Felony charges lodged against former Blue Bell Creameries CEO Paul Kruse on May 1 are all but certain to be dismissed for lack of subject matter jurisdiction. The dismissal could occur at the next motion hearing in the case, which is scheduled for 2 p.m. on July 29, or U.S. District Judge Robert Pitman could act sooner.

Dismissal of the conspiracy and wire fraud charges became likely when the Department of Justice filed a response brief to a defense motion for dismissal. In their response, DOJ attorneys conceded the current charges “should be dismissed.”

The DOJ trial attorneys, Patrick Hearn and Matthew J. Lash, say the felony criminal information against Kruse was “properly instituted” on May 1 “amidst the exigent circumstances of a global pandemic that precluded convening a grand jury.”

It is because Kruse never gave up his right to be indicted by a grand jury that even the DOJ attorneys now admit the charges should be dismissed.

There’s likely to be a dispute about what happens after dismissal.

Re-filing the charges against Kruse with the grand jury for indictments may run up against the 5-year statute of limitations. And there may be “tolling” issues for when clocks were stopped because grand juries were not working.

While DOJ favors the dismissal motion, the government attorneys said it will trigger “a tolling period” for the government to seek a grand jury indictment “even if the statute has expired.”

Defense attorneys Chris Flood and John D.Cline say DOJ is getting way ahead of itself by raising issues “not now before the court.” They say the purported charges against Kruse all involve a five-year statute of limitations.

“If and when the government persuades a grand jury to return an indictment, we will file a motion to dismiss on statute of limitations grounds, which we will explain in detail the errors in the government’s argument,” Flood and Cline wrote. “Until a grand jury returns an indictment, however, the statute of limitations is not ripe, and the Court lacks jurisdiction to provide the advisory opinion the government seeks.

The DOJ did have a tolling agreement with Kruse to stop the clock on the statute of limitations issues. It ran from Jan. 21 to February this year, just prior to the pandemic becoming an issue.