NOTICE of Intent to Use Expert Testimony (Vessel Inspection/Operation, Scuba and USCG… — USA v. McCabe (Dkt. 37)

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U.S. District Court for the Southern District of Florida · No. 9:24-cr-80103-AMC · Doc. 37 · 2025-01-11 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO. 24-CR-80103-CANNON 
 
UNITED STATES OF AMERICA 
 
v. 
 
DUSTIN SEAN McCABE, 
 
 
Defendant. 
_______________________________/ 
 
UNITED STATES’ AMENDED NOTICE OF INTENT  
TO INTRODUCE EXPERT TESTIMONY 
 
 
The United States of America, by and through the undersigned Assistant United States 
Attorney, files this Notice of Intent to Introduce Expert Testimony, pursuant to Federal Rule of 
Evidence 702. Pursuant to Federal Rule of Criminal Procedure 16(a)(1)(G), the United States 
provides the following summary of the expert testimony it will seek to introduce at trial:   
1. Allan Roth, Advanced Journeyman Marine Inspector, United States Coast Guard 
(“USCG”) 
 
Training/Qualifications:  As set forth in his CV, which was produced to the defense on 
January 11, 2025, Mr. Roth is an Advanced Journeyman Marine Inspector with the USCG 
Traveling Marine Inspector Team out of USCG Headquarters.   He has been operating as a marine 
inspector for 13 years, serving in San Francisco, California, Puerto Rico, and USCG Activities 
Europe, in Holland, before coming to the traveling team in Washington D.C. Prior to becoming a 
marine inspector, Mr. Roth was an engineer, mechanic, and diver on Coast Guard vessels for 16 
years. In his capacity as an Advanced Journeyman Inspector, Mr. Roth travels the world, boards 
and inspects vessels, evaluating their engine function, compliance with rules and regulations, and 
general safety. In connection with doing this work, Mr. Roth has trained in evaluating vessels’ 
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function and how modifying vessels by boat owners can affect vessel performance. Mr. Roth’s 
role also involves investigating and evaluating compliance with U.S. Law and Regulations, along 
with International Codes and Regulations, and industry standards as to vessel upkeep and 
operation, including with respect to specific types of vessel uses.  This can include scuba diving, 
as well as accidents that can occur as a result of noncompliance.  He gained significant experience 
inspecting scuba charter vessels while working in Puerto Rico where there are a significant amount 
of small passenger vessels that engage in scuba charters. 
 In addition to his current work as a USCG Advanced Journeyman Marine Inspector, Mr. 
Roth has also been trained and qualified as a USCG diver since 2005. As a USCG diver,  he has 
engaged in scuba diving activities and has gained extensive experience entering onto vessels in 
connection with those scuba diving operations. This experience gave Mr. Roth a strong 
understanding of, and familiarity with, standards of practice surrounding scuba diving. 
Summary of Testimony/Opinion and Basis: Mr. Roth will first describe his educational and 
professional background, focusing on his experience in evaluating vessels for compliance with 
rules and regulations and for passenger safety. He will explain that in his years working as an 
Advanced Journeyman Inspector and USCG engineer, he has inspected hundreds of vessels, 
including more than a dozen vessels equipped for scuba charters. He will also explain that as a 
USCG Diver, he has himself participated in more than 100 scuba outings and understands the 
logistics and mechanics of scuba diving and chartering scuba ventures.  He will also discuss his 
in-depth knowledge of vessel propulsion systems, gained through his years as a USCG mechanic, 
engineer, and marine inspector.  
Mr. Roth will then explain basic principles and components of a vessel propulsion system, 
and how they usually work on vessel’s of this size.  He will then further explain common practices 
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used when operating and modifying a vessel in the small passenger vessels and similar uninspected 
vessels. He will then explain the nuances of scuba charters, with specific attention to the fact that 
scuba chartering inherently involves placing passengers near the propeller system, which is located 
at the rear of the vessel where the passengers enter and exit the vessel. He will next explain that 
propellers are inherently dangerous when engaged because they spin at a rate that can cause a 
person to be sucked into the propeller system and seriously injured or killed and that in scuba 
ventures, the propeller systems are a point of particular care because the passengers will be entering 
and exiting the vessel near the propellers. That said, Mr. Roth will also explain that when an engine 
is in neutral gear, the propellers will generally move with the currents at a low speed that generally 
will not present a serious danger and that will not tend to generate chop-type wounds.  
Mr. Roth will next explain the knowledge and experience required for anyone making 
modifications or tampering with a vessels propulsion system.  He will also add that that any 
manufacturer’s recommendations should be followed including requirements related to 
certifications to work on certain components of the propulsion system. Mr. Roth will further 
explain that it is best marine practice, and common practice, to conduct sea trials or test drive the 
vessel prior to taking passengers for hire particularly in the case of scuba charter operations where 
passengers are near the propellers. Mr. Roth will also explain that there is nuance to operating any 
vessel and even licensed captains need to familiarize themselves when operating a specific vessel, 
because every vessel operates differently. 
Mr. Roth will then explain his review of the evidence, including (1) photographs of the 
M/V SOUTHERN COMFORT (the “Vessel”), including its engine controls and area where the 
engine controls were removed, (2) reports of the March 28 and March 29 incidents involving the 
Vessel, including photographs of the wounds caused on both dates and the broken spear gun on 
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March 28, (3) statements made by the Defendant regarding his modification of the engine controls, 
and (4) maps of the area where the March 29 incident occurred.  
Finally, Mr. Roth will explain six conclusions he reached based on his review of the 
evidence and experience in scuba ventures. First, Mr. Roth will testify that in his opinion, removing 
main deck engine controls can easily lead to problems with the engine’s ability to communicate 
properly with the propeller system, which can cause malfunctions that are hard to predict and that 
can cause serious danger in the scuba context due to the proximity passengers have to propellers. 
Second, Mr. Roth will testify that in his opinion, the experience required for removing or 
modifying engine controls, and why that experience is import when repairing or modifying the 
type of engine at issue. Third, Mr. Roth will testify that in his opinion, a scuba charter vessel 
experiencing engine control issues, like the Vessel did in this case, would necessitate first reporting 
the incident to the USCG and then ceasing all operations until the vessel had been properly 
repaired, and those repairs were validated through a sea trial or test drive. Fourth, Mr. Roth will 
testify that in his opinion, the industry standard for an incident where a passenger sustains an injury 
that appears to be related to the vessel’s performance would be to report the incident to the USCG, 
to cease operations until a properly experienced mechanic had inspected the vessel, and it would 
be highly unusual to take another set of passengers out the following day without having conducted 
sufficient sea trials. Fifth, Mr. Roth will testify that in his opinion, the breaking of a graphite spear 
gun, the injury caused to J.H., and the chop wounds that the victim in this case sustained all indicate 
that the Vessel’s propulsion system was engaged at the time these three events occurred due to the 
power and frequency of blade rotation that would be required for those events to occur. And sixth, 
Mr. Roth will testify that in his opinion, a propeller engaging in reverse could cause a person near 
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the vessel to be sucked into the propeller and injured in a manner consistent with the victim's 
injuries. 
o£it---
Allan Roth 
Senior Marine Inspector, USCG 
[Remainder of Page Intentionally Left Blank.] 
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2. Andrew Cole, Lieutenant Commander, USCG 
 
Training/Qualifications:  As set forth in his CV, which was produced to the defense on 
January 11, 2025, Lieutenant Commander (“LCDR”) Cole is a Journeyman Marine Inspector and 
Qualified Investigating Officer with the USCG who has been in the USCG for 13.5 years. In his 
current role LCDR Cole serves in the Seventh District1 Prevention Inspections and Investigations 
Branch.  In that role he serves as the central coordinator for all inspections and investigations 
conducted by the USCG, throughout the Seventh District. Prior to assuming that role, he served as 
the Supervisor of the Coast Guard Inspection Office in Riviera Beach, Florida, as an Investigations 
Officer in San Francisco, California,  a Marine Inspector in Houston, Texas, and a Deck Watch 
Officer on a USCG Cutter. 
Before joining the USCG, and in his early years with the USCG, LCDR Cole worked in 
the scuba chartering business for three years. In that capacity, his responsibilities included being 
qualified as a divemaster, and assisting passengers, and teaching them basics during scuba charters. 
Through this work, LCDR Cole participated in approximately over 500 scuba ventures. 
Summary of Testimony/Opinion and Basis: LCDR Cole will first describe his educational 
and professional background, focusing on his experience in scuba charters before joining the 
USCG and then, in the USCG, his experience as a marine inspector and a marine investigator. He 
will explain how that experience has led him to learn about, how to safety operate scuba charters, 
and industry standards surrounding scuba ventures. 
LCDR Cole will next explain scuba diving mechanics generally for a paid passenger vessel. 
He will explain that standard practice is to depart and enter a vessel from the rear of the vessel, 
 
1 The USCG’s Seventh District is the Southeast regional office and is the central command for the 
vast majority of USCG operations in Florida, Georgia, South Carolina, Puerto Rico, and the greater 
Caribbean Region.  
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near the propellers, because scuba divers handle heavy equipment. He will further explain that 
when passengers are approaching the vessel, the industry standard is for the captain to put the 
engines in neutral or turn them off completely to avoid the propeller activating near the passengers.  
LCDR Cole will note that his experience relates primarily to “anchored dives” rather than 
“drift dives” like are employed in Palm Beach County.  LCDR Cole will explain that there are 
certain nuances related to diving vessels in Palm Beach related to the heavy currents, but that the 
core principles remain the same.  
LCDR Cole will next explain industry standards in operating a scuba charter business 
safely. He will explain that scuba charters should only operate at times when vessels are authorized 
to do so to ensure that they will be able to receive assistance as soon as possible if needed. He will 
explain that because of passengers’ proximity to the propellers, it is industry practice for charter 
captains of scuba ventures to exercise particular care and attention to the engine and propeller 
system due to the danger it presents to their passengers. LCDR Cole will further explain that where 
a passenger has been injured by a propeller, the industry standard is for the charter captain to cease 
operations for that vessel until it has been thoroughly inspected, trouble shot, and its engines found 
to be operating properly. LCDR Cole will also testify that when a vessel has experienced a 
mechanical failure in its propulsion system, has an unintended grounding, or has a loss of life, then 
the vessel’s owner or captain must report that incident to the USCG under 46 CFR Part 4. 
Moreover, LCDR Cole will explain that when a vessel has experienced a recent mechanical 
difficulty that presented a danger to passengers, the industry standard practice dictates warning 
later passengers of the potential issue so that they are aware of a potential risk they face while 
entering and exiting the vessel.   
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3. Paul D. Alber, Alber Consulting LLC 
 
Training/Qualifications:  As set forth in his CV, which was produced to the defense on 
January 11, 2024, Mr. Alber has operated a consultancy that specializes in Global Positioning 
System (“GPS”) data analysis and marine casualty investigations, with his typical duties involving 
responding to crash sites and extracting and analyzing GPS data contained on devices such as 
Garmins. 
Summary of Testimony/Opinion and Basis: Mr. Alber will first explain his professional 
background and his work in mapping GPS data using location tracking and navigation devices, 
which encompasses both his work as a consultant since 2019 and his work as a Florida Police 
Department police officer since 2006, his roles at the National Association of State Boating Law 
Administrators since 2012, and his work as a Florida Fish and Wildlife Conservation Commission 
state law enforcement officer from 1993 through 2006, each of which (as more fully described in 
his CV) involved the analysis of GPS data.   
After explaining his background, Mr. Alber will explain the GPS extraction that he 
performed in this case in a manner consistent with the expert reports produced to the defense on 
October 6, 2024, which are Bates labeled MCCABE_000979 through MCCABE_000993. See DE 
19.  
 
 
[Remainder of Page Intentionally Left Blank] 
 
 
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Having made this disclosure, the United States hereby reiterates a request for a written 
summary of expert testimony that the defense reasonably expects to offer at trial pursuant to Rules 
702, 703, or 705 of the Federal Rules of Evidence, describing the witnesses’ opinions, the bases 
and the reasons for those opinions, and the witnesses’ qualifications. 
 
 
 
 
 
Respectfully submitted,  
 
 
 
 
 
 
 
MARKENZY LAPOINTE 
 
 
 
 
 
 
UNITED STATES ATTORNEY 
 
Date: January 11, 2025 
 
 
By:   /s/ Zachary A. Keller  
 
 
 
ZACHARY A. KELLER 
Assistant United States Attorney 
U.S. Attorney’s Office – SDFL 
Court No: A5502767 
99 NE 4th Street, 6th Floor 
Miami, Florida 33132 
Tel: (305) 961-9023 
 
 
 
 
 
 
Email: zachary.keller@usdoj.gov 
 
CERTIFICATE OF SERVICE 
 
 
I HEREBY CERTIFY that on January 11, 2025, 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 
 
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