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Free James Kimball

 

 

 

 

 

 


Motion I

Note-the last 3 pages are scanned in for the reason that the disk that the other pages were taken off from didn't have the most updated version of those last pages

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
Plaintiff

CASE NO.: 8:99-cr-256-T-26TBM

vs.

JAMES T. KIMBALL
Defendant

_________________________________________/

VERIFIED MOTION TO SUPPLEMENT 2255 WITH EVIDENCE AND ARGUMENT
CONTAINED HEREIN

Comes now James T. Kimball (Kimball), requests the Court to supplement his 2255 with the enclosed new evidence and argument and further says:

The statements contained herein are made under the penalty of perjury and are true and correct to the best of Kimball's knowledge and belief. Additionally, Kimball is willing to submit to a professional polygraph and/or truth serum as to the accuracy of all statements contained within this supplement.

  1. This supplement contains new evidence gained after Kimball's trial at Florida Department of Health (DOH) hearings conducted throughout 2001.
  2. Also this Supplement contains evidence, some of which was available at trial, however not presented to the Court due to the fact the Court would not hear or admit the evidence pre-trial or during trial. Kimball requests the court to treat such evidence as new evidence due to the fact that the court never heard the evidence.

BACKGROUND AND ARGUEMENT

  1. It was apparent pre-trial that the court was under the impression that Government misconduct/prosecutorial misconduct was not a winnable issue in this court or within the 11 th Circuit possibly due to the fact that that issue had never been won in the 11 th Circuit Appellate Court. The Court then dismissed witnesses and evidence without hearing or admitting such (See Exhibit A of Motion for New Trial Supplement).
  2. Kimball directed his attorney for his direct appeal, Michael Pasano, to argue the issue of prosecutorial misconduct. Mr. Pasano did not argue prosecutorial misconduct in Kimball's direct appeal, telling Kimball he did not follow Kimball's directions for the same apparent reason this Court refused to hear the evidence. Pasano told Kimball directly after the fact of filing Kimball's appeal that the issue of prosecutorial misconduct/Government misconduct had never been won in the 11 th Circuit Court of Appeals and therefore, Mr. Pasano refused to follow Kimball's direction because he believed the issue could not be won. Obviously Mr. Pasano agreed with this Court that it was fruitless to argue Government misconduct (Exhibit A). Kimball maintains that refusal to argue misconduct by Pasano constitutes ineffective counsel by Attorney Pasano.
  3. However, a month or two later the 11 th Circuit Court of Appeals in US vs. Sigma Int. 196 F.3d 1314 (11 th Cir 1999), also US vs. Sigma Int. 251 F.3d 1358 (11 th Cir 2001), and US vs. Sigma II 287 F.3d 1325 (11 th Cir 2002) (Compound Exhibit B) reversed and sentences were vacated a convicted person due to prosecutorial misconduct. Mr. Pasano contacted Kimball and advised Kimball that he was wrong meaning, he should have argued prosecutorial misconduct.
  4. Oddly enough the prosecutorial misconduct committed in the Sigma Case, was the exact same prosecutorial misconduct committed against Kimball. A mirror image, only the prosecutorial misconduct perpetrated against Kimball was of a much higher degree and wanton than in the Sigma case. Coincidentally the prosecutor and one of the Government agents involved in the Sigma case were AUSA Rubenstein and FDA agent Rande Matteson, the exact two who were involved in the Kimball case. It appears that AUSA Rubenstein was removed from his prosecutorial role and chastised by the appellate court for lying. However, not before they waged their misconduct against Kimball and secured an indictment and eventual conviction against Kimball.
  5. This Court stated after rejecting Kimball's witnesses and evidence of Government misconduct that the Court is always available to hear the issue of Government misconduct (Exhibit B-1). Kimball is in the hopes the Court will honor its previous statement, allow the argument of Government misconduct/prosecutorial misconduct and treat evidence of such as new evidence due to the fact it was not allowed to be heard by the Court.

New Evidence and Government/Prosecutorial Misconduct

  1. Brief Background: In the years involving 1992-1999 Kimball was involved in approximately 8 grand jury investigations. Four or five grand jury investigations, investigating the activities of Kimball, was headed up by a AUSA Phillip L. B. Halpern in California between 1992 and 1997. AUSA Halpern never secured an indictment against Kimball; in fact, he wrote a letter to the FDA suggesting the non-prosecution of Kimball faulting the FDA (Exhibit C).
  2. AUSA Rubenstein, with the assistance of FDA agent Rande Matteson (Matteson), DOH Agent Debra Orr (Orr) and Somerset Pharmaceuticals formed an union to secure a criminal indictment and conviction of Kimball. AUSA Rubenstein convened a Grand Jury (GJ) 97-2 to secure Kimball's indictment.
  3. Kimball demanded to appear before GJ 97-2 and was ultimately granted an appearance by AUSA Rubenstein. After Kimball testified and was questioned by Rubenstein and the Grand Jurors, the GJ decided rather than investigate Kimball, they would investigate US Government employees to include AUSA Rubenstein for violations of laws and Kimball's constitutional rights. In essence, GJ 97-2 was going to investigate Government employees for their outrageous Government conduct in their investigation of Kimball. Kimball was to supply the GJ the evidence and targets, AUSA Rubenstein being one of them. While AUSA Rubenstein agreed to cooperate and assist Kimball in getting the evidence and targets in front of GJ 97-2, when AUSA Rubenstein and Kimball left the GJ room AUSA Rubenstein refused to cooperate in any respect. Rubenstein blatantly lied to the GJ and shortly thereafter GJ 97-2 was disbanded, without any indictment against Kimball. Worse, when Kimball demanded a copy of his testimony before GJ 97-2 and what that GJ agreed to do, when he was finally granted a copy , Kimball's transcript copy had been altered and all the pertinent parts omitted. The aforestated can be easily proven with this Court's approval. Additionally, Mrs. Grooms, Kimball's secretary's GJ transcript testimony had been altered when she appeared before a different GJ.
  4. Rubenstein unable to obtain an indictment against Kimball with GJ 97-2, convened another GJ, GJ 98-2-24. Rubenstein did obtain an indictment against Kimball with GJ 98-2-24, however did so only by the use of outrageous Government misconduct/prosecutorial conduct which included but not limited to, blatant perjury before the GJ, Rubenstein answering questions from the GJ when GJ questions were addressed to his witness. AUSA Rubenstein framing his questions designed to be testimony by Rubenstein before the Grand Jury having his witnesses answer only to be in agreement with Rubenstein's statement questions. AUSA Rubenstein framing his questions in a manner of him testifying clearly revealed the fact that Rubenstein knew when his witnesses were lying before the Grand Jury. Yet Rubenstein would not correct the perjury before the Grand Jury of his witness, allowing the GJ to believe such perjured testimony.
  5. As an example: AUSA Rubenstein directed one of his primary investigative agents, Debra Orr, to testify against Kimball 7 times to 3 different GJ's. Agent Orr worked for the Florida Department of Health (DOH) and had been involved in investigating Kimball since mid-1992. Orr was on a lend-lease so to speak from DOH to assist AUSA Rubenstein since 1998 to secure an indictment against Kimball. DOH already had 2 civil actions against Kimball. Orr had given much deposition testimony which Rubenstein had, however, refused to provide such to Kimball to use for impeachment of Orr at his trial. Rubenstein knew Orr was a liar under oath. Orr acted as Rubenstein's clerk during Kimball' trial, while additionally testifying against Kimball before this Court. In Orr's many GJ testimonies before three different GJs, Orr lied and contradicted herself before all three GJ's.
  6. In one of the many instances of Orr's consistent lying before the GJ, with the apparent knowledge of AUSA Rubenstein was before GJ 98-2-24 on July 1, 99. Just days before that Grand Jury indicted Kimball. The actual testimony is depicted in Exhibit D, P. 29 - P. 30. AUSA Rubenstein is questioning agent Orr about transcript testimony of the owner of a private Postal Box business name Les Walker. Rubenstein asks Orr to find a certain part in the transcript. Orr replies she does not know the exact point and says she can testify to what Mr. Walker said, obviously by alleged memory. She proceeds to attempt to say she cannot cite the transcript verbatim without (meaning reading it). AUSA Rubenstein interrupts Orr with his next question pertaining to Walker's previous GJ testimony asking Orr about what Mr. Walker testified to with regard to his conversation with a Gaylord Hughes, not allowing Orr to finish her statement. Orr answers the question not reading from Walker's transcript testimony, telling the Grand Jury about what Mr. Walker testified to regarding a conversation between Mr. Walker and Gaylord Hughes. Orr blatantly lied to the Grand Jury about what Mr. Walker had testified to before a different GJ.
  7. Agent Orr testified that Walker testified before a different GJ that Gaylord Hughes told Mr. Walker that Hughes worked for Kimball and Kimball was Hughes' Mexican counter-part, Exhibit D, P. 30. That testimony by Agent Orr was an absolute lie by Orr and AUSA Rubenstein knew Orr was lying to the GJ (emphasis added). This simply because AUSA Rubenstein let that very damaging perjurious testimony by Orr slide by and went to his next question "He named James Kimball, though, did he NOT"? There is no question that AUSA Rubenstein had read and knew exactly what was in Mr. Walker's GJ testimony before the previous GJ 97-2 that did not indict Kimball (Exhibit D. P. 30). Again, simply because AUSA Rubenstein had previously made a statement before the Grand Jury in the form of a question to Orr saying "Did Mr. Walker testify about Gaylord Hughes coming in every day to empty out the mailbox?" Orr's answer "Yes he did" (emphasis added) (Exhibit D, P. 29). Those questions by Rubenstein revealed that Rubenstein knew what was in Walker's GJ transcript notwithstanding Rubenstein was present and questioned Mr. Walker when he testified before GJ 97-2. Rubenstein himself couldn't even be truthful in his leading statement/questions to Orr in which Orr concurred. AUSA Rubenstein had to exaggerate what Mr. Walker testified to by asking Orr about M. Hughes emptying the mailbox everyday. Mr. Walker testified that Mr. Hughes emptied the mailbox almost everyday (Exhibit E) (emphasis added). In another statement/question to Orr revealed AUSA Rubenstein knew exactly what was within Mr. Walker's transcript testimony before GJ 97-2 when AUSA Rubenstein additionally asked Orr about Walker's GJ testimony Q: "and did he say that Kimball had been making deprenyl for about 10 years?" Although again, AUSA Rubenstein had to exaggerate by saying 10 years instead of 8 years, Mr. Walker did state in his testimony before GJ 97-2 in 1998 that Mr. Hughes told him Kimball had been making Deprenyl since 1990 (Exhibit E).
  8. Mr. Walker's testimony before GJ 97-2 (Exhibit E) reveals that Mr. Walker did NOT testify that Mr. Hughes said to him that Kimball was his Mexican counter-part nor did Mr. Walker testify that Mr. Hughes said that Mr. Hughes worked for Mr. Kimball. Moreover, Mr. Walker referenced that Kimball did not own Gaylord's Business in Phoenix (Exhibit E, P. 14 - P. 20) (Emphasis added). AUSA Rubenstein reflected that he knew that Mr. Hughes owned the business in Phoenix in his questioning of Hughes before the GJ (Exhibit E, P. 15, L5). Walker confirmed the fact that Hughes owned the business in Phoenix in his testimony at Kimball's trial Exhibit F, P. 139 - P.141. Additionally, at Kimball's trial Mr. Walker reconfirmed and testified that Mr. Hughes did not mention to him the name of his counterpart in Mexico, even though AUSA Rubenstein did his very best to misconstrue Walker's prior testimony before GJ 97-2 to say Walker named Hughes Mexican counterpart within his GJ testimony Exhibit F, P141. It appears that Rubenstein was attempting to cover Agent Orr's lies before the Grand Jury that indicted Kimball and cover up his knowledge of those lies with Walker's trial testimony, however to no avail.
  9. It is Kimball's contention that the majority of Orr's testimony before the Grand Jury was a preplanned playact between Agent Orr and AUSA Rubenstein to secure an indictment against Kimball. AUSA Rubenstein and Agent Orr were very well versed in playacting together before GJ's. In one GJ AUSA Rubenstein and Orr demonstrated the capability of playacting before the GJ exceedingly well. AUSA Rubenstein directed Orr to pretend to be two different FDA employees, and testify as if she were them, allegedly reading only pre-selected excerpts from each one's testimony before a different Grand Jury (Exhibit G). During one playacting testimony session, AUSA Rubenstein states to that GJ what Mr. Robert Nighswander from the FDA means in his testimony before a different GJ and his witness Orr agrees (Exhibit G, P.14 - P.15). AUSA Rubenstein does the same again and Orr agrees (Exhibit G, P. 15) and again, (Exhibit G, P.16). AUSA Rubenstein interrupts their play-acting again and asks Agent Orr about her memory of what a different transcript stated while the questions Rubenstein asked were statements to the GJ in which Agent Orr simply agreed with what AUSA Rubenstein stated (Exhibit G, P. 18). Rubenstein did this again while Agent Orr was playacting as Dr. Katz from the FDA (Exhibit G, P. 34). Again AUSA Rubenstein interrupts their play-acting to tell the jury what Dr. Katz means in the alleged prior GJ transcript Orr is allegedly reading and Agent Orr agrees (Exhibit G, P. 35) and again (Exhibit G, P. 36). Rubenstein interrupts the cross-examination play-acting of Orr, to testify to the GJ (Exhibit G, P. 41).
  10. AUSA Rubenstein even answers questions of Grand Jurors (Exhibit G, P. 49 - P.50) directed to his witness.
  11. Orr blatantly lies to this Grand Jury and testifies in response to a Grand Juror's question "There is no Discovery of Mexico", Exhibit G, P. 51 - P52. Orr testified there was no discovery of Mexico after she accumulated all the evidence that Discovery of Mexico did exist via checks being deposited in Banco Del Atlantico in Mexico, spoken to agents that visited the facility in Mexico, and DBA's filed for Discovery of Mexico and presented such evidence previously in State Court. Even AUSA Rubenstein interrupts the GJ question stating there is such a company to cover such a preposterous lie by Orr. Rubenstein suggesting they haven't seen any corporate papers (Exhibit G, P. 51, L. 19 - P52, L2). In a previous GJ, Orr had testified and identified an account card for Discovery Mexico, checks deposited to that account at Banco Del Atlantico in Mexico, name registrations and a mail service application (Exhibit H, P22-P35).
  12. Through out all the GJ transcripts Kimball has obtained AUSA Rubenstein answers questions directed at his witnesses by Grand Jurors, makes statements before the GJ, in essence testifies while not under oath while leading his witnesses to such an extent that AUSA Rubenstein is testifying while his witnesses only agree with the statement made by him.
  13. The misconduct and perjury before GJ 98-2-24 which eventually indicted Kimball was blatant and obvious throughout the Grand Jury sessions headed by AUSA Rubenstein.
  14. A further example of outrageous misconduct, perjury, deceit and gross misleading of GJ-98-2-24 (GJ 98) by AUSA Rubenstein and Agent Orr came less than a month before GJ 98 indicted Kimball. It was clearly obvious that AUSA Rubenstein and agent Orr's plan was to convince GJ-98 that Kimball nor his companies were licensed by the State of Florida to manufacture and distribute medicinal drugs. Thus the GJ 98 would have to indict Kimball.
  15. Before GJ 98 Rubenstein asks if Kimball has any licenses from the State of Florida at this time. Orr testifies NO. Rubenstein then asks Orr if Kimball ever had a license as a drug wholesaler. Orr testifies NO (emphasis added). (Exhibit I, P. 51 - P. 52). Those were blatant lies by Orr to the Grand Jury and AUSA Rubenstein knew Orr was lying. Orr even testified before Judge Lazzara at a pre-trial hearing that Kimball was not licensed (emphasis added).
  16. Kimball not expecting Orr to testify to the Court such a blatant lie did not bring the evidence to the hearing which would reveal such perjury by Orr.
  17. Orr testified differently to a subsequent Grand Jury that Kimball was licensed, but only for one year from 1992 to the beginning of 1993 which was another lie and that the license was not in effect at anytime in 1999, another lie (Exhibit J, P. 12 - P. 13).
  18. Orr finally admitted the truth in testimony under oath before the administrative court in 2001 over a year after Kimball was incarcerated. Orr testified that the license issued to Kimball from the State of Florida, DOH does allow a person to distribute products, contradicting her testimony before the GJ which indicted Kimball. As aforestated in #22 Orr testified Kimball never held a license (Exhibit K).
  19. Additionally, Orr testified under oath at that same administrative hearing, Dec. 4, 2001 to the following: Question by Kimball: "It will? Okay. So the permit does allow …. Okay. That's asked and answered. Is it not a fact, Ms. Orr that you testified to a Grand …..to a couple of Grand Juries that James Kimball not only wasn't licensed by the State of Florida, but never held a license as a distributor from the Department of Health?" Answer by Agent Orr: "We don't issue a ……well, we issue a wholesale license. And I don't know what I stated, and I don't know the timeframe as far as licensing was and so forth Mr. Kimball." (Emphasis added) (Exhibit K).
  20. Kimball and his companies were licensed by the State of Florida to manufacture and distribute both pharmaceuticals and dietary supplements as testimony and public records reflect from 1993 on. Pertaining to the pharmaceutical manufacturing and distribution license from DOH which agent Orr had been testifying about before Grand Juries and this Court; the following background transpired regarding that combined permit.
  21. Kimball filed for a permit to manufacture and distribute pharmaceuticals from DOH in October of 1992. Around the same time Kimball requested permits from the DEA to handle controlled substances; the FDA to manufacture pharmaceuticals; and the State of Florida for the manufacture and distribution of Dietary Supplements. All permits were approved with the exception of DOH. DOH refused to process Kimball's application and act within their rules and law. Kimball subsequently sued these individuals from the state along with other individuals employed by the Government for their illegal acts in 1994 only to have the courts declare immunity for all the individuals involved, while the Supreme Court refused to hear the issue. Kimball even filed a complaint with the Florida Bar against DOH Attorney Robert Daniti for his illegal acts. The Florida Bar replied they could do nothing due to the fact none of the lawsuits had come to a conclusion.
  22. Florida Statue 499 states clearly that if DOH refuses to act on an application such as Kimball had applied for, the permit is deemed approved by Florida Law in 90 days. DOH knowing this subsequently in 1993 filed an administrative complaint against Kimball asking the administrative court to use its jurisdiction and to find the permit was denied or in the alternative if the permit was deemed issued as Florida Law states, to revoke Kimball's permit. The conclusion of that DOH administrative court came after Kimball was incarcerated in 2000 and cites from the transcripts were used herein; in the motion for 2255 along with its Supplement Motion for New Trial.
  23. At the time, by established Florida Law, Kimball would have been licensed by DOH in January of 1993. Also by law, at that time the permit was good for two years and would have been due for renewal in January of 1995. However, when Kimball went to renew the permit, DOH refused the renewal request or to even send Kimball a renewal application, allegedly due to the ongoing administrative hearing that DOH kept postponing until December of 2000 concluding in December of 2001.
  24. DOH from 1995 though 1997 maintained Kimball was not permitted by them for Kimball's failure to renew the permit. The permit issue and its renewal ultimately was brought forth by Kimball before the Florida Circuit Court, July 10, 1997. Present at the hearing before the Court was Kimball and his attorney, Elliott Dunn, and for DOH was Agent Orr and Attorney Daniti. The Court clearly found that Kimball was licensed under Florida Statue 499. When Attorney Daniti asked the Florida Circuit Court to find that Kimball's permit had expired as a matter of law, 2 years later the Court stated: "I can't find that at this time. I'm not saying …. I'm not finding that." (See transcript from the Circuit Court Hearing on July 10, 1997 (Exhibit L). No subsequent hearings were held regarding the permitting issue of Kimball in any Court until after Kimball was incarcerated.
  25. After Kimball was incarcerated, Kimball was informed that Mary Grooms, Kimball's secretary's sister had run into one of the people that sat in on Kimball's Grand Jury. In conversation between them, the previous Grand Juror was in shock when she was advised that Kimball was in fact permitted by DOH, after hearing the deceit by Rubenstein and perjury by Orr that Kimball was not permitted. It's obvious that testimony alone had a huge impact upon the GJ 98 to indict Kimball as did the lies by Orr, condoned by AUSA Rubenstein, that Kimball was identified by Hughes as his Mexican counterpart and that Kimball owned the business in Phoenix referenced herein in #13, 14, and 15.
  26. As aforestated, Orr testified in Federal Court Kimball wasn't licensed by DOH. The deceit by Rubenstein, false testimony by Orr were ongoing and continuous throughout all the Grand Juries and trial. Twenty pages couldn't even start to reference the multitude of incidents of outrageous misconduct between Agent Orr and AUSA Rubenstein.
  27. As referenced prior, Orr couldn't even tell the truth regarding the length of time Kimball's license was valid for, even if the Florida Circuit Court had deemed the permit expired. In Exhibit L, Attorney Daniti cited the law stating the permit would have expired in two years. Orr testified before different Grand Juries the permit had expired in one year. Orr, like AUSA Rubenstein had to lie and exaggerate the facts consistently. Rubenstein had Orr admitted as an expert in law. Orr testified she was present when the Florida Circuit Court made its finding in 1997. A fact AUSA Rubenstein had to have knowledge of, yet again, Orr testified under Rubenstein's direction subsequently to GJ's and this Court, that Kimball is not licensed and never was to one Grand Jury and to another for only a year.
  28. Another instance of Orr lying before the Grand Jury with the knowledge of Rubenstein came when Rubenstein questioned Orr about an incident that happened in 1990 when Kimball's car was stopped illegally (found by the Florida Circuit Court). Orr testifies before the Grand Jury what was found in the trunk of Kimball's car during that illegal stoppage. Orr under the direction of AUSA Rubenstein before the GJ was testifying about alleged incidents which transpired over 2 years before Agent Orr was even employed by DOH. Agent Orr testifies that tens of thousands of newspapers Inside Health (which was used by Rubenstein as evidence against Kimball) was found in the trunk of Kimball's car in a search of Kimball's care in 1990. First, tens of thousands of newspapers couldn't even fit in the trunk of a 1990 Cavalier. Secondly, the newspaper wasn't even published until the Spring of 1991 and AUSA Rubenstein held such evidence and produced such in Federal Court (Exhibit M, P. 16 - P. 17).
  29. AUSA Rubenstein leads Orr into knowingly untruthful testimony that the criminal charges against Kimball that involved the stoppage of Kimball's car in 1990 were resolved with a consent order/stipulation. Orr continues on to testify how Kimball violated that stipulation (Exhibit N). When in fact Rubenstein, as a prosecutor, was well aware of the criminal charges brought against Kimball as a prosecutor and that the Florida Court had found the stoppage of Kimball's car was illegal which had nothing at all to do with any consent agreement. Orr was lying with Rubenstein's knowledge. The consent agreement had nothing at all to do with the resolution by the Court of the illegal stop of Kimball by the FDA, DOH and Pasco county.
  30. AUSA Rubenstein directs FDA investigator Rande Matteson (Matteson) to testify to GJ 98 about everything that was transpiring in the investigation of Kimball in 1993 and prior (Exhibit P, P. 1-P. 5). However, in Federal Court, Matteson testified he did not take part in any investigations then, he was only part of the search team (Exhibit O). Matteson would have no first hand knowledge.
  31. AUSA Rubenstein knowing Matteson did no investigation himself in 1993, deceives the GJ in his leading question/statement reflecting that Matteson secured the search warrant for Kimball's home and business in 1993. Matteson lies and says yes (Exhibit P, P. 1 - 5).
  32. AUSA Rubenstein directs Matteson to playact before GJ 98 which indicted Kimball pretending to be Mr. Walker from Phoenix allegedly reading previously selected excerpts from Mr. Walker's testimony before a previous GJ which refused to indict Kimball (Exhibit P, P. 13 - P. 20).
  33. AUSA Rubenstein directs Matteson to again playact before GJ 98 pretending to be Wendy Zaritsky allegedly reading previously selected excerpts from Ms. Zaritsky's previous testimony (Exhibit P, P. 20). While Matteson is testifying as Ms. Zaritsky, AUSA Rubenstein interrupts Matteson/Zaritsky to ask about Matteson's alleged investigation while AUSA Rubenstein begins testifying and Matteson offers hearsay testimony to the GJ about a clerk at a storage facility (Exhibit P, P. 30 -33).
  34. Rubenstein now directs Matteson to playact before GJ 98 and testify as Agent Debra Orr allegedly reading pre-selected excerpts from Orr's testimony. This act by Rubenstein is totally unethical for seeing Orr testified 7 times before 3 Grand Juries in attempts to indict Kimball, was an assistant investigator of Kimball and was readily available to testify (Exhibit P, P. 40 - P. 41). AUSA Rubenstein now testifies to the same GJ that Agent Orr's testimony starts back in 1991 when Rubenstein knew perfectly well Orr did not start working for DOH until mid-1992 (Exhibit P, P. 41). Rubenstein additionally testifies to GJ 98 about newsletters being taken out of the trunk of Kimball's car in 1990 (Exhibit P, P. 46 - P. 47). AUSA Rubenstein also has FDA Agent Matteson testify before GJ 98 as Ms. Debbie Berman, allegedly reading previously selected excerpts from Ms. Berman's previous GJ testimony (Exhibit P, P. 35 - P. 40).
  35. AUSA Rubenstein gives Matteson a box of Grand Jury evidence to hold twice, on May 20, 1999, and again on June 17, 1999. This box of evidence containing about 1,000 documents was presented but not introduced to the GJ 98 by Kimball and reflected the illegalities and outrageous Government conduct by Federal and State employees, to include the illegalities and misconduct performed by AUSA Rubenstein, Agent Orr and Agent Matteson. Some of this evidence was presented to GJ 97-2, which did not indict Kimball. Less than a month before Kimball's indictment, AUSA Rubenstein and Matteson attempt to introduce very few of the documents Kimball left with GJ 98. It appears AUSA Rubenstein never read them. AUSA Rubenstein testifies as to Kimball's notes and tells the GJ what Kimball may have said. As they start to introduce Kimball's documents both Matteson and Rubenstein refuse to read the cover sheets to each document which explains in detail each document's content. When finally the cover sheets are read to GJ-98, AUSA Rubenstein immediately testifies to the GJ to defend against Kimball's documents. In one instance, AUSA Rubenstein testifies to GJ 98 about a toxic contaminate in the drug Eldepryl. Rubenstein testifies that Dr. Owen said in his previous GJ testimony that was "Balderdash." What Rubenstein did NOT tell the GJ was that Dr. Owen had left the employment of Kimball before Dr. Barltrop discovered the toxic contaminate in Selegiline Hydrochloride. Dr. Barltrop had already told AUSA Rubenstein, Agent Matteson and Agent Orr about the contaminate, Rubenstein refused to tell GJ 98 the truth about what he knew. As Kimball's documents became detrimental to the Government's case to secure an indictment; abruptly, AUSA Rubenstein ends the introduction of Kimball's documents to GJ 98. Rubenstein again gives custody of all Kimball's GJ documents to Matteson. The GJ foreperson questions Rubenstein's ethics in giving the GJ documents to Matteson, however, Rubenstein does it anyway. Kimball documents were never mentioned again in any transcript Kimball possesses. GJ 98 asked Kimball to bring those documents to them. Kimball maintains that if those documents were presented to GJ 98, that GJ 98 or any other GJ would never have indicted Kimball (Exhibit Q, P. 5 - P.25).
  36. Special FDA Prosecutor Jennifer Jones (Jones) takes over for AUSA Rubenstein, stating to Matteson, her witness, before GJ 98 that she testified to the GJ a recap of Dr. Nighswander previous GJ testimony while now Matteson is pretending to be Dr. Nighswander and Jones becomes AUSA Rubenstein. Matteson testifies as Nighswander explaining to GJ 98 what the law says from 1906 to current date when neither Matteson nor Dr. Nighswander are even attorneys. Even AUSA Rubenstein comes into the act, interrupting their testimony before GJ 98 to testify explaining what the alleged transcript they were reading was talking about (Exhibit R, P. 2 - P. 25).

Summary

  1. The aforestated herein this supplement reflects at minimum, evidence of ineffective counsel by Attorney Pasano, prosecutorial misconduct by Michael Rubenstein and Jennifer Jones, continued perjury by Agent Orr known and condoned by AUSA Rubenstein, gross misleading, and untruths before the GJ, by Agent Matteson. The blatant perjury by Orr, known and condoned by AUSA Rubenstein, regarding major issues which indicted Kimball, included, but not limited to: Orr testifying to GJ 98 that Kimball owned Mr. Hughes business in Phoenix, that Hughes identified Kimball as Hughes Mexican counter-part, that Discovery of Mexico did not exist, that Kimball was not permitted by DOH along with Kimball being permitted by DOH for only one year, were in fact

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