Federal Judge Robert Pitman backed up his chief judge in the U.S. District Court for the Western Texas District on Dec. 21 by ruling that the COVID-19 crisis was sufficient enough reason to shrink a defendant’s statute of limitations rights. The issue could next be ripe for the appellate court.

In his ruling, the Austin judge denied a motion to dismiss federal charges of conspiracy and fraud against 66-year-old Paul Kruse, the  Blue Bell Creameries retired chief executive. The defense motion said the time has expired for the government to bring charges.

Pitman, however, sided with the government and supported the notion that the COVID-19 crisis empowered the chief judge of the Western District Court to impose sweeping changes on defendants. The ruling keeps the criminal case on track for a jury trial next July.

“On March 16, 2020, Chief Judge Orlando L. Garcia (“Chief Judge”) entered the first order continuing all grand jury proceedings and tolling all deadlines, including the statute of limitations, in response to the COVID-19 national public health emergency,” Pitman’s ruling says.

The Chief Judge extended those orders on April 15 and May 8, 2020.  Kruse was first charged on May 1, but the charges were dismissed on June 16, 2020, for “lack of subject matter jurisdiction.” The dismissal occurred because Kruse would not waive his right to be indicted by a Grand Jury.

A Grand Jury indictment was unsealed on Oct. 20, 2020, making it the second time that the same charges of conspiracy and fraud were brought against Kruse.

He is charged in connection with the contamination of Blue Bell Creameries L.P.’s (“Blue Bell”) products with the bacteria Listeria monocytogenes between 2010 and April 20, 2015. The long-time Blue Bell president “is alleged to have taken steps and conspired with others to conceal the contamination of Blue Bell products despite knowing that certain Blue Bell products contained Listeria monocytogenes.

“The alleged offenses were committed between February 19, 2015, and April 7, 2015, when Kruse allegedly became aware that Blue Bell products had tested positive for Listeria monocytogenes, but nevertheless took steps to conceal the outbreak,” Pitman’s ruling says.

The Judge said Kruse agreed to a 31-day rolling agreement —essentially stopping the clock on the Statute of Limitations—because of the government’s investigation into offenses related to Blue Bell’s “distribution of adulterated or potentially adulterated food products.” 

Kruse moved to  dismiss the indictment as barred by the statute of limitations because he contended “absent tolling, the statute of limitations for all offenses expired on or before May 21, 2020.”

 In support of his argument, Kruse’s defense attorneys argued  that (1) the Chief Judge’s March 16, April 15, and May 8, 2020, orders are invalid because the Chief Judge “has no power to suspend and toll criminal statutes of limitations.”

“Kruse’s motion to dismiss requires the Court to determine whether: (1) the Chief Judge had the authority to equitably toll the statute of limitations for all criminal matters in light of the national health crisis caused by the coronavirus pandemic; and (2) whether the government timely “instituted” the information within the five-year statute of limitations period set forth in 18 U.S.C. § 3282,” Pitman continued. 

Kruse maintains that the Chief Judge did not have the power to equitably toll the statute of limitations and that, in any event, the government failed to properly institute information before the statute of limitations ran on all charges against him. As such, Kruse argues that the Court must dismiss the indictment and charges against him. 

“First, Kruse argues that the Chief Judge’s March 16, April 15, and May 8, 2020 orders “regarding court operations under the exigent circumstances created by the COVID-19 pandemic” are invalid because the Chief Judge does not have to power to suspend and toll the criminal statute of limitations. 

“Kruse contends that equitable tolling conflicts with the central principle governing criminal statutes of limitations, which “are to be liberally interpreted in favor of repose,” and violates the separation of powers principles. The government responds that the Chief Judge does in fact possess the power to equitably toll criminal statute of limitations, and “did so in accord with prior legal precedents.” 

“The Court agrees.”

Pitman also agreed that “statutes of limitations further reflect an underlying legislative balance insofar as different crimes carry different time periods, and the statutes are subject to tolling suspension and waiver.”

“Accordingly,” Pitman said, “the Court finds that the coronavirus pandemic constitutes an extraordinary circumstance that warranted the application of equitable tolling to the statute of limitations.”

“While Kruse is certainly correct that criminal statutes of limitations serve to promote predictability, the defendant’s interest in finality, and protecting ‘individuals from having to defend themselves against charges when the basic facts may have become obscured over time,’ none of these concerns are present here,” Pitman added

The judge also notes that “Kruse’s signing of the tolling agreement in January 2020 shows he was on notice that he was under federal investigation and that the government likely planned to pursue charges against him.“  Pitman’s ruling says “ there is no basis for the contention that the tolled period of three months has led to an obscuring of the facts or evidence available in this case. As such, the Court finds that the Chief Judge’s order properly tolled the criminal statute of limitations and applies in this case.”

Kruse is a resident of Brenham, TX, wher 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 with 1, Kansas with 5, Oklahoma with 1, and Texas with 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 point that had 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 newborns, adults 65 and older, and people with weakened immune systems.