Jury selection begins Monday in the federal trial of a D.C. man charged with throwing a Subway sandwich at a federal agent in August, during the early days of the law enforcement surge.

Jury selection is scheduled to begin Monday in the federal trial of a D.C. man charged with throwing a Subway sandwich at a federal agent in August during the early days of the law enforcement surge in the District.

Sean Dunn, a former paralegal for the Department of Justice, was initially charged with felony assault, but a federal grand jury declined to indict on the felony count, prompting U.S. Attorney Jeanine Pirro to file a misdemeanor assault charge.

In the days leading up to trial, prosecutors and the defense continue to disagree on proposed jury instructions — specifically, over what is required to prove misdemeanor assault, as well as the legal definition of assault under the statute.

Generally speaking, in a federal misdemeanor assault case, physical contact isn’t required.

“The defendant forcefully threw a sandwich at a Customs and Border Patrol (CBP) agent while he was engaged in his official duties,” wrote prosecutors from Pirro’s office, in a request to briefly delay trial to hammer out jury instructions. The judge rejected the motion, saying the disputed issues of law will be ironed out before jury selection begins.

However, two issues before U.S. District Court Judge Carl Nichols, an appointee of President Donald Trump in 2019, could be ruled upon once trial is underway.

Dunn’s attorney filed a motion last month seeking to have the case dismissed, claiming he’s being “vindictively” and “selectively” prosecuted.

In the days after his arrest, Dunn was fired from his job at the Justice Department. U.S. Attorney General Pam Bondi called him part of the “Deep State” in a post on X. Not long after, Pirro posted a video with what Dunn’s legal team calls “crude taunts” — including the line, “Stick your Subway sandwich somewhere else.”

Dunn’s lawyers said he offered to turn himself in after prosecutors issued a warrant — but instead, a heavily armed SWAT team stormed his apartment. The White House later posted a dramatic, edited video of the arrest, which was complete with blaring sirens and a suspenseful soundtrack.

Prosecutors cite risk of jury nullification

Another still-to-be-ruled-upon motion was filed by prosecutors, seeking to lower the risk of jury nullification, in which a jury acquits a defendant, in disregard of the judge’s instructions and contrary to the jury’s finding of fact.

“The foreseeable evidentiary issues involve inflammatory evidence or argument that could invite jury nullification,” D.C. prosecutors wrote, in a pretrial argument.

The motion asks the judge to preclude defense counsel from asking questions or making arguments regarding several topics, about potential penalties for a conviction.

Prosecutors don’t want the defense to mention to jurors that a federal grand jury determined there was not probable cause to indict Dunn on the original felony count.

“The decision to charge the Defendants, the existence of the prior criminal complaint, the Defendant’s subsequent arrest, and any reason for proceeding in this matter by way of a criminal information (rather than indictment) is not relevant in the charged offense. This includes whether the case was presented to a grand jury,” according to prosecutors.

Unlike an indictment, prosecutors can file a “criminal information” without approval from a grand jury.

In addition, prosecutors want to preclude the defense from admitting evidence or making arguments about policy or political considerations concerning the Trump administration’s “effort to prevent crime and preserve order through the Make the District of Columbia Safe and Beautiful Initiative,” or Dunn’s policy or political viewpoints.

“It is simply not relevant to the jury’s determination,” according to prosecutors.

WTOP’s Alan Etter contributed to this report. 

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