Court filing
Joint Motion to Continue Trial (Final Request) and to Hold Trial in West Palm Beach — USA v. McCabe (Dkt. 24, S.D. Fla.)
Filed December 11, 2024 in USA v. McCabe; one of 219 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2024-12-11 |
U.S. District Court for the Southern District of Florida · No. 9:24-cr-80103-AMC · Doc. 24 · 2024-12-11 · Docket on CourtListener
Full text
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-CR-80103-CANNON
UNITED STATES OF AMERICA
v.
DUSTIN SEAN McCABE,
Defendant.
_________________________________/
STATUS REPORT AND JOINT MOTION FOR FINAL CONTINUANCE OF TRIAL
DATE AND FOR TRIAL TO BE HELD AT WEST PALM BEACH COURTHOUSE
The United States of America, through the undersigned Assistant United States Attorney,
and Defendant Dustin Sean McCabe, by and through undersigned counsel, jointly move for a final
continuance of 28 days or, alternatively, 14 days from the current date of trial and a corresponding
extension of any associated plea and pretrial motions deadlines, with the expectation that we move
forward to trial at the date the Court sets here. The parties also respectfully move for the case to
be set for trial in the Paul G. Rogers Federal Building and Courthouse in West Palm Beach. In
support, the parties state the following:
BACKGROUND AND CASE STATUS
1.
Mr. McCabe is charged with one count of seaman’s manslaughter, in violation of
18 U.S.C. § 1115, one count of making a false statement within the jurisdiction of an agency of
the United States, in violation of 18 U.S.C. § 1001(a)(2), and three counts of wire fraud, in
violation of 18 U.S.C. § 1343. DE 3.
2.
Mr. McCabe made his initial appearance in this District and was arraigned on
September 20, 2024, and he remains on bond in the Middle District of Florida, where he lives. See
DE 13.
Case 9:24-cr-80103-AMC Document 24 Entered on FLSD Docket 12/11/2024 Page 1 of 6
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3.
On September 24, 2024, this Court entered its trial order setting trial for November
4, 2024. DE 14. The Government filed its first response to the Standing Discovery Order (“SDO”)
on October 6, 2024, which consisted of videos, photos, and other documentation that made up over
3,000 Bates number entries. See DE 19. While the Government has an additional report it recently
produced to the defense for which it will file an SDO response soon, it does not anticipate
producing substantial additional discovery in this case.
4.
On October 17, 2024, the parties filed their first joint motion to continue the trial
date in this matter, noting that the parties “have been discussing resolution since the case’s
inception anticipate the case being resolved by plea.” DE 20 at 1. This Court granted the parties’
motion on October 21, 2024, continuing trial to December 16, 2024. DE 21. The parties then
moved for a second 60-day continuance on December 2, 2024, again noting that the parties were
discussing resolution and intended to negotiate further and determine whether the case would, in
fact, resolve by plea as they had anticipated. DE 22 at 2. This Court granted the motion in part,
continuing the trial to January 13, 2024.
5.
In granting these motions, the Court has excluded the time from October 17, 2024,
through January 13, 2025. See DE 20 & 23. Based on those orders, only 25 of the 70 days permitted
under the Speedy Trial Act have passed, which leaves 55 days remaining.
6.
On the afternoon of December 10, 2024, the defense informed the Government that
Mr. McCabe would be proceeding to trial, though with a different counsel working with Mr. Musca
than Ms. Calisha Francis, who had been Mr. McCabe’s plea negotiation counsel. Since that time,
the Government has ramped up trial preparations in anticipation of trial in January or February as
this Court rules in response to this Motion.
Case 9:24-cr-80103-AMC Document 24 Entered on FLSD Docket 12/11/2024 Page 2 of 6
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7.
The parties file this Motion a week after the Court’s prior ruling on the parties’
second motion to continue for two purposes: (a) to notify the Court that this matter will proceed to
trial and (b) to secure a trial date that will permit the parties adequate time to prepare, including
through making flight, hotel, and scheduling arrangements for the parties and witnesses.
REQUESTS AND BASIS FOR REQUESTS
8.
Through this Motion, the parties respectfully make two discrete requests: (a) a final
continuance of 28 days or, alternatively, 14 days, with the expectation that the parties proceed to
trial on the date this Court sets, and (b) that the trial be held at the West Palm Beach federal
courthouse. In support of these requests, the parties submit the following:
9.
Continuance to February 10 or January 27 Trial Calendar. While the parties
acknowledge and understand that the Court was previously inclined to continue this matter to
January 13 instead of the requested February date, see DE 22 & 23, the parties respectfully make
this request for additional time now that trial is a certainty to give the parties time to prepare this
complex case. Five considerations support this request:
a. First, additional time will give defense counsel, including new trial counsel, time
to prepare Mr. McCabe’s case in light of his recent decision to proceed to trial.
b. Second, the parties anticipate that this trial will take approximately two weeks (8-
11 days), with the Government anticipating approximately 23 witnesses at this time
and the defense potentially calling its own witnesses. Some witnesses will need to
travel from outside the district, which will require flight and hotel arrangements.
Additional time and a firm trial date will facilitate securing all witnesses for trial.
c. Third, this case involves unusual legal issues, such as the proper negligence
standard for seaman’s manslaughter. The Government will be filing a motion in
Case 9:24-cr-80103-AMC Document 24 Entered on FLSD Docket 12/11/2024 Page 3 of 6
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limine as well as a trial brief outlining these issues, and additional time will permit
the parties to fully brief these matters, which is appropriate in light of Mr. McCabe
only having fully decided to go to trial yesterday.
d. Fourth, Mr. McCabe is and will remain on bond, the parties respectfully submit that
he is not prejudiced by the additional time the parties use to prepare for trial.
e. Fifth, the parties have year-end holiday travel booked, which will delay trial
preparation. While the parties appreciate that this reason is not as compelling as the
others, we respectfully submit that it favors a continuance in light of Mr. McCabe’s
bond status and his first appearance in this case occurring in late September.
10.
Holding Trial at West Palm Beach Courthouse. In addition to a final continuance,
the parties also respectfully request that this Court move the trial from the Fort Pierce federal
courthouse to the West Palm Beach federal courthouse. Three considerations lead us to make this
request:
a. First and most importantly, this case involves many civilian fact witnesses, most of
whom resided in the West Palm Beach area at the time of the instant offense and
who were still West Palm Beach last time we interviewed them.1 Holding the trial
in West Palm Beach will facilitate their appearing with minimal interference.
b. Second, the conduct in this case occurred in West Palm Beach, so there is an interest
in trying the case in the community where the conduct occurred.2
c. Third, and of concededly far less importance, the undersigned Assistant United
States Attorney notes that two of the prosecutors live in Miami and have children
1 The Government is still in the process of re-confirming their addresses but have no reason to
believe them to have moved.
2 This matter was noticed as a “WPB” case in the Certificate of Trial Attorney. See DE 3 at 11.
Case 9:24-cr-80103-AMC Document 24 Entered on FLSD Docket 12/11/2024 Page 4 of 6
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under the age of two, so holding the trial in West Palm Beach will make it more
feasible to continue assisting with childcare during trial.
11.
As a result of the foregoing considerations, the parties respectfully submit that an
additional continuance will permit the parties adequate time to prepare for trial. In light of Mr.
McCabe’s remaining on bond and the complexity of the case, the parties respectfully submit that
this additional time would serve the interests of justice by ensuring an efficient and fair trial.
12.
This request is made in good faith and not for purposes of unnecessary delay. It is
in the interests of justice and would not interfere with the public or Mr. McCabe’s interest in a
speedy resolution of this matter.
13.
The undersigned Assistant United States Attorney has conferred with Mr.
McCabe’s counsel, Ms. Calisha Angeline Francis, who advised that Mr. McCabe joins in this
request. In addition, Mr. McCabe agrees to the exclusion from the speedy trial period of the time
from the filing of this motion until a new trial date is set.
14.
A proposed order is attached and will be emailed to chambers.
WHEREFORE, the United States, joined by Mr. McCabe, respectfully requests that the
Court continue trial by either 28 or 14 days from the current date of trial, grant a corresponding
extension of the pretrial motions deadline, and set the trial for the West Palm Beach federal
courthouse.
Dated: December 11, 2024
Respectfully submitted,
MARKENZY LAPOINTE
UNITED STATES ATTORNEY
By: /s/Calisha A. Francis
By: /s/ Zachary A. Keller
CALISHA ANGELINE FRANCIS
ZACHARY A. KELLER
Attorney for the Defendant
Assistant United States Attorney
Florida Bar No. 96348
U.S. Attorney’s Office – SDFL
P.O. Box 590714
Court No: A5502767
Case 9:24-cr-80103-AMC Document 24 Entered on FLSD Docket 12/11/2024 Page 5 of 6
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Ft. Lauderdale, Florida 33359
99 NE 4th Street, 6th Floor
954-612-6126
Miami, Florida 33132
Email: CthomLaw@aol.com
Tel: (305) 961-9023
Email: zachary.keller@usdoj.gov
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 11, 2024, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF.
/s/ Zachary A. Keller 0
Zachary A. Keller
Assistant United States Attorney
Case 9:24-cr-80103-AMC Document 24 Entered on FLSD Docket 12/11/2024 Page 6 of 6File and source
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