“Surplusage is language contained in a pleading that is unnecessary or irrelevant. For example, in an indictment, surplusage is the allegation of any fact or circumstances that is not a necessary element to the offense.”

-Legal Dictionary

Chris Flood and John Cline, defense attorneys for retired Blue Bell President Paul Kruse, strike “sanitation issues” from the indictment and bar the government from presenting evidence or argument on those food safety issues.

In a pre-trial motion, the defense attorneys say language about alleged unsanitary conditions at Blue Bell facilities, including the presence of roof leaks, condensation, and high coliform counts, are “surplusage.”

The sanitation conditions in sections 9 to 18 contained in the indictment are disconnected from the two months when the alleged charges occurred.

“Striking sections 9-to-18 from the indictment id only necessary if the Court intends to read the indictment to the jury or send it to the jury room during deliberations, ” according to the pre-trial motion. “If the Court elects instead to summarize the charges, the summary should exclude any reference of the matters alleged in sections 9 through 18.”

The offending sections include reports that Blue Bell exceded a Texas Administrative Code coliform standard without mentioning that no federal standard exists.

That evidence would not tend to establish any element of the wire fraud charges in the indictment, argues the motion. It would not show Kruse intended to defraud Blue Bell’scustomers concerning the positive Listeria tests beginning Feb. 13, 2015, or that he acted willfully concerning those tests. Ir would not tend to show the existence of a scheme to defraud.

Flood and Cline explain how their client would be hurt this way:

“The “unfair prejudice” to Kruse is self-evident. The jury would inevitably conclude from the evidence that Kruse had a propensity for permitting unsanitary conditions to exist at Blue Bell, and it might well convict him on that basis even if one or more jurors had a reasonable doubt that the government had proved the elements of the wire fraud charges. An instruction to consider the “insanitary conditions” evidence only for a non-propensity purpose would do little good.

“Courts have recognized that such limiting instructions are not “a sure-fire panacea for the prejudice resulting from needless admission of such evidence.”

Flood and Cline also acknowledge in the pre-trial motion that the government could prove what they wrote about sanitary conditions at Blue Blue. “We assume solely for purposes of this motion that the government will be able to prove that the conduct alleged in ¶¶ 9 through 18 occurred–a threshold requirement for admissibility of “other act” evidence under Rule 404(b).”

Flood and Cline also argue that:

– Empirical studies have shown that evidence of prior bad acts influences factfinders even when the court gives a limiting instruction.

-The “unsanitary conditions” evidence would confuse and mislead the jury. 

-No link exists between coliform and listeria tests. 

Kruse, 67, is accused of one count of conspiracy and six counts of fraud for actions he took during the 2015 listeriosis outbreak when he was president of Blue Bell Creameries.

Kruse issued the first recall in the company’s century-long history and suspended all production for several weeks. In the four-state outbreak, there were three deaths among ten illnesses. All ten were hospitalized.

A federal Grand Jury indicted Kruse in 2020 after a five-year investigation.

The federal Western District Court for Texas calls the United States v. Kruse “a complex criminal case.” The court is based in Austin,

As a corporate entity, Blue Bell pleaded guilty in a related case in 2020 to two counts of distributing adulterated food products in violation of the Federal Food, Drug, and Cosmetic Act.

The company 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 unsanitary 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 the resolution of a food safety matter.

Kruse is the only individual facing criminal charges due to the 2015 outbreak.

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