1

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION

UNITED STATES OF AMERICA,

Plaintiff.

v.

PAUL KRUSE,

Defendant.

}

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CRIMINAL NO. 1:20-CR-00122-RP

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.

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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 

Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 2 of 12
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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. 

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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.

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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-reGrand-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/wpcontent/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/wpcontent/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.

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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.

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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

Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 7 of 12
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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

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EXHIBIT #1

Case 1:20-cr-00122-RP Document 19 Filed 06/26/20 Page 9 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) 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. 

(2) 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. 

(3) 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. The Tolling Period shall be deemed to have started as of 

midnight EST on January 21, 2020. 

B. 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 10 of 12
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. 

(6) 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. 

(7) 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. 

(8) 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. 

(9) 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 11 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 

ACKNOWLEDGED BY: 

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 

Counsel for Paul Kruse 

Chris Flood 

Flood & Flood 

914 Preston ste. 800 

Houston, Texas 77002 

By:~ 

Chris Flood 

- ---------

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