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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA

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

vs.

JAMES T. KIMBALL, et al

________________________________________/

AMENDED VERIFIED MOTION FOR NEW TRIAL

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.

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:

1. 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.
2. 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.