Recall the case of the man who was prosecuted by the federal government for throwing a sandwich at a CBP agent. Yesterday, he was acquitted by a jury.

There was no doubt as to the facts of the case. Sean Charles Dunn flatly said, “I did it. I threw the sandwich.” It was clear that the government tried to make the case into a warning to anyone to not show disrespect to any of its ICE or CBP thugs, after a viral video of the incident made them a laughing stock.

A grand jury in DC declined to indict Dunn in August on a felony assault charge, but he was eventually charged with a misdemeanor. The case moved ahead in federal court, with US district judge Carl Nichols acknowledging the strange case and saying the trial would be short “because it’s the simplest case in the world”.

Here is an early report on the event, including video of the sandwich throw.

Molly Roberts provides a highly amusing account of the case and the trial, filled with sandwich metaphors. She points out that the case was clearly due to the federal prosecutor for the DC district, the former Fox News hack Jeannine Pirro, seeking revenge for making the CBP look ridiculous. Her vendetta included a highly unnecessary and staged assault on Dunn’s home that was filmed by them.

Arguably it shouldn’t be a case at all, at least not in federal court. Initially, local authorities arrested Sandwich Guy for assault and disorderly conduct; they released him without charging him, and that seemed to be the end of the matter. Until he went viral—at which point the administration suddenly decided to pursue the felony indictment it ultimately failed to secure, sending a SWAT team to his studio apartment even though he had volunteered to surrender and producing a video of the arrest filmed from multiple angles and soundtracked by heavy metal music.
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This animus is all over the internet: U.S. Attorney for the District of Columbia Jeannine Pirro said in a video posted to social media, “Assault a law enforcement officer, and you’ll be prosecuted. This guy thought it was funny—well, he doesn’t think it’s funny today, because we charged him with a felony. So there. Stick your Subway sandwich somewhere else!” Attorney General Pam Bondi, upon announcing Sandwich Guy had also been fired from his job at the Department of Justice, explicitly held him up as an “example of the Deep State we have been up against.”

Roberts describes the wildly different portrayals of the incident by both prosecution and defense.

Throughout the trial, the prosecution and defense characterize the sandwich throw as either ferocious (the prosecution) or frivolous (the defense). They employ language to match, staging a high-tension courtroom drama: “He takes the sandwich in his hand, he cocks it back,” a lawyer for the government describes, as if the grinder were a gun. Similarly, in a court filing, the prosecution says the sandwich was thrown at “point-blank range.” Later, the lawyer inquires about the “impact” felt by the alleged victim, Customs and Border Patrol Officer Gregory Lairmore. 

“I could feel it through my ballistic vest,” the agent testifies. “The sandwich…exploded all over my uniform. I could smell the onions and the mustard.” As Joseph Conrad’s Kurtz might have testified, “The horror! The horror!”

But the defense brought out video of the incident.

The defense, in contrast, treats l’affaire de sandwich more as farce. An attorney plays for the jury the final portion of an Instagram video depicting the incident. The now notorious late-night snack lies discarded on the ground, accompanied by a caption, “This sandwich is going up in history.” She asks the victim to identify the sandwich; he says he can’t make a positive verification, because he didn’t go back to collect it. She points out that the paper wrapping is still largely on, the contents essentially intact.

“You don’t see there’s mustard on it?” No. “You can’t tell there’s ketchup on it?” No. “You can’t tell there’s mayonnaise on it?” No. Lettuce? Tomato? “In fact, the sandwich hasn’t exploded at all?”

Cross examination wraps (sorry) with the defense questioning the agent about gag gifts his colleagues conferred on him after the encounter. One is a plushie sandwich. Another is a “Felony Footlong” patch purchased from a vendor in the city. Agent Lairmore put the plushie on his shelf and the patch on his lunchbox. So even the man supposedly harmed by the flinging of the footlong finds the situation funny. He is plainly, under questioning about the assortment of possible toppings on the object with which he was allegedly assaulted, on the verge of laughter.

Even the jury seemed to find the whole thing funny.

We can’t see the jurors on the screens in the dedicated media space, but a reporter in the courtroom confirms that they struggle at times to contain their smiles—and one juror in particular must cover her face with her notebook to conceal herself cracking up.

The jury deliberated for seven hours , seemingly struggling with the question what actually constitutes ‘assault’, and the final directions to the jury by the trial judge (a Trump appointee) seemed to tilt in favor of the prosecution.

Did their verdict to acquit constitute jury nullification, even if they were not explicitly doing so? I think it can be classified as such, given that Dunn unapologetically admitted to the act.

It is ridiculous that Trump toadies like Pirro and Bondi waste so much government resources on these things. They may think that it will deter future such acts of defiance. But that may backfire. Opponents of ICE and CBP may find that this acquittal just emboldens them in their efforts to use ridicule as weapon against government abuse of its legal authority.