TRIAL BRIEF by USA as to Dustin Sean McCabe — USA v. McCabe (Dkt. 66)

Record facts

U.S. District Court for the Southern District of Florida · No. 9:24-cr-80103-AMC · Doc. 66 · 2025-02-25 · Docket on CourtListener

Summary

A Joint Proposed Supplemental Jury Instruction filed February 25, 2025 as Doc. 66 in United States v. Dustin Sean McCabe, No. 9:24-cr-80103-AMC, in the U.S. District Court for the Southern District of Florida. The government and the defendant jointly submit the instruction to address the unavailability of a witness who, the parties acknowledge, asserted Fifth Amendment rights. The proposed instruction tells the jury to draw no inference from the witness's absence because he was not available to either side. The filing cites Bowles v. United States, 439 F.2d 536, 542 (D.C. Cir. 1970), and is signed by Assistant United States Attorney Zachary A. Keller and defense attorney Terrence O'Sullivan. It is two pages and includes a certificate of service.

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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 PROPOSED SUPPLEMENTAL JURY INSTRUCTION 
 
 
The United States of America and Defendant Dustin Sean McCabe, by and through their 
undersigned counsel (collectively, the “Parties”), respectfully submit this Joint Proposed 
Supplemental Jury Instruction to address the unavailability of J.M. as a witness, whom the Parties 
acknowledge to have asserted his Fifth Amendment rights. See DE 60 at 2. 
PROPOSED JURY INSTRUCTION 
The jury should draw no inference from [J.M.]’s absence from this trial because he was not 
available to either side.  
ANNOTATIONS AND COMMENTS 
Bowles v. United States, 439 F.2d 536, 542 (D.C. Cir. 1970) (“Had either counsel requested 
the court to instruct the jury that they should draw no inference from Smith's absence because he 
was not available to either side, it would have been error to refuse this instruction.”).  
CONCLUSION 
Based on the foregoing authority and the Parties’ agreement that J.M.’s name has been 
used throughout the trial, the Parties respectfully submit that the Court should issue the proposed 
instruction contained herein. 
Case 9:24-cr-80103-AMC   Document 66   Entered on FLSD Docket 02/25/2025   Page 1 of 2

2 
 
Dated: February 25, 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 25, 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 66   Entered on FLSD Docket 02/25/2025   Page 2 of 2

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