A “quiet period” in the criminal charges against the 67-year old retired Blue Bell ice cream president may be ending.

Going on for four months, neither the government nor defense attorneys have brought anything to the Texas Western District Court’s attention.

The last item in the case file was an amended scheduling order signed by Judge Robert Pitman on July 22. An amended scheduling order was required after the judge postponed jury selection and trial.

The main events were to get underway next Monday, Nov. 8, 2021. A four-month postponement for the jury selection and trial to March 14, 2022, was accepted because of defense attorney conflicts.

The amended scheduling order means the government and defense attorneys will be addressing some important pre-trial deadlines between now and the end of the year.

The first of those is the Nov. 12, 2021 deadline for the defense to provide the government with examinations and tests of certain, primarily electronic records.

An important deadline comes about two weeks later. By no later than Nov. 30, 2021, the parties shall file any pre-trial motions related to the potential exclusion of expert testimony under Daubert standards. Responses to those claims are then due by Dec. 14, 2021.

What is the Daubert Standard?
Also known as the “Daubert Test,” the Daubert Standard is a court method to determine whether or not expert testimony should be admissible at trial.

The standard applies in civil and criminal cases and comes up when the defendant or plaintiff believes that the other side uses “junk science” to prove their point. 

The jury’s perception of a case can be impacted by expert opinion, making it essential that theories include actual scientific evidence rather than personal beliefs.

Department of Justice (DOJ) attorneys prosecuting Kruse in federal court in Austin must produce a list of witnesses and exhibits they plan to use at trial no later than Jan. 13, 2022.

The DOJ has the same deadline for providing defense counsel with all materials that could impeach their evidence. It is known as a “Gigio” precedent, which are rules for discovery like Brady materials.

Kruse, the retired Blue Bell president, is accused by a federal Grand Jury of seven federal felonies, one count of conspiracy to commit mail fraud, and six counts of fraud by wire, radio, or television.

The Kruse defense team consists of Chris Flood of Houston and John D. Cline of San Francisco. Kruse originally was charged on May 1, 2020, but Flood and Cline persuaded the court by July 15, 2020, to drop the charges for lack of jurisdiction.

The required Grand Jury indictment was missing, and government attorneys managed to get Kruse before the Grand Jury by October 2020 to re-bring the charges.

The Brenham, TX, resident himself is an attorney and is likely assisting in his defense. He retired four years ago when he was credited with bringing Blue Bell Creameries, also based in Brenham, back from the brink.

The company, the nation’s second-biggest money-maker from ice cream, was devastated by a 2015 outbreak. All of its products were subject to recall, and Blue Bell was forced to lay off its 1,450 production staff while it took several months to clean up the mess.

Kruse got Texas billionaire Sidi Bass to make a “significant investment” as Blue Bell struggled to recovery. Texas media reported Bass put $1.66 billion into Blue Bell.

When Kruse left Blue Bell, he likely knew that his and the company’s role in the 2015 outbreak was under federal investigation. Then a year ago, Blue Bell 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 the resolution of a food safety matter.

At issue in the criminal charges is Kruse’s actions 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 5, Oklahoma 1, and Texas 3. 

All the ill people required hospitalization. Furthermore, Kansas reported three deaths.

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