Court filing
Status Report as to Pre-Trial Matters re Docket Entry 56 by USA as to Dustin Sean McCabe — USA v. McCabe (Dkt. 60, S.D. Fla.)
Filed February 21, 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 | 2025-02-21 |
U.S. District Court for the Southern District of Florida · No. 9:24-cr-80103-AMC · Doc. 60 · 2025-02-21 · Docket on CourtListener
Full text
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-80103-CR-CANNON
UNITED STATES OF AMERICA
v.
DUSTIN SEAN McCABE,
Defendant.
____________________________________/
JOINT NOTICE REGARDING PRE-TRIAL MATTERS
The United States of America and Defendant Dustin Sean McCabe, by and through their
undersigned counsel (collectively, the “Parties”), respectfully submit this Joint Notice Regarding
Pre-Trial Matters in compliance with the Court’s February 18 order requiring the parties to
confer “regarding any preadmitted exhibits, stipulations, use of exhibits/presentations during
opening statements, any witness asserting the Fifth Amendment’s right against self-
incrimination, and any evidence regarding the victim’s alleged ingestion of ‘edibles’ prior to the
alleged manslaughter.” DE 56. The Parties will also here advise the Court as to its question at
calendar call regarding whether the Eleventh Circuit has revised its O51 Wire Fraud pattern
instruction after it decided United States v. Takhalov, 827 F.3d 1307, 1312 (11th Cir. 2016), with
the answer to that question being that it was last revised in 2019, three years after Takhalov.
1. Pre-Admitted Exhibits.
The Parties have conferred regarding the Government’s proposed exhibits and agree as
follows: the Government will be filing an updated exhibit list that removes seven proposed crime
scene photos of M.C.G.F. and exhibits that are inconsistent with the Court’s evidentiary rulings,
and the defense has agreed to stipulate to the admission of all exhibits except for the Exhibit 109
Case 9:24-cr-80103-AMC Document 60 Entered on FLSD Docket 02/21/2025 Page 1 of 3
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series of autopsy photos. The defense objects to these photos on Federal Rule of Evidence 403
grounds, and the Government responds that the photos will be used by its medical examiner
witness and does not anticipate that the photos will feature in the trial beyond that.1
2. Stipulations.
After further conferral and considering the defense’s proposed jury instructions, the
Parties anticipate stipulating as to Mr. McCabe being the captain and owner of the M/V
SOUTHERN COMFORT and to the interstate aspect of Mr. McCabe’s Paycheck Protection
Program loan applications and forgiveness applications. The draft stipulation to which the Parties
have agreed is attached as Attachment A.
3. Use of Exhibits/Presentations During Opening Statements.
The Parties have agreed that they may use any of the preadmitted exhibits described in
Section 1 above. Specifically, the Government has indicated that it intends to make use of up to
three photographic exhibits, and the defense has no objection. The defense has indicated that it
does not currently anticipate using any exhibits during opening statement but reserves the option
to utilize Government exhibits as provided here.
4. Any Witness Asserting the Fifth Amendment Right Against Self-Incrimination.
The Parties have conferred with each other and with J.M.’s attorney and have determined
that neither side will be calling J.M. to trial due to his exercise of his Fifth Amendment rights.
5. Evidence Regarding the Victim’s Alleged Ingestion of “Edibles” Prior to the
Alleged Manslaughter.
The Parties have agreed that neither side will be introducing evidence pertaining to
M.C.G.F.’s alleged ingestion of “edibles” prior to the alleged manslaughter or her toxicology
1 In addition to the preadmission of the Government’s exhibits, the defense disclosed a list of 14
proposed exhibits on February 20 about which the parties are still conferring.
Case 9:24-cr-80103-AMC Document 60 Entered on FLSD Docket 02/21/2025 Page 2 of 3
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report more generally, agreeing that it is not relevant.
6. The Eleventh Circuit’s O51 Wire Fraud Pattern Instruction and Takhalov.
The Parties agree that the Eleventh Circuit has revised its wire fraud instruction, O51,
after it decided Takhalov in 2016. Specifically, as provided on page 4 of the Eleventh Circuit’s
Preamble to Pattern Jury Instructions,2 the Eleventh Circuit’s O51 pattern instruction was last
amended on January 24, 2019.
CONCLUSION
Having thus advised the Court, the Parties respectfully submit that they will be prepared
for trial on February 24, 2025.
Dated: February 21, 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
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 21, 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
2 The Eleventh Circuit’s Preamble to Pattern Jury Instructions is available online at
https://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCriminalPatternJuryInstruct
ionsRevisedAPR2024.pdf.
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