DC Subway sandwich thrower avoids grand jury indictment

Prosecutors failed to obtain a grand jury indictment against a former Department of Justice employee who allegedly hurled a Subway sandwich at a federal officer whom President Donald Trump deployed in Washington, D.C.

It was the second time in recent days that a grand jury rejected an indictment request by the office of U.S. Attorney for D.C. Jeanine Pirro in a criminal case involving attacks on federal authorities carrying out Trump’s policies.

Pirro’s prosecutors had sought to charge the man, Sean Charles Dunn, with felony assault of a Customs and Border Protection officer for the Aug. 10 sub-chucking incident.

But they could not convince a grand jury to indict Dunn, NBC News reported Wednesday, citing two people familiar with the matter.

Dunn had been fired by the DOJ after his arrest.

It is not clear if prosecutors will try again to obtain an indictment of Dunn or lodge another charging instrument against him, known as an “information.”

It is extremely rare for a grand jury to decline to return an indictment when a prosecutor requests one after presenting evidence of an alleged crime.

Grand jurors must agree there is probable cause that a specific crime occurred to indict someone. That is a lower standard than guilt beyond a reasonable doubt, which is required for a trial jury to convict someone.

Lawyers routinely quote Sol Wachtler, the former chief judge in New York state’s highest court, who once said prosecutors could get grand juries to “indict a ham sandwich.”

It is even rarer for the federal government to fail to obtain an indictment in a high-profile case that it has touted in the media, as the DOJ did after Dunn’s arrest.

The DOJ and the U.S. attorney’s office in D.C. did not immediately respond to CNBC’s requests for comment on Dunn’s case.

Dunn’s lawyer, Sabrina Shroff, declined to comment when contacted by CNBC.

The New York Times first reported that the grand jury had not issued a “true bill,” or indictment, of Dunn.

The sandwich spat took place as Trump has clamped down on the nation’s capital to quickly eradicate what he claims is out-of-control crime in the city.

He invoked a never-before-used legal power to temporarily take over the D.C. police department and ordered a deployment of 800 National Guard members to the city. His administration also ramped up the presence of federal agents on the streets to assist in crime prevention.

Trump’s actions are unpopular among D.C. residents, according to recent polls, and activists have confronted or heckled federal officers while they are performing law enforcement operations in the city.

On Monday, Pirro’s office told a judge in a separate criminal case that “an Indictment has not been returned” after “a third grand jury returned a no true bill.”

The admission means that Pirro failed at three separate attempts to secure an indictment against Sydney Reid, who, like Dunn, is accused of assaulting a federal officer in D.C.

A Homeland Security agent wrote in a court affidavit that Reid “forcefully pushed” an FBI agent’s hand against a cement wall in late July.

The affidavit said Reid had been recording the release from D.C. jail of two alleged gang members into the custody of U.S. Immigration and Customs Enforcement due to their immigration status.

After Reid tried to “impede the transfer” by getting between one suspect and the agents, ICE officer Vincent Laing pushed her “against the wall and told her to stop,” according to the court document.

FBI agent Eugenia Bates came to assist Laing and Reid, who was “flailing her arms and kicking,” causing “lacerations on the back side of Agent Bates’s left hand,” the affidavit said.