A federal district court judge in Texas has set the starting trial date for the United States v. Paul Kruse, the felony criminal case against the former CEO of Blue Bell Creameries. And U.S District Judge Robert Pitman, who will preside at the trial, has set a deadline for government and defense attorneys to reach any plea bargain in the criminal action.

One day after the defense filed a motion for dismissal of the charges against Kruse for lack of jurisdiction, Judge Pitman signed the scheduling order. The jury selection and the trial is set to get underway at 9 a.m. on Aug. 31, 2020, at the U.S. Courthouse in Austin.

Prosecution and defense attorneys must make it known in writing to the court by July 27, 2020, if they’ve reached agreement on a plea bargain or plea agreement. The court has scheduled a hearing on all pending pretrial motions, beginning at 2 p.m. on July 29, 2020.

The trial will pit two top attorney teams against one another. Chris Flood of Houston and John D. Cline of San Francisco are nationally known defense attorneys. They’ve always shown their ability to take the offense by calling for the dismissal of the charges. Matthew Joseph Lash and Patrick Hearn are Department of Justice trial attorneys known for their work on consumer cases. Hearn is known for his prosecution of Stewart and Michael Parnell in the Peanut Corporation of American case.

The scheduling order comes a day after defense attorneys Flood and Cline filed a motion for dismissal of the felony charges against Kruse on grounds that the federal District Court lacks  “subject matter jurisdiction.”

“Because the record contains neither an indictment nor a waiver of indictment, the court lacks jurisdiction, and the case must be dismissed,” according to the defense motion.

Flood and Cline say the government on May 1 filed information “purporting to charge” Kruse of Brenham, TX, with seven felony offenses. But, they say Kruse has made it “clear at all times” that he does not waive his right to the indictment,

“Similarly, Kruse has preserved his objection to this court’s jurisdiction,” they say. “The Fifth Circuit has recognized that [i]n the absence of a valid waiver, the lack of an indictment in a felony prosecution is a defect affecting the jurisdiction of the convicting.”

The court has no subject matter jurisdiction over a prosecution in which the government has filed information without obtaining a valid waiver indictment, they contend.

“A court in possession of information, but not in possession of a waiver lacks subject matter information over the case, meaning the information is “virtually meaningless,” the defense motion argues.

“It is beyond peradventure that the absence of a valid waiver of prosecution by indictment is a jurisdictional defect that bars the acceptance of a guilty plea or the commencement of trial on the relevant charges,” it continues.

This district court, they claim, only has jurisdiction if felony charges are brought by indictment or for information where the defendant has waived the right to a grand jury indictment.

“Because the record contains neither an indictment nor a waiver of indictment, the court lacks subject-matter jurisdiction over this case” the defense motion continues. “For the foregoing reasons, the court should dismiss the case for lack of subject-matter jurisdiction.”

The government has not yet responded to the motion for dismissal.

Kruse retired from Blue Bell Creameries three years ago. His long tenure in running the iconic ice cream company included 2015 when the company was challenged by listeria in its plant and products. Blue Bell’s problems included it being linked to 10 listeriosis illnesses and three deaths.

The federal felonies against Kruse were brought on May 1, he did not enter a “not guilty” on the charges until June 8. Kruse did waive his rights to personally appear for arraignment, his not guilty plea, and to obtain copies of all charging documents. Under its emergency COVID-19 rules, the federal court in Austin continues to conduct as much business as possible without courtroom gatherings.

Kruse remains free after signing an appearance bond.  He has promised to appear in court and surrender if convicted.

The felony charges brought against Kruse are for conspiracy and wire fraud. For each of the seven counts, Kruse could face up to 20 years in prison and $250,000 in fines. Six counts charge him with wire fraud. The seventh is for conspiracy.

As a corporation, Blue Bell did reach a plea bargain with the government. On May 1,  Blue Bell entered guilty pleas on two misdemeanor charges that the company shipped contaminated ice cream across state lines during the 2015 outbreak and agreed to pay $19.35 million, the second-highest monetary penalty in history for food safety violations.

The jury selection pool for the Western District includes the counties of Andrews, Atascosa, Bandera, Bastrop, Bell, Bexar, Blanco, Bosque, Brewster, Burleson, Burnet, Caldwell, Comal, Coryell, Crane, Culberson, Dimmit, Ector, Edwards, El Paso, Falls, Freestone, Frio, Gillespie, Gonzales, Guadalupe, Hamilton, Hays, Hill, Hudspeth, Jeff Davis, Karnes, Kendall, Kerr, Kimble, Kinney, Lampasas, Lee, Leon, Limestone, Llano, Loving, Martin, Mason, Maverick, McCulloch, McLennan, Medina, Midland, Milam, Pecos, Presidio, Real, Reeves, Robertson, San Saba, Somervell, Terrell, Travis, Upton, Uvalde, Val Verde, Ward, Washington, Williamson, Wilson, Winkler, and Zavalla.

Blue Bell Creameries is headquartered in Brenham, TX, in Washington County.

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