First MOTION for Acquittal by Dustin Sean McCabe. Responses due by 4/1/2025 — USA v. McCabe (Dkt. 95)

Record facts

U.S. District Court for the Southern District of Florida · No. 9:24-cr-80103-AMC · Doc. 95 · 2025-03-18 · Docket on CourtListener

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A Rule 29 motion for judgment of acquittal filed by defendant Dustin Sean McCabe through counsel Terrence J. O'Sullivan and Calisha A. Francis in United States v. McCabe, No. 9:24-cr-80103-AMC, in the U.S. District Court for the Southern District of Florida, entered on the docket March 18, 2025 as Doc. 95. The motion describes the indictment's five counts: seaman's manslaughter under 18 U.S.C. § 1115, a false statement under 18 U.S.C. § 1001(a)(2), and wire fraud in Counts 3-5 tied to PPP loan and forgiveness applications. It lists four grounds: the denial of the motion to sever, the unavailability of the vessel for inspection, the exclusion of a drug test, and insufficiency of the fraud evidence. Its argument sections address joinder under Rules 8(a) and 14(a), spoilage of evidence and the tax forms shown to the jury. The motion is signed January 30, 2025 and runs 14 pages.

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
WEST PALM BEACH DIVISION 
 
 
UNITED STATES OF AMERICA,   
 
CASE: 9:24-cr-80103-AMC-1 
 
Plaintiff, 
 
V. 
 
DUSTIN SEAN MCCABE 
 
Defendant. 
 
____________________________/ 
 
DEFENDANT DUSTIN SEAN MCCABES’ RULE 29 MOTION  
FOR JUDGMENT OF AQUITTAL 
 
 
COMES NOW, Defendant Dustin Sean McCabe, through his attorneys of record Terrence 
J.  O’Sullivan and Calisha A. Francis, and pursuant to Federal Rule of Criminal Procedure 29(a), 
hereby moves this Honorable Court for Judgment of Acquittal as to all counts against him as the 
Government has not introduced sufficient evidence for a reasonable jury to find each element of 
the charged offenses beyond a reasonable doubt. This motion is based upon the attached 
memorandum and authorities, all files and records in this case, and such evidence and argument 
as may be presented at the hearing on the motion. 
INTRODUCTION 
On August 22, 2024, Mr. McCabe was indicted with five criminal counts in the United 
States District Court in the Southern District of Florida. Count 1 accused Mr. McCabe of seaman’s 
manslaughter, in violation of Title 18, United States Code, Section 1115. Count 2 charged Mr. 
McCabe with making a false statement to a federal agency, in violation of Title 18, United States 
Code, Section 1001(a)(2). Counts 3, 4, and 5 alleged that Mr. McCabe committed wire fraud.  
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This motion is based on the following grounds: 
1. The denial of the Defendant's motion to sever the charges, which prejudiced the 
Defendant's right to a fair trial. 
2. The spoilage of key evidence, specifically the unavailability of the vessel for inspection. 
3. Exclusion of Decedent's Positive Drug Test, 
4. The Evidence Presented at Trial was insufficient to Sustain a Conviction that requires a 
finding of Fraud. 
 
ARGUMENT 
The charges against Mr. McCabe stem from his operation of the vessel M/V SOUTHERN on 
March 29, 2020, during a scuba diving excursion in Palm Beach County, which included a 
passenger, M.C.G.F. The Government alleged, and presented insufficient evidence at trial, that Mr. 
McCabe’s negligence contributed to the tragic drowning of M.C.G.F., reportedly resulting from 
injuries inflicted by the boat’s propeller. Additionally, the Government claimed that following 
M.C.G.F.'s death, Mr. McCabe applied for two Paycheck Protection Program (PPP) loans and 
sought forgiveness for both. They further asserted that Mr. McCabe's loan and forgiveness 
applications contained significant misrepresentations regarding his business's monthly payroll and 
employee count. 
I. 
Denial  of Motion to Sever   
The Defendant previously filed a motion to sever the charges of seamen's manslaughter, 
wire fraud, and false statements. The court's denial of this motion significantly prejudiced the 
Defendant's right to a fair trial. The joinder of these charges confused the jury and blurred the 
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distinct elements required for each offense. The jury's ability to impartially evaluate each charge 
on its own merits has been compromised. 
The Defense articulated its arguments and presented compelling evidence during the trial, 
highlighting the following key points: 
1. The charges of manslaughter, false statements, and financial fraud pertain to entirely 
distinct and unrelated victims. 
2. The assertion that Mr. McCabe knowingly submitted fraudulent representations to various 
banks and agencies regarding financial matters, including loans, lacks any logical 
connection to the charge of Seaman’s Manslaughter. 
3. Informing the jury of Mr. McCabe's involvement in four additional fraud-related offenses, 
in conjunction with the charge of Seaman’s Manslaughter, had a significant prejudicial 
effect. Furthermore, disclosing to the jury that Mr. McCabe financially benefited from the 
government following the death of M.C.G.F considerably undermined his right to a fair 
trial. 
MEMORADUM OF LAW 
 
In United States v. Booker, 334 F.3d 406, 415 (5th Cir. 2003) the Court ruled that the initial 
determination of whether joinder of charges is improper under Rule 8 of the Federal Rules of 
Criminal Procedure is judged according to the allegations in the superseding indictment. See 
United States v. Kaufman, 858 F.2d 994, 1003 (5th Cir. 1988).  
Specifically, Rule 8(a) provides that: 
The indictment or information may charge a defendant in separate counts 
with 2 or more offenses if the offenses charged . . . are of the same or 
similar character, or are based on the same act or transaction, or are 
connected with or constitute parts of a common scheme or plan. United 
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States v. Butler, No. 04-10364 (Fed. 5th Cir. 10/24/2005), No. 04-10364. 
(5th Cir. Oct 24, 2005). 
 
Under Rule 8 of the Federal Rules of Criminal Procedure two or more offenses may be charged 
in the same indictment or information if the charges are of the same or similar character, are based 
upon the same act or transaction, or on two or more acts connected together or constituting parts 
of a common scheme or plan.   
It is the government’s burden to show that the initial joinder is proper under Rule 8. United 
States v. Davis, supra. But the question of whether the initial joinder is proper under Rule 8 is to 
be determined before trial by an examination by the trial court of the allegations stated on the face 
of the indictment. United States v. Weaver, 905 F.2d 1466 (11th Cir. 1990). United States v. Morales, 
868 F.2d 1562 (11th Cir. 1989). Court has repeatedly said that whether joinder is proper under Rule 
8 is to be determined by examining the allegations in the indictment alone. See, e.g., United States 
v. Morales, 868 F.2d 1562, 1567- 68 (11th Cir. 1989). 
At trial, the government clearly failed to meet this burden.  Mr. McCabe was charged with 
Seaman’s Manslaughter and a totally separate financial fraud crime with totally separate and 
individual victims. These offenses are not of the same or similar character. They are not based 
upon the same acts or transactions, nor common scheme or plan.  Clearly, under Rule 8, joinder 
would be highly prejudicial and erroneous. While  courts  have some flexibility in the interpretation 
of “transaction,” there is a limit.    “[I]t  is  the  ‘logical  relationship’  between  the  acts  alleged,  
coupled with ‘a large area of overlapping proof,’ that allows them to be seen as ‘the same act or 
transaction.’ U.S. v. Salyer, No.  CR S-10-061  LKK,  2011  WL  6153204,  at  *4  (E.D.  Cal.  Dec.  
12,  2011). 
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None of these claims arose out of and were connected to the same general fraudulent scheme. 
There is no "explicit connection between the groups of charges," that there exists no need to look 
outside "the four corners of the indictment." United States v. Annamalai, 939 F.3d 1216 (11th Cir. 
2019) United States v. Souffrant, D. C. Docket No. 1:09-cr-20407-PCH-1, D. C. Docket No. 1:09-
cr-20407-PCH-2, No. 10-11579 (11th Cir. Apr 23, 2013). 
Count 1 of the Indictment, in its entirety, alleges how Mr. McCabe, on or about March 20th 
2020, by his misconduct, negligence, and inattention to his duties as the owner and charterer of 
the vessel M/V SOUTHERN COMFORT, by his fraud, neglect, connivance, misconduct, and 
violation of law on said vessel, caused the life of M.C.G.F. to be destroyed, in violation of Title 
18, United States Code, Section 1115. 
Meanwhile, in Count 2 of the Indictment, the Government charged Mr. McCabe with 
knowingly and willfully making false, fictitious, and fraudulent statements regarding material 
facts. Specifically, on or about March 5, 2020, the Government alleges that the defendant falsely 
represented to an employee of the Department of Homeland Security, United States Coast Guard, 
that he would use his vessel solely for recreational purposes, in violation of Title 18, United States 
Code, Section 1001(a)(2). 
Counts 3-5 asserted that Mr. McCabe knowingly, and with intent to defraud, devise, and intend 
to devise, a scheme and artifice to defraud, and to obtain money and property by means of 
materially false and fraudulent pretenses, representations, and promises, knowing that the 
pretenses, representations, and promises were false and fraudulent when made, and, for the purpose 
of executing the scheme and artifice, knowingly transmit and cause to be transmitted, by means of 
wire communication in interstate commerce, certain writings, signs, signals, pictures, and sounds, 
in violation of Title 18, United States Code, Section 1343. The Indictment further alleges that the 
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aim of this scheme was for the defendant to unlawfully enrich himself by: (a) submitting fraudulent 
loan applications for assistance through the SBA, intended to mitigate the economic impact of the 
COVID-19 pandemic, including PPP loans; (b) diverting the proceeds from the fraud for personal 
use to sustain the scheme; and (c) making false statements on PPP loan forgiveness applications to 
ensure that Mr. McCabe's loans would be forgiven. 
However, the evidence presented at trial failed to clearly sets forth an alleged common scheme 
that connects the Defendant’s negligence, which the Government claims directly led to M.C.G.F.’s 
death on March 29, 2020, with the alleged false statement made by Mr. McCabe on March 5, 2020 
in which he claimed he would use his vessel solely for recreational purposes. Additionally, the 
evidence presented by the Government failed to connect this with the wire fraud charges against 
Mr. McCabe, which include: (a) submitting fraudulent loan applications for assistance through the 
SBA, intended to alleviate the economic effects of the COVID-19 pandemic, including PPP loans; 
(b) misappropriating the proceeds from the fraud for personal use to sustain the scheme; and (c) 
providing false information on PPP loan forgiveness applications to ensure that Mr. McCabe's 
loans would be forgiven. In the Indictment, on its face, the government illogically intertwines the 
Manslaughter Count with the Fraud Counts. 
Courts determine whether joinder is proper by looking at "the allegations stated on the face of 
the indictment," United States v. Weaver , 905 F.2d 1466, 1476 (11th Cir. 1990). In this case, The 
government incorrectly argued that all five counts were part of a common scheme or plan under 
Rule 8(a). That belief, however, is based on a misunderstanding of the law. 
First, Rule 8 joinder was improper here because the five counts are NOT part of “a common 
scheme or plan.” Fed. R. Crim. P. 8(a).  The Seaman’s Manslaughter charge alleged in Count 1, 
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had nothing to do with the False Statement charge alleged in Count 2 or the wire fraud charges 
alleged in Counts 3-5. 
The Government failed to present any evidence of a criminal act that was alleged in Count 1 
and 2 of the indictment were "part and parcel" of the fraudulent scheme, in particular its wire fraud 
aspect alleged in Counts 3-5. Federal Rules of Criminal Procedure 8(a) and 14(a) permits the 
joinder of offenses where they "are of the same or similar character . . . , or are connected with or 
constitute parts of a common scheme or plan." Fed. R. Civ. P. 8(a). Courts have undertaken a two-
step analysis to determine whether separate charges are properly tried together, looking to the face 
of the indictment. 
To sustain a conviction for wire fraud, the government must prove that: "(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. Davis, 
53 F.4th 833, 842 (5th Cir. 2016) "A defendant 'acts with the intent to defraud when he acts 
knowingly with the specific intent to deceive for the purpose of causing pecuniary loss to another 
or bringing about some financial gain to himself.'" United States v. Swenson, 25 F.4th 309, 318-19 
(5th Cir. 2022). 
The Government presented insufficient evidence in support of Counts 3-5  and alleged that Mr. 
McCabe defrauded the United States by (a) submitting fraudulent loan applications for assistance 
through the Small Business Administration (SBA) intended to mitigate the economic impact of the 
COVID-19 pandemic, including Paycheck Protection Program (PPP) loans; (b) misappropriating 
the proceeds from this fraud for personal gain to perpetuate the scheme; and (c) providing false 
information on PPP loan forgiveness applications to ensure that his loans would be forgiven. 
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Importantly, these counts do not allege any fraud, misconduct, or negligence that resulted in 
the death of M.C.G.F., (Count 1) nor do they reference any false statements made to the United 
States Coast Guard or any other agency (Count 2). The allegations in Counts 3-5 center solely on 
the claim that it is fraudulent for individuals to attempt to improperly obtain and utilize PPP loan 
assistance. Thus, any alleged false statements made by Mr. McCabe in regarding the intended use 
of his vessel, as well as any alleged negligent actions that occurred on the Vessel on March 29, 
2021 are irrelevant to the Wire Fraud counts. 
There is no explicit connection between the groups of charges. Seaman’s Manslaughter, False 
Statements, and Wire fraud charges are not of the "same or similar character." Nor do the charged 
offenses appear to be "based on the same act or transaction." The counts containing the Seaman’s 
Manslaughter and False Statement charges make no reference to the counts containing the wire 
fraud charges. Rule 14(a) of the Federal Rules of Criminal Procedure allows a Court to mandate 
separate trials of counts if joinder appears to prejudice either the defendant or the government. 
“Even if joinder is proper . . . the court still has discretion to sever under Rule 14.” United States 
v. Ruiz, 412 F.3d 871, 886 (8th Cir. 2005). There is a presumption against severance, but that 
presumption was 6overcome here. 
The Seaman’s Manslaughter charge against Mr. McCabe was uniquely inflammatory and 
prejudicial which, in turn, made Mr. McCabe’s Motion to Sever unique. The kind of evidence the 
jury dealt with in the manslaughter-related charges unfairly warped the way the jury assessed the 
wire fraud and false statement charges. The jury needed to view the charges and elements 
independently Further, the three types of charges are not of the same or similar character – they 
are not the same type of offense, and most evidence does not overlap. See United States v. Boyd, 
180 F.3d 967, 981 (8th Cir. 1999). 
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II. 
Spoilage of Evidence 
The vessel, which is central to the charge of seamen's manslaughter, was no longer 
available for inspection at the time of trial nor in the discovery phase of the case. This constitutes 
spoilage of evidence, denying the Defendant the opportunity to independently verify the 
government's claims. The defense's ability to challenge the government's assertion that the boat 
malfunctioned due to a propulsion issue was severely hindered. Without the vessel, the defense 
could not conduct its own examination or present evidence to counter the government's claims.  
This spoilage of evidence was a critical issue that undermined the fairness of the trial. The inability 
to inspect the vessel placed the Defendant at an insurmountable disadvantage, violating the 
principles of justice and due process. 
 
The Government was permitted to present evidence that Mr. McCabe was alerted to 
significant mechanical issues with his Vessel, particularly the propulsion system, through three 
incidents.  
a) First Incident: A passenger, J.H., reported feeling pulled towards the port side propeller 
while holding onto the Vessel. Despite the Defendant claiming the engine was in neutral, 
J.H. insisted the propeller was engaged, resulting in her spear gun being sucked in and 
injuring her leg. 
b) Second Incident: During a second dive, the Vessel reportedly lost the ability to reverse. 
J.H. observed the port propeller engaging and notified the Defendant via Facebook, who 
cited prior issues with the port side. 
c) Final Incident: Following the outing, the Defendant allegedly encountered restricted 
maneuverability, resulting in a missed approach to the fuel dock and a near collision with 
the US1 bridge. Although the Defendant successfully avoided the bridge, the Vessel 
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ended up grounding in the channel. After making mechanical adjustments, he was able to 
navigate back to the dock. 
 
The Government should not have been permitted to admit any evidence referring to the 
propulsion system being the cause of the issues experienced on March 28 or March 29. The 
evidence presented by the Government was insufficient to prove proximate causation. The 
Government at trial asserted that the Defendant committed negligent acts relating to the alleged 
propulsion system’s malfunctions, failure to repair the propulsion issues, and failure to notify his 
passengers on March 29 of propulsion issues.  
 
However, the Government failed to present any evidence from any investigation or review 
regarding the boat’s engine or propulsion system that conclusively identifies the cause of the 
vessel's mechanical failures following the incident on March 29. Investigators did not attempt to 
start the engine to ascertain whether the malfunction was related to the propulsion system or 
another issue entirely. Despite the absence of a thorough assessment of the vessel following the 
incident, the Government was able to present evidence that lead to a definitive conclusion—
without conducting a proper investigation of the vessel itself—that the incident was attributable to 
a propulsion system issue. They presented evidence based on this assumption. 
 
The Government’s failure to adequately inspect the boat, test the engine, or evaluate the 
propulsion system has led to an erroneous conclusion linking the March incident to propulsion 
issues. The Government has relied exclusively on the testimony of a single witness, neglecting to 
examine the vessel for propulsion-related concerns. In contrast, the Defendant presented testimony 
and evidence demonstrating that the problems encountered were not attributable to the propulsion 
system. Following reports of potential mechanical issues, multiple witnessed testified that the 
Defendant and his mechanic conducted a comprehensive inspection of the vessel prior to the March 
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29 incident and promptly addressed the identified problems, which, in fact, were unrelated to the 
propulsion system. 
 
III. 
Exclusion of Decedent's Toxicology Results 
The failure to include the decedent's toxicology reports as evidence in the trial critically 
undermined the Defendant's case. This omission affected the trial's fairness and the integrity of the 
verdict. 
The decedent's toxicology test results were crucial to understanding the circumstances 
surrounding the incident. It would have helped to provide the jury with alternative explanations 
for the decedent's actions, which are essential for a fair evaluation of the seamen's manslaughter 
charge. 
The exclusion of this evidence prevented the defense from presenting a complete narrative that 
might challenge the Government's claims regarding causation and responsibility. The Defendant 
was deprived of the opportunity to argue that the decedent's impairment potentially contributed to 
the incident, thereby affecting the determination of negligence or culpability. 
Previous Court rulings have emphasized the necessity of including all relevant evidence to 
ensure a comprehensive and fair trial process. Excluding pertinent evidence that could affect the 
outcome contravenes established legal principles and the defendant's right to a fair trial. 
 
IV. 
The Evidence Presented at Trial was insufficient to Sustain a Conviction that requires 
a finding of Fraud. 
 
Counts  3, 4, and 5  require  a  finding  of  fraud,  and  the  evidence  is  insufficient  to  sustain  
a  conviction  that  requires  a  finding  of  fraud.    At  most,  the  evidence  presented supported  
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deception,  but  that  is  not  enough—defrauding requires  more. Defrauding requires an injury to 
the victim, and the victim here—for both counts—is the IRS.  This law is clear in the Eleventh 
Circuit: 
There is a difference between deceiving and defrauding: to defraud, one  must  
intend  to  use  deception  to  cause  some  injury;  but  one  can  deceive without 
intending to harm at all. Thus, deceiving is a necessary condition of defrauding 
but not a sufficient one. Put another way, one who defrauds always deceives, but 
one can deceive without defrauding.  For  this  reason,  the  law  in  the  Eleventh  
Circuit  makes  clear  that  a  defendant “schemes to defraud” only if he schemes 
to deprive someone of something of value by trick, deceit, chicane, or 
overreaching. But if a  defendant  does  not  intend  to  harm  the  victim—“to  
obtain,  by  deceptive means, something to which [the defendant] is not 
entitled”—then he has not intended to defraud the victim.  
 
United States v. Takhalov, 827 F.3d 1307, 1312-1313 (11th Cir. 2016), as revised(Oct. 3, 2016), 
opinion modified on denial of reh’g, 838 F.3d 1168. 
Here,  the  IRS  has  not  been  defrauded  out  of  anything.  The false claims  allegations  did 
not  result  in  any  loss  to  the  United  States,  as  proven  at  trial  and  admitted  by  government  
witnesses.   Therefore,  under  Takhalov, even if deception was proven, the IRS was not defrauded. 
Even if there were some loss (which there was not), a link between the fraud and  the  loss  must  
be  proven.    Here,  however,  even  if  there  were  any established deception, it “was not shown 
to be capable of affecting the [IRS’s] understanding of the [transactions],” Takhalov, 827 F.3d at 
1314, and there was no evidence the IRS did not understand the any information provided to the 
IRS.  Thus, “no  injury  was  shown  to  flow  from  [any]  deception.”    Id.  (citing United  States  
v.  Regent  Office  Supply  Co.,  421  F.2d  1174,  1182  (2d  Cir.  1970)).    Judgment  of  Acquittal 
should thus be entered. 
Furthermore, the Government submitted inaccurate tax forms, falsely asserting that they were 
the correct and legitimate documents provided by the Defendant. In response, the Defendant 
presented testimony and evidence showing that the Government displayed the incorrect form to 
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the jurors as proof, while misleadingly claiming it was used to secure the Paycheck Protection 
Program Loan. This assertion is unequivocally false. The Defendant suffered prejudice due to the 
Government's introduction of this erroneous document as evidence. 
The ramifications of this misstep are substantial, as it undermines the integrity of the 
proceedings and calls into question the fairness of the trial. The Defendant's legal team contended 
that this error not only misled the jury but also damaged the Defendant's reputation, potentially 
swaying the verdict. 
V. 
Conclusion 
For the foregoing reasons, and for all the reasons set out in the Motion, Mr. McCabe 
respectfully moves the Court for a Judgment of Acquittal. 
 
Respectfully submitted, 
 
 
 
 
 
 
 
 
TERRENCE O’SULLIVAN 
 
 
 
 
 
 
 
3810 Murrell Road #340 
 
 
 
 
 
 
 
Rockledge, Florida 32955 
 
 
 
 
 
 
 
321-422-2882 (office) 
 
 
 
 
 
 
 
321-848-2144 
 
Dated: January 30, 2025 
 
 
 
/s/ Terrence J. O’Sullivan, Esq. 
 
 
 
 
 
 
 
TERRENCE J. O’SULLIVAN 
 
 
 
 
 
 
 
Attorney for Mr. McCabe 
 
 
 
 
 
 
 
Florida Bar Number: 0644031 
 
 
 
 
 
 
 
Terrence@TerrenceOSullivanLaw.com 
 
 
CALISHA A. FRANCIS 
 
 
 
 
 
 
 
3920 Woodside Drive #10 
 
 
 
 
 
 
 
Coral Springs, Florida 33065 
 
 
 
 
 
 
 
954-612-6126 
 
 
 
 
 
 
 
 
/s/ Calisha A. Francis, Esq. 
 
 
 
 
 
 
 
CALISHA A. FRANCIS 
 
 
 
 
 
 
 
Attorney for Mr. McCabe 
 
 
 
 
 
 
 
Florida Bar Number: 96348 
 
 
 
 
 
 
 
cthomlaw@aol.com 
 
 
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