The jury continues to hear witnesses at the trial of retired Blue Bell president Paul Kruse while behind-the-scenes work continues on the instructions they’ll get before deliberations.

Jury instructions continue to be a work-in-progress as the defense and prosecution teams propose “supplemental” instructions to trial Judge Robert Pitman. When the trial ends, jury instructions are ultimately up to the judge. The federal trial is related to an outbreak of infections from Listeria monocytogenes. The outbreak killed three and sickened 10.

Since trial testimony got underway this past week, defense attorneys Chris Flood of Houston and John D. Cline of Seattle have submitted five “supplemental” jury instructions. These include:

Duty to Disclose — “Before you may find Mr. Kruse’s failure to disclose a fact to Blue Bell customers is part of a scheme to defraud, you must find beyond a reasonable double that Mr. Kruse had a duty to disclose the fact in questions to customers. A duty to disclose may arise by statute, by regulation, or as the result of a fiduciary relationship, meaning a relationship of trust and confidence. An ordinary commercial relationship, without more, does not constitute a fiduciary relationship.”

Duty to Recall — “A food manufacturer such as Blue Bell has no legal duty to undertake a recall unless ordered to do so by a federal agency such as the Food and Drug Administration or by a state agency such as the Texas Department of State Health Services. At all times during the period February 13, 2015, through April 20, 2015, the Food and Drug Administration and the Texas Department of State Health Services had the authority to order Blue Bell to undertake a recall of any ice cream product if they concluded that there was reasonable probability that the product was adulterated with Listeria monocytogenes and consumption of the product would cause serious adverse health consequences or death to humans.”

Information About Listeria is Not Property — “Accurate information about the possible presence of Listeria monocytogenes in Blue Bell products does not constitute ‘property’ under the wire fraud statute.”

Right to Control Economic Decisions is Not Property —“The right of Blue Bell’s customers to the information they consider important in deciding whether to purchase Blue Bell ice cream, including information about the possible presence of listeria monocytogenes in Blue Bell products, does not constitute ‘property’ under the wire fraud statute.”

Benefit of the Bargain —“Blue Bell’s customers who received the benefit of their bargain — ice cream free from Listeria monocytogenes and otherwise fit for consumption, suffered no deprivation of money or property under the wire fraud statute, even if they purchased ice cream without all of the information they considered important to purchasing decisions, and even if they would not have purchased Blue Bell ice cream if they had known that information.”

Experienced trial attorneys say jury instructions are “about applying those facts to the law.”

The prosecution’s Tara M. Shinnick replied to the defense’s list of supplements by requesting this of Judge Pitman: “The government respectfully requests that it be granted leave to modify this instruction or propose additional instructions as may be necessary during the remainder of the trial.”

As of today, the Kruse trial in the Western Texas District of federal court in Austin is hearing its sixth day of testimony. Jury instruction experts say the defendant is entitled upon request to an instruction relating particular facts to any legal issue. If the defense’s supplemental requests for jury instructions seem a little specific, that’s how it works.

Kruse retired as Blue Bell president in 2017 after being credited for saving the century-old Brenham, TX, creamery after it was entirely shut down by a Listeriosis outbreak two years earlier. His trial is for one count of conspiracy and five counts of email fraud.

His defense attorneys submitted a proposed jury instruction earlier concerning Blue Bell’s sanitation history before Feb. 13, 2015. The defense position is that sanitation information has a “very limited purpose” in the trial.

As a corporate entity, Blue Bell pleaded guilty in a related case in 2020 on two counts of distributing adulterated food products in violation of the Federal Food, Drug, and Cosmetic Act.
The company 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 unsanitary conditions and sold to federal facilities, including the military.

The total the $19.35 million in fines, forfeiture, and civil settlement payments was the second-largest amount ever to resolve a food safety matter.

Kruse is the only individual facing criminal charges related to the 2015 outbreak. Blue Bell Creameries, founded in 1907 in Brenham, TX, today produces Blue Bell ice cream, an iconic Texan brand.

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