IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

UNITED STATES OF AMERICA §

§

V. § NO. 1:20-CR-00122(1)-RP

§

PAUL KRUSE §

DEFENDANT'S MOTION TO DISMISS THE CASE FOR LACK OF SUBJECTMATTER JURISDICTION

TO THE HONORABLE ROBERT PITMAN,

UNITED STATES DISTRICT JUDGE:

PAUL KRUSE, through his attorneys Chris Flood and John Cline, moves for an 

Order dismissing the case for lack of subject-matter jurisdiction. The Fifth Circuit has 

declared repeatedly that a district court lacks subject-matter jurisdiction over felony 

charges unless there is either an indictment or an information accompanied by a waiver of 

the right to indictment. Because the record contains neither an indictment nor a waiver of 

indictment, the Court lacks jurisdiction, and the case must be dismissed. 

ARGUMENT

On May 1, 2020, the government filed an information purporting to charge Kruse 

with seven felony offenses. Doc. 1. Kruse has made clear at all times that he does not 

waive his right to indictment under U.S. Const. Amend. V and Fed. R. Crim. P. 7(a)(1)(B). 

Similarly, he has preserved his objection to this Court's jurisdiction.

The Fifth Circuit has recognized that "[i]n the absence of a valid waiver, the lack of 

an indictment in a felony prosecution is a defect affecting the jurisdiction of the convicting 

Case 1:20-cr-00122-RP Document 17 Filed 06/16/20 Page 1 of 4
-2-

court." United States v. Teran, 98 F.3d 831, 835 (5th Cir. 1996); see, e.g., United States v. 

Moore, 37 F.3d 169, 173 (5th Cir. 1994) ("'Unless there is a valid waiver, the lack of an 

indictment in a federal felony case is a defect going to the jurisdiction of the court.'") 

(quoting United States v. Montgomery, 628 F.2d 414, 416 (5th Cir. 1980)); see also, e.g.,

United States v. Machado, 2005 U.S. Dist. LEXIS 26255, at *5 (D. Mass. Nov. 3, 2005) 

("[T]he court has no subject matter jurisdiction over a prosecution in which the government 

has filed an information without obtaining a valid waiver of indictment. . . . [A] court in 

possession of an information but not in possession of a waiver of indictment lacks subject 

matter jurisdiction over the case; such an information is virtually meaningless." (quotation 

omitted)); United States v. Watson, 941 F. Supp. 601, 603 (N.D. W. Va. 1996) ("It 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."); United States v. Wessels, 139 F.R.D. 607, 609 (M.D. Pa. 1991) 

("Unless there is a valid waiver, the lack of an Indictment in a federal felony case is a defect 

going to the jurisdiction of the court."); United States v. Clemenic, 1988 U.S. Dist. LEXIS 

12601, at *8 (N.D. Ill. Oct. 24, 1988) ("[A] court only has jurisdiction over felony 

proceedings brought on the basis of an indictment or brought upon an information where 

there is a valid waiver of indictment.").

1

1

In United States v. Daughenbaugh, 549 F.3d 1010 (5th Cir. 2008), the court of appeals 

observed that "because criminal defendants may waive the right to grand jury indictment, 

see Fed. R. Crim. P. 7(b), a failure to actually secure such a waiver does not affect a district 

court's power to hear a case." Id. at 1012 (citing United States v. Cotton, 535 U.S. 625 

(2002)). But Daughenbaugh did not cite--much less distinguish or purport to overrule--

Teran, Moore, and Montgomery. And the circumstances of Daughenbaugh were vastly 

Case 1:20-cr-00122-RP Document 17 Filed 06/16/20 Page 2 of 4
-3-

Because the record contains neither an indictment nor a waiver of indictment, the 

Court lacks subject-matter jurisdiction over this case. 

CONCLUSION

For the foregoing reasons, the Court should dismiss the case for lack of subjectmatter jurisdiction.

different from this case. The defendant in Daughenbaugh had pleaded guilty to a felony 

information after being expressly advised of, and acknowledging, his right to indictment 

by a grand jury. All that was missing was an explicit waiver of that right in open court. 

See 549 F.3d at 1011. Here, Kruse has not pleaded guilty; he has at all times asserted his 

right to indictment by a grand jury; he has declined to waive that right; and he has expressly 

reserved his objection to the Court's jurisdiction. Cotton, on which Daughenbaugh relied, 

is even farther off the point. There, the defendant had been indicted by a duly constituted 

grand jury; his only complaint was that the indictment did not plead the quantity of drugs 

he was accused of distributing. See 535 U.S. at 628-31. That obviously non-jurisdictional 

pleading defect bears no resemblance to the total failure properly to initiate a felony 

prosecution at issue here. 

Case 1:20-cr-00122-RP Document 17 Filed 06/16/20 Page 3 of 4
-4-

Respectfully Submitted,

/s/ Chris Flood 

Chris Flood

Email: chris@floodandflood.com

Texas Bar No. 07155700

FLOOD & FLOOD

914 Preston at Main, Suite 800

Houston, TX 77002

713-223-8877

713-223-8879 (Fax)

/s/ John D. Cline

John D. Cline

Email: cline@johndclinelaw.com

California Bar No. 237759

50 California Street, Suite 1500

San Francisco, CA 94111

(415) 662-2260

(415) 662-2263 (Fax)

ATTORNEYS FOR PAUL KRUSE

CERTIFICATE OF SERVICE

I hereby certify that on June 16, 2020, I electronically filed the foregoing document 

with the Clerk of Court using the CM/ECF system which will send notification of such 

filing to all counsel of record.

/s/ Chris Flood 

Chris Flood

Case 1:20-cr-00122-RP Document 17 Filed 06/16/20 Page 4 of 4