UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA

CASE NO.: 99-256-Cr-T-26E

JAMES T. KIMBALL, et al

_________________________________________/

AMENDED VERIFIED MOTION FOR NEW TRIAL

Comes now Defendant, James T. Kimball (Kimball), (Movant) pro se, pursuant to Rule 33, Federal Rules of Criminal Procedure, and requests the Court grant him a new trial and says:

The following statements are made under the penalty of perjury and are true and correct to the best of Kimball's knowledge and belief. Further Kimball is willing to submit to a professionally administered truth serum and/or polygraph as to all statements made herein.

Factual Case Background

1. The court advised Kimball at a hearing just prior to trial that he was entitled to use a Good Faith/State of Mind defense (Ex. A, P.25-26, P.32). The court re-affirmed this defense upon Kimball's opening statement by stating "Good Faith is the defense here no question about that. Let's get to it." (Ex. B, P.17).

2. Kimball's defenses of Good Faith/State of Mind and ambiguity were predicated upon the laws, advice of legal experts, attorneys, contradictory laws, along with why Kimball believed he was not violating any laws, based upon what the law stated that he was operating under. Also incorporated within the good faith was Government employee misconduct as Kimball had exercised his first amendment right and petitioned the FDA to deem Kimball's product he was indicted for, to be determined to be a food additive, vitamin, i.e., dietary supplement, with medical claims, long before his indictment. The FDA had violated Kimball's 1st amendment right to petition and 5th amendment right to due process and returned Kimball's petition without administrative review, as required by law under 21 U.S.C § 3391 and under the Administrative Procedure Act (5 U.S.C. § 553). Also see Ex. C-1, P.4-5.

3. The laws which Kimball was advised of and believed in were clearly stated within his motions prior to trial in this instant case and a duplicate case which was ultimately dismissed (Compound Ex. C). The fact that the evidence was revealed at trial regarding these exact violations of Kimball's constitutional rights by Government officials was well depicted within (Ex. C-3, P.4-7).

4. In order for Kimball to project his State of Mind/Good Faith defense to the jury, Kimball had to relate the verbiage of the laws to the jury, explaining why his actions were not in violation of any law, along with why Kimball acted as he did under the law. Without being able to quote the law or constitution, it would be impossible for Kimball to project to the jury why he acted as he did, along with the rationale behind Kimball's activities. As examples:

      A. The court allowed the Government to introduce two letters received by Kimball from FDA employees around 1993-1994 advising Kimball his activities were in violation of the law. The Government made a big issue about these letters and Kimball's defiance of the law, which made a huge impression upon the jury, very detrimental to Kimball's Good Faith defense. As set forth in (Ex. C-1, P.6-7) and 21 CFR § 10.85K which reflect what an employee of the FDA says is the opinion of that employee and not necessarily the official opinion of the FDA. Also reflected is what is required to secure a FDA opinion (Ex. C-1, P.4-5 and P.7). Kimball was barred by the Court to cite any law whatsoever to the jury or have anyone testify about the law or what it says. Kimball could not tell the jury that he had been advised that those letters were NOT OFFICIAL warning letters; were only an employee's opinion and under their own law, did not constitute the official opinion of the FDA.

      B. Once Kimball had the testimony from the Government's witnesses about the fact that Kimball had in fact petitioned the FDA in 1991 to determine Kimball's product a food product/dietary supplement with medical claims, which Kimball did argue in motion form (Ex. C-3, P.4-7). Kimball was going to present to the jury exactly why the FDA employees involved violated Kimball's 1st amendment rights to petition by returning Kimball's petition without mandatory administrative review reflected in the Administrative Procedures Act stated in (Ex. C-1, P.4-5 and P.7). Also, that certain FDA employees in doing so additionally violated Kimball's 5th amendment rights to due process under that act. From that point Kimball would have conveyed to the jury simply; how can the FDA who had refused to adhere to their own laws that govern them in their actions, indict Kimball when they previously refused to make a determination that by law they must. Kimball would have continued; how could the FDA who has been mandated by Congress as the only one in our country to make any decisions regarding medicinal drugs, ask a jury to make such a determination when the FDA had refused to do so. Kimball would have explained the condition precedent to the jury under 21 U.S.C. § 335 (Ex. C-1, P.10-11) and the fact the FDA did so "after" Kimball's indictment (Ex. D, P.11 with referenced Ex.). Again, Kimball was barred by the court to cite and reference laws before the jury or reasons for his actions. The Government used the law and Kimball's petition against Kimball, before the jury, while Kimball was barred from citing the law to the jury and telling the jury how and why the FDA violated Kimball's constitutional rights, and why he acted as he did.

5. What the Court had done, is, on one hand deem it's fine to use State of Mind/Good Faith, then on the other hand prohibit the introduction of any evidence which would explain and prove Kimball's good faith defenses.

6. Kimball had planned to use the testimony of his in-house corporate attorney, Elliott Dunn (Dunn) to impeach Government witnesses, state to the jury what he advised Kimball regarding the law and the fact that Kimball always believed he was not doing anything illegal, along with the fact Dunn believed Kimball's companies were not operating illegally. Dunn was additionally going to testify that it was always Kimball's belief that the product Kimball was indicted for was a dietary supplement by law and not a drug, along with the reasons why Kimball firmly believed that.

7. At the April 27, 2000 hearing prior to the start of the trial on May 1, 2000, Kimball put Dunn on the stand to impeach a previous Government witness, Louis T. Smith (Smith). Smith had been Kimball's legal advisor and FDA compliance officer since Kimball had started the companies 9 years prior. Smith had spent years researching the FDA laws along with the Florida Department of Health (DOH) laws and advised Kimball of the laws and was to keep Kimball's companies in compliance with all such laws. In Kimball's absence Smith was in charge of all Kimball's companies and was aware of all Kimball's businesses and personnel activities and had the keys to both Kimball's businesses and home. All this came out in testimony throughout the pre-trial hearing and during trial. Smith was allegedly an admitted Confidential Informant (CI) for FDA agent Rande Matteson and AUSA Rubenstein.

8. The Court interrupted Kimball's examination of Dunn just as he was contradicting Smith's earlier testimony intimidating both Kimball and Dunn to estopp Dunn from testifying. The Court suggests that "Kimball withdraw the motion right now and sit down" (Ex. A, P.138). Kimball being pro se, not versed in criminal law, complied to the Court's adamant request. Had the Court not made such a demanding suggestion, Kimball would have never removed Dunn from testifying, as he was a key defense witness. Dunn was testifying at that time not only to impeach Smith's earlier testimony, but in support of a motion to dismiss, due to invasion of the legal camp by the Government. Dunn had extensively researched this motion and had advised Kimball that Smith met all criteria set forth in case law for dismissal due to the Government invading the legal activities of Kimball and his companies. Notwithstanding the court told Kimball previously, "I will not advise you in any way whatsoever as to how to try this case" (Ex. A, P.52), then subsequently after adamantly advising Kimball to withdraw his motion and sit down the court states "I don't want to tell you what to do, but for God's sake." The court may have felt it was helping Kimball, however it was exceedingly detrimental to Kimball's defense as stated herein in #s 6,7 and 8. Dunn's testimony alone pre-trial and during trial could well have had such an impact upon the jury as to advice of counsel, Kimball's State Of Mind/Good Faith defense and ambiguity within the law, that the jury would have found Kimball innocent of all charges. Dunn's testimony pre-trial would have substantiated Kimball's motion to dismiss that the court requested Kimball to withdraw.

9. Earlier in the same April 27, 2000 hearing (Ex. A, P.85-115) the Court had interrupted Kimball's line of questioning of Smith that was specifically laid out to reveal that Smith had told the Government where to search and what to take to include all Kimball's legal defense documents and arguments in a duplicate civil case with DOH. The interruption by the Court, along with the demand by the Court for Kimball to produce a map (Ex. E) before he was ready to, and the complete take over by the Court of Kimball's questioning, completely inhibited Kimball's preplan to prove the aforestated herein in #9.

10. The Court appeared to recognize the fact that interrupting Kimball was detrimental to Kimball. The Court stated it will not interject itself unless absolutely necessary (Ex. A, P.53, P.89). However, subsequent to that statement by the Court and referenced by the later testimony of Dunn, the Court did not follow through on what it told Kimball. During that single hearing, Ex. A, the Court injected itself interrupting Kimball 22 times asking 78 questions. On the other hand the Court's interruptions of the prosecutors were essentially non-existent. It would be a conservative estimate to say the Court interrupted Kimball in excess of 100 times asking a multitude of questions during the three-week trial, which was exceedingly detrimental to Kimball's examinations of witnesses, and again, directly against what the Court stated to Kimball it would do prior to trial referenced in (Ex. A, P.53, P.89).

11. Even though the Court advised Kimball that the court will decide the law and Kimball should not bring forth witnesses to testify regarding the law (Ex. A), and what the law says; the Court allowed AUSA Rubenstein to explain the Government's version of what the law says in reference to Kimball disobeying it, in the Government's opening statement (Ex. F). Kimball believed by the Court allowing AUSA Rubenstein to give his version of the law in his opening statement; the Government opened the door to Kimball being able to rebut the Government and give his version of the law to the jury substantiating Kimball's state of mind defense.

12. In Kimball's opening statement, when Kimball began to give his version of the law to rebut AUSA Rubenstein, the Court again refuses to allow Kimball to either rebut the Government's version of law or speak in regards to the law (Ex. B, P.20). Worse, subsequently the Court allowed a Government witness, who was not an attorney to present to the jury the law and explain his legal opinions (Ex. G). Additionally during Kimball's opening statement the court told the Government to make objections to Kimball's statement (Ex. B).

13. In the April 27, 2000 hearing the Court flatly refused to hear Kimball's motion to dismiss for Government misconduct; card blanche dismissing witnesses and evidence of such misconduct without even hearing it (Ex. A, P.63-77). During Kimball's opening statement even the counsel for Kimball's co-defendant argues in vain the justification for Government misconduct (Ex. B, P.14-16). The Court clearly states again Kimball cannot bring up outrageous Government conduct (Ex. B, P.4-6, and P.13).

14. The Court after summarily dismissing Kimball's subpoenaed witnesses and documents along with his motion to dismiss for Government misconduct, the Court states: If you want to raise outrageous conduct, I'm always here to hear it (Ex. H). However, in the next breath the Court grants a motion to quash documents, which reflect outrageous Government conduct (Ex. H, P.20-22). Even late in the trial when Kimball has documents admitted which reflect outrageous Government conduct the Court has them redacted (Ex. I, P.169-170).

15. The Court advised Kimball he did not qualify for a Court appointed attorney even though Kimball had little assets and was $160,000.00 in personal debt while his wife was approximately $360,000.00 in debt. Kimball's companies were in excess of $300,000.00 in debt. When Kimball requested to appear pro se the Court allowed Kimball to try in a pre-trial hearing and Kimball proved to himself and the Court he was not competent in criminal law to do so.

16. Unable to secure a pro bono attorney, and not able to afford to hire a defense attorney, Kimball with no choice again requested to appear pro se and was granted such. Once appointed pro se, Kimball asked the Court for his 6th Amendment right, assistance of counsel/co-counsel Elliott Dunn his corporate attorney to assist Kimball as co/counsel with his defense. The Court earlier had approved assistance of counsel/co-counsel for AUSA Rubenstein. The Court flatly refused assistance of counsel to Kimball, after approving such for the Government (Ex. A, P.34-40).

17. The exact wording in the Sixth amendment to the constitution reflects the accused is entitled: to have the "assistance of counsel for his defense." The Court flatly refused Kimball the letter of the law in the Sixth amendment while providing such to the Government.

18. The Court did not uphold Kimball's 6th amendment right: "to have compulsory process for obtaining witnesses in his FAVOR." Kimball had requested certain Government witnesses to appear for Kimball 's defense. AUSA Rubenstein refused to produce those witnesses and dictated to the Court what witnesses the Government would produce, which were NOT the witnesses Kimball requested. The Court allowed Rubenstein to produce whomever he wished in violation of Kimball's constitutional rights (Ex. A, P.166-170).

19. Prior to trial the FDA stipulated that they never deemed Kimball's product Liquid Deprenyl Citrate (LDC) a drug rather than the Government producing Kimball's subpoenaed FDA attorney experts. Kimball's witnesses would have related to the jury that the FDA never made the determination LDC was even a drug, notwithstanding a prescription drug, which needed to be proven in order to find Kimball guilty of selling a prescription drug. The FDA agreed with the Court and so stipulated (Ex. A, P.23).

20. After the stipulation was made and throughout the trial, the Court refused to allow Kimball to advise the jury regarding that stipulation by the FDA, that they had never deemed LDC to even be a drug. When Kimball attempted to reveal the existence of the stipulation to the jury in Kimball's opening statement, the Court interrupted Kimball and refused to allow Kimball to inform the jury of that most important stipulation (Ex. C-3, Ex. 5, P23).

21. The Court allowed Government witnesses who admittingly conducted no testing themselves, only reviewed testing results to testify that Kimball's LDC was dangerous, possibly fatal from their review of testing a different product, made by a different company even when the witnesses testified they had never received any testing results regarding Kimball's LDC.

22. Without objection by the Government, the Court interjects itself, in front of the jury, and essentially disqualified an expert defense witness from testifying, because he was testifying from his review of the test results (Ex. J). Kimball had acquired a key expert witness from California to testify and explain the differences between Kimball's LDC and the similar drug the Government's witnesses had testified about from their review of certain tests performed only on the similar product, not Kimball's LDC. Kimball's expert had reviewed the testing results upon both products and was to explain the molecular differences in layman's terms to the jury while explaining the reasons via the testing results of both products why Kimball's LDC was absolutely safe when the other company's product revealed a danger to use.

23. The Government was allowed to effectively amend the indictment after the case went to trial. The indictment did NOT reference that Kimball violated 21 U.S.C. § 321 (g) (1) or make any health related claims, yet the Court allowed the Government to prosecute under 21 U.S.C. § 321 (g) (1) and bring in health related claims throughout the trial (Ex. C-2, and Ex. A, P.139).

24. Other instances of the Court's inappropriate comments and interference of interrupting witnesses throughout the trial is depicted in Ex.s K through U.

25. The Court issued orders to the Government to provide pre-trial discovery in which Kimball needed for his defenses. The Government refused to produce this needed documentation to Kimball for his defenses, and blatantly disobeyed court orders. The court refused to compel the Government to produce these needed defense documents even when Kimball filed motions to compel and requested the trial Court to review and intervene (Ex. A, P.19-20). The very least the trial Court should have done is continue the trial on its own until the Government produced the defense documents that it was withholding from Kimball.

26. Among the many documents the Government deliberately withheld and never produced were fingerprint exemplars from (Smith). The major piece of evidence obtained by the Government was one box of LDC that was allegedly shipped by Kimball from Wesley Chapel, Florida to NSI in England. Kimball was also accused of signing and making a false statement on a commercial invoice/waybill with that shipment to NSI. Kimball maintained he never made such a shipment, nor signed such an invoice nor ordered anyone to ship such an order and use his signature stamp. Smith had told the Government about the shipment.

27. A few days later Smith advising the Government of where to search, admitted in testimony by Smith, the Government searched Kimball's business premises where Smith pointed out the alleged source of the LDC which was in the seized box at DHL.

28. The Government admitted it already had the fingerprints of Kimball and Smith when they requested a court order for the fingerprints of Mrs. Kimball and Ms. Groomes, another employee of Kimball, to compare prints with the search area, the box and contents it seized. Kimball demanded the fingerprints of Smith so Kimball could have their own expert check for Smith's prints on or in the box, the products , or around the area the LDC was found at Kimball's business. Kimball believed that he could prove Smith set up the whole shipment through DHL for the Government.

29. The Government admitted that neither Kimball's, Mrs. Kimball's, nor Kimball's female employee's fingerprints were found. Testimony in court proved both Mr. and Mrs. Kimball were in Maine the day the shipment took place and were in Maine the day the Government searched Kimball's business at the direction of Smith. It was testified by Kimball's employees Smith ran Kimball's businesses while Kimball was away and Smith was the only one who had access and used Kimball's signature stamp. The invoice Kimball was charged with making a false statement upon was signed with Kimball's signature stamp when Kimball had not been in Florida for at least 10 days prior. Smith testified he did not pack the box nor did Kimball order him to do so. Kimball adamantly believed, and still does, that had AUSA Rubenstein provided Smith fingerprint exemplars Kimball would have found Smith's fingerprints on the LDC, in and around the area where the LDC was found and all copies of the commercial invoices for that shipment along with being on Kimball's signature stamp which only Smith had control of. However, AUSA Rubenstein blatantly refused to give the fingerprint exemplars to Kimball to use for his defense and never did.

NEW EVIDENCE

When newly discovered evidence is cited as grounds for a new trial, the movant must show: (1) that the evidence was discovered after trial; (2) that it could not have been discovered before trial with diligence, or that due diligence was taken to discover the evidence; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material to issues before the court; and (5) the evidence must be of such a nature that a new trial would probably produce a new result. United States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir.1989 ); United States v. Johnson, 327 U.S. 106 (1946); United States v. Ramos, 179. F.3d 1333 (11 th Cir. 1999). However, where newly discovered evidence consists of perjury or recantation by a witness, if the testimony was material to the verdict and the prosecution knew or should have known of the perjury, a new trial must be granted if the court determines that new evidence might alter the verdict. U .S. v. Gallego, 191 F.3d. 156 (2 nd Cir. 1999); and U.S. v. Diaz, 176 F.3d. 52 (2d Cir. 1999), cert. Denied, 120 S.Ct. 181 (U.S. 1999) and cert denied , 120 S.Ct 315 U.S. 1999); and cert. Denied, 120 S.Ct. 386 (U.S. 1999) [emphasis added]. See also Jarrett v. United States, 822 F.2d 1438 (7 th Cir. 1987). Where it is found that the Government has suppressed evidence that is discoverable under Brady v. Maryland, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), even where the government's suppression is unintentional, a new trial is warranted where the suppression "seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceeding." United States v. Hastamorir, 881 F.2d 1551, 1559 (11th Cir.1989).

1. After Kimball was convicted and placed in prison Kimball had pending charges civilly with the Florida Department of Health (DOH) in administrative court in a duplicate case under the same charges he was convicted of criminally. Some of the same key Government witnesses that testified at Kimball's criminal trial also testified in the DOH administrative court. At the DOH court it was revealed that these key Government witnesses had lied under oath a voluminous amount of times some contradicting their own testimony given at Kimball's trial. While new testimony and new documents discovered after Kimball's trial proved the Government's witnesses untruthful at Kimball's pre-trial and trial.
2. The Government introduced DHL documents at Kimball's trial insinuating they were tracking documents from DHL reflecting Kimball was shipping LDC to NSI in England. When in fact the DHL document that the Government produced for the jury was not a DHL tracking document at all. It was an e-mail that stated that a DHL package with a specific tracking number was shipped from Kimball's company to NSI. The e-mail was false as the original DHL tracking document reflecting the exact same tracking number the Government put into evidence was secured by Kimball and it stated that the origin of that package or that tracking number was unknown by DHL (Ex. D, P.7-9 with referenced Ex.s).
3. Additionally, it was testified at Kimball's trial by Kimball employee Ms. Grooms that the commercial invoices/way bills to NSI were altered; that she did not type some of them and that she was the only one at Kimball's companies that typed the DHL commercial invoices. Smith testified at trial he did not alter the commercial invoices, however, in testimony at the DOH court hearing in 2001, Ms. Grooms testified the altered DHL documents were in Smith's handwriting.
4. AUSA Rubenstein told the court that Smith was NOT an undercover agent. Smith additionally testified he was not an undercover agent, he was a confidential informant. Smith also explained in court that his view of a CI was one who volunteered information and an undercover agent was a person the Government asked to acquire information for them. Information gained subsequently from the Department of Labor (DOL) revealed that Smith was in fact an undercover agent. Smith had applied for unemployment compensation and held an interview with an investigator from the DOL when Smith admitted he was an undercover agent for the Government and the DOL investigator memorialized the conversation in writing in his report. Also received from the DOL was a letter sent to the DOL from AUSA Rubenstein regarding Smith having to leave the employment of Kimball for fear of being discovered (Compound Ex. V). Smith testified he was lying previously, "covering himself."
5. In the April 27, 2000, pre-trial hearing regarding invasion of the legal camp by the Government, the court asked Smith after Smith is sworn in: "After June 17, 1999, after you met with Mr. Rubenstein and other Federal agents, did you therefore have meetings with Mr. Kimball and Mr. Dunn where you discussed legal strategies and things like that?" The witness: "No, only involving possibly the civil case." The court: "Did you ever divulge any communications you had with Mr. Dunn and Mr. Kimball when meeting within the context of an attorney/client relationship?" The witness: "Divulge it to Mr. Rubenstein?" The court: "Yeah, anybody?" The witness: "No." The court: "Remember, you're under oath." The witness: "Yes I did NOT" (Ex. A, P90-91 and P.100).
6. Kimball's attorney Dunn did not testify at Kimball's pre-trial hearing and during Kimball's trial due to the actions of the court as stated herein in #8. However, Dunn did testify at the DOH hearings in 2001 and testified about an abundance of meetings, after Kimball's indictment, between himself, Smith and Kimball in reference to Kimball's defenses in the Federal case. In fact, Dunn clearly remembered a meeting after Kimball's indictment, between Smith, Kimball and himself where all, including Mr. Smith, agreed that it would be lawful and not in violation of a court order for Kimball to ship Deprenyl to a compounding pharmacy (Compound Ex. W).
7. While Smith agreed that it was legal and not in violation of a court order for Kimball to ship the Deprenyl in the context of an attorney/client meeting relationship; Smith notified the Government of the shipment, reversed his stance, saying it was illegal and Kimball was arrested, placed in jail and received a second indictment which was subsequently dismissed. Smith in the 2001 DOH case admitted he attended the meeting with Dunn and Kimball and also admitted he was the one who informed the Government of the shipment. Smith also admitted to shipping Deprenyl himself. Smith clearly proved by his own testimony in the DOH 2001 hearings that he did exactly the opposite of what he testified to the Court (Compound Ex. X).
8. This new evidence that Smith blatantly lied in answering the Federal court's questions, left no doubt that Smith while acting as Kimball’s legal advisor and FDA compliance officer was revealing attorney/client privileged information to the Government about Kimball's legal activities. Notwithstanding, he was setting Kimball up, by advising Kimball everything he was doing was legal while telling the Government it wasn't. Smith even admitted shipping Deprenyl.
9. The new evidence which reflected false DHL documents presented by the Government and the new evidence of Mary Groomes testifying it was Smith's handwriting that had altered the commercial invoices for the DHL shipments (Ex. Y), brings further into light Kimball's theory mentioned here in #25 and #29 that Smith set up (framed) Kimball in his first indictment, both with the DHL Government seizure and subsequent search while Kimball and his wife were on vacation in Maine; just as Smith had done in the second indictment.
10. Dunn's testimony in the 2001 DOH hearings not only verified that Smith lied under oath, Dunn testified to the Good Faith/State of Mind of Kimball and to the fact that Dunn believed the businesses being conducted by Kimball were not in violation of any laws (Compound Ex. W).
11. As aforestated AUSA Rubenstein stated to the court Smith was not an undercover agent when evidence was uncovered that Smith admitted that he was and that AUSA Rubenstein wrote a letter attempting to help Smith (Ex. V). Also, Rubenstein was not up front with the court reflecting lack of candor by not advising the Court as he did the jury that Smith was an admitted liar during the pre-trial motion hearings when Smith testified. Had the court known that fact, the court may have given less credence to Smith. In the Grand Jury secessions when a Grand Juror asked AUSA Rubenstein why didn't he produce Smith before the Grand Jury, Rubenstein replied because the defendant can use the Grand Jury testimony for impeachment. There was no question Rubenstein knew Smith was a consistent liar. It appears AUSA Rubenstein used Smith's consistent lies to set up, indict and convict Kimball.
12. Late in the trial when there was a break in witnesses the Court ordered Kimball to put on a key Government witness Rande Matteson who Kimball had listed as his witness for impeachment purposes. Kimball explained to the Court he had not yet prepared Matteson's questions, was getting only 2 hours sleep a night reflecting he was near exhaustion from the trial. The Court gave Kimball no latitude whatsoever and told Kimball if he wanted Matteson as his witness it was now or never. Unprepared Kimball could not put Matteson on.
13. Kimball and Kimball's co-defendants counsel requested the deposition documents of Orr and other Government witnesses as discovery as AUSA Rubenstein admitted he had them but did not want to produce them. The depositions were also requested as Jenks or Brady materials. Both Kimball and Kimball co-defendant counsel wanted the depositions for impeachment purposes. The Court refused to have the Government produce them.
14. Kimball did argue Orr's deposition testimonies after his imprisonment and used them as impeachment in the 2001 DOH hearings, along with Orr's Grand Jury transcripts, Federal Trial transcripts and DOH hearing transcripts. Orr's untruthfulness while under oath surpassed Smith's consistent lying under oath. A sampling of Orr's lying under oath was set forth in Kimball's proposed order in the DOH hearing (Ex. Z).
15. Orr's lies under oath were voluminous in depositions, the Government refused to provide, in Federal and Circuit Court, in the administrative court and before the Grand Jury. Orr contradicted her testimony from one Grand Jury to another. Orr's lies before the grand jury were so blatant that while she was play acting before the Grand Jury, pretending to be someone else, reading excerpts from someone else's alleged transcript testimony, Orr told the Grand Jury she had one transcript memorized and testified to the opposite of what the transcript said in an effort to indict Kimball.
16. Government witness Ira Shoulson (Shoulson) testified that Kimball's product was dangerous, as it was the same product as a FDA approved dangerous prescription drug, Eldepryl. Shoulson went on to tell the jury, in essence, that the active ingredient in Eldepryl Selegiline Hydrochloride in Somerset's Pill was the same as Selegiline in Kimball's Liquid Deprenyl Citrate. Shoulson was not a chemist and admitted he never conducted any testing himself. The Government's expert chemist Dr. Owen testified that the two chemical entities were not the same. Shoulson went on to project to the jury the dangers of Eldepryl and Selegiline Hydrochloride skirting the issue that the FDA had only approved Eldepryl to be used with another dangerous prescription drug NOT approved by the FDA for any use by itself. The side effects that Shoulson stated went directly against what the literature stated and his own research committee write-ups. AUSA Rubenstein did not provide the exculpatory evidence prior to trial or during trial. It was discovered after the trial was over. An affidavit written concerning this new evidence by Dr. Dean who had testified at Kimball's trial, reflecting the untruthfulness of Dr. Shoulson in his testimony. Kimball also wrote up the discrepancies in Dr. Shoulson's testimony and presented the same to the Court prior to sentencing (Ex. AA, and Ex. D, P.9-11). The Court merely stated why wasn't this evidence admitted before? How could Kimball supply evidence he didn't know about and that AUSA Rubenstein and Shoulson withheld. A complete history of Kimball, his companies and what they were involved with, the trial and subsequent DOH hearings are depicted in a sworn affidavit (Ex. BB).
17. As aforestated in #12 on page 14, Kimball was near exhaustion toward the end of the trial and was physically and mentally unable to continue while the Court was giving Kimball absolutely no latitude at all to recover. Unable to continue Kimball requested James Wardell (Wardell) who had worked with Kimball pre-trial to finish the trial for Kimball. Kimball had met with Wardell the night before and given him a box of evidence that needed to be introduced by Wardell during Kimball's testimony. Wardell assured Kimball he would go over the box of evidence and make up the line of questioning so Kimball could introduce all the evidence in the box to present to the jury. Wardell did not introduce the evidence during Kimball's testimony. Wardell told Kimball subsequently that he didn't have the time to go over it, to make up the questions. Kimball would never have had Wardell take over for him without having that evidence presented to the jury. Major evidence was within the box given to Wardell by Kimball that could easily affected the jury's verdict. Some of the evidence in the box for Kimball to present was the actual DHL tracking documents, revealing the alleged tracking documents presented by the Government were false, the first formal warning letter from the FDA to Kimball after his indictment warning him if he did not stop selling LDC they would take action. The formal warning letter the first Kimball ever received from the FDA in ten years Ex. D, P.11-L clearly reflected that the FDA is to obey the law, i.e., condition precedent as specified in Ex. C-1, P.10-11, only did not do it until after Kimball was indicted, however the Congressional law states it must be done prior to any other action taken. The letter was signed by the administrator of the NON-Prescription drug section of the FDA. Clearly by the FDA sending an official warning letter from the administrator of the non-prescription drug section reflected the FDA considered Kimball's LDC a non-prescription drug. As aforestated Eldepryl, the FDA prescription drug, which the Government was confusing the jury with saying it was the same as Kimball's LDC, was only approved by the FDA to be used with a dangerous prescription drug. Therefore Eldepryl had to be a prescription drug as it only use was as an adjunct and not to be used by itself. Kimball's product was NOT used in combination and obviously NOT considered a prescription drug by the FDA. The Court stated in its jury instruction the jury must find Kimball guilty only if Kimball's product is deemed a prescription drug. That one letter from the FDA could have influenced the jury to find Kimball not guilty of selling a prescription drug and not guilty because the FDA did not follow the Congressional law of condition precedent. Another letter from a different prosecuting attorney suggesting why Kimball should not be prosecuted faulting the FDA. Correspondence and an agreement between the IRS and Kimball where Kimball agreed not to sue them for their acts. Florida Department of Law Enforcement (FDLE) reports and testing results which the FDLE admitted in the 2001 DOH hearings were incorrect, among many other testing results to be produced in Kimball's defense.
18. Wardell should NOT have agreed to take on Kimball's defense if he could not, or would not introduce the evidence which benefited Kimball and conduct Kimball's defense properly.
19. Each American on the jury has the right to be fully knowledgeable and fully informed of the truthful prison conditions and that their finding of guilt could very well be a death sentence for the accused, as has already happened in many cases.
20. The aforestated reflects the following with regard to new evidence:

A. That Smith, Kimball's legal advisor and FDA compliance officer, admitted lying under oath previously and continued throughout Kimball's trial. That Smith set up Kimball for his arrest and second indictment while new evidence reflects Smith did exactly the same with the first indictment. That Smith was an undercover agent not a confidential informant and by Smith's own testimony in the 2001 DOH hearings described an undercover agent as a person that does what the Government asks him to. That Smith testified at Kimball's trial that he lied previously to cover Kimball while in the 2001 hearing he admitted he lied to cover himself. That Smith was in fact relaying information of attorney/client meetings to the Government as fast as he could. That Smith altered invoices/waybills apparently for the Government. That the Government, via Smith had totally infiltrated Kimball's legal camp in a deliberate manner. Furthermore, as Smith did act in conjunction with the Government, the prosecution was aware of the perjured testimony at the time of the original trial.

B. That commercial invoices/waybills that were presented in Court were altered by the Government's undercover agent. That the Government reflected lack of candor, stating that Smith was not an undercover agent. That the Government refused to provide Kimball's named witnesses, exculpatory evidence, discovery and Brady and Jenks materials all of which would be new evidence as the Government refused to produce the evidence and the jury never considered it.

C. That Government witnesses to include Dr. Shoulson mislead the jury by not clarifying the fact that Somerset's product Eldepryl was not FDA approved for any use whatsoever to be used by itself, or that side effects reflected were side effects of the product used in combination with levadopa, a very dangerous Prescription Drug with very serious side effects. Dr. Shoulson's testimony regarding the testing results of Deprenyl on its own was contrary to all trial results to include trials in which Dr. Shoulson participated in and were published. This information was withheld by the Government and discovered after the trial was over.

D. The Court's disallowance that the jury hear what the laws stated and why Kimball believed as he did was in fact Kimball's Good Faith/State of Mind Defense and should be considered new evidence. Attorney Dunn's testimony in the 2001 hearings reflected Kimball's state of mind, Dunn's view of the law, notwithstanding confirming Smith's perjury and invasion of the legal camp should be considered new evidence. The evidence that attorney Wardell told Kimball he would introduce evidence with Kimball's testimony and did not, should be considered new evidence as should the evidence acquired after Dr. Shoulson's testimony contradicting such while revealing the Government withheld exculpatory evidence.

E. The disallowed evidence of outrageous Government conduct should be considered new evidence as that such conduct started in 1991 and continued through the three Tampa grand juries and through Kimball's trial. The Court should have realized that Kimball's claim of outrageous conduct was a viable one when Mary Groomes testified that the invoices/waybills were altered and not typed by her. That Kimball reflected bate stamped documents altered when Carol Mahar, Kimball's past secretary, one day testified that she had not seen a Government agent in the years 1994-1997. Then on the next day testified that Government agent Perez visited her in Maine with documents in 1995. Then identified her handwriting on a check register put into evidence that was dated 1995 when she left the employment of Kimball in 1993 should have sent a message to the Court. Additionally the fact that the retired FBI agent Sean McWeeney perjured himself stating he had no communication with Government agents on behalf of Somerset and then identified his own communication with the Government on behalf of Somerset reflecting outrageous illegal Government activities between Government officials and Somerset. Additionally the fact that the Government lied to the Court in pretrial motions, refused to produce mandatory discovery should also have sent a message to the Court. “As long as the world shall last there will be wrongs and if no man objected and no man rebelled those wrongs would last forever” (Clarence Darrow).

CONCLUSION

Since the conclusion of the trial, the Defendant has uncovered new evidence that was not discoverable through due diligence. The newly discovered evidence is material to issues at trial, other than for the purpose of impeachment, as the evidence goes to the issue of guilt and also pertains to defenses argued by the defendant at trial, or that could have been argued if the evidence had been discovered. Furthermore, had the new evidence been available and admitted at trial, the jury probably would have reached a different verdict.

Much of the new evidence discovered pertains to perjury committed by government witnesses and recantations of witnesses. The acts of perjury were condoned, and otherwise made with the knowledge of the prosecution that the statements were false. It is very likely that, had the jury not been subjected to such deceptive testimony, it might have reached a different verdict. In as far as the claims made herein as to the government’s deliberate suppression of exculpatory evidence and subornation of perjury, it is very likely that the jury’s decision was affected by its being subjected to such gross deceit, and might have reached a different verdict if not so subjected.

WHEREFORE , the Movant requests the Court grant a new trial based on the aforestated.

Kimball willing to submit to a professional truth serum or polygraph swears under the penalty of perjury that all statements herein all true and correct to the best of his knowledge and belief.

DATED this __________ day of _______________, 2003.

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James T. Kimball, Pro Se