1. 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.
2. 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.
3. 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.
4. 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.
5. 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