Jury selection will begin Monday morning in the government’s prosecution of former Blue Bell President Paul Kruse stemming from a 2015 deadly listeria outbreak linked to the Brenham-based company’s creameries.
Kruse, who is accused of covering up the incident, was indicted in October 2020 on one count of attempt and conspiracy to commit mail fraud and six counts of fraud by wire, radio or television. The government alleges Kruse crafted a written statement that concealed the company’s knowledge that its products tested positive for listeria and instructed his employees to distribute the statement to anyone who asked about the removal of products from shelves.
The wire fraud counts stem from the six emails sent by Blue Bell sales employees to customers who asked why the products had been removed from shelves between Feb. 19 and April 7 of 2015.
“The Blue Bell sales employee’s email … included the statement created by Paul Kruse that the ice cream was removed because of a problem with a manufacturing machine and did not disclose that the actual reason for the removal of ice cream was that certain Blue Bell products had tested positive for Listeria monocytogenes,” the indictment reads.
Three Blue Bell customers died after consuming the listeria-infected products. The outbreak prompted a complete recall of Blue Bell products and temporarily shut down its creameries.
During a pretrial conference Friday morning, prosecutor Matthew Lash told U.S. District Judge Robert Pitman the government is not planning to pursue count six of the indictment.
Count six relates to email communications between a Blue Bell sales employee and employees of a third-party distributor in Maryland who inquired as to why the creamery in Broken Arrow, Oklahoma, had been closed.
On Wednesday, Judge Pitman issued an order denying Kruse’s request to prevent the government from presenting evidence or argument about sanitation issues at the creameries, writing that “the allegations and evidence related to sanitation issues are admissible both as intrinsic to the alleged scheme to defraud and under Federal Rule of Evidence 404.”
“The court agrees with the government that the allegations related to sanitation are ‘inextricably intertwined’ with the alleged scheme and constitute ‘necessary preliminaries’ to the charged fraud,” he wrote. “These allegations are arguably related to the origins of defendant’s response to the 2015 outbreak and his practices with respect to providing information to customers.”
The order also denied Kruse’s request to dismiss the indictment.
As of Friday afternoon, according to the docket, Judge Pitman had yet to rule on a motion in limine seeking to bar the government from presenting evidence or argument that Blue Bell should have recalled its ice cream sooner or more broadly.
In September 2020, Judge Pitman presided over the criminal prosecution of Blue Bell itself and ordered it pay $17.25 million in penalties for the listeria contamination, which at the time was the largest-ever criminal penalty in a food safety case, the government said.
Kruse is represented by Chris Flood of Flood & Flood and John D. Cline of Law Office of John D. Cline.
Matthew Joseph Lash, Patrick Hearn, Anthony J. Nardozzi, Kathryn A. Schmidt and Tara M. Shinnick are prosecuting the case for the government.
The cause number is 1:20-cr-00249.