Attorneys defending former Blue Bell Creameries boss Paul Kruse have dropped their concern that the coronavirus pandemic may have tainted the Grand Jury that indicted their client.

Chris Flood of Houston and John D. Cline of San Francisco filed a motion on Nov. 23 for disclosure of Grand Jury selecion records “based on a concern that the coronavirus pandemic may have caused deviations from the Jury selecion and Service Act and this District’s Amended Jury Plan in the process of selecting the Grand Jury that indicted him (Kruse).”

“Information provided by the government has now alleviated that concern,” a Dec. 10 defense motion says, “In particular, the government has advised Kruse’s counsel that the Grand Jury that returned the indictment, in this case, was empaneled in February 2020, before the pandemic began affecting court operations, and that no grand jurors were replaced after the Grand Jury was empaneled in February 2020.”

based on this information, Flood and Cline have asked federal Judge Robert Pitman to permit them to either withdraw their Nov.23 request on behalf of Kruse or, in the alternative, to just deny the motion as moot.

Kruse, 66, was charged with criminal conspiracy and fraud in an Oct. 20 “true bill” issued by the Grand Jury. The government first brought the identical charges on May 1 as criminal information. Those charges were dismissed on July 15 because Kruse would not waive his right to a Grand Jury proceeding.

Other pre-trial issues remain before Judge Pitman’s U.S. District Court for the Western District of Texas in Austin. Most significantly is the defense motion to again dismiss all the charges, this time on grounds that the 5-year statute of limitations has expired.

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 four 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 on the market at that time, which were 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.