Court filing

Proposed Jury Instructions by USA as to Dustin Sean McCabe — USA v. McCabe (Dkt. 54, S.D. Fla.)

Filed February 18, 2025 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	2025-02-18

U.S. District Court for the Southern District of Florida · No. 9:24-cr-80103-AMC · Doc. 54 · 2025-02-18 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-80103-CR-CANNON

UNITED STATES OF AMERICA

DUSTIN SEAN McCABE,

Defendant.

JOINT PROPOSED JURY INSTRUCTIONS AND VERDICT FORM

Pursuant to Federal Rule of Criminal Procedure 30 and the Court’s trial order, the United
States and Defendant Dustin Sean McCabe, through counsel, submit these joint proposed jury
instructions and verdict form.1 It is further requested that the parties be allowed to propose such
additional instructions as become appropriate based on the trial testimony and that they be
informed prior to closings as to which instructions the Court will accept and which it will decline.
Dated: February 18, 2025

Respectfully submitted,

HAYDEN P. O’BYRNE
UNITED STATES ATTORNEY

By:
/ Terrence O’Sullivan
TERRENCE O’SULLIVAN
Attorney for Defendant
Florida Bar No. 0644031
3810 Murrell Road #340
Rockledge, Florida 32955
Tel: (321) 422-2882
Terrence@TerrenceOSullivanLaw.com

/s/ Zachary A. Keller_______

ZACHARY A. KELLER

Assistant United States Attorney

U.S. Attorney’s Office – SDFL

Court ID No. A5502767

99 NE 4th Street, 6th Floor

Miami, Florida 33132

Tel: (305) 961-9196

Email: zachary.keller@usdoj.gov
1 The parties have included instructions to which there are objections. Per the Court’s trial order,
instructions proposed by the Government to which the Defendant objects are bolded and
underlined, and instructions proposed by the Defendant to which the Government objects are
bolded and italicized.
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B1
Face Page - Introduction

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-80103-CR-CANNON

UNITED STATES OF AMERICA

DUSTIN SEAN McCABE,

Defendant.

COURT’S INSTRUCTIONS
TO THE JURY

Members of the Jury:
It’s my duty to instruct you on the rules of law that you must use in deciding this case.
After I’ve completed these instructions, you will go to the jury room and begin your discussions –
what we call your deliberations.
You must decide whether the Government has proved the specific facts necessary to find
the Defendant guilty beyond a reasonable doubt.
ANNOTATIONS AND COMMENTS

No annotations associated with this instruction.

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B2.1
The Duty to Follow Instructions and the Presumption of Innocence

Your decision must be based only on the evidence presented here. You must not be
influenced in any way by either sympathy for or prejudice against the Defendant or the
Government.
You must follow the law as I explain it – even if you do not agree with the law – and you
must follow all of my instructions as a whole. You must not single out or disregard any of the
Court's instructions on the law.
The indictment or formal charge against a defendant isn’t evidence of guilt. The law
presumes every defendant is innocent. The Defendant does not have to prove his innocence or
produce any evidence at all. The Government must prove guilt beyond a reasonable doubt. If it
fails to do so, you must find the Defendant not guilty.
ANNOTATIONS AND COMMENTS

In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970) (The due process
clause protects all criminal defendants “against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is charged.”); see also Harvell
v. Nagle, 58 F.3d 1541, 1542 (11th Cir. 1995), reh’g denied, 70 F.3d 1287 (11th Cir. 1995).

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B2.2
The Duty to Follow Instructions and the Presumption of Innocence When a
Defendant Does Not Testify

Your decision must be based only on the evidence presented during the trial. You must not
be influenced in any way by either sympathy for or prejudice against the Defendant or the
Government.
You must follow the law as I explain it – even if you do not agree with the law – and you
must follow all of my instructions as a whole. You must not single out or disregard any of the
Court's instructions on the law.
The indictment or formal charge against a Defendant isn’t evidence of guilt. The law
presumes every Defendant is innocent. The Defendant does not have to prove his innocence or
produce any evidence at all. A Defendant does not have to testify, and if the Defendant chose not
to testify, you cannot consider that in any way while making your decision. The Government must
prove guilt beyond a reasonable doubt. If it fails to do so, you must find the Defendant not guilty.
ANNOTATIONS AND COMMENTS

United States v. Teague, 953 F.2d 1525, 1539 (11th Cir. 1992), cert. denied, 506 U.S. 842, 113 S.
Ct. 127, 121 L. Ed. 2d 82 (1992), Defendant who does not testify is entitled to instruction that no
inference may be drawn from that election; see also United States v. Veltman, 6 F.3d 1483, 1493
(11th Cir. 1993) (Court was “troubled” by “absence of instruction on the presumption of innocence
at the beginning of the trial… Although the court charged the jury on the presumption before they
retired to deliberate, we believe it extraordinary for a trial to progress to that stage with nary a
mention of this jurisprudential bedrock.”)
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B3
Definition of “Reasonable Doubt”

The Government's burden of proof is heavy, but it doesn’t have to prove a Defendant's guilt
beyond all possible doubt. The Government's proof only has to exclude any “reasonable doubt”
concerning the Defendant's guilt.
A “reasonable doubt” is a real doubt, based on your reason and common sense after you’ve
carefully and impartially considered all the evidence in the case.
“Proof beyond a reasonable doubt” is proof so convincing that you would be willing to rely
and act on it without hesitation in the most important of your own affairs. If you are convinced
that the Defendant has been proved guilty beyond a reasonable doubt, say so. If you are not
convinced, say so.
ANNOTATIONS AND COMMENTS

United States v. Daniels, 986 F.2d 451 (11th Cir. 1993), opinion readopted on rehearing, 5 F.3d
495 (11th Cir. 1993), cert. denied, 511 U.S. 1054, 114 S. Ct. 1615, 128 L. Ed. 2d 342 (1994)
approves this definition and instruction concerning reasonable doubt; see also United States v.
Morris, 647 F.2d 568 (5th Cir. 1981); Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed.
2d 583 (1994) (discussing “reasonable doubt” definition and instruction).

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B4
Consideration of Direct and Circumstantial Evidence;
Argument of Counsel; Comments by the Court

As I said before, you must consider only the evidence that I have admitted in the case.
Evidence includes the testimony of witnesses and the exhibits admitted. But, anything the lawyers
say is not evidence and isn’t binding on you.
You shouldn’t assume from anything I’ve said that I have any opinion about any factual
issue in this case. Except for my instructions to you on the law, you should disregard anything I
may have said during the trial in arriving at your own decision about the facts.
Your own recollection and interpretation of the evidence is what matters.
In considering the evidence you may use reasoning and common sense to make deductions
and reach conclusions. You shouldn’t be concerned about whether the evidence is direct or
circumstantial.
“Direct evidence” is the testimony of a person who asserts that he or she has actual
knowledge of a fact, such as an eyewitness.
“Circumstantial evidence” is proof of a chain of facts and circumstances that tend to prove
or disprove a fact. There’s no legal difference in the weight you may give to either direct or
circumstantial evidence.
ANNOTATIONS AND COMMENTS

United States v. Clark, 506 F.2d 416 (5th Cir. 1975), cert. denied, 421 U.S. 967, 95 S. Ct. 1957, 44
L. Ed. 2d 454 (1975) approves the substance of this instruction concerning the lack of distinction
between direct and circumstantial evidence; see also United States v. Barnette, 800 F.2d 1558,
1566 (11th Cir. 1986), reh’g denied, 807 F.2d 999 (11th Cir. 1986), cert. denied, 480 U.S. 935, 107
S. Ct. 1578, 94 L. Ed. 2d 769 (1987) (noting that the “test for evaluating circumstantial evidence
is the same as in evaluating direct evidence”) (citing United States v. Henderson, 693 F.2d 1028,
1030 (11th Cir. 1982)).

United States v. Hope, 714 F.2d 1084, 1087 (11th Cir. 1983) (“A trial judge may comment upon
the evidence as long as he instructs the jury that it is the sole judge of the facts and that it is not
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bound by his comments and as long as the comments are not so highly prejudicial that an
instruction to that effect cannot cure the error.”) (citing United States v. Buchanan, 585 F.2d 100,
102 (5th Cir. 1978)). See also United States v. Jenkins, 901 F.2d 1075 (11th Cir. 1990).

United States v. Granville, 716 F.2d 819, 822 (11th Cir. 1983) notes that the jury was correctly
instructed that the arguments of counsel should not be considered as evidence (citing United States
v. Phillips, 664 F.2d 971, 1031 (5th Cir. 1981)); see also United States v. Siegel, 587 F.2d 721, 727
(5th Cir. 1979).

For an alternative description of evidence, see Preliminary Instruction, “what is evidence.”

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B5
Credibility of Witnesses

When I say you must consider all the evidence, I don’t mean that you must accept all the
evidence as true or accurate. You should decide whether you believe what each witness had to say,
and how important that testimony was. In making that decision you may believe or disbelieve any
witness, in whole or in part. The number of witnesses testifying concerning a particular point
doesn’t necessarily matter.
To decide whether you believe any witness I suggest that you ask yourself a few questions:
•
Did the witness impress you as one who was telling the truth?

•
Did the witness have any particular reason not to tell the truth?

•
Did the witness have a personal interest in the outcome of the case?

•
Did the witness seem to have a good memory?

•
Did the witness have the opportunity and ability to accurately observe the
things he or she testified about?

•
Did the witness appear to understand the questions clearly and answer them
directly?

•
Did the witness's testimony differ from other testimony or other evidence?

ANNOTATIONS AND COMMENTS

No annotations associated with this instruction.

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S3
Identification Testimony

The Government must prove beyond a reasonable doubt that the Defendant was the person
who committed the crime.
If a witness identifies a Defendant as the person who committed the crime, you must decide
whether the witness is telling the truth. But even if you believe the witness is telling the truth, you
must still decide how accurate the identification is. I suggest that you ask yourself questions:
1. Did the witness have an adequate opportunity to observe the person at the time
the crime was committed?

2. How much time did the witness have to observe the person?

3. How close was the witness?

4. Did anything affect the witness’s ability to see?

5. Did the witness know or see the person at an earlier time?

You may also consider the circumstances of the identification of the Defendant, such as
the way the Defendant was presented to the witness for identification and the length of time
between the crime and the identification of the Defendant.
After examining all the evidence, if you have a reasonable doubt that the Defendant was
the person who committed the crime, you must find the Defendant not guilty.
ANNOTATIONS AND COMMENTS

See United States v. Martinez, 763 F.2d 1297, 1304 (11th Cir. 1985).

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Equally Available Witness2

There are people whose names you heard during the course of the trial but who did not
appear to testify. One or more of the attorneys has referred to their absence from the trial. I instruct
you that each party had an equal opportunity to call any of these witnesses. Therefore, you should
not draw any inferences or reach any conclusions as to what they would have testified had they
been called. Their absences should not affect your judgment in any way. You should remember
my instruction, however, that the law does not impose on a defendant in a criminal case the burden
or duty of calling any witnesses or producing any evidence.
ANNOTATIONS AND COMMENTS

The Government’s authority is as follows:

“The long-standing rule in this circuit is that any inference from a party’s failure to call a certain
witness equally available to both parties is impermissible.” United States v. Chapman, 435 F.2d
1245, 1247 (5th Cir. 1970); see also United States v. Bos, 194 F. App’x 890, 892 (11th Cir.
2006) (“An inference from a party's failure to call a witness equally available to both parties is
impermissible.”); United States v. Esformes, 16-20549-CR-SCOLA (Court’s Instructions to the
Jury DE 1216:5).

2 This is not a pattern instruction. The United States requests that the Court only give this
instruction if the Defendant makes an argument at trial to which the instruction applies.
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Persons Not on Trial3

In addition, some of the people who may have been involved in these events are not
on trial. This does not matter. There is no requirement that all members of a conspiracy or
all co-defendants be charged and prosecuted in one proceeding.
You may not draw any inference, favorable or unfavorable, towards the Government
or the Defendant on trial from the fact that any person in addition to the Defendant is not on
trial here. You may also not speculate as to the reasons why other persons are not on trial.
ANNOTATIONS AND COMMENTS

The Government’s authority is as follows:

See United States v. Marie Lucie Tondreau, Case No. 14-20349-CR-SCOLA, Court’s Instruction
to the Jury (D.E. 106 at p.5); United States v. Nivis Martin, Case No. 13-20457-CR-COHN,
Court’s Instructions to the Jury [D.E. 144 at 7](utilizing this instruction in a mortgage fraud case);
United States v. Math Benjamin, 12-20707-CR-COOKE, Court’s Instructions to the Jury [D.E.
106]; United States v. Herrera et al., 12-20173-CR-LENARD, Court’s Instructions to the Jury
[D.E. 66]; United States v. Esformes, 16-20549-CR-SCOLA (Court’s Instructions to the Jury DE
1216:5).

3 This is not a pattern instruction.
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B6.1
Impeachment of Witnesses Because of Inconsistent Statements

You should also ask yourself whether there was evidence that a witness testified falsely
about an important fact. And ask whether there was evidence that at some other time a witness
said or did something, or didn’t say or do something, that was different from the testimony the
witness gave during this trial.
But keep in mind that a simple mistake doesn’t mean a witness wasn’t telling the truth as
he or she remembers it. People naturally tend to forget some things or remember them inaccurately.
So, if a witness misstated something, you must decide whether it was because of an innocent lapse
in memory or an intentional deception. The significance of your decision may depend on whether
the misstatement is about an important fact or about an unimportant detail.
ANNOTATIONS AND COMMENTS

See United States v. D’Antignac, 628 F.2d 428, 435-36 n.10 (5th Cir. 1980), cert. denied, 450 U.S.
967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (1981) (approving a previous version of this instruction
used in conjunction with Basic Instruction 5 and Special Instruction 2.1 as befitted the facts of that
case). See also United States v. McDonald, 620 F.2d 559, 565 (5th Cir. 1980), and United States v.
Soloman, 856 F.2d 1572, 1578 (11th Cir. 1988), reh’g denied, 863 F.2d 890 (1988), cert. denied,
489 U.S. 1070, 109 S. Ct. 1352, 103 L. Ed. 2d 820 (1989).

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B6.3
Impeachment of Witnesses Because of Inconsistent Statements
(Defendant with No Felony Conviction Testifies)
You should also ask yourself whether there was evidence that a witness testified falsely
about an important fact. And ask whether there was evidence that at some other time a witness
said or did something, or didn’t say or do something, that was different from the testimony the
witness gave during this trial.
But keep in mind that a simple mistake doesn’t mean a witness wasn’t telling the truth as
he or she remembers it. People naturally tend to forget some things or remember them inaccurately.
So, if a witness misstated something, you must decide whether it was because of an innocent lapse
in memory or an intentional deception. The significance of the misstatement may depend on
whether the misstatement was about an important fact or about an unimportant detail. A defendant
has a right not to testify.
But since the Defendant did testify, you should decide whether you believe the Defendant’s
testimony in the same way as that of any other witness.
ANNOTATIONS AND COMMENTS
No annotations associated with this instruction.

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T2
Witness’s Prior Statement or Testimony Explanatory
Instruction

Members of the Jury: If a witness is questioned about earlier statements or testimony the
witness made, the questioning is permitted to aid you in evaluating the truth or accuracy of the
witness's testimony at this trial.
A witness’s earlier testimony or statements are not ordinarily offered or received as
evidence of their truth or accuracy. They are pointed out to give you a comparison and to help you
decide whether you believe the witness's testimony.
Whether those prior statements are consistent or inconsistent with the witness’s trial
testimony is entirely up to you.
I’ll give you additional instructions at the end of the trial about a number of things you may
consider to determine the credibility or believability of the witnesses and the weight to give their
testimony.
ANNOTATIONS AND COMMENTS

No annotations associated with this instruction.

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T3
Explanatory Instruction
Transcript of Tape Recorded Conversation

Members of the Jury: Exhibit _____ has been identified as a typewritten transcript of the
oral conversation heard on the tape recording received in evidence as Exhibit _____. The transcript
also purports to identify the speakers engaged in the conversation.
I’ve admitted the transcript for the limited and secondary purpose of helping you follow
the content of the conversation as you listen to the tape recording and also to help you identify the
speakers.
But you are specifically instructed that whether the transcript correctly reflects the content
of the conversation or the identity of the speakers is entirely for you to decide based on your own
examination of the transcript in relation to hearing the tape recording itself as the primary evidence
of its own contents.
If you determine that the transcript is in any respect incorrect or unreliable, you should
disregard it to that extent.
ANNOTATIONS AND COMMENTS

United States v. Nixon, 918 F.2d 895 (11th Cir. 1990), held that transcripts are admissible in
evidence, including transcripts that purport to identify the speakers, and specifically approved the
text of this instruction as given at the time the transcripts were offered and received.

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B7
Expert Witness

When scientific, technical or other specialized knowledge might be helpful, a person who
has special training or experience in that field is allowed to state an opinion about the matter.
But that doesn’t mean you must accept the witness’s opinion. As with any other witness’s
testimony, you must decide for yourself whether to rely upon the opinion.
ANNOTATIONS AND COMMENTS

United States v. Johnson, 575 F.2d 1347, 1361 (5th Cir. 1978), cert. denied, 440 U.S. 907, 99 S.
Ct. 1214, 59 L. Ed. 2d 454 (1979).

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B8
Introduction to Offense Instructions

The indictment charges five separate crimes, called “counts,” against the Defendant. Each
count has a number. You’ll be given a copy of the indictment to refer to during your deliberations.
Count One charges the Defendant with seaman’s manslaughter.
Count Two charges the Defendant with making a false statement within the jurisdiction of
an agency of the United States.
Counts Three, Four, and Five charge the Defendant with wire fraud.
These five counts charge the Defendant with committing what are called “substantive
offenses.” I will explain the law governing those substantive offenses in a moment.
ANNOTATIONS AND COMMENTS

No annotations associated with this instruction.
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B9.1A
On or About; Knowingly; Willfully – Generally

You’ll see that the indictment charges that a crime was committed “on or about” a certain
date. The Government doesn’t have to prove that the crime occurred on an exact date. The
Government only has to prove beyond a reasonable doubt that the crime was committed on a date
reasonably close to the date alleged.
The word “knowingly” means that an act was done voluntarily and intentionally and not
because of a mistake or by accident.
The word “willfully” means that the act was committed voluntarily and purposely, with the
intent to do something the law forbids; that is, with the bad purpose to disobey or disregard the
law. While a person must have acted with the intent to do something the law forbids before you
can find that the person acted “willfully,” the person need not be aware of the specific law or rule
that his conduct may be violating.
ANNOTATIONS AND COMMENTS

The Definition of willfulness in this instruction can be used in most cases where willfulness is an
element. For crimes requiring a particularized knowledge of the law being violated, such as tax
and currency-structuring cases, use 9.1B’s definition of willfulness.

The committee in its most recent revisions to the pattern instructions has changed the approach to
how “willfully” should be charged in the substantive offenses which include it as an essential
element of the offense. The previous editions of the pattern instructions included the following
definition that historically has been used in most cases:

The word “willfully,” as that term has been used from time to time in these
instructions, means that the act was committed voluntarily and purposely, with the
specific intent to do something the law forbids; that is to say, with bad purpose
either to disobey or disregard the law.

Although this definition has been useful as a general definition that encompasses many different
aspects of the legal concept of “willfulness” in a concise and straightforward manner, the
Committee has concluded, along with every other Circuit Pattern Instruction Committee that has
considered the issue, that the definition is not accurate in every situation. A review of the case law
reveals how the courts have struggled with the meaning of “willfulness” as a mens rea requirement
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for substantive criminal offenses. See Bryan v. United States, 524. U.S. 184, 189-92, 114 S. Ct.
1939, 1944-45 (1998) (“The word ‘willfully’ is sometimes said to be ‘a word of many meanings’
whose construction is often dependent on the context in which it appears.” (citing Spies v. United
States, 317 U.S. 492, 497, 63 S. Ct. 364, 367 (1943))); see also Ratzlaf v. United States, 510 U.S.
135, 140-41, 114 S. Ct. 655, 659 (1994); United States v. Phillips, 19 F.3d 1565, 1576-84 (11th
Cir. 1994) (noting the difficulty in defining “willfully” and discussing the term in various
contexts), amended to correct clerical errors, 59 F.3d 1095 (11th Cir. 1995); United States v.
Granda, 565 F.2d 922, 924 (5th Cir. 1978) (noting, inter alia, that “willfully” has defied any
consistent interpretation by the courts”); see generally United States v. Bailey, 444 U.S. 394, 403,
100 S. Ct. 624, 631 (1980) (“Few areas of criminal law pose more difficulty that the proper
definition of the mens rea requirement for any particular crime.”).

Based on the case law, the Committee has concluded that the criminal offenses that expressly
include “willfulness” as an essential element can be divided into two broad categories. For the first
category (Instruction 9.1A, which encompasses most offenses) “willfully” is defined to require
that the offense be committed voluntarily and purposely with the intent to do something unlawful.
However, the person need not be aware of the specific law or rule that his or her conduct may be
violating. This definition is narrower than the traditional definition that has been used in our pattern
charges in the past, but the Committee believes that this narrower definition is required under the
law. See, e.g. Bryan v. United States, 524 U.S. 184, 118 S. Ct. 1939 (1998) (holding that the term
“willfully” in 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) requires proof that the defendant knew
that his conduct was generally unlawful, but does not require that the defendant knew of the
specific licensing requirement that he was violating).

The second category of criminal offenses that have “willfulness” as an essential element have a
heightened mens rea requirement. For this limited class of offenses, the Government must prove
more than the defendant knew that his conduct was done with a bad purpose to disobey the law in
general. The Government must prove that the defendant had an intent to violate a known legal
duty, that is with the specific intent to do something the law forbids. For these offenses, the
Committee recommends that the definition of “willfully” in Instruction 9.1B be given to the jury.
These offenses include currency structuring statutes and certain tax laws, which tend to involve
“highly technical statutes that present the danger of ensnaring individuals engaged in apparently
innocent conduct.” Bryan, 118 S. Ct. at 1946 – 47. For example, see Ratzlaf v. United States, 114
S. Ct. 655 (1994) (holding that with respect to 31 U.S.C. § 5322(a) and the monetary transaction
provisions that it controls, the Government must prove that the defendant acted willfully, i.e., with
specific knowledge that the structuring of currency transactions in which he was engaged was
unlawful); see also Cheek v. United States, 111 S. Ct. 604, 609-10 (1991) (explaining that due to
the complexity of tax laws, there is an exception to the general rule that “ignorance of the law or
a mistake of law is no defense to criminal prosecution,” and “[t]he term ‘willfully’ [as used in
certain federal criminal tax offenses] connot[es] a ‘voluntary, intentional violation of a known
legal duty’” (citing United States v. Pomponio, 429 U.S. 10, 12, 97 S. Ct. 22, 23 (1976) and United
States v. Bishop, 412, U.S. 346, 360-61, 93 S. Ct. 2008, 2017 (1973))). In Cheek, the Supreme
Court found error in the trial court’s instruction to the jury that in order for the defendant’s belief
that he was not violating the law to be a defense, his good-faith belief must have been objectively
reasonable. The Court further explained, however, that “a defendant’s views about the validity of
the tax statutes are irrelevant to the issue of willfulness and need not be heard by the jury, and, if
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they are, an instruction to disregard them would be proper.” Cheek, 498 U.S. at 206, 111 S. Ct. at
613.

The Committee observes that the required mental state may be different even for different elements
of the same crime. This possibility should be considered when determining what definition of mens
rea should be charged. See Liparota v. United States, 471 U.S. 419, 423, 105 S. Ct. 2084, 2087
n.5 (1985).

Note: If the Defendant raises a good faith defense, it may be appropriate to give Special Instruction
9 [Good Faith Defense to Willfulness (as under the Internal Revenue Code)], Special Instruction
18 [Good Faith Reliance Upon Advice of Counsel].
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B10.2
Caution: Punishment
(Single Defendant, Multiple Counts)

Each count of the indictment charges a separate crime. You must consider each crime and
the evidence relating to it separately. If you find the Defendant guilty or not guilty of one crime,
that must not affect your verdict for any other crime.
I caution you that the Defendant is on trial only for the specific crimes charged in the
indictment. You’re here to determine from the evidence in this case whether the Defendant is guilty
or not guilty of those specific crimes.
You must never consider punishment in any way to decide whether the Defendant is guilty.
If you find the Defendant guilty, the punishment is for the Judge alone to decide later.
ANNOTATIONS AND COMMENTS

There may be cases in which the last sentence of the first paragraph of this instruction is
inappropriate and should be deleted. This may occur, for example, in prosecutions under 18 U.S.C.
§ 1962 (RICO offenses) or 21 U.S.C. § 848 (Continuing Criminal Enterprise offenses) where the
indictment is structured so that a conviction of one count or counts (sometimes called “predicate
offenses”) is necessary to a conviction of another count or counts.

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Seaman’s Manslaughter (Government Proposal)4
18 U.S.C. § 1115

Count One charges the Defendant with seaman’s manslaughter. It’s a Federal crime
for a captain, engineer, pilot, or other person employed on a vessel to engage in
misconduct, negligence, or inattention to his duties, or for a captain or charterer of a vessel
to engage in fraud, neglect, connivance, misconduct, or violation of law that proximately
causes the loss of a life.
The Defendant can be found guilty of this crime only if all the following facts
are proved beyond a reasonable doubt:
(1) The Defendant was an owner, charterer, captain, engineer, pilot, or other
person employed on the M/V SOUTHERN COMFORT;

(2) A person lost his or her life; and

(3) If a person lost his or her life and the Defendant was a captain,
engineer, pilot, or other person employed on the vessel, the loss of life
was proximately caused by the misconduct, negligence, or inattention
of the Defendant to his duties upon the vessel, upon which he was
employed;

If a person lost his or her life and the Defendant was an owner or
charterer of the vessel, the loss of life was proximately caused by the
fraud, neglect, connivance, misconduct, or violation of law of the
Defendant as the owner or charterer of the vessel.

“Negligence” is a breach of duty, which means an omission to perform some duty,
or a violation of some rule or standard of care, which is made to govern and control one in
the discharge of some duty.
Negligent conduct “proximately causes” a loss of life if the loss of life resulted from
4 This Government proposal is not a pattern instruction.
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the negligence and it was reasonably foreseeable that the negligent conduct was or could be
a threat to the lives of others.
ANNOTATIONS AND COMMENTS

From the Government, in support:
See Government’s Trial Brief at Docket Entry 29.
From the defense, in objection:
While the government’s proposal correctly instructs the jury that it must find that the
defendant’s conduct was the proximate cause of the loss of life, it fails to include a second,
essential feature of the causation element: “but for,” or “actual,” causation. In its omission of an
actual causation element, the model instruction has again failed to keep up with recent caselaw.

In Burrage v. United States, 571 U.S. 204 (2014), the Supreme Court explained that there
is a bedrock principle in American law that where a person is charged with conduct that resulted
in the loss of life, the government must prove that the conduct was the but for cause of the loss.
Id. at 210-216. There, the Court concluded that the federal statute criminalizing distribution of a
controlled substance that “results” in the loss of life requires a jury to find that the substance was
the but for cause of the loss, not only a contributing or substantial cause. Id. The Court recognized
that some state courts will impose liability where the defendant’s conduct was only the
“substantial” or “contributing” cause, but the Court concluded that those rare outliers could not
control the definition of a federal statute absent a clear directive from the statutory text. Id.at 215-
16. Instead, absent a statutory directive to the contrary, where a statute contains causal language,
such as “results from” or “based on,” it must be read to require but for causation. See id. at 213-
14.

Statutes that charge conduct causing a death thus generally require both actual and
proximate causation. The Ninth Circuit reached the same conclusion in United States v. Pineda-
Doval, 614 F.3d 1019 (9th Cir. 2010). There the Court explained that for “a defendant to be found
guilty of transportation of illegal aliens resulting in death, the Government must prove that the
defendant's criminal conduct was the but-for cause and the proximate cause of the charged deaths.”
Id. at 1032. Here, the statute imposes liability on a captain “by whose” negligence life is lost. 18
U.S.C. § 1115. “By whose” is the same type of causal language requiring actual causation that the
Supreme Court referenced in Burrage. Indeed, other courts have read a but for causation
requirement into the seaman’s manslaughter statute. See United States v. Knowles, 4 Sawy. 517
(1864) (N.D. Cal.) (“It is not sufficient for you to believe that possibly he might have been saved.
To find the defendant guilty, you must come to the conclusion that he would, beyond a reasonable
doubt, have been saved if proper efforts to save him had been seasonably made.”); United States
v. Meckling, 141 F.Supp. 608 (D. Md. 1956) (entering acquittal because captain's negligent acts
“are only possibilities, or at the most probabilities, so far as the loss of life is concerned”).

All references to “misconduct” and “inattention to one’s duties” should be removed from
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the jury instructions. The government’s alternatives—“misconduct” or “inattention to his
duties”—are akin to simple negligence, rather than the required gross negligence. The text of the
seaman’s manslaughter statute presents the following standard: “misconduct, negligence, or
inattention to his duties.” 18 U.S.C. § 1115. All three of these clauses essentially articulate a
negligence standard, but because they appear in a manslaughter statute, the whole phrase must be
interpreted to require gross negligence.

All references to “misconduct” and “inattention to one’s duties” should be removed from
the jury instructions since they are highly likely to confuse the jury into believing that it may reach
a guilty verdict based on a lesser standard than gross negligence. Omitting this statutory language
is consistent with the way in which juries who have addressed this issue are instructed on the
general manslaughter statute, § 1112. That statute states that involuntary manslaughter may be
committed “In the commission of an unlawful act not amounting to a felony, or in the commission
in an unlawful manner, or without due caution and circumspection, of a lawful act which might
produce death.” 18 U.S.C. § 1112. Despite the fact that the statute contains multiple clauses, it has
held that it contains only one standard of care: gross negligence. Moreover, in Garcia, the Ninth
Circuit reversed a conviction where the district court instructed the jury with the disjunctive
language contained in the statute, specifically instructing that the element required a finding “the
Defendant committed an act, done either in an unlawful manner or with wanton or reckless
disregard for human life, which might produce death.” Garcia, 729 F.3d at 1176. Although the
instruction’s disjunctive phrasing tracked the statute, it did not require gross negligence and was
therefore erroneous. See id. So too, here: an instruction tracking the language of the statute, but
failing to require gross negligence, would misstate the elements of the offense. The second element
of the instruction here should track the Ninth Circuit model instruction: “Second, the defendant
acted with gross negligence, defined as wanton or reckless disregard for human life.”

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Seaman’s Manslaughter (Defense Proposal)5
18 U.S.C. § 1115

The defendant is charged in the indictment with seaman’s manslaughter, in violation
of 18 U.S.C. § 1115. In order for the defendant to be found guilty of the charge, the
government must prove each of the following elements beyond a reasonable doubt:
(1) First, the defendant was a captain or other person employed on a marine vessel;

(2) Second, the defendant committed an act that might produce death;

(3) Third, the defendant acted with gross negligence, defined as wanton or reckless
disregard for human life;

(4) Fourth, the defendant’s grossly negligent act was the proximate cause of the death
of 1 person. A proximate cause is one that played a substantial part in bringing
about the deaths, so that the deaths were the direct result or a reasonably probable
consequence of the defendant’s act;

(5) Fifth, the defendant’s grossly negligence act was the actual cause of the death of 1
person. An actual cause is one without which the deaths could not have occurred;

(6) Sixth, the defendant knew that such an act was a threat to the lives of others; and

(7) Seventh, the deaths occurred within federal admiralty jurisdiction. Federal
admiralty jurisdiction exists if the deaths occurred on a vessel engaged in
commercial activity and on a waterway that is used or susceptible of being used for
the business of shipping.

ANNOTATIONS AND COMMENTS
From the defense, in support:
18 U.S.C. § 1115; Ninth Circuit Model Criminal Jury Instructions, No. 16.4; United States
v. Garcia, 729 F.3d 1171, 1175 (9th Cir. 2013); United States v. Keith, 605 F.2d 462, 463 (9th Cir.
1979); United States v. Rodriguez, 880 F.3d 1151, 1159-60 (9th Cir. 2018); Burrage v. United
States, 571 U.S. 204, 210-16 (2014); CAUSE, Black’s Law Dictionary (11th ed. 2019); Adams v.
Montana Power Co., 528 F.2d 437, 439 (9th Cir. 1975) (admiralty jurisdiction).

From the Government, in objection:
The Government specifically objects to Proposed Element 2 (an act that might cause
5 This defense proposal is not a pattern instruction.
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death), Proposed Element 3 (gross negligence), Proposed Element 4 (gross negligence and
proximate cause), Proposed Element 5 (actual cause), Proposed Element 6 (knowledge), and
Proposed Element 7 (admiralty jurisdiction).

As to Proposed Element 2 (an act that might cause death), the Government objects
because the proposed element is unduly vague and misstates the law, eschewing the “reasonable
foreseeability” standard that governs in these cases. It is also internally inconsistent with the
defense’s Proposed Element 4 in that respect, because it speaks to “reasonably probable result”
as the governing standard. The sum of all this is that the Court should reject this proposal as
unduly confusing and legally incorrect.

As to Proposed Element 3 (gross negligence), the Government objects because, as set
forth in its trial brief, gross negligence is not a required showing for Section 1115 prosecutions.
See DE 29 at 3-5; see also, e.g., United States v. Alvarez, 809 F. App’x 562, 569 (11th Cir. 2020).

As to Proposed Element 4 (proximate cause), the Government objects because the
proposed element misstates the proximate cause standard and is internally inconsistent, stating
on the one hand the lesser standard of the negligence only “play[ing] a substantial part in bringing
about the deaths” but then providing a higher standard in writing, “so that the deaths were the
direct result or a reasonably probable consequence of the defendant’s act.” In this way, the
instruction is likely to cause needless juror confusion while also misstating the law.

As to Proposed Element 5 (actual cause), the Government objects because the proposed
element is duplicative and confusing. Proximate cause is the causation standard for Section 1115
applied in O’Keefe, see DE 29 at 5-6, and adding an additional element of actual cause serves
only to confuse the jury when the negligence causing the harm can be baked into the definition
of proximate cause, which is what the Government proposes. The defense’s proposal, in contrast,
pits its prior proximate cause instruction against this actual cause instruction, with proximate
cause being expressly broader than actual cause. And while the defense cites Burrage, that case
found the Supreme Court reversing a circuit court that had rejected the use of proximate cause
by instead using precisely the language that the defense now uses for “proximate cause,” which
it defines as conduct playing a “substantial part” in the result.6

As to Proposed Element 6 (knowledge), the Government objects because it misstates the
law. As explained in the Government’s trial brief, see DE 29 at 3-5, there is no knowledge
requirement for this crime. Rather, the crime requires only simple negligence. Indeed, even the
Eleventh Circuit’s involuntary manslaughter instruction, Pattern Instruction O46.2, has an
element that “the Defendant knew or could have reasonably foreseen that the Defendant’s
conduct was or could be a threat to the lives of others,” which is what the Government proposes
6 The Government notes that the objection here is more semantic than legal: the Government’s
definition of “proximate cause” encompasses the negligence causing the death, as the concept of
actual cause here contemplates. The problem with the defense’s proposal is that it blends actual
causation with a lesser standard immediately before it, which serves no purpose but to confuse
the jury. The Government’s proposal, in contrast, is a streamlined definition that gives the jury
the one set of findings it needs to make.
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and indeed what the defense includes in its Proposed Element 4 as the proper standard.

As to Proposed Element 7 (admiralty), the Government again objects because it misstates
the law, with three considerations favoring this Court refusing to instruct the jury as provided:

First, Section 1115 does not contain an admiralty and maritime jurisdictional clause, and
this Court should not insert additional elements into the offense without clear on-point case law.
None of the examples of Section 1115 jury instructions of which the Government is aware
contain such an element, and when seaman’s manslaughter was codified in its current form as
Section 1115, Congress expressly removed the special maritime and territorial jurisdiction
limitation. See United States v. McKee, 68 F.4th 1100, 1105 (8th Cir. 2023).

Second, even assuming there to be an admiralty aspect to the case, the way to resolve it
is not through an added element at trial but instead a motion to dismiss for lack of jurisdiction.
The only case to rule that there is a jurisdictional element of admiralty, McKee, was resolved by
a motion to dismiss, not a stipulated bench trial or a jury verdict. See United States v. Ruiz-
Murillo, 736 F. App’x 812, 816-17 (11th Cir. 2018); Docket Entry 104 of United States v. McKee,
et al., No. 18-CR-5043 (W.D. Mo.) (motion to dismiss). That said, it also bears noting that unlike
McKee, there is not even a good-faith argument here that there is a jurisdictional issue with this
prosecution. The defense has never argued, in a motion to dismiss or otherwise, that the location
where this incident occurred outside the permissible jurisdiction. This fact shows that the defense
is inserting this element only to create confusion at the eleventh hour, and this Court should
decline to follow it down that path.

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Title 46 Code of Federal Regulations
Regulations Concerning Vessel Operation7
Persons employed on a vessel are required to comply the law, including the
provisions of the law set forth in the Code of Federal Regulations. This Code of Federal
Regulations is to be considered by the jury as one of the circumstances in evidence in the
case surrounding the conduct of the defendant.
§ 4.05-1 Notice of Marine Casualty

The following is a federal regulation governing operating a vessel in navigable
waters:
Immediately after the addressing of resultant safety concerns, the owner, agent,
master, operator, or person in charge, shall notify the nearest Sector Office, Marine
Inspection Office or Coast Guard Group Office whenever a vessel is involved in a marine
casualty consisting in—
1. An unintended grounding, or an unintended strike of (allision with) a bridge;
2. An intended grounding, or an intended strike of a bridge, that creates a hazard to
navigation, the environment, or the safety of a vessel, or that meets any criterion of
paragraphs (a) (3) through (8);
3. A loss of main propulsion, primary steering, or any associated component or control
system that reduces the maneuverability of the vessel;
4. An occurrence materially and adversely affecting the vessel's seaworthiness or fitness
for service or route, including but not limited to fire, flooding, or failure of or damage
to fixed fire-extinguishing systems, lifesaving equipment, auxiliary power-generating
equipment, or bilge-pumping systems;
7 This is not a pattern instruction.
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5. A loss of life;
6. An injury that requires professional medical treatment (treatment beyond first aid)
and, if the person is engaged or employed on board a vessel in commercial service,
that renders the individual unfit to perform his or her routine duties;
7. An occurrence causing property-damage in excess of $75,000, this damage including
the cost of labor and material to restore the property to its condition before the
occurrence, but not including the cost of salvage, cleaning, gas-freeing, drydocking,
or demurrage; or
8. An occurrence involving significant harm to the environment as defined in § 4.03-65.
§ 4.06-5 Drug Testing Requirements

The following is a federal regulation governing operating a vessel in navigable
waters:
1. Any individual engaged or employed on board a vessel who is determined to be
directly involved in a serious marine incidents must provide a blood, breath, saliva,
or urine specimen for chemical testing when directed to do so by the marine employer
or a law enforcement officer.
2. If the individual refuses to provide a blood, breath, saliva, or urine specimen, this
refusal must be noted on Forms CG-2692 and CG-2692B and in the vessel's official
log book, if a log book is required. The marine employer must remove the individual
as soon as practical from duties that directly affect the safe operation of the vessel.
3. Individuals subject to alcohol testing after a serious marine incidents are prohibited
from consuming alcohol beverages for 8 hours following the occurrence of the serious
marine incidents or until after the alcohol testing required by this part is completed.
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4. No individual may be compelled to provide specimens for alcohol and drug testing
required by this part. However, refusal to provide specimens is a violation of this
subpart and may subject the individual to suspension and revocation proceedings
under part 5 of this chapter, a civil penalty, or both.
§ 16.115 and § 16.230(b) Chemical Testing

Violation of this part is subject to the civil penalties set forth in 46 U.S.C. 2115. Any
person who fails to implement or conduct, or who otherwise fails to comply with the
requirements for chemical testing for dangerous drugs as prescribed under this part, is liable
to the United States Government for a civil penalty of not more than $5,000 for each
violation. Each day of a continuing violation will constitute a separate violation.
…

(b) Marine employers shall establish programs for the chemical testing for dangerous
drugs on a random basis of crewmembers on uninspected vessels who:
1. Are required by law or regulation to hold a license issued by the Coast Guard in
order to perform their duties on the vessel;
2. Perform duties and functions directly related to the safe operation of the vessel;
3. Perform the duties and functions of patrolmen or watchmen required by this
chapter; or,
Are specifically assigned the duties of warning, mustering, assembling, assisting, or
controlling the movement of passengers during emergencies.
ANNOTATIONS AND COMMENTS

From the Government, in support:
See Government’s Trial Brief at Docket Entry 29.
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From the defense, in objection:
The Court should not read Coast Guard regulations to the jury as part of its final jury
instructions. Mr. McCabe’s is not charged with violating those regulations. The regulations will
be introduced as evidence in the case; there is no reason for the Court to repeat this particular
evidence to the jury. Doing so would be unduly prejudicial and undermine the limiting instruction
the Court will provide regarding the proper role the regulations may play in the jury’s deliberations.

Moreover, there is only a fine distinction between the improper inference a jury might draw
from the regulations—of negligence per se—and the proper one—that the regulations may be
considered, along with the totality of the evidence, in evaluating the standard of care and other
issues at trial. See United States v. Pardee, 368 F.2d 368, 375 (4th Cir. 1966) (decision of what
conduct rises to the level of criminal negligence must be “left to the jury” so that it can “measure
the conduct of the defendant against all of the existing circumstances and determine therefrom
whether” it rises to criminally liable conduct).

The regulations must be treated like any other evidence for the jury to evaluate. They should
not be presented to the jury as part of the Court’s instruction on the law of the case, just after it
hears the elements of the charge. Such an instruction would elevate the regulations above the
remainder of the evidence introduced at trial and give the misleading impression that the
regulations are part of the crime charged. Additionally, the government should not be able to
cherry-pick which regulations will be read to the jury by the Court. The defense will introduce
additional regulations to the jury, as well as other documents produced by the Coast Guard in its
regulatory capacity. There is no reason why some of this evidence—the government’s chosen
regulations—should be read to the jury by the Court, and not others.

The Defense requests that if the Court does allow the Government to read Coast Guard
regulations to the jury as part of its final jury instructions, its proposed limiting instruction is used,
both when a Coast Guard regulation is first introduced at trial and again at the end of trial. For
starters, it is crucially important to clarify for the jury that while Mr. McCabe is being charged
with a crime, these regulations are not criminal laws. Without that limitation, the jury may draw
the highly prejudicial and erroneous inference that he has committed other, uncharged crimes
captured by the regulations. Additionally, the Defense’s proposal accurately states the law. A
violation of the regulations does not in itself establish negligence—any claim to the contrary would
erroneously create a per se negligence standard. The instruction instead correctly states that the
regulations should be considered, along with all the evidence, in the jury’s deliberation.

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O36
False Statement to a Federal Agency
18 U.S.C. § 1001

It’s a Federal crime to willfully make a false or fraudulent statement to a department or
agency of the United States.
The Defendant can be found guilty of this crime only if all the following facts are proved
beyond a reasonable doubt:
(1) the Defendant made the statement as charged;

(2) the statement was false;

(3) the falsity concerned a material matter;

(4) the Defendant acted willfully, knowing that the statement was false; and

(5) the false statement was made or used for a matter within the jurisdiction of a
department or agency of the United States.

A statement is “false” when made or used if it is untrue when made and the person making
or using it knows it is untrue. The Government doesn’t have to show that the Governmental agency
or department was, in fact, deceived or misled.
The United States Coast Guard is an agency of the United States. Filing documents with
that agency relating to a vessel’s use or status is a matter within that agency’s jurisdiction.
The making of a false statement is not a crime unless the falsity relates to a “material” fact.
A “material fact” is an important fact – not some unimportant or trivial detail – that has a
natural tendency to influence or is capable of influencing a decision of a department or agency in
reaching a required decision.
ANNOTATIONS AND COMMENTS

18 U.S.C. § 1001(a) provides:

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… [W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial
branch of the Government of the United States, knowingly and willfully - - (1) falsifies… a
material fact; (2) makes any materially false, fictitious or fraudulent statement or
representation; or (3) makes or uses any false writing or document knowing the same to contain
any materially false, fictitious or fraudulent statement or entry [shall be guilty of an offense
against the United States.]

Maximum Penalty: Five (5) years imprisonment and applicable fine.

The enumeration of the elements of the offense is taken from United States v. Calhoon, 97 F.3d
518, 523 (11th Cir. 1996).

In Arthur Pew Const. Co. v. Lipscomb, 965 F.2d 1559, 1576 (11th Cir. 1992), the court held that
misrepresentation for purposes of § 1001 must be deliberate, knowing, and willful, or at least have
been made with a reckless disregard of the truth and a conscious purpose to avoid telling the truth.

In United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995), the Supreme
Court held that the materiality of a false statement under this section is a jury question, and that
failure to submit the question of materiality to the jury constitutes reversible error. See United
States v. Klais, 68 F.3d 1282, 1283 (11th Cir. 1995) (recognizing holding). The Eleventh Circuit
has held that for a conviction to be sustained under § 1001, “it is imperative that the writing or
document be ‘false.’” United States v. Blankenship, 382 F.3d 1110, 1132 (11th Cir. 2004). Where
the writing or document at issue is a contract, the Court of Appeals further held that there are only
two ways in which a contract can possibly be considered false: (1) where a person forges or alters
it, or (2) where it contains “factual misrepresentations.” Id.

The materiality definition is adopted from Gaudin, 115 S. Ct. at 2313, and United States v.
Lichenstein, 610 F.2d 1272 (5th Cir. 1980). See United States v. Grizzle, 933 F.2d 943, 948 (11th
Cir. 1991); United States v. Herring, 916 F.2d 1543, 1547 (11th Cir. 1990); United States v.
Gafyczk, 847 F.2d 685, 691 (11th Cir. 1988).

The “exculpatory no” doctrine as an exception to the scope of the offense (see United States v. Payne,
750 F.2d 844, 861 (11th Cir. 1985)) was repudiated by the Supreme Court in Brogan v. United States,
522 U.S. 398, 118 S. Ct. 805, 139 L. Ed. 2d 830 (1998).

The committee believes that the general definition of “willfully” in Basic Instruction 9.1A would
usually apply to this crime.

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O51
Wire Fraud
18 U.S.C. § 1343
It’s a Federal crime to use interstate wire, radio, or television communications to carry out
a scheme to defraud someone else.
The Defendant can be found guilty of this crime only if all the following facts are proved
beyond a reasonable doubt:
(1) the Defendant knowingly devised or participated in a scheme to defraud
someone by using false or fraudulent pretenses, representations, or promises;
(2) the false pretenses, representations, or promises were about a material fact;
(3) the Defendant acted with the intent to defraud; and
(4) the Defendant transmitted or caused to be transmitted by wire some
communication in interstate commerce to help carry out the scheme to defraud.
A “scheme to defraud” means any plan or course of action intended to deceive or cheat
someone out of money or property by using false or fraudulent pretenses, representations, or
promises. [A “scheme to defraud” is not a scheme that is intended to deceive someone only of
information needed to make discretionary decisions about the use of money or property. Rather,
a scheme to defraud is a scheme that is intended to cause an economic injury or loss on the
alleged victim.]8
A statement or representation is “false” or “fraudulent” if it is about a material fact that the
speaker knows is untrue or makes with reckless indifference to the truth, and makes with the intent
to defraud. A statement or representation may be “false” or “fraudulent” when it is a half-truth, or
effectively conceals a material fact, and is made with the intent to defraud.
8 The [bracketed] sentences are not from the Pattern but are instead proposed additions by the
defense.
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A “material fact” is an important fact that a reasonable person would use to decide whether
to do or not do something. A fact is “material” if it has the capacity or natural tendency to influence
a person’s decision. It doesn’t matter whether the decision-maker actually relied on the statement
or knew or should have known that the statement was false.
To act with “intent to defraud” means to act knowingly and with the specific intent to use
false or fraudulent pretenses, representations, or promises to cause loss or injury. Proving intent
to deceive alone, without the intent to cause loss or injury, is not sufficient to prove intent to
defraud.
The Government does not have to prove all the details alleged in the indictment about the
precise nature and purpose of the scheme. It also doesn’t have to prove that the material transmitted
by interstate wire was itself false or fraudulent; or that using the wire was intended as the specific
or exclusive means of carrying out the alleged fraud; or that the Defendant personally made the
transmission over the wire. And it doesn’t have to prove that the alleged scheme actually succeeded
in defrauding anyone.
To “use” interstate wire communications is to act so that something would normally be
sent through wire, radio, or television communications in the normal course of business.
Each separate use of the interstate wire communications as part of the scheme to defraud
is a separate crime.
ANNOTATIONS AND COMMENTS
18 U.S.C. § 1343 provides:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent pretenses, representations, or
promises, transmits or causes to be transmitted by means of wire, radio, or television
communication in interstate or foreign commerce, any writings, signs, signals, pictures, or
sounds for the purpose of executing such scheme or artifice [shall be guilty of an offense
against the laws of the United States].
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Maximum Penalty: Twenty (20) years’ imprisonment and applicable fine. (If the violation affects
a financial institution, or is in relation to or in connection with a presidentially declared major
disaster or emergency, thirty (30) years’ imprisonment and $1 million fine.)
If the offense involved telemarketing, 18 U.S.C. § 2326 requires enhanced imprisonment penalties:
A person who is convicted of an offense under section 1028, 1029, 1341, 1342, 1343, or
1344, or a conspiracy to commit such an offense, in connection with the conduct of
telemarketing - -
(1) shall be imprisoned for a term of up to 5 years in addition to any term of
imprisonment imposed under any of those sections, respectively; and
(2) in the case of an offense under any of those sections that - -
(A) victimized ten or more persons over the age of 55; or
(B) targeted persons over the age of 55,
shall be imprisoned for a term of up to 10 years in addition to any term of imprisonment
imposed under any of those sections, respectively.
An additional element is required under the Apprendi doctrine when the indictment alleges any
facts that would result in enhanced penalties under 18 U.S.C. § 1343 or § 2326. If the alleged
offense involved telemarketing, or involved telemarketing and victimized 10 or more persons over
age 55 or targeted persons over age 55, or the scheme affected a financial institution, or is in
relation to or in connection with a presidentially declared major disaster or emergency, the Court
should consider including a fourth element for that part of the offense and giving a lesser included
offense instruction for just the Section 1341 offense. Alternatively, an instruction (to be used with
a special interrogatory on the verdict form) can address those statutory variations of the scheme:
If you find beyond a reasonable doubt that the defendant is guilty of
using interstate [wire] [radio] [television] communications facilities
in carrying out a scheme to defraud, then you must also determine
whether the Government has proven beyond a reasonable doubt that
[the scheme was in connection with the conduct of telemarketing]
[the scheme was in connection with the conduct of telemarketing
and (a) victimized ten or more persons over the age of 55, or (b)
targeted persons over the age of 55] [the scheme affected a financial
institution] [the scheme was in relation to, or in connection with, a
presidentially declared major disaster or emergency].
Wire fraud requires showing (1) that the Defendant knowingly devised or participated in a scheme
to defraud; (2) that the Defendant did so willfully and with an intent to defraud; and (3) that the
Defendant used interstate wires for the purpose of executing the scheme. Langford v. Rite Aid of
Ala., Inc., 231 F.3d 1308, 1312 (11th Cir. 2000). Materiality is an essential element of the crimes
of mail fraud, wire fraud, and bank fraud and must be decided by the jury. Neder v. United States,
527 U.S. 1, 25, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). The definition of materiality used here
Case 9:24-cr-80103-AMC Document 54 Entered on FLSD Docket 02/18/2025 Page 36 of 43

comes from that decision and the Eleventh Circuit’s decision in the case upon remand. United
States v. Neder, 197 F.3d 1122, 1128-20 (11th Cir. 1999), cert. denied 530 U.S. 1261 (2000).
The instruction makes clear that deception alone does not constitute a scheme to defraud; a
defendant must intend to cause injury or loss. See United States v. Takhalov, 827 F.3d 1307, 1315
(11th Cir. 2016), altered in part on denial of rehearing by United States v. Takhalov, 838 F.3d 1168
(11th Cir. 2016) (“A jury cannot convict a defendant of wire fraud, then, based on
misrepresentations amounting only to a deceit.” (internal quotation marks and citation omitted)).
In wire fraud cases involving property rights, “the Government must establish that the defendant
intended to defraud a victim of money or property of some value.” United States v. Cooper, 132
F.3d 1400, 1405 (11th Cir. 1998). State and municipal licenses in general are not “property” for
the purposes of this statute. Cleveland v. United States, 531 U.S. 12, 15, 121 S. Ct. 365, 369, 148
L. Ed. 2d 221 (2000) (addressing “property” for purposes of mail fraud statute).
The mail fraud and wire fraud statutes are “given a similar construction and are subject to the same
substantive analysis.” Belt v. United States, 868 F.3d 1208, 1211 (11th Cir. 1989).
See also United States v. Svete, 556 F.3d 1157, (11th Cir. 2009) and discussion supra. Offense
Instruction 50.1.

From the defense, in support:

Federal law makes it a crime to use interstate wire communications to carry out a “scheme
or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises.” 18 U.S.C. § 1343. To establish a violation of this statute, the
Government must prove: “(1) a scheme to defraud exists, (2) the defendant used wire
communications in interstate or foreign commerce to further that scheme, and (3) the defendant
had specific intent to defraud.” United States v. del Carpio Frescas, 932 F.3d 324, 329 (5th Cir.
2019). See also, United States v. Davis, No. 21-10996, 2022 WL 16944171, at *3 (5th Cir. Nov.
15, 2022). The Fifth Circuit’s reading of the wire fraud statute can be found in decisions involving
the mail fraud statute, 18 U.S.C. § 1341. Because the requisite elements of “scheme to defraud”
under the wire fraud statute, 18 U.S.C. § 1343 and the mail fraud statute are identical, cases
construing mail fraud apply to the wire fraud statute as well. United States v. Lemire, 720 F.2d
1327, 1334–35 n. 6 (D.C.Cir.1983); United States v. Feldman, 711 F.2d 758, 763 n. 1 (7th
Cir.1983). United States v. Bruno, 809 F.2d 1097, 1104–05 (5th Cir. 1987). The wire transfers
cannot “further the scheme” if the wires are immaterial, the scheme has come to fruition, or the
success of the scheme was not dependent on the wire transfer. See Schmuck v. United States, 489
U.S. 705, 713, 109 S. Ct. 1443, 1449, 103 L. Ed. 2d 734 (1989). Based on this definition, the jury
instruction should establish that the wire transfers that the Government is relying on for the above
counts did in fact further the alleged scheme to defraud. The indictment and the Government’s
Trial Brief allege that the wire transfers were simply transfers of money between Mr. McCabe’s
accounts. These transfers were done after Mr. McCabe received the PPP funds. The transfers were
immaterial to the scheme to defraud since his obtaining of the money had already.

Ciminelli v. United States, 598 U.S. 306, 308 (2023) (Because “potentially valuable
economic information” “necessary to make discretionary economic decisions” is not a traditional
property interest, we now hold that the right-to-control theory is not a valid basis for liability under
Case 9:24-cr-80103-AMC Document 54 Entered on FLSD Docket 02/18/2025 Page 37 of 43

§ 1343.”). Id. at 316 (“In sum, the wire fraud statute reaches only traditional property interests.
The right to valuable economic information needed to make discretionary economic decisions is
not a traditional property interest. Accordingly, the right-to-control theory cannot form the basis
for a conviction under the federal fraud statutes.”).

United States v. Takhalov, 827 F.3d 1307, 1312 (11th Cir. 2016), as revised (Oct. 3, 2016),
opinion modified on denial of reh'g, 838 F.3d 1168 (11th Cir. 2016) (“to defraud, one must intend
to use deception to cause some injury”); United States v. Kachkar, 19-12685, 2022 WL 2704358,
at *4 (11th Cir. July 12, 2022) (In Takhalov, “[w]e also stated that one can ‘scheme to defraud’
under Section 1343 only if he ‘intend[s] to harm the victim.’ And we reasoned that a defendant
displays such intent if he ‘lies about the nature of the bargain itself,’ usually by misrepresenting
‘the price’ or ‘characteristics of the good,’ so that the victim does not receive ‘what he bargained
for.’”).

From the Government, in objection:

The Government respectfully submits that the Citations and Authority for the
original O51 support this Court using the model instruction without the modification the defense
proposes. The Government further objects to the proposed defense instruction language because it
is not a valid defense here and is an incorrect statement of the law in any event.

Case 9:24-cr-80103-AMC Document 54 Entered on FLSD Docket 02/18/2025 Page 38 of 43

No Defense Blaming Victim9

It is not a defense to the crime of wire fraud that the victims could have done something
more than they did to prevent the offense. In other words, if you find that the Government has
proved all the elements of wire fraud beyond a reasonable doubt, it is no defense that such fraud
might not have occurred if the victims had acted with greater care.
Therefore, any evidence that the victims could have done something to prevent any fraud
which you find occurred, or evidence that their procedures were somehow deficient, should not be
considered by you as an excuse or defense to any wire fraud which you find has been proven
beyond a reasonable doubt.

ANNOTATIONS AND COMMENTS

The Government’s authority is as follows:

Quoted from instructions upheld in United States v. Callipari, 368 F. 3d 22, 37-39 & n.3 (1st Cir.
2004), vacated on other grounds, 125 S. Ct. 985 (2005); United States v. McConley, No. 19-CR-
20447-SINGHAL (S.D. Fla.) (Court’s Wire Fraud Instruction to the Jury, DE 294:17); see also
United States v. Jonathan Young, No. 24-CR-20055-MARTINEZ, Docket Entry 63, at 14 (giving
instruction as written here); United States v. Nicholas Craig Woozencroft, No. 23-CR-60094-
MARTINEZ (S.D. Fla.) (Court’s Instructions to the Jury, DE 57:13); United States v. D’Amico,
No. 18-80179-CR-COHN, (S.D. Fla.) (Court’s Instruction to the Jury, DE 102:13);

9 This is not a pattern instruction.
Case 9:24-cr-80103-AMC Document 54 Entered on FLSD Docket 02/18/2025 Page 39 of 43

B11
Duty to Deliberate

Your verdict, whether guilty or not guilty, must be unanimous – in other words, you must
all agree. Your deliberations are secret, and you’ll never have to explain your verdict to anyone.
Each of you must decide the case for yourself, but only after fully considering the evidence
with the other jurors. So you must discuss the case with one another and try to reach an agreement.
While you’re discussing the case, don’t hesitate to reexamine your own opinion and change your
mind if you become convinced that you were wrong. But don’t give up your honest beliefs just
because others think differently or because you simply want to get the case over with.
Remember that, in a very real way, you’re judges – judges of the facts. Your only interest
is to seek the truth from the evidence in the case.
ANNOTATIONS AND COMMENTS

See United States v. Brokemond, 959 F.2d 206, 209 (11th Cir. 1992). See also United States v.
Cook, 586 F.2d 572 (5th Cir. 1978), reh’g denied, 589 F.2d 1114 (1979), cert. denied, 442 U.S.
909, 99 S. Ct. 2821, 61 L. Ed. 2d 274 (1979); United States v. Dunbar, 590 F.2d 1340 (5th Cir.
1979).
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B12
Verdict

When you get to the jury room, choose one of your members to act as foreperson. The
foreperson will direct your deliberations and will speak for you in court.
A verdict form has been prepared for your convenience.
[Explain verdict]
Take the verdict form with you to the jury room. When you’ve all agreed on the verdict,
your foreperson must fill in the form, sign it, date it, and carry it. Then you’ll return it to the
courtroom.
If you wish to communicate with me at any time, please write down your message or
question and give it to the marshal. The marshal will bring it to me and I’ll respond as promptly
as possible – either in writing or by talking to you in the courtroom. But I caution you not to tell
me how many jurors have voted one way or the other at that time.
ANNOTATIONS AND COMMENTS

United States v. Norton, 867 F.2d 1354, 1365-66 (11th Cir. 1989), cert. denied, 491 U.S. 907, 109
S. Ct. 3192, 105 L. Ed. 2d 701 (1989) and 493 U.S. 871, 110 S. Ct. 200, 107 L. Ed. 2d 154 (1989)
notes that the Court should not inquire about, or disclose, numerical division of the jury during
deliberations but states that “[r]eversal may not be necessary even where the trial judge undertakes
the inquiry and thereafter follows it with an Allen charge, absent a showing that either incident or
a combination of the two was inherently coercive.” See United States v. Brokemond, 959 F.2d 206,
209 (11th Cir. 1992). See also United States v. Cook, 586 F.2d 572 (5th Cir. 1978), reh’g denied,
589 F.2d 1114 (1979), cert. denied, 442 U.S. 909, 99 S. Ct. 2821, 61 L. Ed. 2d 274 (1979).

Case 9:24-cr-80103-AMC Document 54 Entered on FLSD Docket 02/18/2025 Page 41 of 43

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-80103-CR-CANNON

UNITED STATES OF AMERICA

DUSTIN SEAN McCABE,

Defendant.
_______________________________/

VERDICT FORM

1.
We, the Jury, unanimously find Defendant DUSTIN SEAN McCABE, as to Count
1 of the Indictment:

GUILTY _____
NOT GUILTY _____

2.
We, the Jury, unanimously find Defendant DUSTIN SEAN McCABE, as to Count
2 of the Indictment:

GUILTY _____
NOT GUILTY _____

3.
We, the Jury, unanimously find Defendant DUSTIN SEAN McCABE, as to Count
3 of the Indictment:

GUILTY _____
NOT GUILTY _____

Case 9:24-cr-80103-AMC Document 54 Entered on FLSD Docket 02/18/2025 Page 42 of 43

4.
We, the Jury, unanimously find Defendant DUSTIN SEAN McCABE, as to Count
4 of the Indictment:

GUILTY _____
NOT GUILTY _____

5.
We, the Jury, unanimously find Defendant DUSTIN SEAN McCABE, as to Count
5 of the Indictment:

GUILTY _____
NOT GUILTY _____

SO SAY WE ALL

____________________________

FOREPERSON OF THE JURY

Dated: ______________________

Case 9:24-cr-80103-AMC Document 54 Entered on FLSD Docket 02/18/2025 Page 43 of 43

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Proposed Jury Instructions by USA as to Dustin Sean McCabe — USA v. McCabe (Dkt. 54, S.D. Fla.)

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