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: