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

3. 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).
4. 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.
5. 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.
6. 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.
7. 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

8. 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).
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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).
15. 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.
16. 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).
17. AUSA Rubenstein even answers questions of Grand Jurors (Exhibit G, P. 49 - P.50) directed to his witness.
18. 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).
19. 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.
20. 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.
21. 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.
22. 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).
23. 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.
24. 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).
25. 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).