significant substantial assistance mr woods provided both in a murder trial and in preventing the murder of witnesses and also in intercepting contraband going into two separate us prisons the first issue related to that is whether a u s attorney for the eastern district of kentucky made a binding promise that he would be given a rule thirty five motion to reduce his life sentence to something or to just ask that it be reduced to something less than life and whether that promise is binding in the middle district of tennessee the second related issue to that order that follows from that is if it was only a request and not a promise did the u s attorney for the middle district of tennessee acted unconstitutionally or not rationally in pursuing a legitimate government purpose and refusing to honor that request i should say did we put in a substantial threshold showing that that's what happened so that we could engage in discovery and have an evidentiary hearing to further develop those so say at the very end when the light turns yellow i need to address the issue of whether an opinion should be issued under an alias name i think that's been referred to the whole panel and i'll try to do that very briefly i promise argument at one level i need to defer to you because clearly two sets of intelligent people have read this transfer and received or truth it radically differently my side has read that there was an unequivocal promise that a rule thirty five motion would be filed and the only issue was whether a judge would grant that's what my reading and mr wood reading has been that the on about patrick malloy said it will be up to the judge which when mr wood says there's no promises it will be up to the judge he is further ratifying the understanding that you guys can't promise me that a judge will actually produce my senate judge already in the middle district a tennessee turned down a plea bargain like i got in twenty years and gave me life in prison the dog will know that the judge may not grant i can recommend that is it is correct yes sir but it is up to the judge to forty two you are reading a bad but i want to remind us what we're doing here this was a jury trial had every interest in making mr rhodes testimony as strong as possible it needed to go on the record right then and there because they were going to strengthen mr wood's testimony ok because he was going to be attacked by duane gravely as he was you just say you know all this because you want to get out of your life sentence that was obviously the the realm of cross examination that any defense attorney will proceed but in this case would have done and in fact did do i think clearly there's another intelligent side to it radically differently so i'm going to ask for three people to read it who don't have a dog in this fight the case i've cited on the promise argument obviously this circuit has never addressed it but every circuit that has has held that the united states is the united states wherever the united states speaks as the united states explicitly says we are only speaking for the middle district of tennessee which at least in my experience in plea agreements is very often what we say but but here that was not the case there was no limitation and as i say every circuit that to dealt with this has ruled in the favor that the united states has the united states  the government to suggest to do this argument might be waived at a few quid points they say a civil case scottsdale insurance that has never been applied by the circuit in the criminal context it applies to a plaintiff filing a reply trying to add a new ground i don't think that's a plausible here instead i think the political case law is that the government waves a waiver argument if they don't raise it but no waiver argument was raised it was race for the first time up here as i think it's from over substance there was no time limit on us filing a new motion to compel clearly if we had just entitled to apply something else but said the exact same thing we would be in the exact same place and lastly i'd refer you to the entry itself with  and scrip the transcript wasn't privy provided till august twelfth which in fact after the government's response had already been done and that maybe my fat old for not having ordered it time way to do so i want to say my clients  protective custody it is very hard to communicate with humans in protective custody as far as the bureau of prisons takes it they don't exist if i can't find a counselor who will answer the phone no one will admit my client is a lot i'll come back to that in a different issue in a second event moving on to maybe the more complex substantial threshold showing issue you know this court has never said ready substantial threshold showing is to  compel a rule thirty five motion or to at least get us to an evidentiary hearing so what we do know is no one's ever really even tried it in the six circuit all the sixth circuit opinions i've cited shown cases where defendants have just sort of made a blanket assertion this is unfair so we go briefly through these facts here you know the guy and the district judge both sort of say that penrod's testimony in the gravely trial wasn't crucial that's a relative or a massive minimisation of what his assistance was minder see or filings reveal two separate times he dealt with intercepting contraband that was coming into jail including a guard who was willing to sell handcuff keys here is testimony in so far as it wasn't crucial may not have been crucial because andre player was alive to testify his first assistance in the gravely trial of course was when he alerted the government that he was being given letters by doing gravely which he was being asked to pass on to other inmates to have andre player murdered that was his first assistance in that case he further loaded goads when daryl the beast milburn was on a plane with andre player and said it was his intention players on two separate occasions intervene to protect this other witness he so completely ignored by everyone on the other side has been he awarded the government that duane gravely wished to kill the prosecuting attorney and the judge we haven't had discovery but i believe and i've heard that because of this threat they changed prosecuting attorneys in the eastern district of kentucky they actually took serious action based on it so his assistance was profound but the reasons for rejecting that assistance which i'll say from the u s attorney instead they go but the reasons have to do with mr woods behavior before he was sent now let me talk to you though about that mr rood's somewhat foolishly had represented himself for all intents and purposes he had a lawyer but he did his own plea a range of punishment of twenty years to life and it said that the government was going to recommend and often flavell of thirty eight and they were going to recommend three often for acceptance which would get him to a thirty five this is record entry seven ninety nine dash one that would have put him as his ultimate criminal history was a two and a range of punishment one hundred sixty eight to two hundred ten months which is know if it has happened elsewhere but i certainly did not find any reported opinions where a u s attorney in one district was asking for a rule thirty five is an opinion that i cite where this court found that a substantial threshold showing wasn't made for among other reasons the that influence the u s attorney alerted the u s attorneys up in in this district in the circuit that someone had cooperated but they quite explicitly did not ask for a rule thirty five there was even an issue to appeal you have something before you that would be has some meat on it instead we're talking about a very ments which are based on the best i can do with a client in protective custody and  bright girl prisms is back to denying he exists so i'm getting the story at hand through other inmates who are calling family but i know they've also contacted the u s attorney but he received multiple stitches in the neck yes the bloods want to kill that is a given that that's beyond any dispute but the crips don't necessarily know about him but they also kill snitches on general principle that sort of reciprocity nations also kill snitches they don't necessarily know about  whenever play words goes to another jail and someone runs them through westlaw to see if he's a good guy or a bad guy if this opinion is out there this makes it a very easy recipe to discover that this is a guy who is in a prison system given the death that first time this argument was raised was in the reply brief below and i contend that that's a valid basis for finding a waiver but even beyond that i think it's also strong contextual evidence that no binding promise was ever made factors to consider about his reformed character about the value of his systems and so forth that are consistent with an understanding that this would be a discretionary decision on the u s attorney's path likewise when mr woods went to the district court to try to compel rule thirty five you would expect that he would say judge we had we had a binding agreement here all right thirty five would be filed the government's breach that agreement instead of the defendant came in and  you have some discovery and evidence you're hearing is really a fairly radical remedy that the defendant is seeking seeking to compel the government to exercise something that is to exercise its discretion in a particular way on  matter that's committed by statute to executive privilege discretion and so i was asking that branch of government to basically say in the first instance way let me have access to the us studies office internal think it would be and i can't deny that if if mr miller had come in and said absolutely i made this binding promise but again i think in order to have that that it's made the discretionary decision that once appropriate then the defendant engaged in some sort of constitutionally protected act and then the government somebody says well we decided not to and then it but you know courts have been able to say ok well the government to the reference to the rule thirty five was completely unaware of these prior considerations that in the view of the middle district made a rule thirty five inappropriate so so it's unfortunate situation where this was indicated as a possibility without any knowledge of whether it would really be appropriate going back to the original question of whether it's true that the reasons for government is having its cake and eating it too in those circumstances it seems to me this would be troubling troubling scenario if two facts were different i think would be that the person making this representation of this promise  seeks if the government weren't sort of represented it was a possibility well knowing that it was not i also note in that vein that there's no indication that the militia of tennessee had already sort of prejudge this issue that it made relief from the government but if the government is bad in a way its discretion and promised unconditionally to fire a thirty five smith that that there's absolutely no basis to reach that conclusion and the second is a substantial threshold showing of an unconstitutional motive here have is the speculation that perhaps it was to punish mr rhodes for seeking post conviction relief but that sort of speculation is well settled not enough these are issues of public interest so i'm not sure that sitting under a pseudonym is wanted but that said we don't we don't necessarily have any objection to proceeding under pseudonym if the court thinks it's appropriate rather the most compelling argument we made and we put on this proof is we found three cases each and every one of them was deserving that mr woods where the government did move for really in batterers hours but a couple years before his alexis back which was a proceeds of drugs that she had admitted under oath as proceeds of drugs and then she fell afoul of a false claim but they said in the rule thirty five you may wonder why we're filing a rule thirty five well despite all of the say thi no connection to any legitimate government purpose problem but it also goes to show that the only justification really is punishing mr woods for exercising it's a good script with rights because when you compare him to these other people he to which i resigned so i do remember that yes and and but it was sort of so telling that they say he didn't apologize didn't apologize i just there's he had a right to proceed