Reply in Support of Motion by USA as to Dustin Sean McCabe re 28 Motion in Limine — USA v. McCabe (Dkt. 43, S.D. Fla.)

Record facts

U.S. District Court for the Southern District of Florida · No. 9:24-cr-80103-AMC · Doc. 43 · 2025-01-22 · 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. 
___________________________________/ 
 
GOVERNMENT=S REPLY BRIEF FOR ITS MOTION IN LIMINE 
 
 
The United States of America respectfully submits the following Reply to the 
Defendant’s Response to the Government’s Motion in Limine (“Response”), DE 41: 
 
In replying to the Response, let’s start here: that in the defense’s first five perfunctory 
oppositions, it does not cite a single case to support its positions, much less explain an 
evidentiary basis for excluding the proposed evidence. Rather, the defense argues for each based 
solely on red herrings and non sequiturs, offering purported rebuttal evidence but nothing about 
the admissibility or relevance of the proposed evidence at all. As to the March 28 incidents that 
notified the Defendant of the danger of operating his vessel, the defense merely argues whether 
the evidence will be enough to prove the Government’s case, not whether it should be admitted. 
Next, as to the Palm Beach County Emergency Order, the defense again does not argue against 
the admissibility or relevance of the evidence but instead merely presents evidence he claims to 
rebut his knowingly violating the order. Then, as to the Defendant’s failure to have enrolled in a 
drug testing program, the Defendant addresses a different rule than the one requiring him to 
enroll in a testing program, ignoring the one that does so while acknowledging that such 
evidence is relevant if “there [wa]s a legal requirement for him to do so.” Resp. at 7. For the 
Case 9:24-cr-80103-AMC   Document 43   Entered on FLSD Docket 01/22/2025   Page 1 of 11

2 
 
Response’s fourth objection, to the Defendant’s failure to report his grounding the vessel to 
avoid colliding with a bridge, the defense again speaks not to the admissibility or relevance of 
the evidence but instead only offers this Court a theory—about which the defense is free to cross 
examine and argue in closing—that the Defendant running his new vessel aground on March 28 
was a voluntary action that did not require reporting in the first place, while ignoring the 
mechanical failures aspect of the regulation. The Defendant’s fifth objection, this time to the 
April 9 Captain of the Port (“COTP”) Order to show that the Defendant’s business was shut 
down, completes this category of nonresponsive responses by again challenging neither the 
admissibility nor relevance of the evidence but instead offering only claims that (he submits) will 
overcome it by presenting rebuttal evidence.  
 
That leaves just the defense’s sixth objection, where the Defendant does cite some law 
but nevertheless fails to explain why this Court should exclude the prior failed safety inspection. 
On this final front the defense begins as with the others, arguing not against the evidence itself 
but instead submitting that the Government would be other evidence to prove his knowledge and 
absence of mistake. From there, the Defendant cites the correct Rule 404(b) framework only to 
misapply it, claiming that (1) the evidence does not show knowledge of the rules when it’s a 
formal inspection to ensure compliance with them, (2) there is not enough evidence to prove his 
failed inspection when the Government will present paperwork and a witness who conducted the 
inspection, and (3) the evidence is unduly prejudicial when there is nothing about the inspection 
that would tend to prejudice a jury against the Defendant beyond the bare fact of his being on 
notice about his obligations. For those reasons, this Court should dispose of this sixth objection 
just as it does with the other five, thereby granting the Government’s Motion in all respects.  
 
Case 9:24-cr-80103-AMC   Document 43   Entered on FLSD Docket 01/22/2025   Page 2 of 11

3 
 
1. The Defendant’s Objection to the Three March 28 Events Has No Grounding in 
Law or Logic and is Against the Interests of Justice. 
 
To start, the defense fails to challenge the relevance or admissibility of the March 28 
incidents, citing not a single case or even a legal theory about why they should not be admitted. 
Instead, the Response offers only the defense theory they will apparently use to try to rebut it at 
trial: claiming a lack of adequate investigation based on the notion that a “mechanical report” of 
the engine or propulsion system would be required to establish that the systems were not 
working properly, citing not a single case to support its position for a simple reason: there is 
none. See Resp. at 4-5. In this way, the Defendant does not respond to the Government’s legal 
position about the admissibility or relevance of this evidence at all, and the Response fails to 
present a colorable opposition as a result. Rather, the defense merely argues that its own 
preferred type of evidence is required, when the Eleventh Circuit has long made clear that “no 
distinction is to be made between the weight given to either direct or circumstantial evidence” so 
long as “reasonable inferences … support the conviction.” United States v. Gonzalez, 719 F.2d 
1516, 1521 (11th Cir. 1983). see also United States v. Soto, 591 F.2d 1091, 1099-1100 (5th Cir. 
1979) (“It is clear that connection of physical evidence with a defendant may be shown by 
circumstantial evidence. Furthermore, proof of the connection goes to the weight of the physical 
evidence rather than its admissibility.” (citations omitted)).1  
So while the defense is free to raise those issues at trial to the jury, they have nothing to 
 
1 See also, e.g., United States v. Sarmiento-Perez, 724 F.2d 898, 900 (11th Cir. 1984) (“Proof of 
the connection of physical evidence with a defendant goes to the weight of the evidence rather 
than its admissibility.”); United States v. Clifford, 704 F.2d 86, 91 (3d Cir. 1983) (“Effective 
rebuttal by the defense attorney will lessen any danger that the jurors might assign improper 
weight to their comparisons. Any evidentiary arguments, however, are properly addressed to the 
weight and not to the admissibility of the cursive correspondence.”); Bob Willow Motors, Inc. v. 
General Motors Corp., 872 F.2d 788, 798 (7th Cir. 1989) (holding that while rebuttal evidence 
“obviously weakened Willow's theory of damages, it did not preclude Strachota’s testimony 
altogether. Rather, it goes to weight, not admissibility.”). 
Case 9:24-cr-80103-AMC   Document 43   Entered on FLSD Docket 01/22/2025   Page 3 of 11

4 
 
do with whether this Court should preclude the Government from presenting evidence tending to 
prove its theory of the case: that through these many mechanical failures, the Defendant was on 
notice that there was a problem that could cause danger to his passengers, with that danger 
ultimately leading to M.C.G.F.’s death. Because the defense fails to offer any valid objection, 
this Court should admit the Government’s critically important evidence of the March 28 
incidents that put the Defendant on notice of the danger his vessel presented.  
2. The Response’s Arguments about the Palm Beach County Emergency Order Ignore 
the Relevance and Admissibly of the Evidence.  
 
The Defendant’s second objection, to the Palm Beach County Emergency Order, is a 
variation on the first: instead of claiming a lack of evidence for the Defendant violating the 
Emergency Order, the Response claims that the Defendant will be able to rebut it. This Court 
should reject the Defendant’s one-paragraph argument on this front for two reasons: 
First, the Response again disputes not whether the evidence is relevant or admissible but 
instead the weight that the jury should ultimately assign it. See Gonzalez, 719 F.2d at 1521; Soto, 
591 F.2d at 1099-1100. The Response objection says nothing about whether the Defendant 
violating the Emergency Order tends to show his negligent conduct but instead focuses on the 
evidence the defense claims it will present to rebut it. See Resp. at 5-6. In that way, his argument 
speaks only to the weight of the evidence, not to whether it is relevant and admissible, and that is 
a question for the jury to decide in weighing the Government’s evidence of the Defendant’s 
negligent conduct on March 29. For that reason alone, this Court should reject the Defendant’s 
second objection just like the first.  
But that’s not all. Beyond the argument’s failure to attack the relevance of the evidence, 
the Defendant’s claims also don’t make sense on their own terms. The Defendant states in his 
Response that he “was permitted to continue fishing as long as he delivered essential items to 
Case 9:24-cr-80103-AMC   Document 43   Entered on FLSD Docket 01/22/2025   Page 4 of 11

5 
 
residence in the area,” Resp. at 6, but that does not explain why he would be allowed to take out 
scuba divers on paid passenger outings. In that way, the Defendant’s supposed excuse fails to 
cast his violation of the Emergency Order as anything less than the negligent conduct that it was, 
which is an independent basis for this Court to find that his argument does not hold water and 
that the proposed evidence should be admitted as a result. 
3. The Defendant’s Objection to the Defendant’s Failure to Enroll in a Drug Program 
Ignores the Relevant Regulation and Does Not Address Relevance or Admissibility.   
 
Third, as to the Defendant’s failure to register in a drug testing program before taking out 
paying passengers, the Defendant’s objection again fails for two separate reasons. First, the 
Defendant fails to address whether the evidence is relevant and admissible, even agreeing that 
such evidence is relevant if “there [wa]s a legal requirement for him to do so.” Resp. at 7. In that 
way, the Response fails to address whether the evidence should be admitted at trial and fails on 
that ground alone. But second, the Defendant’s argument again fails even on its own terms 
because it selectively quotes from the Code of Federal Regulations, failing to cite the full 
regulations the Government cited to in the Motion. Specifically, the Government cited to 46 
C.F.R. §§ 4.06-5 and 16.230(b), see Mot. at 15, but the defense only quotes part of 4.06-05 when 
it’s 16.230(b) that contains the drug testing program enrollment requirement—a fact that the 
Government outlined in its trial brief. See Resp. at 6-7; Trial Brief, DE 29 at 12-13. In this way, 
the Defendant’s argument fails even taking its evidentiary argument at face value because it 
selectively quotes the regulations cited in the Motion and ignores the subparts that are germane 
to this issue. This Court should thus dispose of this third objection just as it does the rest.   
 
 
 
Case 9:24-cr-80103-AMC   Document 43   Entered on FLSD Docket 01/22/2025   Page 5 of 11

6 
 
4. The Defendant’s Objection to Admitting the Defendant’s Failure to Report His 
March 28 Running Aground and Propulsion Problems Again Fails to Address 
Relevance or Admissibility. 
 
For the Defendant’s failure to report his unintended grounding the day before M.C.G.F.’s 
death, the defense contests not the relevance or admissibility of his violation but instead whether 
the violation occurred at all. The defense’s argument on this front appears to be “[t]he vessel did 
not experience an accidental grounding,” Resp. at 8, presumably because (the defense would 
argue) the Defendant intentionally grounded his vessel to avoid colliding with a bridge. Of 
course, the Government’s witnesses will testify, as the jurors’ common sense will reinforce, that 
deciding to run a vessel aground to avoid colliding with a bridge qualifies as an “unintended 
grounding,” and in that way we do not disagree about the facts but instead how to characterize 
them. That, of course, will be a question for the jury as they hear testimony about the 
Defendant’s negligent conduct—and one that the defense will be able to cross examine the 
Government’s witnesses and offer its own. Yet none of that impugns the relevance and 
admissibility of this evidence, speaking only to the weight that the defense believes should be 
assigned it. And beyond that, the defense fails to address the vessel’s “loss of main propulsion, 
primary steering, or any associated component or control system” at all, which the Government 
explained to be another basis for introducing this failure to report evidence. See Mot. at 13 
(“second, he failed to report the Vessel’s mechanical failure and running aground from the day 
prior”). In this way, this Court should hold as with the other objections here that the defense has 
failed to show why this Court should preclude its admission, here because it not only fails to 
raise a colorable legal objection but also because, as with the drug testing program, the defense’s 
Response does not even address the full scope of the proposed evidence.  
 
Case 9:24-cr-80103-AMC   Document 43   Entered on FLSD Docket 01/22/2025   Page 6 of 11

7 
 
5. The Defense’s Objection to the COTP Order Fails to Attack Its Relevance or 
Admissibility. 
 
As to the COTP Order, the defense again offers only one paragraph in opposition with no 
case law support. See Resp. at 8-9. In that paragraph, the defense makes one argument: that the 
COTP Order “did not effectively shut down the Defendant’s business” because it “restricted the 
operation of the boat” but “did  not terminate the business itself.” Resp. at 9. This objection, 
however, amounts to claiming that the defense will offer evidence to meet the Government’s 
evidence here that the Defendant’s business was shut down. It does not, however, negate the fact 
that the COTP Order, which prohibited the Defendant from operating a vessel that he didn’t sell 
until November 2020, tends to show that was not operating during the 2020 period upon which 
the Defendant premised his 2021 PPP loan application and is thus relevant evidence. See 
Gonzalez, 719 F.2d at 1521; Soto, 591 F.2d at 1099-1100. And while the Defendant now claims 
that he will present evidence to rebut that evidence, the Government should still be permitted to 
admit its evidence because the weight it should receive considering the defense’s supposed 
evidence is an issue for the jury to decide, not for this Court’s decision whether to admit the 
evidence or not. For those reasons, this Court should admit the COTP Order into evidence.  
6. The Response Fails to Explain Why the Defendant’s Prior Failed Inspection is 
Inadmissible. 
 
The Defendant’s final objection, to the Government’s proposed Rule 404(b) evidence 
concerning his prior vessel inspection, finds the defense citing some case law but ultimately 
falling woefully short of mounting a colorable objection to the Government’s proposed evidence. 
Indeed, the defense neither cites nor distinguishes the Government’s examples of courts 
admitting similar evidence, see Mot. at 18; Resp. at 9-13, instead opting for a rote recitation of 
the basics of Rule 404(b) analysis before engaging in a conclusory argument as to the three 
Case 9:24-cr-80103-AMC   Document 43   Entered on FLSD Docket 01/22/2025   Page 7 of 11

8 
 
showings that the Government must make for this Court to admit the proposed evidence.  
Indeed, the defense points to the correct three requirements for admissible Rule 404(b) 
evidence: the other act must be relevant, there must be sufficient proof for the other act, and the 
other act must have probative value that is not substantially outweighed by its prejudicial effect. 
Resp. at 10; Mot. at 9-10 (citing United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 
2007)). But having laid the proper foundation, the Defendant fails to build anything that bears 
any weight, offering this Court only conclusory claims about relevance and required proof that 
do not stand up. As to the relevance analysis, the defense appears to agree that the “prior failed 
inspection[] ha[s] probative value as to the primary contested issue at trial—whether Defendant 
Sean McCabe was negligent in his operation” of the vessel, Resp. at 12-13, and thus concedes its 
relevance.2 But even aside from his admitting the fact, the Defendant’s failed inspection is 
undoubtably relevant because this case centers around the Defendant’s knowledge of and 
adherence to regulations, both in his negligent operation of the vessel and in his falsely stating 
under penalty of perjury to the United States Coast Guard that the vessel was only to be used for 
recreational purposes. The Defendant’s response to those will necessarily be negating his 
culpability as to his noncompliance with regulations (as to the manslaughter charged in Count 
One) and lying when purporting to comply with the regulations (as to the false statement charged 
in Count Two). For those reasons, this Court should find that the prior failed inspection is 
relevant to the Defendant’s knowledge and absence of mistake in committing the crimes at issue 
in this case.  
 
 
2 Elsewhere, the Defendant submits the conclusory claim that “the evidence the Government is 
seeking to admit is not relevant to, and probative of, McCabe’s knowledge of the marine and 
boating rules,” Resp. at 12, but the Defendant fails entirely to explain why that’s so. 
Case 9:24-cr-80103-AMC   Document 43   Entered on FLSD Docket 01/22/2025   Page 8 of 11

9 
 
As to proving up the violation, the Defendant claims that “there is insufficient evidence 
for the jury to determine that the Defendant engaged in the other acts,” Resp. at 12, but the 
Government will be introducing a certified copy of the failed inspection and will also have the 
person who conducted the inspection as a witness—evidence that is more than sufficient to meet 
the preponderance burden. See, e.g., United States v. Barrington, 648 F.3d 1178, 1187 (11th Cir. 
2011) (“Jacquette’s uncorroborated testimony was sufficient, since he had personal knowledge of 
Barrington's conduct.”); United States v. Bowe, 221 F.3d 1183, 1192 (11th Cir. 2000) ( “In this 
circuit, the uncorroborated word of an accomplice such as Aldereguia provides a sufficient basis 
for concluding that the defendant committed extrinsic acts.”); The defense does not explain why 
that would fail to be enough and cites no law to support its conclusory claim. 
 
Finally, as to whether the prejudice outweighs the probative value, it first bears noting 
that Rule 404(b) is a rule “of inclusion[,] which allows [extrinsic] evidence unless it tends to 
prove only criminal propensity.” United States v. Ellisor, 522 F.3d 1255, 1267 (emphasis added), 
and that excluding evidence for this reason “is an extraordinary remedy which the district court 
should invoke sparingly, and the balance should be struck in favor of admissibility.” United 
States v. Nerey, 877 F.3d 956, 975 (11th Cir. 2017). Moreover, in conducting its analysis, this 
Court “must engage in a common sense assessment of all the circumstances …, including 
prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well 
as temporal remoteness.” United States v. Brown, 587 F.3d 1082, 1091 (11th Cir. 2009) (cleaned 
up). Both of those foundational legal principles point in the same direction: that the evidence in 
question is nowhere close to being prejudicial in a way that would warrant its preclusion. As 
already noted, this case’s manslaughter and false statement charges involve the Defendant’s 
knowing—and his having the intent to circumvent—the industry standards governing the 
Case 9:24-cr-80103-AMC   Document 43   Entered on FLSD Docket 01/22/2025   Page 9 of 11

10 
 
commercial venture he was conducting. In that way, showing that he had previously been cited 
for violating industry standards is probative of both his knowing those standards to exist and his 
absence of mistake in violating them. 
In his Response, the Defendant does nothing to contest this probative value aside from 
make conclusory statements about the more general lack of relevance and claiming that the entire 
case will turn upon the testimony of one witness. See Resp. at 13. As with the Defendant’s other 
five objections, though, these claims about the strength of the Government’s broader case is 
beside the point in its deciding whether this specific evidence is relevant and admissible. And 
when the defense specifically addresses prejudice, it offers nothing but conclusory claims that 
the evidence is “offered to show his propensity to commit the crime charged,” Resp. at 13, 
ignoring entirely the permissible uses the Government cited in the Motion, see Mot. at 17-18. 
Yet the truth remains that the defense here will necessarily have to contest the Defendant’s 
violation of rules at trial, likely either that he actually abided them (for Count One) or because 
(as to Count Two) he didn’t understand them and thus unknowingly violated them. That’s so 
because the Government’s case inherently involves proving the opposite to be true: that the 
Defendant was breaking the rules not through some accident but because the charged conduct 
was what he decided to do, disregarding the possible consequences of (as to Count One) killing 
someone and (as to Count Two) committing perjury. Those showings warrant this Court 
admitting the evidence to show the Defendant’s awareness of the rule and prior disregard of 
them as evidence of his knowledge and absence of mistake with a limiting instruction, and the 
Defendant has done nothing to show the opposite in his Response. This Court should therefore 
admit the evidence over defense objection. 
 
Case 9:24-cr-80103-AMC   Document 43   Entered on FLSD Docket 01/22/2025   Page 10 of 11

11 
 
CONCLUSION 
For these reasons, this Court should grant the Government’s Motion in all respects. 
 
 
 
 
 
 
Respectfully submitted, 
 
    
 
 
 
 
 
MARKENZY LAPOINTE 
 
 
 
 
 
 
UNITED STATES ATTORNEY 
 
 
 
 
 
 
 
Date: January 22, 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 22, 2025, I electronically filed the foregoing 
document with the Clerk of the Court using CM/ECF.  
 
/s/ Zachary A. Keller  
ZACHARY A. KELLER 
Assistant United States Attorney 
Case 9:24-cr-80103-AMC   Document 43   Entered on FLSD Docket 01/22/2025   Page 11 of 11

File and source

File

gov.uscourts.flsd.673624.43.0.pdf

Size

184,106 bytes

SHA-256

26945555ae008260f7af7c7be980131192983899c4a517583b770ad3d2eb7521

Our copy

gov.uscourts.flsd.673624.43.0.pdf

Original

PACER (login required)