It’s early in the pre-trial stage for the second attempt to prosecute former Blue Bell Creamries boss Paul Kruse, but the pace is like a fast-starting NBA game. He stands accused — again — of conspiracy and fraud. One motion to dismiss is already pending and another challenges the fitness of the Grand Jury that indicted Kruse.

As expected, the U.S. Department of Justice (DOJ) has filed its written arguments opposing the defense motion to dismiss the indictment as barred by the statute of limitations.

The defense first got the charges against Kruse dismissed on July 15, 2020, because they were brought by information, not by a Grand Jury indictment. The government says it was within the statute of limitations when first filed on May 1, 2020.

Dismissal, according to DOJ, “triggered a six-month statutory tolling period. A grand jury returned an indictment on the same seven felony counts on Oct. 20, 2020, well within that six month tolling period. Therefore, the indictment should stand, and the defendant’s motion to dismiss should be denied.”

“The facts at issue are complex but largely not in dispute,” writes DOJ’s Mathew Lash. Due to the exigent circumstances of a global pandemic that precluded safely convening a grand jury, the Chief Judge of this District issued a series of orders continuing all grand jury proceedings and tolling the statute of limitations in all matters from March 16, 2020, through June 30, 2020. The defendant does not dispute that the statute of limitations governing the charges against him had not run out as of the beginning of that tolling period.

“During that time,” Lash continues, “the United States filed an information charging defendant with one count of conspiracy to commit wire fraud and six counts of substantive wire fraud in connection with a scheme to conceal the contamination of ice cream products manufactured and sold by Blue Bell Creameries, L.P. — of which Kruse was president at the time — with a potentially dangerous bacteria called Listeria monocytogenes.”

This gets Lash to what he calls “two central disputes:

“First,” he writes, is “whether the court has the equitable authority to toll the statute of limitations in this case. Second, whether the government properly instituted felony information against the defendant on May 1, 2020. The government respectfully submits that (1) the court has ample equitable authority to toll the statute of limitations due to the extraordinary circumstances surrounding the ongoing pandemic and (2) that virtually all of the existing case law supports the position that a felony information is properly instituted upon filing.”

Lash says even if  “this court should decline to recognize its power to equitably toll the statute,” the statute of limitations will not have run on three of the seven counts — 1,6, and 7.  He says the court should recognize its power to “toll the statute,” an action taken because of the coronavirus pandemic.

But before the DOJ filed its response to the statute of limitation issue,  lead defense attorney Chris Flood of Houston made another fast legal break.

“Because of the coronavirus pandemic, the chief judge entered orders suspending most — and perhaps all — grand jury proceedings in this district from March 16, 2020, through June 30, 2020. In connection with the parallel suspension of jury trials, those orders referred to “the court’s reduced ability to obtain an adequate spectrum of jurors,” Flood writes in his new motion seeking access to records regarding the selection of the grand jury that returned the Kruse indictment.

The materials Flood wants include “the Master and Qualified Jury Wheels from which the grand jurors were selected and information concerning exclusions and excuses from jury service.”

“On behalf of Mr. Kruse, we are preparing a contemplated motion challenging the jury selection procedures for the grand jury that returned the indictment in this case. Although we have legitimate reasons to be concerned about the representativeness of the grand jury, we cannot ascertain whether we have substantial grounds to file such a motion without access to the grand jury materials,” writes Flood.

Government and defense attorneys do agree with the amended scheduling order signed by federal Judge Robert Pitman. The judge said there is “good cause for this extension.” He reset the docket call for June 10, 2021, and the start of the jury trial for July 26, 2021. Those events previously were set for this coming December and January.

The case is assigned to U.S. District Court for Western Texas, which is based in Austin. Kruse is a resident of Brenham, TX, where Blue Bell Creameries is headquartered. It’s about 90 miles east of Austin.

The Blue Bell company pleaded guilty in a related case in May to two counts of distributing adulterated food products in violation of the Federal Food, Drug, and Cosmetic Act. It agreed to pay criminal penalties totaling $17.5 million and $2.1 million to resolve False Claims Act allegations regarding ice cream products manufactured under insanitary conditions and sold to federal facilities, including the military.

The total $19.35 million in fines, forfeiture, and civil settlement payments was the second-largest amount ever paid in resolution of a food safety matter.

At issue in the criminal charges is Kruse’s role in the 2015 listeria outbreak, in which Blue Bell brand products were the source. A total of 10 people with listeriosis related to the outbreak were reported from 4 states: Arizona had 1, Kansas 5, Oklahoma 1, and Texas 3. All ill people were hospitalized. Three deaths were reported from Kansas.

On April 20, 2015, Blue Bell Creameries voluntarily recalled all of its products currently on the market made at all of its facilities, including ice cream, frozen yogurt, sherbet, and frozen snacks. It also closed its production facilities in four states.

The U.S. Food and Drug Administration released the critical findings from recent inspections at the Blue Bell production facilities on May 7, 2015.

Listeriosis is a life-threatening infection caused by eating food contaminated with the bacterium Listeria monocytogenes. People at high risk for listeriosis include pregnant women and their newborns, adults 65 and older, and people with weakened immune systems.

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