Condensed Declaration

Writer of original, whole declaration: James T. Kimball Past President Discovery Experimental And Developmental, Inc., Past President ASTAK, Inc., Past President Global Health Information & Medical Research Institute, Inc., Past President B&B Freight Forwarding, Inc., Past President Discovery Tour Wholesalers, Inc., Past President American Transportation, Inc.

James Kimball has passed away. His past wife, Jo Kimball, can be contacted by:

phone- (813) 973-0996
fax- (813) 973-7002
e-mail- prodedi@discovery-experimental.com
writing-
James Kimball no longer can be written to. To get in contact with his family, you may use the specified e-mail address above.

41. AUSA Rubinstein’s, Agent Orr’s and DOH Attorney Daniti’s acts were so blatant that Attorney Daniti for DOH would put the grand jury documents in a motion filed by DOH in their civil cases before KIMBALL and DEDI could even acquire the information and copies of documents from the source. These acts are illegal. KIMBALL didn’t secure and review all of Agent Orr’s testimony and documents until after KIMBALL was imprisoned, due to unexplainable restrictions imposed by U.S. District Judge Lazzara.

42. DEDI was raided a third time in July, 1999 which was orchestrated by U.S. Attorney Wilson and AUSA Rubinstein who had enlisted the help of DEDI’s one-time legal advisor and compliance officer Louis T. Smith (“SMITH”). Smith became an undercover government informant at the time. Although there is no hard information available to KIMBALL, it appears the government apprehended Smith as a drug user, then exploited the predicament he was in to make him a mole for the government, presumably in exchange for some type of leniency. Whatever the case, Smith then took steps which, in retrospect, proved to be a calculated effort by him, with others, to set us up.

43. Prior to the raid, SMITH drew a map indicating where to search and what to confiscate. One of the places on the map checked to search and seize documents from, were the legal files which held all the defense documents for the two DOH civil cases, one of which was upcoming in October where DEDI and KIMBALL were scheduled to put on their defense. Most all the legal defense documents were seized under the control of U.S. Attorney Wilson and AUSA Rubinstein, “allegedly” for the grand jury.

44. KIMBALL was indicted a week or two thereafter. A few weeks after his indictment, KIMBALL received the first formal warning letter from the FDA warning KIMBALL that the flyer which accompanied KIMBALL’s LS product, Liquid Deprenyl Citrate (LDC), made it a drug and telling KIMBALL to stop selling it or the FDA would take action against KIMBALL. KIMBALL stopped selling LDC. The letter also gave KIMBALL 15 days to respond. The FDA did what the law said to do, only after the fact. The law says the FDA must give a warning or have hearing before they can take criminal action. That letter from the FDA was never presented to the jury due to the actions of Federal Judge Lazzara.

45. KIMBALL now had three identical cases - two of which were in the Florida courts and the third in federal criminal court. Presiding over the court in KIMBALL’s criminal case was Federal Magistrate Judge Thomas B. McCoun and District Court Judge Richard Lazzara. Both the pretrial motions and conferences, along with the trial were an orchestrated stage show of judicial and prosecutorial misconduct. Elliott Dunn, DEDI’s corporate attorney, was not a criminal attorney and did not wish to defend KIMBALL criminally, however, offered to assist KIMBALL prior to trial in motions and hearings. KIMBALL and DEDI were essentially out of money and hundreds of thousands of dollars in debt due to the legal actions by Somerset, DOH and the FDA, along with U.S. Attorney Wilson, AUSA Rubinstein and others. KIMBALL did not have the funds to defend himself, nor did his wife who was over one hundred thousand dollars in debt in her own business.

46. Many customers who had purchased products from DEDI over the 10 year period donated money for KIMBALL’s defense, however, that money was used up consulting attorneys. The Court told KIMBALL he did not qualify for a court appointed attorney, even though KIMBALL was $160,000.00 in personal debt with relatively no assets at all. KIMBALL’s wife was over $100,000.00 in personal debt. When KIMBALL attempted to represent himself, the Court said no. However, it allowed him to try, and KIMBALL proved to himself and the Court he was not competent in criminal law to do so. Unable to secure a pro bono criminal attorney and the Court refusing to appoint one, four days prior to trial KIMBALL again asked the Court if he could represent himself as he had no other choice, and the Court granted KIMBALL’s motion. He also asked Judge Lazzara for co-counsel, assistant counsel to help KIMBALL in his defense and the Court refused. The Court refused KIMBALL assistance of counsel, a person who knew nothing about criminal law, but readily approved assistance of counsel for AUSA Rubinstein when he stated to the court that this is a complicated case and he wanted the assistance from an FDA special attorney for trial.

47. AUSA Rubinstein continually lied to the Court and disobeyed court orders. When the Court was presented proof of AUSA Rubinstein’s lying from DUNN and KIMBALL, the Court did nothing. Worse, the Court flatly refused to do anything to AUSA Rubinstein when he blatantly disobeyed court orders, one of which was to return DEDI and KIMBALL’s defense documents which were mandatory for their defense in the DOH civil case. DEDI and KIMBALL had to default that case and were fined legal fees over $700,000.00 that they didn’t have.

48. In addition, AUSA Rubinstein refused to obey court orders to produce evidence he held for KIMBALL’s defenses and the court did nothing, even when DUNN and KIMBALL filed multiple motions to compel. Some evidence ordered to be produced by the Court, AUSA Rubinstein never produced at all, yet the Court did nothing. On the other hand, when the Court thought that KIMBALL disobeyed a court order, suggested by AUSA Rubinstein, KIMBALL was placed in jail for 10 days, even though the action KIMBALL took was on the advice of his compliance officer SMITH, who KIMBALL did not know at the time was operating as an undercover government informant.

49. After SMITH told KIMBALL that what he was doing would not disobey a court order, he turned around and advised AUSA Rubinstein that it violated the court order and KIMBALL was arrested. This all came out in testimony during the third identical case against KIMBALL in the Florida Administrative Court in 2001, after KIMBALL was imprisoned.

50. In speaking with attorneys after receiving an FDA formal warning letter, subsequent to his indictment, it was concluded that if the FDA were to take any action at all, it should have been civil or administrative, not criminal. The FDA had not deemed LDC a drug administratively; in fact refused to deem LDC anything, even though KIMBALL had asked the FDA to deem it a supplement in 1991. In 1992 when KIMBALL asked the FDA to deem it a drug, they refused to do so. The FDA even stipulated in court they had never deemed LDC to be a drug. How could the FDA ask a jury who has no expertise in determining whether a product is a drug, a prescription drug, or a dietary supplement to do the FDA’s job when the FDA itself refused to do so for 9 years.

51. DUNN filed many motions, backed by many laws, which DUNN and KIMBALL firmly believed should have dismissed the criminal action by the conspirators. As fast as DUNN drew them up, Judge Lazzara threw them out. Not only did he throw them out, he dismissed witnesses and evidence prior to being introduced. When a motion was filed for dismissal for government misconduct, Judge Lazzara refused to hear it. Then, during the trial Judge Lazzara said he would hear it, but when KIMBALL attempted to produce the evidence, Judge Lazzara refused to admit it.

52. When DUNN filed a motion to dismiss for the illegalities of AUSA Rubinstein for enlisting a major member of KIMBALL’s legal department as a confidential informant and undercover agent, which was so obvious any layman could see it, Judge Lazzara adamantly advised Kimball to withdraw his motion. Both AUSA Rubinstein and SMITH lied to Judge Lazzara, which was evident at the time. Common sense would dictate that AUSA Rubinstein and SMITH were lying. SMITH said he didn’t know why he stayed on at DEDI and needed the money. AUSA Rubinstein lied and told Judge Lazzara that SMITH “was not” an undercover agent. If SMITH was not an undercover agent for AUSA Rubinstein, why did Rubenstein conceal SMITH’s identity from KIMBALL and the public until he set up KIMBALL for AUSA Rubinstein to arrest weeks after his indictment for an act SMITH and DUNN recommended was legal for KIMBALL to do?

53. Evidence was gained by KIMBALL after he was in prison during the third duplicate DOH case in 2001, that AUSA Rubinstein wrote to the Florida Dept. of Labor about SMITH having to leave the employment of KIMBALL for fear of being discovered. Evidence was also gained where SMITH admitted to a Florida Dept. of Labor administrator that he was an undercover agent and the labor board supervisor memorialized it by writing it up in his report. Also, in his testimony in the 2001 DOH administrative case, SMITH testified, and slipped up in his constant perjury, and admitted he attended a meeting after KIMBALL’s indictment which related to KIMBALL’s actions and defenses.

54. SMITH had testified to Judge Lazzara in federal court that he did not attend meetings after KIMBALL’s indictment regarding KIMBALL’s activities and defenses. DUNN who did not testify at KIMBALL’s trial due to the actions of Judge Lazzara, did testify in 2001 at the administrative hearings stating SMITH attended many legal conferences after KIMBALL’s indictment regarding KIMBALL’s defenses in the indictment, including the legal conference in which SMITH gave the advice which placed KIMBALL in jail.

55. In one of his many well founded motions to dismiss, DUNN pointed out the letter of the law put forth by the legislature in the Dietary Supplement Health Education Act (DSHEA) which states that before any person can be brought up on criminal charges for selling a dietary supplement under DSHEA, the FDA must communicate with the person of an alleged offense and hold a hearing on the issue if requested. DSHEA also stated in non-legal terms that any product qualifies as a dietary supplement if it contains one or more ingredients specified in DSHEA. KIMBALL and DEDI’s LDC was sold under DSHEA and contained four ingredients, all of which qualified under DSHEA as dietary supplements, testified as such by experts. Judge Lazzara said, in essence, that doesn’t matter because other court cases negated what the Legislature said in the law they passed, DSHEA. He didn’t care what the Legislature said; he was going by legal precedent all of which turned out to be inapplicable to Kimball and his attorney.

56. As the Federal trial began, the lies by AUSA Rubinstein and apparent judicial misconduct by Judge Lazzara were deliberate, immediate and detrimental to KIMBALL. AUSA Rubinstein’s opening statement was full of lies, including: LDC was “exactly” the same as Eldepryl, bringing up KIMBALL’s past alleging a criminal history when, in reality, there was none. Judge Lazzara said nothing.

57. Throughout KIMBALL’s opening statement Judge Lazzara kept interrupting KIMBALL, even questioning the truthfulness of KIMBALL’s statements to the jury. Judge Lazzara advised AUSA Rubinstein and Special FDA Prosecutor Jones to make objections to KIMBALL’s opening statement to the jury, as they had not objected to that point. Judge Lazzara now became a third prosecutor against KIMBALL with AUSA Rubinstein and Jones.

58. Aside from Judge Lazzara interrupting amateur attorney KIMBALL throughout the trial, chastising him loud enough for the whole jury to hear, after the government prosecutors had their chance at the witness and KIMBALL cross examined them, Judge Lazzara would cross examine them again in further attempts to discredit them if it appeared KIMBALL did well with them in his examination. When KIMBALL asked AUSA Rubinstein to produce witnesses he had requested from the government, AUSA Rubinstein refused and told Judge Lazzara the witnesses KIMBALL could have and the Judge went along with Rubinstein. Judge Lazzara had agreed to allow KIMBALL to produce a multitude of reports from DEDI’s customers in lieu of their testimony, which KIMBALL intended to use in his defense as evidence of the safety, effectiveness and the differences between KIMBALL’s supplement and Somerset’s drug. Judge Lazzara agreed to allow them in as evidence but would not permit KIMBALL to use it before the jury.

59. Judge Lazzara allowed AUSA Rubinstein, without objection, to compare Somerset’s Eldepryl prescription drug to KIMBALL’s LDC, condemning LDC when the government never did any testing, and never reviewed any trials on LDC, even the ones conducted by DEDI on LDC. However, as soon as KIMBALL began to examine one of the expert witnesses about the trial test results with Eldepryl, revealing the toxic side effects due to an unknown contaminant, Judge Lazzara refused to allow the testimony for the jury to hear. When an argument was presented to Judge Lazzara that the door was opened by AUSA Rubinstein when he had done the same thing, Judge Lazzara simply replied, "well, why didn’t KIMBALL object?” What KIMBALL should have said to Judge Lazzara was, “Judge, why didn’t you object to AUSA Rubinstein when he brought it up; you objected to my bringing up a multitude of subjects after AUSA Rubenstein had brought up the exact same subject matter. Rubenstein opened the door. The judge closed it.

60. KIMBALL flew in a key expert witness from California who had testified as an expert in federal court before. He was to explain in layman’s terms to the jury the exact differences between the dietary supplement KIMBALL developed and the drug Somerset had approved for sale only with another drug. Directly after Judge Lazzara admitted KIMBALL’s witness as an expert, without any objection by the government, Judge Lazzara interrupted KIMBALL’s witness and disqualified him because he started testifying based on his review of other laboratories’ testing results, a plain violation of the Federal Rules of Evidence.