U.S. v. Dunn 3 - Opening Condiments

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:26 Thomas: Gavel in, Gavelinos. It's gavel time. I'm Thomas. That over there is Lydia. How are you doing?

0:00:31 Lydia: Hello. So excited to be back and talking about this particular case because it's just, it's very funny. It's very fun. It brings me back to the non-funny Trump trial days, but

0:00:42 Thomas: Why? Which particular case are you talking about? And a bit gavel, giddily, -oh, gavely to Matt. Gavel, hiddily I -D -L -E -O. No.

0:00:45 Lydia: Involves a sandwich. Folks, it involves the sandwich. Wow.

0:00:54 Thomas: No. What is, what am I trying to do? Yep.

0:00:56 Lydia: Are you having a stroke?

0:00:57 Thomas: Yes. Gavel, gavel-y, diddly-do, kay To Matt.

0:01:02 Lydia: To you. And Matt, Matt, all you have to say back is and to you you

0:01:05 Matt: And same to you. That's right. Be upon you. I think a caprese sub sandwich today. So I thought, of course, our recording, very tasty sub down the street.

0:01:09 Thomas: And a less fatal sandwich because it's spongy. You know, you got the, the, yeah, there's a lot.

0:01:18 Matt: That is true. A lot of bounce. Yeah.

0:01:21 Thomas: Yeah. That's a safer, that's what they train with, you know? So it doesn't, Yeah, that's the less lethal sandwich option when they're breaking up riots. Yeah.

0:01:21 Lydia: Mozzarella is like a very bouncy cheese yeah it's the rubber bullets like it's mozzarella yeah

0:01:32 Matt: Guys had any good sandwiches recently?

0:01:34 Thomas: Man. You know, what a good question, Matt. A What kind and thoughtful question.

0:01:37 Matt: Very topical.

0:01:39 Thomas: More people should ask each other if they've had any good sandwiches lately.

0:01:39 Lydia: So don't remember if I've talked about this on this show before because we we have talked about sandwiches we have to talk about sandwiches but

0:01:49 Matt: In therapy

0:01:49 Thomas: I don't remember if I've already mentioned this sandwich, but...

0:01:52 Lydia: But I I think I finally have landed my Beach Hut deli order, um, you know, chain sandwich place. It's fine. Um, they tend to use like spinach in their vegetarian sandwiches and I find that to be kind of chalky on my teeth. Don't love it. So I swap out the spinach. I put in regular lettuce and I add mustard and I think that's the key. That's the Key to their vegetarian sandwich.

0:02:12 Thomas: You swap out spinach and put regular spinach?

0:02:15 Lydia: I put it in regular lettuce.

0:02:15 Thomas: Oh, did I mishear or did... Now who's having a stroke? Anyway, yeah. Yeah the uh do you have beach hot is that just a california thing

0:02:19 Lydia: Thought I said lettuce, but yeah, maybe I did not. Oh,

0:02:23 Matt: Never heard of that. Sounds good.

0:02:24 Lydia: Interesting. Yeah, it's cool. It's like a it's surfer vibe sort of spot and then you can like get beers and stuff. And yeah.

0:02:26 Thomas: They're it's pretty good yeah you're you're classic surfer type sandwich your surfer style sandwich well

0:02:35 Matt: Next time that adding mustard to a sandwich makes it a federal crime. So I hope you enjoy it while you can.

0:02:38 Lydia: Shoot.

0:02:40 Thomas: The elements the elements of the crime are you know when you order it actually you can have a checkbox which elements of the crime do you want onions do you want whatever you know you check it off so we are of course as you say talking sandwich trial we finally this was a this was the throwback this took us back we have the audio we've we've we've got access to the courtroom audio no it was recorded by us and boy it really took me back to when we were doing the Trump trial and I can't believe how long that's been now but I had to dust off a lot of the old tricks and work on that so we've got our first part of usv done we're going to talk about the openings um with this one it is short enough and I forget if we've already mentioned this that the patrons are going to get the whole trial the whole shebang we're gonna record every word of this thing especially because we paid a pretty penny for the transcript I'm still not over that particularly hit to the wall um but for the normies we'll we'll be selective interactive we'll play parts here and there um no we're playing everything for the uh for the patrons so make sure to go to patreon.com/gavelpod if you want to make sure you hear every single part of the sandwich all

0:03:10 Lydia: Every single word yeah there you go

0:03:45 Thomas: Right well we'll take our first break and then we're gonna we're gonna get we're going to hear some courtroom audio can't wait it's gonna be so much fun all right so I think we are doing we're to play the very beginning here um then I think we can skip a lot of court instructions right matt uh got anything to um everybody before we start yeah

0:04:09 Matt: I think it's good to kind of set the stage and get parties in here. We're going to hear from DiLorenzo for the government, who is now, I guess at the time too, is national security prosecutor. So obviously this is his kind of case, very national security issues all all over this thing.

0:04:20 Lydia: What threat level is a subway sandwich is like

0:04:24 Matt: It's at least yellow with the mustard. Opening will be John Perrin. We'll get there in a minute, but

0:04:31 Thomas: Of course as often happens in adaptations the government has been condensed to one character and the uh has been condensed to one character so uh we will we'll have kind of one lawyer from each side to keep it straight so So, well, shit, here we go.

0:04:43 Matt: That'll work?

0:04:46 Clip: Good morning, Your Honor. This is Criminal Case 2025 -252, United States of America v. Sean Charles Dunn. Counsel, please come forward and introduce yourselves for the record, beginning with the government. Good morning. Good morning to you, Your Honour. On behalf of the government, Michael DiLorenzo, John Perrin, and we have Mariela Andrade at counsel table. Yes, good morning, everyone. Ms. Shroff, good evening. Good morning, Your Honour, and good morning to everyone else. For Mr. Dunn, Sabrina Shroff, Julia Gatto, and Nick Silverman, we're all present at Defence Council table. Thank you very much. I just want to note for the record before we start that, as the parties are aware, I circulated last night my take on the parties' respective positions about the definition of forcibly. I did that even though, of course, I'm not instructing the jury about that definition now, and I won't do that until we're ready to do the final instructions. I wanted to provide the government with guidance on what I thought the appropriate definition was in order to allow the government to do its opening. Does the government have enough for me to do an opening? Unforcible, yes, Your Honor. All right, thank you. My plan now is to bring the jury in, do preliminary instructions, openings, and then we'll go from there, okay? There is one, I think, or I guess two preliminary issues that we did want to raise. One, the defense made a request for some gifts that were provided to Agent Larimore after the incident. We don't think that they are relevant or discoverable under any theory. We are prepared to disclose them if the court orders it, but we don't Think they're discoverable. Okay.

0:06:17 Clip: Second,

0:06:17 Matt: Let's pause for a second. Right. I just want to catch up on a couple of things here. So we talked last time about the preliminaries and about the arguments over how we're going to define this offense and what words we're gonna use. Forcibly is a very important part of this case because, you know, there's just there's throwing a sandwich and then there's forciably assaulting someone. And we're not going to talk in depth about the jury instructions, but the I when will say when the judge is talking about circulating violating, presumably by email, his take on the forcibly issue. We're not going to see that. Those are internal communications. We're going to end up being able to see the jury instructions. The other issue here that is being raised is the gifts provided to Agent Larimore, which is going to be kind of an interesting, fun, I was going to say footnote, but it's actually a pretty important part of the case. And there's going to быть some argument about them later. But you usually wouldn't be talking about just completely unrelated gifts the witness had received, but put a pin in that and we'll come back to it. One more preliminary issue you were about to hear about. And this is going to be Mr. Parent for the government talking about a minor issue with a witness.

0:07:08 Clip: Second, our last witness, Officer McDonald, had a medical issue that raised itself last night. She had to call out of work, and she is currently on her way to urgent care. Basically, she was going to be called to introduce a short video clip. Lip, we think we can get it in through another witness. We tried to work out a stipulation with defense, and we weren't able to do so. So it's just going to potentially take a little bit longer with this witness. I understand. Obviously, I hope she... Is it she? Yes, Your Honor. I hope obviously that she feels better. It seems to me that... Let's see how things go with whether you're able to get that video in through someone else. In the event that you're not, we'll discuss what, if anything, to do about her health and potential testimony, but I understand. Perfect. On the discoverability question, what would you like me to do right now? Be aware of the issue? Yes, Your Honor. Does it affect preliminary instructions or the openings or the testimony of the first witness? I think it would affect our first witness. They would like to have it for their cross -examination of this witness, I believe. My guess is we're not going to get to the cross - examination before the morning break, so let's talk about it then, if at all. That works for the government. Yes, Your Honor. Thank you. Your Honor, just on the witness issue, we, of course, all hope everybody feels better when they're sick. We're not going to stipulate to something that... Oh, I heard that part. We are happy to discuss with the government if they want to come back later today or tomorrow morning when she feels better. We are glad to hear that. We are very happy to be... We'll figure that out when we get to it, if we need to. Yes, agreed. I just wanted to make sure there was a limit to our unreasonableness. I didn't hear anything unreasonable from your position articulated by the government. It seems to me that this is something we will work through, but I'm certain we will get there. Okay. We do object to it coming in through the witness they referred to because we don't think it is admissible that way. Thank you. Understood. Thank You very much. Okay, let's bring in the jury, please.

0:09:06 Clip: Good

0:09:05 Matt: So Jerry's going to enter, but I just want to note what they're talking about there with the admissibility. We'll come back to it. There's going be a long discussion about this is for the body cam footage. It's going To be introduced through the second witness, not the first witness that they're arguing about. I just wanted to note one difference from the Trump trial. You might remember we discussed this at length. And one of the reasons the Trump trial was as long as it was, and it required as much recording as it did, was that the defense team in the Trump case didn't stipulate to anything, you might remember. They just would not, even for basic phone records, for the most basic stuff that generally, speaking defense counsel, to move things along, there's no reason to object. But of course, Donald Trump is not the stipulating type. We are going to be getting into some evidence, right?

0:09:44 Thomas: And their whole goal was delaying, delaying delaying as we called out at the time. And it worked, you know, in general, that, that worked.

0:09:47 Lydia: Worked

0:09:50 Matt: It forced him to sit in a cold courtroom for days longer than he would have had to while they went through foundation witnesses. Because this is the only piece of evidence that's really in question. Stipulated to, you know, we've got the Instagram video that we've already watched in the first episode of this series. We've got, yes.

0:10:04 Thomas: Important temperature note though of the courtroom. Now the patrons will hear this temperature note, but the normies, we will give you an idea just what you want to you know get over on patreon .com the the court notes in this one that they start the day with the courtroom really cold because it gets really warm as they go throughout the day he like tells the jury like all right just so you know everything's cold you know but there's a reason for that because it warms up I don't know why temperature is such a big issue of every courtroom while

0:10:32 Lydia: It also appears to impact the ability to hear each other in the courtroom as the ac is kicking on and everything um and so we'll see that in the transcript too but But one thing that jumped out for me here, Matt, which I don't think we really ever saw truly in the Trump trial, was the defense counsel here saying, you a limit to our unreasonableness, Judge. Like, you Know, we're not trying to be jerks just for the sake of being jerks and being like apologetic about it almost in a way.

0:11:00 Lydia: Um, And I thought that I was nice to just kind of like reiterate, like, yes, we're opposing counsel on this, but it's not just for the sake of opposing. We just don't think this is appropriate.

0:10:59 Matt: It's a nice line. Yeah

0:11:11 Thomas: Trying to manage the impression in front of the judge yeah

0:11:14 Lydia: And I mean, I guess we did get a little bit of impression management in Trump trial, like Emil Bove when he's like apologizing for messing up. And the judge was like, I think you're doing all right. Keep keep doing the good work

0:11:28 Matt: That's right. But that's a really good note because there is a lot of give and take on these kinds of things and you do want to be as reasonable as possible while still of course of course, representing your client's interests when you can. And of course you don't also want to look like you're being in the position of taking advantage of the fact that a witness is sick, right? So you want to work with whatever they can do to get it in some other way, but they're just saying, generally speaking, they didn't even think that was the right witness to get that video in. And we'll talk more about why that is, but no, I think these are pretty reasonable lawyers from what I can tell. And it's just another nice difference from the Trump trial.

0:11:55 Lydia: Yeah this is very it seems at you know as ridiculous as the topic is it does seem like the conversation between everybody is pretty reflective of like the institutions working mm

0:12:06 Matt: They're all very professional and I think the defense is doing just fine. They're not conceding anything they shouldn't be as far as I can Tell. Yeah, I I think we can get on to the opening statements, and this is going to be John Perrin for the government. I just wanted to note that he was a graduate of Penn Law School in 2017, so he's pretty new to the U .S. Attorney's Office at this point, only a couple years in. Now, since this time, I'm sure it's a coincidence, but he's been returned to Pennsylvania, Eastern District, and he's now doing major crimes with economic stuff. This is a pretty good introductory trial for somebody who's been with the U.S. Attorneys for a couple of years, and He's obviously being supervised, but Daryl Lorenzo here. And I think this is a pretty solid opening. I'm curious what you guys think about it. But he's doing the best he can with what he's got here.

0:12:44 Thomas: Right well we're gonna skip like I said a lot of the the judge here uh get toward the opening statements here let's

0:12:51 Clip: With that, we will begin with the government's opening statement. You may proceed, counsel.

0:12:58 Clip: No matter who you are, you can't just go around throwing stuff at people because you're mad at them. In our society, we operate under an understanding, a shared agreement, that when we have disputes, we settle them verbally. We don't let them turn physical. That defendant violated that agreement, that understanding, when he went from berating and yelling at the officers to throwing a sandwich at the chest of one of the law enforcement officers. That's something you just can't do.

0:13:34 Matt: I just wanted to talk about this theme for a second. What do we think about that? It's a pretty good opening line. No matter who you are, you can't just go around throwing stuff at people because you're mad at them. It's good line. I don't know if it's a good opener, but it's the best he's got, really.

0:13:34 Clip: Over

0:13:48 Lydia: I mean I think again like when you have to admit that what was thrown was a sandwich which it kind of falls apart but but if like yeah you're talking about other things and stuff like he's not wrong I mean yeah

0:13:59 Matt: I mean, yes.

0:14:00 Thomas: The only problem is it does illustrate the absurdity because it sounds more like a teacher in a classroom you know you can't throw crayons at your fellows too it doesn't sound like it should be a federal case

0:14:14 Matt: It does sound like you're talking to children. That's just no way around it. I could hear you saying that to your kids. I'm mean, that's really like...

0:14:18 Lydia: Think

0:14:20 Thomas: Yeah and they should be charged federally but you know that's just our kids yeah

0:14:25 Matt: But you're not going to narc.

0:14:26 Lydia: It's also I think it's funny that like this emphasis on the the sandwich being thrown at the chest of the officer like right where his heart is his lungs those vital organs

0:14:32 Thomas: Center of mass yeah you know the stopping power of the sandwich yeah

0:14:41 Matt: Yeah well, again, he's working with what he's got. But it's interesting because he's really kind of just falling back on a moral or just basic basic standards of society test rather than talking about breaking the law. So, I just thought that's pretty telling that that's the best you got to open as your theme.

0:14:56 Thomas: It is a federal party foul to uh good

0:15:01 Lydia: Thank

0:15:01 Clip: Over the course of this trial, you're going to hear a little background about why Agent Larimore was where he was that night. In short, him and a few other agents from Customs and Border Patrol were assigned to assist the Metro Transit Police in patrolling the city that night. They were not there on some personal mission. They were there just doing the job they were asked to do. After some initial preparation, we pick up with the group going from taking the train from the Capital One Arena area to U Street, 14th and U. There were a few FBI agents with them when they went. You will see their surveillance footage when they get there. They just sort of set up shop, start looking around. They will tell you there was no particular target in mind, no special mission they were planning. They weren't there to bother anyone. They were just there to do their job. Defendant, he arrives on scene and he escalates. He confronts Agent Larmor. He starts yelling at them before he turns his anger to the rest of the group. Let's be clear, that's totally fine. He can do that. He can express himself. That's not why we're here today. That's just the context. Because over the next several minutes, the defendant continues to yell at these officers. At one point, he goes across the street and continues to berate them, calling them derogatory names and yelling obscenities at them. Eventually, he comes back to these two. He's fixated on them. First, he singles out another agent, Agent Trejo, who was there as another Customs and Border Patrol agent. He starts yelling at him, similar to how it was with Agent Larimore earlier, before eventually he turns his attention back to Agent Larmore. Now, up until this point, and really throughout the rest of the night, law enforcement acts exactly how they should. Calm, collected, professional. They tell the defendant to have a nice night, keep it moving. But he wasn't done yet he went back to agent laramore and within arm's reach he starts yelling at him again you will see the footage of it his body is bobbing up and down he is really angry agent lariamore responds with restraint you will See him he stands there stands firm arms by his side no real reaction he doesn't make any movements toward him acting as he should up Up until this point, while maybe frustrating for these officers, the defendant hasn't really done anything wrong, right? He's allowed to stand there. He can yell at police all night. The defendant doesn't stop there. While he is, again, within arm's reach of Agent Larmor, he takes a sandwich in his hands. He cocks it back, and he throws it at the agent, hitting him in his chest. He takes off quickly. He knew that he had done something wrong. He knew at that point he had crossed the line.

0:15:03 Thomas: Times

0:18:08 Matt: I'm sorry. A couple of things. First of all, the idea of cocking a sandwich is very funny to me.

0:18:14 Lydia: Cocks

0:18:14 Thomas: It's a semi -automatic sandwich

0:18:16 Lydia: It back oh

0:18:17 Matt: To remove the safety, he's going for it.

0:18:21 Thomas: He's within arms I would say he's two two and a half sandwich lengths away

0:18:28 Matt: He knew at that point he had crossed the line. One hoagie over the line, sweet Jesus.

0:18:33 Thomas: Man good stuff it.

0:18:34 Matt: I do do want to note though, just on a legal note, that he's making a point obviously that they're there to do their jobs, which is a required element that they have to be on the job when he's assaulting them. But he's also kind of undermining the point he's going to make near the end, which we're getting to already, where he's talking about how he was impeding or interfering because he's saying that Larimore isn't reacting, he's not doing anything, he's just standing there.

0:18:34 Lydia: My god Crazy. Right, right.

0:18:53 Thomas: Until gets a sandwich center mass right in the chest. You try doing your job, Matt. You try doing YOUR job with a sandwich.

0:18:59 Matt: Done for the night. With mustard stands.

0:19:04 Thomas: The remnants of a sandwich all over you.

0:19:08 Clip: He makes it about a city block before a law enforcement vehicle sort of cuts off his ability to go forward. He stops, he gives up, and is taken into custody. No takedown, no force used, not really much incident there. Later, we learn a little bit about why the defendant did this. From his own mouth, he admits to throwing the sandwich. He says he was doing it to draw them away from where they were. He was trying to impede and interfere with their assignment that night. Look, I understand. You may all have views about the federal law enforcement presence in D .C. You all may have views about whether or not you want Agent Larimore at that intersection that night Objection Overruled That's fine. We're not trying to convince you otherwise. Otherwise, respectfully, that's not what this case is about. This case is about the fact that you can't go around throwing stuff at people when you are mad. You can't do it to your neighborhood. You can do it to law enforcement. The defendant is charged with misdemeanor count of assaulting a federal officer. Objection, Your Honor. Uh, let's get on the phone.

0:20:20 Matt: Okay, a couple things. We were talking before recording about the phone thing. I think I'm coming closer to figuring it out. I need to probably talk to somebody who's practiced in D .C. District Court.

0:20:29 Thomas: Well, I already had to make production decisions, so hopefully I figured it out. It seems like they're on some sort of phone system of some kind.

0:20:31 Matt: Sorry, internal.

0:20:36 Thomas: At first, I thought that was, Yeah, I thought it was like a, yeah, not literal, but I thought that was like a figure of speech. I was like, that's interesting. Let's jump on the phone.

0:20:43 Lydia: Yeah, and then they stand

0:20:44 Thomas: It was like one of your corporate speak. Well, let's touch base, everybody.

0:20:45 Lydia: Up and walk over. To the judge. Yeah. Yeah, circle back.

0:20:52 Matt: The husher, obviously, and I think, you know, that generates white noise is in courtrooms.

0:20:54 Thomas: Let's, yeah. Talked about it?

0:20:55 Matt: I've certainly heard plenty of those, but I find that interesting kind of note on the hush-a-phone, which is the combination of a husher and a phone. Used at some point, it's like a plastic cup that you can put around a phone to have a private conversation. A really interesting case actually on this, just completely outside of this, but on the hush a -phone where AT&T was trying to say that it was fundamentally interfering with their ability to make phones, that somebody had an accessory you could clip onto a phone, and AT &t actually suggested in court that you should actually cup your hand instead. You don't need a piece of plastic.

0:21:22 Thomas: What the hell? I don't understand.

0:21:24 Matt: Anyway, so yeah, I think this is some kind of internal funds, but they can just pick up a handset and they can all talk and there's some kind cup or something protecting so the jury can't hear what you're talking about.

0:21:32 Lydia: So the sound doesn't escape

0:21:34 Matt: Yeah. But I think they also have a hush here, but I'm not really... I need to find out some more about how district court does things at DC. The objection here, obviously, is because John Perrin has just used the word misdemeanor in his opener, and the jury doesn't know that he's charged with misdemeanor versus felony.

0:21:34 Lydia: The, yeah, okay.

0:21:48 Matt: So there's going to be a discussion now about if that's a bad thing, that the jury just heard something that goes to the consequences to potential sentencing, which you're not supposed to acknowledge.

0:21:55 Thomas: So how do you not know what he's charged with?

0:21:59 Matt: You know that he's charged with 18 U .S .C. 111, but there is a misdemeanor and a felony version of that, and they haven't delineated jury doesn't know anything about the potential consequences. And if they knew it's a misdeed or they can figure out what the potential of sentencing is, and that judge doesn't want that.

0:22:11 Lydia: Yeah. And then if they're like, oh, that's not that big of a deal. And he did throw the sandwich. So yeah, he is guilty of throwing a sandwich because it's, you know, huh?

0:22:14 Matt: Well,

0:22:17 Thomas: I do not understand that. So you don't have to charge him with a specific thing? Or is it up to what the jury decides that determines whether it was a misdemeanor or a felony?

0:22:28 Matt: Remember that they were trying to go for the felony version before because they were trying to say it was forcible and up to 10 years or whatever.

0:22:33 Thomas: I remember that. I didn't know that that meant the jury wouldn't even know which thing that he's charged with.

0:22:39 Matt: Because you don't want to do anything, thing, especially in the opening to acknowledge what the potential consequence or sentence could be, the severity of the offense. Heard in this discussion kind of how this elaborates, but I thought it was an interesting kind of amateur mistake on Perrin's part to even use the word.

0:22:44 Lydia: How does that happen? I often is there a misdemeanor version and a felony version of various charges I guess

0:22:58 Matt: It's pretty normal. It's pretty common. But you want to be just really careful anytime you're talking to the jury not to acknowledge this.

0:23:04 Thomas: Applies all the time. It's not really just because of that. Is it like you don't want to say you just say he's charged he's charged with assaulting an officer like you just want to describe it rather than say like what level of thing it is

0:23:14 Matt: His mistake was saying misdemeanor count of rather than just saying 18 USC and one 11er.

0:23:16 Lydia: The defendant is charged with yeah yeah let's

0:23:18 Thomas: That's so interesting how does that never come up

0:23:21 Matt: And this is a pretty good little back and forth that'll explain a little better.

0:23:25 Thomas: Go yeah we managed to tap into the phone system

0:23:26 Lydia: Tap into their phone

0:23:30 Clip: Assaulting a federal officer. Objection, Your Honor. Uh, let's get on the phone. I assume the objection is to the use of the word misdmeanor. Yes, Your Honor. You can use that word. That goes to potential punishment. Okay? Okay. Yes, Your Honor. Your Honor, I have to think a little bit about what the remedy can be since we can't remove that.

0:23:49 Clip: Probably... I will instruct the jury at some point. They can't consider the potential consequences. Your Honor I really don't think that captures it. Especially because it's

0:23:48 Lydia: So good

0:23:56 Thomas: On my mom's coming I got mom get off the phone oh so good

0:23:59 Matt: Get off the line. Nostalgia.

0:24:04 Clip: Especially because it's not just the remedy. It talks to the level of offense, Your Honour. I understand. So what's your proposal if anything? I will have to come back after I... My brain isn't working that fast. I will come back with a proposal, Your Honors, after... Do you want me to say anything right now about it? No. Okay. Okay. Okay. Thank you. So we are not going to talk about, we're not going to refer, can everyone hear me? Yes, Your Honor. We are not referring to the potential consequences of a guilty verdict here in any way. Misdemeanor, punishment, employment consequences, we are not doing that. Certainly not unless and until it is pre -cleared with me and misdemeanour is one version of that. I apologize. That wasn't my intention. Understood. Thank Thank you. You may proceed, counsel. The defendant is charged with one count of assaulting a federal officer, which can include other things, such as impeding or interfering with that officer. That's what the evidence is going to show here, that when the defendant threw that sandwich at Agent Larimore, he did forcibly assault him. He impeded what he was doing that night and interfered with what he doing that that night the assignment that he had that night it's unlikely that the basic facts here are going to be super complicated this case isn't going to test your ability to wade through a thicket of complex evidence instead it's going to test your to do two things one to honor the oath that you took yesterday when you were sworn in and two to follow the instructions the court will give you when you deliberate because when you do that and apply the evidence to the law in this case two things will become clear one that a crime was committed that night the one charged here and that Sean Dunn committed it you just can't do what the defendant did here he crossed the line he took it too far that's why

0:26:12 Clip: After you've heard all of the evidence in this case, we're going to come back before you and ask you to return the only verdict that is consistent with the law and the facts in this case. And that's guilty.

0:26:13 Thomas: One sandwich over the line

0:26:28 Clip: Thank you.

0:26:27 Lydia: A little overly confident there I guess you have to be man

0:26:29 Clip: Thank

0:26:28 Thomas: I mean that's always what they say so

0:26:31 Lydia: I know I know it's just like I I would I would feel so uncomfortable saying that.

0:26:35 Thomas: Any any thoughts before we go to the other side

0:26:37 Matt: No, I mean, he set up this theme of you can't do this and it's just a little too much. And he also did, I think, a pretty good job of delineating that there was a lot of First Amendment protected stuff and that's not what we're prosecuting him for. I thought that was a pretty solid opener.

0:26:49 Thomas: Yeah too bad

0:26:50 Lydia: There anything you would have added, Matt, that or like any direction you would have gone a little differently or it's just kind of.

0:26:55 Matt: Nah, I would have quit rather than deliver this opening.

0:26:59 Lydia: That's fair. That's true.

0:26:57 Thomas: Resign yeah Yeah.

0:27:00 Matt: But yeah, if you put a sandwiched my head.

0:27:05 Lydia: Well, yeah, you're fearful of your life in that instance.

0:27:07 Matt: If you cock that sandwich fully loaded, no, I think this is pretty solid. I mean, I might just have to do this too because

0:27:15 Thomas: I'm picturing the bailiffs all have sandwiches like us and their belts like.

0:27:18 Lydia: And their holsters.

0:27:19 Matt: Holsters.

0:27:22 Thomas: Now, that's the art we need to get done. Oh, we got to get that done or

0:27:25 Lydia: Good idea.

0:27:26 Matt: But yeah, I mean you have to kind of fall back on a theme and the theme can't be that this man was in danger or that there was any actual serious crime. It's just like...

0:27:34 Thomas: Crime that happened. Yeah.

0:27:37 Matt: I've talked to people about this case, there is kind of that reservation of like, well, you can't just do that, can you?

0:27:41 Thomas: Yeah, exactly.

0:27:42 Matt: And that's kind of what he's going for, but it doesn't mean it's a federal offense either.

0:27:46 Thomas: I mean, it still comes across like it's company policy that you can't do that. You know, he went too far. You know? It's like, okay, that's not a federal crime, though. Interesting. Really interesting.

0:28:06 Matt: Now we've got a very short opener from the defense. I like this one.

0:28:09 Clip: Thank you, counsel. Does the defendant intend to give an opening now? Yes, your honor. You may proceed, counsel?

0:28:18 Clip: He did it. He threw the sandwich. It was Sunday, August on U Street, outside a bar called Bunker, and yes, Yes, our client, Sean Dunn, he threw a sandwich. He threw the sandwich towards the chest of a very heavily armed Customs Border Protection agent, who, along with a dozen, maybe more agents like him, were amassed in force on the corner of UN 14th in the middle of Washington, D .C. He threw a sandwich at that agent, and now the United States Attorney's Office for the District of Columbia has turned that moment, a thrown sandwich, into a criminal case. A federal criminal case charging a federal offense. Forcibly interfering, forcibly impeding, forcably assaulting a law enforcement officer. Forcably with a sandwich. This is going to be a very short trial and at At the end, you're going to be asked, did they prove their case beyond a reasonable doubt? Did they convince you beyond a unreasonable doubt that what happened that night is a federal crime? You're not going to being asked whether you approve of the conduct. You're going not going be asked whether feel badly for the agent who took a sandwich to his chest.

0:29:16 Matt: Beautiful delivery. I

0:29:41 Clip: There is one question, whether what happened at night, which is largely not in dispute, it's on video. Whether what happened that night is a federal crime your honor I object overruled this is a straightforward case the government is right you are going to see some videos you are to hear some agents you're going to learn why those federal law enforcement officers were on that local corner why custom border and protection instead of patrolling the border were patrolling the people of D .C. And you will learn that Mr. Dunn has very strong feelings about those policies that brought those officers there. He is not a fan. He thinks recent immigration enforcement is racist. He things the militarization and the takeover of local law enforcement is fascism. He thinks that. And on August 10th, when he was on that corner and he saw quite literally a wall of border patrol uniforms in his city, and we'll hear him on the video, he'll explain what he thinks, turning his hometown into a military occupation. Standing out front, immigration officers in front of a gay club that was hosting a Latin night. Sean Dunn expressed his opinions. He expressed them loudly, and he expressed them, maybe you think, vulgarly, but he expressed his opinion. And words without force are never assault. Words without force don't impede law enforcement. They don't interfere with law enforcement, they don't even intimidate law enforcement and they certainly don't assault law enforcement because words without force are never assault What about the sandwich? What about the throne sandwich? You are going to see it. I have 100 % certainty the government is going to show you the video several times so you will see it with your own eyes and you will see it for what it is. It is a punctuation. It is an exclamation mark at the end of a verbal outburst. It is harmless gesture that did not and could not cause harm or injury.

0:32:03 Clip: Forcibly. That is what he is charged with. The use of force. It can be threatening or attempting to inflict bodily injury. That's the standard. Your Honor, I object to that. I agree. We are not going to define legal terms now. They will not come close to convincing you beyond a reasonable doubt that the conduct was forcible. It was a harmless gesture at the end of exercising his right to speak out. His conduct is not a federal criminal case it is not close he is overwhelmingly not guilty thank you thank you counsel ready

0:32:44 Matt: Love this. I think this is a great opening.

0:32:47 Lydia: Yeah it was fun to read

0:32:48 Matt: Just, it was, and it must've been fun to do. And I have to imagine there was some smiles and probably some laughs, some giggles, at least in some of this.

0:32:53 Thomas: I was trying to get Lydia to be more sarcastic with it, actually. I think she's

0:32:57 Lydia: I was like I think the judge is going to get mad at me though

0:32:58 Thomas: Buttoned down. She that's lydia for you she's afraid that a judge is going to get mad

0:33:04 Lydia: That you're reading of a judge I don't want him to think I'm turning the you know the courtroom room into a circus so you know yeah

0:33:10 Thomas: Into a farce yeah

0:33:13 Matt: Well, the charge kind of did that already. She's saying something like he took a sandwich to the chest, I can't imagine she was stone cold on that one. I mean, that's just...

0:33:15 Thomas: Man

0:33:21 Lydia: I think she also does a really good job painting the picture right like like through her opening I feel like I can visually see what's happening um like I feel like I'm in it almost um and I didn't necessarily get that with uh the government in their opening statement right

0:33:37 Matt: Well, yeah, because it's...

0:33:39 Thomas: Is weird because usually it'd be the opposite like it's usually like the prosecution would want to put you right there in the crime you know and then the defense would would yeah and defense would want to just kind of like pick apart you know it's because I feel like when you're prosecuting usually it's like you want emotion and anger and fear and sadness and then when you're on the defense I would think you want more like you know thoughtful like oh did they prove that did they proof that you know its kinda interesting thats reversed almost

0:33:43 Matt: It's true. Yeah, right,

0:33:46 Lydia: So you can feel what they were feeling kind of thing yeah right right

0:34:03 Matt: Right. Right. Sure. 38 bullets entered this man's back, as opposed to the graphic description of a man being shot 38 times. Yeah, no, this is really interesting. It is kind of an interesting reversal. It's a great point because you've got Perrin here knowing that this is very hard for him to prove as a federal criminal offense, basically just falling back on basic standards of morality, almost like a common law argument that this just can't be a thing you can do.

0:34:27 Matt: And then you've got the defense starting out its defense opening statement by saying, saying, yeah, our client did it. Like, what do you want? Come at me, bro. This is Julia Gatto, by the way. I didn't give her proper credit. I think she's great. She's a very, very experienced trial attorney. Several of the attorneys here, this is pretty pretty below her pay grade, I think, this thing. But I think he's having some fun. I believe this was pro bono. And she really thought this out, though. It's short, it's simple. And I really like the last bit about how it's a punctuation mark. It's an exclamation mark. That's really good. That's

0:34:58 Thomas: Good alright it's trying to convert it to to the speech because, you know, that tension you talked about earlier. It is true that you're like, well, it does feel like you can't just throw things at federal officers like it does. Feel like that probably isn't cool in some way.

0:35:12 Lydia: Like we still live in a society like that's not

0:35:15 Thomas: Yeah, that's really funny, too. And I have no idea what you know. Don't know what's a good strategy or not, because the whole thing is so ridiculous. It feels like it's going to come down to really what's in the minds of 12 jurors, really. But I the idea of that's linking it to speech, obviously. So it's saying like, no, that's just an extension. It's just a punctuation on the speech that we've all agreed.

0:35:36 Matt: Fully

0:35:37 Lydia: Cocked back his punctuation and released

0:35:40 Thomas: That we all agree is freedom of speech. Like this was just the punctuation of the sentence.

0:35:41 Matt: Loaded punctuation yeah yeah no it's really I think that's the best you can do yeah yeah

0:35:48 Lydia: It you know in in the same way okay so I guess here's here's an analogy like when someone's in an argument with somebody and they have you know a cup of water and then they splash it in their face right like that often I think yeah yeah or you know just any bar every weekend I'm pretty sure I think I've seen it happen

0:36:00 Thomas: Like in a soap opera? Doesn't add. It's not, it's just, yeah. I feel like that's a movie thing. That happens in movies so much more than it happens in real life.

0:36:10 Lydia: That's true that's sure it happens far more more frequently in Hollywood than it does actually. But I mean that, I haven't been on the receiving end. I feel like that's probably not a great feeling, but it does feel like it's part of the person expressing themselves in different way than like a punch would be. You know what I mean? But I don't know.

0:36:29 Matt: I actually had a client charged with uh assault and battery with a dangerous weapon for throwing what was alleged to be hot tea in the direction of her abusive boyfriend um and she claimed it wasn't even hot at the time he just wanted to make something out of it because she was drinking tea it didn't even hit him it was just assault it It was like attempted tea throwing, right? And, you know, if it's scalding hot, sure.

0:36:37 Lydia: How very Bostonian.

0:36:49 Matt: Yeah, having a tea party. But, you Know, again, worst case scenario, right, it is actually just fresh out of the kettle and he knows that this is hot water and it hits him and actually, you know, that hurts. But, You know, she said it wasn't, it was across the kitchen. She was just mad because he was saying some really offensive stuff. But, It's still a hook. It's a way to go to the police and say, She tried to hurt me.

0:37:10 Lydia: But but I think and that is that is a difference right because if it is hot if it's boiling water that can cause severe injury for sure as opposed to you know a cup of like room temperature water or even like ice cold water or a sandwich in this case where it's like what damage is that really going to potentially inflict on a person

0:37:15 Matt: For sure right

0:37:29 Thomas: Just want to know if it was toasted or not. I just hope we find out if it Was Toasted.

0:37:32 Lydia: I feel like it wasn't when we watched the video. It doesn't, it seems floppy.

0:37:33 Thomas: It doesn't look like it, but if I'm, look, if I am the prosecutor, maybe that's a bad fact. They don't actually want.

0:37:40 Lydia: They don't want to go there.

0:37:49 Thomas: But what I think about when we're talking about this is just how how much the law, I think it's a reason, Matt, let me know what you think, but I really think it's the reason why we shouldn't obsess too much over letter of the law type stuff, because it's like, not every human behavior is perfectly ascribable, if that's a word, to lawful or not lawful, like it's not, you know, lawful are crime. You know, it's like, it doesn't, not everything fits neatly. Cause if you get into that obsessive sort of way of looking at it, this myopic, like, like, well, did, well you threw a sandwich says you can't do, you know, it's like, I think there's a lot of places in human behavior where it's like, yeah, I mean, you know, this is not worth bringing into a court and it's not great. And, you know, maybe if it was, if it was a little more this way, you know, then maybe that's a crime. If it was a little more of this way we were not even talking about it, but like, uh, I think that's, that's why we shouldn't get too obsessive over things, over letter of the law.

0:38:41 Matt: For sure for sure that what I call the crossword puzzles that a lot of attorneys like to do where they're like not even thinking about the humanity or about the applications or about you know how it's gonna look when you charge something this way but just can we do it and this is very much a we can do it situation and yeah as we've talked about from the beginning in this case they wanted to make a point, they wanted make anybody who wants to look funny at CBP or ICE officers feel bad about it and feel like they might be charged with a crime. Just picked the wrong one here.

0:39:07 Thomas: Yeah, well, I mean, they put the poor guy through a lot. You know, I will say, and it does feel funny, like nitpick on the arguments of this because it's so dumb. But I did think when the the prosecutor government guy is like, you can't do that to a neighbor, you cannot do that to an officer. I was like, well that's a dumb thing to say because the whole point of this is like you're impeding officers, right? Right. So if it's like if he's saying like, hey, this is something you just can't do and you can't do it to a neighbor and you get to an officer. It's like, well, that undermines the fact that like sandwich throwing isn't a crime in and of itself. Like, really? I mean, it's more about especially here. It'S about the impeding the officers. Right. It' s about that kind of thing.

0:39:45 Matt: Yeah. And what he's talking about is like we're talking about, it's like kindergarten rules. You shouldn't do it, but is it actually a crime?

0:39:52 Thomas: Yeah.

0:39:53 Matt: Do want to note with Gatto's opening, I think the one misstep there was, and she got an objection on it, I think rightfully, where she was trying to summarize the standard for, she knows that's the judge's job. She's kind of driving to the ground. I think she should have just left it at the punctuation mark exclamation point thing. And then she also, I think, she's misstating what she's saying about assault. I get what she's doing. And I think it's a really good theme to say that words aren't assault.

0:40:13 Lydia: Interesting.

0:40:13 Matt: But saying that words without force are never assault is not really a correct statement of the law. Because I could call you up and say, I'm going to kill you next Tuesday. That is inherently a crime, right?

0:40:17 Thomas: Yeah, well wait, remind me, are we in the it gets weird in New York, but the assault battery thing are because I remember talking to Jenessa they actually you the whole thing where it's like assault is not actually the hitting of anyone the battery is the hitting someone the assault is like the running up to them or like major flinch kind of thing but

0:40:43 Lydia: Approach, yeah.

0:40:42 Matt: Putting in imminent fear of a battery. Yeah.

0:40:46 Thomas: Then in new york they like renamed it so that it actually makes sense there but now doesn't make sense because everyone I think has probably learned it the right the way it really what are we at here because like assault you would think assault if I'm thinking of what I learned in my you know one law class of that distinction you would thank assault never has to really have violence to be assault like it it's the part where you you them fear that something's going to happen to them right mm

0:41:13 Matt: The imminent fear assault. That's why I think saying words without force are never assault. I'm not trying to nitpick. I understand what she's saying, but I think that's a little bit extreme. And also, she shouldn't be trying to state the law in an opening statement anyway.

0:41:24 Lydia: Why do you think she did that? Do you think it was it was like trying to see if she could get away with it to just kind of color the jury's perception early or do you think It was just not thinking and like and a true misstep

0:41:34 Matt: I think she really just wanted to say that words aren't violence. And of course, that is an active debate right now in our society about how much words can be violence, but I'm generally on the side of words are not violence. I think that's maybe what she should have said, is that words aren't...

0:41:44 Thomas: Well it's also yeah it's also not really now they think about it not really even the debate here the debate is is the sandwich violence so I guess that's her because because their side is going to say the words are fine and they did in the opening said the words are fine the words are fine so I don't know if that's if her strategy is like try to by saying that is she trying to get everyone to subconsciously take on board the idea that the sandwich was words and the idea that the thing we're even arguing about is words you know that might be what she's trying to do yeah

0:42:14 Matt: She's building to, right? Is that the words are fine, the sandwich is part of the words. I think just the misstep was using the word assault when she could have just said maybe violence or force, because words are are not forced, necessarily. They're just a threat of force.

0:42:15 Thomas: Yeah yeah I think she could have done more uh sarcasm and humor and I think she could I think she could have mocked the victim more um I

0:42:33 Lydia: Think she doesn't necessarily appreciate director's notes after the fact

0:42:36 Thomas: Think I hope look we aren't there yet but I hope when she questions the officer I hope she's like oh oh I'm sorry are you not able to do your job with a little lettuce on you oh poor baby can't do your federal job you big scary officer you're impeded silly

0:42:55 Matt: How's that disability leave been going?

0:42:56 Thomas: Oh look over there sandwich yeah sorry sorry to make you play oh man see how you weren't scared at all

0:43:03 Matt: Triggered?

0:43:05 Lydia: That's a good move. That's not bad. I haven't read ahead, so that might be what she does. We'll see, folks.

0:43:08 Thomas: Man

0:43:13 Matt: Yeah, but solid start. Think these are both very good openings. I think they're doing the best with what they got. It's a really interesting posture. There's so many things you don't see in federal court going on here pretty much throughout this trial. So

0:43:25 Thomas: Well uh next we speak it's going to be the officer himself testifying right right

0:43:32 Matt: Centerpiece of the trial, the reason we got this transcript, very exciting.

0:43:33 Thomas: Going to be interesting uh

0:43:37 Lydia: Starring Thomas Smith as the judge. Thomas Smith as Agent Laramore. Thomas Swift as the government.

0:43:42 Thomas: I'm eddie murphy -ing this uh

0:43:44 Lydia: Yeah, you really are. It's the nutty professor. Professor

0:43:46 Thomas: I did wear a fat suit while doing one of them just to get in character I don't know why

0:43:50 Lydia: You won't see it but it really comes through in the audio

0:43:52 Thomas: It adds you can hear it yeah Yeah. Oh, boy. So much fun.

0:43:56 Matt: Is there some kind of Emmy category for this or some other a potty or something I don't know

0:43:59 Thomas: There should be. God damn it. It's hard work. It's fun, though. It's fine. It's good. It's been fun, hard work, and I hope that people will enjoy it. And again, if you're on the Patreon, you get to hear all of it, all the stuff, because we're not going to play all of It here, but the patrons will be able to hear this entire sandwich trial, front to back.

0:44:17 Thomas: I was going to say heel to, what's the, yeah, that's true. Heel -to -heel. That's like you made a whole loaf's worth of sandwiches, right? It's like if you made a...

0:44:16 Lydia: Bun to bun yeah bread to bread I think if they're two heels

0:44:16 Matt: To bun uh

0:44:29 Thomas: All right. Any final thoughts from you, Matt, sandwich man, sandwich attorney to the...

0:44:29 Lydia: To second worst piece

0:44:38 Matt: I'm very excited sounded good so far and uh excited to hear from Mr. Larmor alright

0:44:44 Thomas: Awesome. Well, thanks so much for listening, everybody. Gavilan out. Gavalan out of here, and we'll see you next time.

0:45:11 Thomas: Gavel, hiddily I -D -L -E -O. No. No. What is, what am I trying to do? Yep.

0:45:15 Lydia: Are you having a stroke?

0:45:16 Thomas: Yes.

0:45:17 Matt: Guys, had any good sandwiches recently?

0:45:21 Lydia: So I swap out the spinach. I put in regular spinach and

0:45:25 Matt: You put a sandwiched my head.

0:45:28 Thomas: Over there sandwich yeah sorry sorry to make you play oh man see how you weren't scared at all yeah

0:45:32 Matt: Triggered?