Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 1 of 12
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`
`
`
`
`
`CRIMINAL NO. 1:20-CR-00122-RP
`
`
`
`
`
`
`
`
`
`
` }
`
`
`}
`}
`}
`}
`}
`}
`}
`}
`
`Plaintiff.
`
`
`UNITED STATES OF AMERICA,
`
`
`
`v.
`
`PAUL KRUSE,
`
`
`
`Defendant.
`
`
`
`
`
`
`
`UNITED STATES’ RESPONSE TO DEFENDANT’S MOTION TO DISMISS THE CASE
`FOR LACK OF SUBJECT MATTER JURISDICTION
`
`
`
`TO THE HONORABLE ROBERT PITMAN,
`UNITED STATES DISTRICT JUDGE:
`
`
`The United States properly instituted a felony criminal information against defendant
`
`PAUL KRUSE on May 1, 2020, amidst the exigent circumstances of a global pandemic that
`
`precluded safely convening a grand jury. The defendant chose not to waive prosecution by
`
`indictment, and the information therefore should now be dismissed. Pursuant to statute, the United
`
`States may seek the return of a new indictment within six months of the date of dismissal of the
`
`information, or six months from the date when the next regular grand jury is convened. 18 U.S.C.
`
`§ 3288. During that time, any applicable statute of limitations will be tolled. Id. While the public
`
`health circumstances surrounding this matter are unusual, the law sets a straightforward course to
`
`follow.
`
`
`
`1
`
`

`

`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 2 of 12
`
`ARGUMENT
`
`
`
`1. A Felony Information May Lawfully Institute a Criminal Proceeding
`
`By statute, “except as otherwise expressly provided by law, no person shall be prosecuted,
`
`tried, or punished for any offense, not capital, unless the indictment is found or the information is
`
`instituted within five years next after such offense shall have been committed.” 18 U.S.C. §
`
`3282(a). The filing of an information, even without defendant’s waiver of indictment, qualifies as
`
`“institut[ing]” the information under 18 U.S.C. § 3282(a). United States v. Burdix-Dana, 149 F.3d
`
`741, 742 (7th Cir. 1998). In Burdix-Dana, the Court reasoned that although the “absence of a valid
`
`waiver of prosecution by indictment bars the acceptance of a guilty plea or trial,” it does not
`
`“mak[e] the filing of an information a nullity.” Id.; see also United States v. Cooper, 956 F.2d
`
`960, 962-963 (10th Cir. 1992) (applicable rule does not prohibit the filing of an information in the
`
`absence of waiver of indictment by defendant; instead, the rule proscribes prosecution without
`
`waiver). The United States is unaware of any court of appeals opinion that conflicts with the
`
`commonsense holding in Burdix-Dana.
`
`Section 3282 contains no requirement that the United States must not only file an
`
`information but also obtain a defendant’s waiver of indictment before the expiration of the statute
`
`of limitations. Instead, the statute requires only that the information be “instituted”—that is,
`
`“inaugurate[d],” “commence[d],” “start[ed],” or “introduce[d].” Black’s Law Dictionary 800 (6th
`
`Ed. 1990). In a different statutory context, the Supreme Court has construed “instituted” in exactly
`
`that fashion. Gollust v. Mendell, 501 U.S. 115, 124 (1991). Institution requires only
`
`“commencement[.]” Id.
`
`This position is consistent with courts’ interpretation of Federal Rule of Criminal
`
`Procedure 7(b), which states that an information may be used to prosecute a felony case with a
`
`
`
`2
`
`

`

`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 3 of 12
`
`valid waiver of indictment. Rule 7(b) does not “prohibit the filing of an information in the absence
`
`of a waiver by the defendant. Instead, the rule proscribes prosecution without waiver. Therefore,
`
`[an] information [can be] filed within the period of limitations, thus providing a valid basis for
`
`prosecution.” United States v. Cooper, 956 F.2d 960, 962–63 (10th Cir. 1992).
`
`The defendant correctly cites to Fifth Circuit cases for the proposition that an information
`
`should be dismissed where there is no valid waiver of indictment. However, those cases do not
`
`hold that a waiver is required to institute an information. See United States v. Teran, 98 F.3d 831,
`
`835 (5th Cir. 1996) (indictment or waiver of indictment is necessary to convict defendant of a
`
`felony); United States v. Moore, 37 F.3d 169, 173 (5th Cir. 1994) (analyzing validity of defendants’
`
`written waivers of indictment); United States v. Montgomery, 628 F.2d 414, 416 (5th Cir. 1980)
`
`(analyzing whether defendant’s waiver of indictment was made knowingly).
`
`Two of the cases cited by defendant from outside the Fifth Circuit are in accord with the
`
`United States’ position that a felony information validly institutes a criminal proceeding. See
`
`United States v. Wessels, 139 F.R.D. 607, 609 (M.D. Pa. 1991) (an information may be filed before
`
`the defendant waives his right to be prosecuted by indictment but he cannot be required to plead
`
`or be tried until such waiver has been made); United States v. Watson, 941 F. Supp. 601, 602-03
`
`(N.D. W.Va. 1996) (citing to Montgomery for the proposition that the lack of a valid waiver of
`
`indictment goes to the jurisdiction of the court but stating that an information may be filed without
`
`a waiver). In fact, the partial quote from Watson cited by defendant, “[i]t 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,” goes on to
`
`state that “[i]t does not follow from that proposition, however, that a waiverless information cannot
`
`therefore be ‘instituted’ within the meaning of § 3282.” Id. at 603.
`
`
`
`3
`
`

`

`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 4 of 12
`
`Defendant does not seem to argue in his motion that the information in this case was not
`
`properly instituted, but he does cite to one district court case that is in disagreement with the
`
`holding in Burdix-Dana. However, that case from the District of Massachusetts is not controlling
`
`authority, and the court in that case also acknowledged that “the few courts to have considered the
`
`question have reached the opposite conclusion.” United States v. Machado, 2005 WL 2886213,
`
`at *8. Along those lines, the United States also brings the court’s attention to United States v.
`
`Sharma, in which a district court in the Southern District of Texas questioned the holding in
`
`Burdix-Dana that a felony information can properly institute a criminal proceeding. United States
`
`v. Sharma, 2016 WL 2926365. However, the Sharma court noted two crucial distinctions: First,
`
`the court found that exigent circumstances could provide a valid basis to proceed by information.
`
`Id. at *3-4. Second, the court noted that the information in Sharma was filed under seal, keeping
`
`it hidden from the defendant and public scrutiny and thereby undermining one of the purposes of
`
`filing within the statute of limitations. Id. at *4.
`
`In the instant case, the ongoing pandemic prevented a safe meeting of the grand jury and
`
`constituted a considerable exigent circumstance. Further, the United States filed the information
`
`publicly to provide defendant with notice of the charges and allegations against him. Therefore,
`
`Sharma is not in direct contradiction with the United States’ position. As with Machado, it also is
`
`not controlling authority.
`
`In sum, the statute and case law interpreting it support the United States’ assertion that the
`
`government lawfully instituted an information charging the defendant here with seven felony
`
`counts.
`
`
`
`4
`
`

`

`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 5 of 12
`
`
`
`2. The Information was Properly Filed Within the Statute of Limitations Period
`
`An information must be instituted within five years after an offense is committed. 18
`
`U.S.C. § 3282(a). In this case, the information filed on May 1, 2020 sets out seven counts that
`
`allege crimes committed between February 19, 2015 and April 7, 2015, as well as certain aspects
`
`of a conspiracy that appropriately reach back further than those dates. These counts are all within
`
`the statute of limitations. First, the defendant signed a one-month tolling agreement with the
`
`United States dated January 21, 2020. (Exhibit #1). The tolling agreement alone means that counts
`
`1 and 6-7 of the information are within the statute of limitations. Further, the Chief Judge for the
`
`Western District of Texas subsequently issued an order tolling all deadlines, including all statutes
`
`of limitations, beginning on March 16, 2020. Additional Order Regarding Grand Jury
`
`Proceedings Under the Exigent Circumstances Created by the COVID-19 Pandemic (March 16,
`
`2020) available at https://www.txwd.uscourts.gov/wp-content/uploads/2020/03/ORDER-re-
`
`Grand-Jury-Proceedings-031620.pdf. The Chief Judge subsequently extended the tolling of
`
`statutes of limitations through supplemental orders which remain in place through June 30, 2020.
`
`Supplemental Order Regarding Court Operations Under the Exigent Circumstances Created by
`
`the COVID-19 Pandemic (April 15, 2020) available at https://www.txwd.uscourts.gov/wp-
`
`content/uploads/2020/03/SupplementalOrderCOVID19-041520.pdf;
`
`Supplemental
`
`Order
`
`Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19
`
`Pandemic
`
`(May
`
`8,
`
`2020)
`
`available
`
`at
`
`https://www.txwd.uscourts.gov/wp-
`
`content/uploads/2020/03/SupplementalOrderCOVID19%20050820.pdf.
`
` The Chief Judge’s
`
`orders means that counts 2-5 of the information also fall within the statute of limitations.
`
`
`
`
`
`
`
`5
`
`

`

`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 6 of 12
`
`3. The Appropriate Remedy is Dismissal of the Information Pending the Return of a
`New Indictment Pursuant to Section 3288
`
`Because the defendant chose not to waive indictment in this felony matter, the United
`
`
`
`States agrees that the information should be dismissed. The dismissal of the information triggers
`
`a tolling period mandated by 18 U.S.C. § 3288 that allows the government to seek an indictment,
`
`even if the statute of limitations has expired, within six months after the dismissal of the
`
`information or six months from the next date a regular grand jury is convened in the appropriate
`
`jurisdiction. Specifically:
`
`Whenever an indictment or information charging a felony is dismissed for any
`reason after the period prescribed by the applicable statute of limitations has
`expired, a new indictment may be returned in the appropriate jurisdiction within
`six calendar months of the date of the dismissal of the indictment or information, .
`. . or, if no regular grand jury is in session in the appropriate jurisdiction when the
`indictment or information is dismissed, within six calendar months of the date
`when the next regular grand jury is convened, which new indictment shall not be
`barred by any statute of limitations.
`
`18 U.S.C. § 3288. To the extent any applicable statute of limitations has expired on any count,
`
`this provision applies to the instant case.1 The information is not being dismissed because the
`
`government failed to file it “within the period proscribed by the applicable statute of limitations,
`
`or some other reason that would bar a new prosecution.” Id. The United States properly
`
`instituted the information here within the statute of limitations when no grand jury was able to
`
`safely meet. The United States respectfully requests that the Court enter the proposed order
`
`included with this filing that, consistent with § 3288, dismisses the information and provides six
`
`months of tolling from the date when the next regular grand jury is convened.
`
`
`
`
`1 The United States notes that the orders issued by the Chief Judge for the Western District of Texas tolling all statutes
`of limitations beginning on March 16, 2020 also apply to the instant case independent from the tolling prescribed by
`18 U.S.C. §3288.
`
`
`
`6
`
`

`

`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 7 of 12
`
`CONCLUSION
`
`For the foregoing reasons, the United States respectfully requests the Court find that the
`
`United States lawfully instituted a felony criminal information against defendant within the
`
`statute of limitations, that information should now be dismissed, and that the United States may
`
`seek the return of a new indictment pursuant to 18 U.S.C. § 3288.
`
`
`
`
`
`
`
`
`
`
`
`Respectfully Submitted,
`
`JOSEPH H. HUNT
`Assistant Attorney General
`United States Department of Justice
`
`GUSTAV W. EYLER
`Director
`Consumer Protection Branch
`United States Department of Justice
`
`
`
`
`
`
`
`
`
`
`
`
`
`By: /s/ Patrick Hearn
`PATRICK HEARN
` Trial Attorney
`Consumer Protection Branch
` United States Department of Justice
`
`
`
`
`
`
`
`
`
`
`
`/s/ Matthew J. Lash
` MATTHEW J. LASH
` Trial Attorney
`Consumer Protection Branch
` United States Department of Justice
`
` ATTORNEYS FOR THE UNITED STATES
`
`
`
`
`
`7
`
`

`

`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 8 of 12
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on June 26, 2020, I electronically filed the foregoing document with
`
`the clerk of the court using the CM/ECF system which will send notification of such filing to all
`
`counsel of record.
`
` /s/ Matthew J. Lash
` MATTHEW J. LASH
` Trial Attorney
` Consumer Protection Branch
` United States Department of Justice
`
`
`
`8
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 9 of 12
`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 9 of 12
`
`EXHIBIT #1
`EXHIBIT #1
`
`9
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 10 of 12
`
`STATUTE OF LIMITATIONS TOLLING AGREEMENT
`
`This Statute of Limitations Tolling Agreement is entered this 21st day of
`January 2020. The parties to this Agreement are: (i) Paul Kruse and (ii) the United States
`Department of Justice, Civil Division, through the Consumer Protection Branch (hereinafter
`the "Government"). Paul Kruse, and counsel for Paul Kruse, and the Government, by and
`through its counsel, hereby agree as follows:
`
`(1)
`
`(2)
`
`(3)
`
`The Government is presently conducting an investigation of your client,
`Paul Kruse. The conduct being investigated includes, without limitation,
`the possible violation by Paul Kruse of various federal criminal statutes,
`including, but not limited to, 21 U.S.C. § 331 (introduction of an
`adulterated food product into interstate commerce), 18 U.S.C. § 371
`(conspiracy), and 18 U.S.C. § 1343 (wire fraud) in connection with the
`distribution and subsequent recall of certain food products.
`
`Paul Kruse and the Government agree that it is in their interests, and the
`interest of justice to enter into this Agreement for the purpose of giving
`the Government time to review information provided by Paul Kruse
`and his counsel and to permit Mr. Kruse and the Government time to
`discuss a potential plea agreement to resolve Mr. Kruse's role in the
`Government's investigation.
`
`This Agreement applies to all possible federal criminal offenses that relate
`to Blue Bell Creameries L.P.'s ("Blue Bell") distribution of adulterated or
`potentially adulterated food products and/or that relate to Blue Bell's
`withdrawal or subsequent recall of food products in 2015. Such possible
`violations of federal law include, but are not limited to, the possible
`violations identified in paragraph ( 1 ).
`
`(4)
`
`Paul Kruse and the Government hereby agree that the period during
`which the running of any applicable statute of limitations shall be tolled by
`this Agreement ("the Tolling Period") as defined below.
`
`A.
`
`B.
`
`The Tolling Period shall be deemed to have started as of
`midnight EST on January 21, 2020.
`
`The Tolling Period shall end at the earlier of midnight EST
`on February 21, 2020, or any earlier date on which the
`Government may initiate a criminal proceeding against
`Paul Kruse.
`
`(5)
`
`By this Agreement, Paul Kruse and his counsel agree that the running of
`any applicable statute of limitations or any similar equitable doctrine,
`including but not limited to 18 U .S.C. § 3282, as applied under
`
`

`

`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 11 of 12
`
`(6)
`
`(7)
`
`(8)
`
`(9)
`
`paragraphs (3) and (4) above, shall be suspended or tolled continuously
`for the duration of the Tolling Period and shall not count against any
`calculation of the statute of limitations.
`
`The Parties further agree that the Tolling Period shall not be considered
`or assessed against the United States for purposes of any constitutional,
`statutory, or other challenge involving a claim of pre-indictment delay
`relating to any alleged violation of any relevant federal law.
`
`Paul Kruse, having been advised by his counsel of the potential
`consequences of this Agreement to his rights under the Fifth and Sixth
`Amendments of the United States Constitution, the federal statute of
`limitations and Rule 48(b) of the Federal Rules of Criminal Procedure,
`expressly waives his right to raise any defense based upon the failure
`of a federal grand jury or the United States to charge him with any
`violation of any relevant federal law made in reliance on time included in
`the Tolling Period.
`
`Nothing in this Agreement shall revive any claim or charge for which
`the applicable statute of limitations may have already run prior to
`commencement of the Tolling Period.
`
`The act of entering into this Agreement does not constitute an admission
`by Paul Kruse of any wrongdoing. This Agreement has been entered
`into for the sole purpose of furthering discussions and the exchange of
`information between Paul Kruse and the Government.
`
`( I 0) Neither this Agreement nor the substance of its contents is admissible
`as evidence for any purpose in any proceedings, except a proceeding
`involving the application or interpretation of this Agreement itself
`
`

`

`Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 12 of 12
`
`(11) Nothing in this Agreement shall limit or affect the right or ability of the
`Government to seek or initiate, in its sole discretion, any criminal charges
`against Paul Kruse for the violation of any federal law occurring at any
`time.
`
`AGREED TO:
`
`Gustav W. Eyler
`Director
`Consumer Protection Branch
`
`:•~St;Zf7#2L_
`
`Patrick Heam
`Trial Attorney
`Department of Justice
`
`Paul Kruse
`3880 Mustang Road
`Brenham, TX 77833
`
`By: _/.oe....-1/,~_',._....C, ___ • -=--=-
`
`Paul Kruse
`
`ACKNOWLEDGED BY:
`
`Counsel for Paul Kruse
`
`Chris Flood
`Flood & Flood
`914 Preston ste. 800
`Houston, Texas 77002
`
`By:~
`Chris Flood
`
`- - - - - - - - - -
`
`