Paul Kruse, former President of Blue Bell Creameries, remains free on a $50,000 appearance bond that restricts his travel to Texas. His “arraignment by a video” is set for 9 a.m. Nov. 12 on seven federal felony charges related to the 2015 listeria outbreak.

At the arraignment, Kruse will enter his “not guilty” plea. But, his defense team is not waiting until then to demand immediate dismissal of all charges against their client. In court documents filed Thursday, defense attorneys Chris Flood of Houston and John D. Cline of San Francisco say the “charges are barred by the statute of limitations.”

A grand jury indicted Kruse for conspiracy and wire fraud that occurred between Feb. 19, 2015, and April 20, 2015. Kruse did agree to a 31-day “tolling agreement” that briefly stopped the clock, but the statute “ran out for the various offenses between March 21, 2020, and May 21, 2020.

The defense lawyers say the government has “two theories to toll the statute. “First,” they say, ” it has invoked a series of orders from the Chief Judge of this Court–the first issued March 16, 2020–purporting to suspend and toll all statutes of limitation in light of the coronavirus pandemic through June 30, 2020.”

The government’s second theory is that after charges they filed on May 1 were dismissed for lack of jurisdiction, they had six months to obtain an indictment.

Neither theory has any merit, according to Flood and Cline.

“As to the first, the Chief Judge has no power, in the absence of statutory authority (of which there is none), to “suspend” or “toll” the statute of limitations in a criminal case, they write. “And even if the Chief Judge had such power, and the statute of limitations was tolled for the three and a half months the orders were in effect (March 16, 2020, through June 30, 2020), the indictment, returned on October 20, 2020, was still untimely.”

“As to the government’s second theory, an information purporting to charge felony offenses is not “instituted” under § 3282(a) unless and until the defendant waives his Fifth Amendment right to indictment by a grand jury–which Kruse did not do–and the government thus cannot take advantage of the six-month grace period in § 3288,” they continued.

Because the statute of limitations has run on all charges in the indictment, the Court should find those charges time-barred, according to the 26-page defense motion for dismissal.

The indictment charges seven felonies:

• A single conspiracy (Count !) that is said to have occurred “on or about Feb. 13, 2015” and continued “through on or about April 20, 2015.”
• And six wire fraud counts that allegedly occurred on Feb. 19, 2015 (Count 2), Feb. 23, 2015 (Count 3), March 6, 2015 (Counts 4 and 5), April 4, 2015 (Count 6), and April 7, 2015 (Count 7).

Kruse was first charged with the seven felonies on May 1 in a so-called “information” filing by government prosecutors Flood and Cline moved to dismiss the information for lack of subject-matter jurisdiction on June 16.

The government did not oppose the motion to dismiss and on July 15, the Court granted the motion and dismissed the information for lack of subject-matter jurisdiction.

Then on Oct. 20, the grand jury returned an indictment on the same felonies that were contained in the May 1 “information” filing.    Upon conviction, each count comes with a maximum sentence of 20 years in prison and a $250,000 fine.

The 66-year old Kruse, an attorney,  retired three years ago as Blue Bell’s longtime chief executive.  The U.S. District Court for Western Texas in Austin is hearing the case.   Kruse is a resident of Brenham, TX wher Blue Bell Creameries is headquartered about 90 miles east of Austin.

Blue Bell 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 fine, 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 (1), Kansas (5), Oklahoma (1), and Texas (3). All ill people were hospitalized. Three deaths were reported from Kansas (3).

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 (germ) Listeria monocytogenes (Listeria). People at high risk for listeriosis include pregnant women and their newborns, adults 65 and older, and people with weakened immune systems.