the government in a typical case the government in those kind of cases as with charging decisions or whether to make bring charges at all is more likely to have superior expertise in weighing the value of cooperation and whether or not it was helpful to a particular situation this is a situation that the district court on its face is had intrinsic value the moment the district or the u s attorney's office heard about it government for the district court to be empowered to weigh how great that assistances and what it merits i agree with that again in the context of making cases more than in the context of protecting public safety with verified information what we had here in the situation i mean in the case of cooperation agreement before the fact certainly a district court has an additional level of scrutiny that it must perform to see if there are any particular commitments in the cooperation agreement that the government did or did not fulfill that's separate and apart from whether or not the government is proffering in a situation where refuses to bring a motion for sentencing relief based on verified information if it's prof information that is in fact unacceptably arbitrary incorrect unverifiable sloppy i mean the district court found a lot of problems with the proffered information or proper grounds for the district for the government's refusal bring this motion apart from the history of the defendant and the problem with the history of the defendant is certainly he has a serious history he has serious convictions he served to date twenty nine years for the serious convictions and even with the district courts reduction of ten years he'll hold still serve another decade hoping that he survives it to be able to see the outside of the pr walls again but the history is a long time ago and the government druid's impressions of mr scarper from one thousand nine hundred eight through i guess two thousand and four and from that point on he's been doing some things that are really kind of remarkable for an inmate originally in maximum security federal custody and now in a state facility where the state officials have found him to be an extraordinarily model prisoner he has helped out you just in that the government should have considered is his conduct in jail after in prison after he provided the systems your honor the government has been was asked by judge  numerous times i think most recently at our last telephone conference which i think was in december of two thousand and fifteen whether it had changed its view of whether mr scarper in fact did in fact more in the sentencing reduction with the court search warrant and it wasn't a search warrant there was a lot of misinformation that was being funneled through the government to the district court as reasons and if this were a batson case and the government did have this kind of reasoning that turned out to be completely on supportable as a basis for excluding a juror a court would be properly motivated to say no that's not a good enough reason you have to find something better i'm going to rule against you or the defendant gets a new jury the same kind of situation is here when you're talking about verifiable public safety information that has already done its good deed for the public and the defendant had to hand it at that the government eventually admitted and there's no reason to doubt that he had a hand in it based on that last decade of his behavior and you know the impressions of a congressman the bureau of prisons his present state facility warden government did something that was irrational not only two thousand and five your honor because to the extent the government made a decision in two thousand and five based on misinformation and then maintain that position in two thousand and six seven eight through fifteen even after acknowledging in certain cases that it was misinformation for example that he took false credit or that a search warrant had been used when it hadn't all of these things added to the irrational ization process here that required the district court to look at this as not rationally related to the bottom line goal which is protection of the public this was not a bouncing operation th chase it had already been verified it had been published but there was no reason to dismiss misters corpus assistance other than something not rationally related to public safety it was simply looking for an excuse maybe it was in two thousand and five and maybe that excuse continued even when all of the factual grounds for the excuse didn't hold up but at bottom it wasn't a rational relationship to anything that we should be condoning or not you're not that sort of wipes wipes the slate clean is that what you're saying i think what i'm saying your honor is that it's fine for the government to have misgivings about information that  might present in a trial and have credibility issues for example based on a history of past whatever it is it's fine for the government to be prudent in deciding what kinds of things to look into or not it's not fine when you have verified information that was provided by a particular inmate at considerable risk to himself and that you just dismiss it out of hand without giving him any credit for it i mean if there is a reason for not giving credit here i still don't know what it is i mean a rational reason i don't know what the rational reason for not giving credit is because the information was verified so the verification is what wipes out the history of deception that the government if  provide and in that kind of context perhaps the fact that a person offers information about another potential defendant is not enough i don't argue that what i'm saying is in the particular context here the district court was in as good if not a better position to evaluate the information because the district court didn't have any irrational stuff going on it was being objective as was congress as was all the other objective observers of th nation that it found a credible and it found it helpful all of those i mean basically weighed talks about we don't wait says that generalized allegations of improper motive will not entitle a defendant to a remedy is there anything here more than generalized allegations of government's improper motive well i think so your honor because there have turned out to be well to the extent somebody in the government and i don't necessarily here's my colleagues in the eastern district because they were relying on information from the f b i but somebody in the government was providing either sloppy information misinformation some kind of information that was not in the public interest and yes i mean i think generalized information is it's not just that he gave this information and we think it was something sleazy about the way the government didn't move for him this is a case where he gave the information it was verified the government gave a laundry list of reasons why it didn't think it supported relief and it turns out most of that laundry list was fictional and the district court found that there's no clear in the district court factual findings for certain the only thing that really is left when you boil it all down he said you know mr scarpa has bad history he has a bad history he's been in jail twenty nine years he's doing a good job that we hope all inmates will it some day i mean it doesn't happen very often where you actually rehabilitate yourself you become somebody better than your circumstances might allow and that's what the ten year reduction is being offered here and it's something that obstructive and so forth as many times as you want but if you come up with something that's good the rest doesn't count your honor first i'm not going to make any excuses for mr scarp his trial testimony i do have excuses for whatever he submitted twenty to fifty five motions because there was a family safety aspect of that there is there is no acknowledgment on the defense part that what he tried to do in one thousand nine hundred sixty one nine hundred ninety seven under the auspices of the f b i was anything more than him being used as a conduit for somebody else's compromise judge reggie to not find definitely that he was a person who was trying to play with the system he might have been somebody who passed along compromised information so this is not somebody who's just how playing he's out looking to do something for his life and for the life of others and that's something that yes it i think it should wipe out quite a bit it doesn't wipe out much because i say you still got ten years to go and he's done twenty nine so it's a big sentence for somebody who was in fact charged with the number of provided three reasons for its conclusion that the government's explanation was a post hoc rationalization and none of those withstand scrutiny the district court cited for example how the government treated other cooperating witnesses but none of those were similarly scarpa they had cooperation agreements which put restraints on what the government can do it limits the government's discretion and also in those cases with breach cooperation agreements the government often and almost always i would imagine makes people come in and tell the government proffer what they did wrong so there's a coming clean mr scarpa has never come clean to the government about the full scope of his crimes and indeed the government in two thousand and five the f b i interviewed other corporate was fabricating some of the information that he was given so that in the government's view is more of the same as to the embarrassment theory was discovered concedes on appeal that that wasn't necessary for the judge's decision and that's no more than mere speculation explosives finally as to the the post hoc russia now that's contradicted by the contemporaneous evidence in the record as i mentioned before going back to the two thousand and five e mail where when summarizes did provide the information the eastern district is not interested based on his past history it is right there is right there what the true explanation is so for those reasons the government again asked this court