— OPINION —
The United States v. Paul Kruse will be signed, sealed, and delivered at 4 p.m. Tuesday, March 28, 2023, in Courtroom 4 on the Fifth Floor of the federal courthouse in Austin, TX.
Officially the proceeding is a “rearrangement plea and sentencing.” At it, federal Judge Robert Pitman will accept Kruse’s plea of guilty to a common food safety misdemeanor and impose a $100,000 fine.
At the end of the court session, the retired president of Blue Bell Creameries will be free to return to his home in Brenham, Texas — where the headquarters for the iconic Blue Bell Ice cream is located. A hung jury in August 2022 resulted in a mistrial when Kruse was charged with a half dozen fraud charges that if convicted could have sent him, at 68, to prison for the rest of his life. But that jury was just two votes short of acquitting Kruse.
The prosecution was going to try again next month, but then this plea agreement came together in early March.
Kruse will plead guilty to Introducing adulterated foods into interstate commerce. The charge states:
” Between on or about January 1, 2015, and on or about March 13, 2015, in the Western District of Texas, the Defendant, PAUL KRUSE, caused to be introduced and delivered for introduction into interstate commerce, from Brenham, Texas to Lexington, South Carolina, Wichita, Kansas, and other locations outside of Texas, foods, namely ice cream products, that were adulterated: (i) within the meaning of Title 21, United States Code, Section 342(a)(1), in that they contained a poisonous or deleterious substance, namely Listeria monocytogenes, that rendered the foods injurious to health; and (ii) within the meaning of Title 21, United States Code, Section 342(a)(4), in that they had been prepared, packed, and held under conditions whereby they may have become contaminated with Listeria monocytogenes, all in violation of Title 21, United States Code, Sections 331(a) and 333(a)(1).”
The charge of Introduction of Adulterated Food into Interstate Commerce is one that we’ve seen fairly often. As explained by the plea agreement, it requires proving two elements beyond a reasonable doubt. Including: 1.) That the substance was an adulterated food; and 2.) That a person caused the introduction of or delivered for introduction into instate commerce adulterated food.
Government and defense attorneys agreed to the $100,000 fine and Kruse could pull back his guilty please in the unlikely event the Judge rejects the agreement. And the Consumer Protection Branch attorneys at the Department of Justice agree to dismiss the previous indictment with all those fraud and conspiracy charges.
The plea agreement exists because of that hung Texas jury. The reason, I suspect, that the jury voted 10-to-2 to acquit was that the fraud charges did not produce any victims. Every school district, medical facility and retailer who were called as government witnesses all said they were fully compensated by Blue Bell. Kruse took some unconventional steps, like having his 1,500 Blue Bell truck drivers retrieve contaminated product. But again, testimony at trial proved that was a highly efficient move.
Still Kruse did not act fast enough for government prosecutors who said disclosures of the listeriosis problem were withheld from customers and the public for too long.
In addition to the hung jury being memorable, so too was the 2015 listeriosis outbreak, which was what it was all about. The 2015 outbreak was about first where investigators went both forward and back looking for matches. Ten people were sickened and three died.
It was through “retrospective review,” the Centers for Disease Control (CDC) found isolates collected from Blue Bell ice cream that matched illnesses with onset dates from 2010 to 2014.
This historic use of Pulsenet data for DNA “fingerprints.” including three deaths in Kansas where listeriosis was a factor, all occurred before Blue Bell knew of the outbreak in early 2015.
The only ones likely disappointed with plea bargain are those of us who were looking forward to seeing two great teams of lawyers going at it during a second jury trial.
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