USA v. Spinosa

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
REPORT AND
RECOMMENDATION
v.
6:24-CR-06146 CJS CDH
ANN SPINOSA,
Defendant.
INTRODUCTION
Defendant 	Ann 	Spinosa 	(“Spinosa”) 	is 	charged 	by 	second 	superseding
indictment with five counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts 1
through 5), four counts of aggravated identity theft in violation of 18 U.S.C. § 1028A
(Counts 6 through 9), one count of conspiracy to commit wire fraud in violation of 18
U.S.C. § 1349 (Count 10), and four counts of money laundering in violation of 18
U.S.C. §§ 1957(a) and 2 (Counts 11 through 14). (Dkt. 86). The second superseding
indictment also contains a forfeiture allegation. (Id.).
This matter has been referred to me to address all pre-trial matters, “including
all pre-trial matters that a Magistrate Judge may hear and determine pursuant to 28
U.S.C. Section 636(b)(1)(A), and those which a Magistrate Judge may hear and
thereafter file a report and recommendation for disposition pursuant to Section
636(b)(1)(B).” (Dkt. 19; Dkt. 31). Spinosa has filed six pretrial motions to dismiss,
arguing that: (1) the Speedy Trial Act, 18 U.S.C. § 3161 et seq., has been violated; (2)
the government has committed prosecutorial misconduct by “failing to uphold the
rule of law for a speedy indictment”; (3) the government has engaged in prosecutorial
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misconduct through “witness tampering and coercion”; (4) the government has
engaged in prosecutorial misconduct through “misuse of grand jury proceedings”; (5)
the government has engaged in prosecutorial misconduct by sharing discovery with
an unretained defense attorney; and (6) inconsistent statements made by Joseph
Gianinni (“Giannini”), a defendant in a related case, undermine the government’s
case against Spinosa. (Dkt. 77; Dkt. 108; Dkt. 109; Dkt. 110; Dkt. 111; Dkt. 112). The
government opposes each of these motions. (Dkt. 89; Dkt. 118).
I held oral argument on Spinosa’s motions on December 17, 2025, at which
time I reserved decision. (Dkt. 122). For the reasons set forth below, I recommend
that the District Judge deny Spinosa’s motions to dismiss.
BACKGROUND
Spinosa was originally charged via criminal complaint filed on March 25, 2024.
(Dkt. 1). The criminal complaint was signed by United States Magistrate Judge
Marian W. Payson and alleged wire fraud in violation of 18 U.S.C. § 1343, bank fraud
in violation of 18 U.S.C. § 1344, conspiracy in violation of 18 U.S.C. § 1349, money
laundering in violation of 18 U.S.C. § 1957, and conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(h). (Id.). The allegations in the criminal
complaint relate to fraudulent applications for business loans under both the
Paycheck Protection Program (“PPP”) and the Economic Injury Disaster Loan
(“EIDL”) program. (Id. at ¶¶ 5-7).
Spinosa was arrested on April 18, 2024. (Dkt. 77-1 at ¶ 5). At the initial
appearance, at Spinosa’s request, an Assistant Federal Public Defender (“AFPD”) was
assigned 	to 	represent 	Spinosa. 	(Dkt. 	4). 	Spinosa 	was 	released 	on 	her 	own
recognizance 	with 	conditions. 	(Id.; 	Dkt. 	5). 	The 	defense 	requested 	a 	60-day
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adjournment of the matter and moved that time be excluded from the speedy trial
clock pursuant to 18 U.S.C. § 3161(h)(7)(A) until the scheduled appearance on June
20, 2024. (Dkt. 37 at 15-17). The government joined in the request, which was granted
by Judge Payson. (Id. at 17-18). Judge Payson found on the record that Ms. Spinosa’s
and the public’s interest in “both a speedy indictment and a speedy trial” were
outweighed by Ms. Spinosa’s “interest in having enough time to discuss the newly
filed charges with her newly appointed counsel, . . . to allow the defense time to review
or begin to review the discovery relating to the charges, [and] to allow Ms. Spinosa to
confer with [counsel] after that review of discovery with respect to her options
whether to ask for a preliminary hearing or whether to engage in plea negotiations
with the Government.” (Id. at 17-18).
On June 18, 2024, the defense filed a motion to adjourn the status conference
scheduled for June 20, 2024. (Dkt. 9). In that motion, the defense requested that “for
purposes of its Speedy Trial Act computation, the Court exclude the time until any
re-scheduled court date in the interest of justice.” (Id. at 1). Judge Payson entered an
Order on June 18, 2024, granting the defense’s motion, rescheduling the status
conference for July 23, 2024, and finding that “time shall be excluded in the interests
of justice under 18 U.S.C. § 3161(h)(7) between today and the date for the status
conference because . . . the defendant’s, the government’s, and the public’s interests
in a speedy trial are outweighed by the defendant’s interest in having sufficient time
to review discovery and to obtain the continued assistance of counsel.” (Dkt. 10 at 1).
On July 18, 2024, the defense filed a motion to adjourn the status conference
scheduled for July 23, 2024. (Dkt. 12). The defense requested that “for purposes of its
Speedy Trial Act computation, the Court exclude the time until any re-scheduled
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court date in the interest of justice.” (Id. at 1). Judge Payson entered an Order the
same day granting the defense’s request and rescheduling the status conference for
August 27, 2024. (Dkt. 13). In the Order, Judge Payson ordered that “time shall be
excluded in the interests of justice under 18 U.S.C. § 3161(h)(7) between today and
the date for the status conference because . . . the defendant’s, the government’s, and
the public’s interests in a speedy trial are outweighed by the defendant’s interest in
having sufficient time to review discovery and to continue plea negotiations with
government and to obtain the continued assistance of counsel.” (Id. at 1).
Spinosa appeared before Judge Payson on August 27, 2024. (Dkt. 14). At that
appearance, Judge Payson noted that she had received a copy of a letter dated August
21, 2024, in which Spinosa indicated that she planned to hire her own counsel. (Dkt.
39 at 2). Judge Payson asked Spinosa if she wanted time to attempt to retain counsel
and Spinosa advised that she anticipated having an attorney retained within three
weeks. 	(Id. 	at 	2-3). 	Judge 	Payson 	asked 	whether 	Spinosa 	could 	make 	the
arrangements within two weeks and Spinosa agreed. (Id. at 4). Judge Payson
scheduled an appearance for September 11, 2024. (Id.). Judge Payson asked whether
Spinosa would like to schedule a preliminary hearing and Spinosa replied, “I’d rather
wait.” (Id. at 4-5). The government did not object to a two-week continuance but
requested an exclusion of time from the speedy trial clock. (Id. at 7). Judge Payson
granted that request, stating that she was excluding “time between today and
September 11 under the speedy trial clock due to Ms. Spinosa’s articulated interest
both in writing and at the court appearance today to see if she can retain counsel of
her choosing, and to allow her time to make arrangements in that regard[.]” (Id.).
Spinosa appeared before Judge Payson on September 11, 2024, with current
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defense counsel. (Dkt. 15). However, defense counsel was not, at that time, admitted
to practice in this Court. (Dkt. 38 at 2-3). Judge Payson scheduled the matter for a
further appearance on October 3, 2024, to allow time for defense counsel to become
admitted and be fully retained by Spinosa. (Id. at 3-4). Judge Payson asked Spinosa
if she “would like [defense counsel] to represent [her] and for things to remain status
quo between now and then,” and Spinosa replied, “I do.” (Id. at 5). Spinosa confirmed
that she was not requesting a preliminary hearing. (Id.). Judge Payson directly asked
Spinosa if she “would request an exclusion from the speedy trial clock between now
and October 3,” and Spinosa replied, “[y]es, Your Honor.” (Id. at 6). Defense counsel
joined in that request by Spinosa, as did the government. (Id.). Judge Payson stated
that she was “excluding time from the speedy trial clock between today and October
3 	under 	18 	USC 	Section 	3161(h)(7),” 	because 	“Ms. 	Spinosa’s 	interest, 	the
Government’s interest and the public’s interest in both a speedy indictment and a
speedy trial are outweighed by Ms. Spinosa’s interest in having enough time to make
arrangements to be represented by counsel of her choosing[.]” (Id. at 7).
On October 3, 2024, Spinosa appeared before Judge Payson. (Dkt. 16). At that
appearance, the AFPD was relieved and defense counsel was substituted. (Dkt. 41 at
2). Defense counsel noted that Spinosa had been “raising aspects of concern with
respect to the passage of time regarding lack of indictment” and that he believed that
“the passage of time has been such that without an indictment the matter should be
dismissed.” (Id. at 3). Judge Payson noted that “at every court appearance there has
been an exclusion of time, every letter that has requested an adjournment,” and that
she was “100% confident that the speedy indictment clock has not been contravened
and that there is . . . not a basis for a motion to dismiss the complaint.” (Id. at 4). The
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government noted that it intended to present the case to the grand jury later that
day. (Id. at 6-7). Judge Payson noted that the grand jury could decline to return an
indictment, but scheduled an arraignment for October 7, 2024, in the event an
indictment was returned. (Id. at 7-10). The grand jury did return an indictment on
October 3, 2024. (Dkt. 17).
Spinosa was arraigned on the original indictment on October 7, 2024. (Dkt.
20). A superseding indictment was returned on November 21, 2024 (Dkt. 24), and an
arraignment was held on the superseding indictment on December 5, 2024 (Dkt. 28).
On January 14, 2025, the Court issued a Scheduling Order requiring that pretrial
motions be filed by April 14, 2025. (Dkt. 33 at 1). At Spinosa’s request, the deadline
for pretrial motions was subsequently extended to July 9, 2025. (Dkt. 47; Dkt. 48;
Dkt. 53; Dkt. 56; Dkt. 58; Dkt. 72; Dkt. 73; Dkt. 74).
On July 9, 2025, Spinosa filed a motion to dismiss based on an alleged violation
of the Speedy Trial Act, arguing that she was not indicted within 30 days of her arrest.
(Dkt. 77; see also Dkt. 78; Dkt. 79; Dkt. 80; Dkt. 81; Dkt. 82). The government
subsequently opposed that motion. (Dkt. 89).
The second superseding indictment was returned on July 24, 2025 (Dkt. 86),
and Spinosa was arraigned thereon on August 7, 2025 (Dkt. 88). At this arraignment,
Spinosa was instructed to advise the Court within one week if she intended to file
further motions based on the return of the second superseding indictment. (Id.).
On August 12, 2025, defense counsel submitted a letter to the Court advising
that Spinosa was requesting that the Court assign counsel to represent her in
connection with this matter. (Dkt. 90). This letter further indicated that Spinosa
“perceives the need to act quickly in these regards.” (Id. at 1). Upon receiving this
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letter, Court staff contacted the assigned counsel panel and began the process for
assignment of counsel. Attorney Paul Guerrieri (“Attorney Guerrieri”) was contacted
by the Court on August 14, 2025, and agreed to accept the assignment. An attorney
appointment hearing was scheduled for August 21, 2025. (Dkt. 91). On August 19,
2025, the government sent Attorney Guerrieri a link to its discovery in this matter.
(Dkt. 118 at 14).
At the appearance on August 21, 2025, Spinosa advised the Court that she
intended to retain new counsel of her choosing and that she did not wish to be
represented by Attorney Guerrieri. (Dkt. 92). Attorney Guerrieri confirmed that he
had downloaded the discovery from the link provided by the government but that he
would delete and not retain it. By Text Order entered on August 21, 2025, Attorney
Guerrieri was formally appointed nunc pro tunc to represent Spinosa from August
14, 2025, to August 21, 2025. (Dkt. 93).
On September 18, 2025, Spinosa submitted an “addendum” in further support
of her motion to dismiss on speedy trial grounds. (Dkt. 94). The addendum consists
of emails between Spinosa and the formerly-assigned AFPD. (Id.).
Spinosa attempted to retain new counsel, but ultimately decided to proceed
with current defense counsel. (See Dkt. 98; Dkt. 99; Dkt. 100). On October 8, 2025,
the Court granted Spinosa’s request to file supplemental motions based on the return
of the second superseding indictment. (Dkt. 100). On November 14, and 15, 2025,
Spinosa filed five supplemental motions to dismiss. (Dkt. 108; Dkt. 109; Dkt. 110;
Dkt. 111; Dkt. 112). The government responded to these supplemental motions on
December 2, 2025. (Dkt. 118). I heard oral argument on all of the pending motions to
dismiss on December 17, 2025, and reserved decision. (Dkt. 122).
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DISCUSSION
I. 	Motion to Dismiss on Speedy Trial Grounds (Dkt. 77)
Spinosa’s first-filed motion to dismiss argues that the Speedy Trial Act has
been violated, and that dismissal is required, because she was not indicted within 30
days of her arrest on April 18, 2024. (See Dkt. 77-1 at ¶¶ 24-27). This argument is
without merit.
The Speedy Trial Act provides that an “indictment charging an individual with
the commission of an offense shall be filed within thirty days from the date on which
such individual was arrested or served with a summons in connection with such
charges.” 18 U.S.C. § 3161(b). However, certain enumerated “periods of delay shall
be excluded in computing the time within which an information or an indictment
must be filed, or in computing the time within which the trial of any such offense
must commence[.]” Id. § 3161(h). Among such exclusions is “[a]ny period of delay
resulting from a continuance granted by any judge on his own motion or at the request
of the defendant or his counsel or at the request of the attorney for the Government,
if the judge granted such continuance on the basis of his findings that the ends of
justice served by taking such action outweigh the best interest of the public and the
defendant in a speedy trial.” Id. § 3161(h)(7)(A).
As 	set 	forth 	in 	detail 	in 	the 	background 	section 	of 	this 	Report 	and
Recommendation, each time that Judge Payson granted a continuance in this matter
between April 18, 2024 (the date of Spinosa’s arrest), and October 3, 2024 (the date
the original indictment was returned), she found on the record, for appropriately
enumerated reasons, that granting the continuance was in the interest of justice and
outweighed Spinosa’s and the public’s interest in a speedy trial, and excluded time
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under the Speedy Trial Act pursuant to § 3161(h)(7)(A). Spinosa does not—and could
not—dispute this fact. Instead, Spinosa makes the novel, atextual argument that
because Judge Payson did not also explicitly state on each occasion she granted a
continuance that time was being excluded for “speedy indictment” purposes, the
Speedy Trial Act has been violated. (See, e.g., Dkt. 77-2 at ¶¶ 13-21).
This argument lacks any basis in the language of the Speedy Trial Act. Section
3161(h)(7)(A) refers solely to a finding that the ends of justice served by granting a
requested continuance “outweigh the best interest of the public and the defendant in
a speedy trial.” 18 U.S.C. § 3161(h)(7)(A) (emphasis added). Nothing in the statute
requires that the Court make any finding regarding the defendant’s and the public’s
interest in a speedy 	indictment in order to validly exclude time pursuant to
§ 3161(h)(7)(A). The Speedy Trial Act further provides that time excluded pursuant
§ 3161(h)(7)(A) “shall be excluded in computing the time within which an information
or an indictment must be filed.” Id. § 3161(h) (emphasis added). Judge Payson fully
complied with the requirements of the Speedy Trial Act in excluding time pursuant
to § 3161(h)(7)(A).
Spinosa cites no case law in support of her argument, nor has the Court
discovered any case law in its own research addressing a similar contention.
However, the Second Circuit has observed that compliance with the Speedy Trial Act
is “neither a game nor an obstacle course” and that a Court’s “failure to utter . . .
[particular] magic words . . . at the time of ordering the continuance is not necessarily
fatal.” United States v. Breen, 243 F.3d 591, 597 (2d Cir. 2001). Accepting the
argument advanced by Spinosa would contravene this directive and amount to the
imposition of a “magic words” requirement where pre-indictment time is excluded
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under § 3161(h)(7)(A). But the Speedy Trial Act imposes no such requirement.
Further, Spinosa’s motion is untethered to the factual circumstances of this
case. The Speedy Trial Act provides that (1) an information or indictment shall be
filed within thirty days from the date on which an individual was arrested or served
with a summons and (2) “[i]n any case in which a plea of not guilty is entered, the
trial of a defendant charged in an information or indictment with the commission of
an offense shall commence within seventy days from the filing date (and making
public) of the information or indictment[.]” 18 U.S.C. § 3161(b), (c)(1). Here, the
contested exclusions under § 3161(h)(7)(A) were made at a time when no indictment
or information had been filed and no plea of not guilty had been entered. The only
possible purpose of excluding time pursuant to the Speedy Trial Act was with respect
to the time for filing an indictment or information. It is illogical to conclude that Judge
Payson was excluding time solely for “speedy trial” purposes (and not for “speedy
indictment” purposes) where the 70-day period for commencement of trial had not
even begun to run.
To the extent Spinosa’s motion is premised on her contention that she did not
consent to the exclusions of time requested by the AFPD originally assigned to
represent 	her, 	the 	Second 	Circuit 	has 	held 	that 	“pursuant 	to 	18 	U.S.C.
§ 3161(h)(7)(A), a district court may grant a continuance sought by counsel without
the consent of the defendant[.]” United States v. Lynch, 726 F.3d 346, 356 (2d Cir.
2013); see also United States v. Gates, 709 F.3d 58, 65 (1st Cir. 2013) (“[A] defendant’s
lawyer may seek a continuance and the concomitant exclusion of time for [Speedy
Trial Act] purposes 	without first securing the defendant’s personal consent.”).
Accordingly, Spinosa’s purported lack of consent does not change the analysis under
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the Speedy Trial Act.
Spinosa’s contention that the previously-assigned AFPD refused to make a
motion to dismiss on “speedy indictment” grounds also does not warrant dismissal of
second superseding indictment. A defense lawyer is not obliged to bring a legally
unsupported motion whenever requested to do so by his or her client. See McCoy v.
Ct. of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 435 (1988) (“Ethical considerations
and rules of court prevent counsel from making dilatory motions[.]”). Spinosa has
cited no authority supporting the conclusion that the AFPD’s conduct in this case is
grounds for dismissal, and it was not improper for the AFPD to decline to bring a
motion that she had concluded lacked a legitimate basis in the law. For all these
reasons, I recommend that the District Judge deny Spinosa’s motion to dismiss based
on an alleged violation of the Speedy Trial Act.
II. 	Motion to Dismiss for Prosecutorial Misconduct in Failing to Secure a
Speedy Indictment (Dkt. 108)
Spinosa’s first supplemental motion to dismiss reiterates her Speedy Trial Act
argument, and further contends that the government has committed “prosecutorial
misconduct” by “attempt[ing] to label aspects of the passage of time with respect to
the time of the Defendant’s indictment as attributable to the Defendant, when the
record shows that Ms. Spinosa had repeatedly been seeking the making of [a Speedy
Trial Act] motion.” (Dkt. 108 at ¶ 8). This motion lacks basis in fact or law.
As to the facts, Spinosa’s argument is apparently based on the government
“fail[ing] to focus upon” Spinosa’s contention that she asked the previously-assigned
AFPD to make a motion to dismiss based on “speedy indictment” grounds. (Id. at ¶ 7).
However, the emails on which Spinosa relies in support of this contention were not
submitted until after the government filed its response to her motion to dismiss under
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the Speedy Trial Act. (Compare Dkt. 89, with Dkt. 94). Spinosa does not suggest that
the government had access to emails between herself and the previously-assigned
AFPD prior to the filing of her “addendum” on September 18, 2025. Spinosa offers no
explanation for how it could have constituted prosecutorial misconduct for the
government to fail to address emails to which it was not privy.
Turning to the law, there has been no Speedy Trial Act violation in this case,
for all the reasons discussed above. But even assuming arguendo that there had been
a Speedy Trial Act violation, Spinosa cites no legal authority suggesting that a
technical 	Speedy 	Trial 	Act 	violation 	would 	be 	tantamount 	to 	prosecutorial
misconduct. To the contrary, the Speedy Trial Act by its own terms provides the
remedy for any violation of its provisions. See 18 U.S.C. § 3162. For these reasons, I
recommend that the District Judge deny Spinosa’s motion to dismiss based on alleged
prosecutorial misconduct in failing to secure a speedy indictment.
III. 	Motion to Dismiss for Prosecutorial Misconduct Based on Witness
Tampering and Coercion (Dkt. 109)
Spinosa’s second supplemental motion to dismiss based on “prosecutorial
misconduct” argues that the government improperly communicated with Giannini.
(Dkt. 109 at ¶ 7). In particular, Spinosa contends that the government, through the
currently-assigned Assistant United States Attorney (“AUSA”), told Giannini that
the government “did not want to put an eighty-plus-year-old woman in jail,” referring
to Spinosa’s mother, Mrs. Carmella Spinosa (“Carmella Spinosa”) 1 . (Id. at ¶ 8).
1 	Carmella Spinosa is the alleged victim of the aggravated identity theft counts
contained in the second superseding indictment. (See Dkt. 86 at 7; Dkt. 118 at ¶¶ 24-
28).
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Spinosa further contends that the AUSA told Giannini that he would like to speak to
Spinosa’s siblings and asked that they contact him. (Id.). Spinosa does not contend
that any of her siblings ever spoke to the AUSA, but has submitted affidavits from
two of her sisters claiming that they felt intimidated and threatened when they
learned that the AUSA wanted to speak with them. (Id. at 10, 12). Spinosa notes that
her family members “have long been listed as potential witnesses on the potential
witness list provided to the prosecution by the Defendant.” (Id. at ¶ 9).
Spinosa’s motion to dismiss due to the government’s alleged attempt to contact
her siblings cites no legal authority, nor does any statute or provision of the Federal
Rules of Criminal Procedure prohibit the government from contacting or attempting
to contact individuals who have been identified as potential witnesses by a criminal
defendant. Carmella Spinosa is identified in the second superseding indictment as a
victim in this matter, and Spinosa is accused of having used Carmella Spinosa’s
identity to commit federal crimes. (Dkt. 86 at 7). Spinosa has failed to demonstrate
that it was improper for the government to request to speak with her siblings
regarding her mother.
In any event, even accepting Spinosa’s assertion that her family members
subjectively felt threatened and intimidated because the AUSA asked that they
contact him and stated that he did not want to put an elderly woman in jail, Spinosa
has not demonstrated that this is a basis for dismissal of the charges against her.
Dismissal 	of 	an 	indictment 	is 	warranted 	“only 	in 	very 	limited 	and 	extreme
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circumstances.” United States v. Broward, 594 F.2d 345, 351 (2d Cir. 1979). Such
circumstances may include “a need either to eliminate prejudice to a defendant in a
criminal prosecution, where it was impossible to do so by imposition of lesser
sanctions, or to deter a pattern of demonstrated and longstanding widespread or
continuous official misconduct.” Id. Spinosa has demonstrated no such need here, nor
has she identified any other reason why the AUSA’s alleged conduct would warrant
the drastic remedy of dismissing the second superseding indictment.
Further, while it is true that the government’s improper intimidation of
defense witnesses may constitute a due process violation, to demonstrate such a
violation:
[T]he defendant must show three elements: (1) that [s]he was deprived
of material and exculpatory evidence that could not be reasonably
obtained by other means, (2) bad faith on the part of the government,
and (3) that the absence of fundamental fairness infected the trial.
United States v. Lebedev, 932 F.3d 40, 55 (2d Cir. 2019) (quotation omitted),
abrogated on unrelated grounds by Ciminelli v. United States, 598 U.S. 306 (2023).
Spinosa has not even attempted to make such a showing here, nor do her factual
representations 	come 	close 	to 	meeting 	this 	exacting 	standard. 	Accordingly, 	I
recommend that the District Judge deny Spinosa’s motion to dismiss based on alleged
witness tampering and coercion by the government.
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IV. 	Motion to Dismiss for Prosecutorial Misconduct Based on Misuse of
Grand Jury Proceedings (Dkt. 110)
Spinosa’s third supplemental motion seeks dismissal based on “prosecutorial
misconduct” in connection with grand jury proceedings. (Dkt. 110). Specifically,
Spinosa contends that Carmella Spinosa was subpoenaed to testify before the grand
jury on or about September 17, 2024, but that “there was no information provided as
to anything that the subpoena concerned and no instruction as to anything that
[Carmella] Spinosa should bring with her in appearing before the grand jury.” (Id. at
¶ 6). Spinosa argues that it was “a violation of Ann Spinosa’s rights and Carmella
Spinosa’s rights that no information or instruction, indicating the subject matter of
Carmella Spinosa’s appearance before the grand jury, was given in that subpoena.”
(Id. at ¶ 8).
Spinosa has again failed to support this motion to dismiss with any legal
authority. Indeed, as the government notes in its opposition, she “points to no
procedural or other violation that was committed with respect to the grand jury
proceedings, nor does she explain how an alleged failure to explain the purpose of the
proceedings to a witness would violate the defendant’s rights, let alone justify
dismissal of the indictment.” (Dkt. 118 at ¶ 35).
To the extent Spinosa argues that some unspecified right of Carmella Spinosa’s
was violated in connection with the grand jury proceedings, “instances in which a
third party may raise the constitutional rights of another are the exception rather
than the rule.” South Carolina v. Regan, 465 U.S. 367, 380 (1984). Spinosa has
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identified no legal theory whereby she would be entitled to dismissal of the indictment
because a grand jury witness’s rights were violated.
Spinosa further fails to articulate any legal right of her own that has been
violated. “A grand jury subpoena is presumed to have a proper purpose, and the party
challenging the subpoena bears the burden of showing that the grand jury has
exceeded its legal powers.” In re Grand Jury Proceeding, 971 F.3d 40, 54 (2d Cir.
2020) (quotations omitted); see also United States v. R. Enters., Inc., 498 U.S. 292,
300 (1991) (“[T]he law presumes, absent a strong showing to the contrary, that a
grand jury acts within the legitimate scope of its authority.”). Spinosa has plainly not
satisfied that burden here. She cites no authority for the proposition that a grand
jury subpoena must “indicat[e] the subject matter of [the witness’s] appearance before
the grand jury[.]” (Dkt. 110 at ¶ 8). To the contrary, the Supreme Court has held that
a grand jury “need not identify the offender it suspects, or even the precise nature of
the offense it is investigating.” United States v. Williams, 504 U.S. 36, 48 (1992)
(quotation omitted).
Spinosa has also submitted an affidavit from Carmella Spinosa in which
Carmella Spinosa states that when she met with the AUSA previously assigned to
this matter, he “immediately stated that the matter that [she] was there for was
about [her] daughter, Ann Spinosa, and that [she] was there to be a witness against
[Spinosa].” (Dkt. 110 at 6). According to Carmella Spinosa, she told the AUSA, “if this
is about my daughter, then I should get an attorney,” and the AUSA told her that she
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did not need an attorney and was not in trouble. (Id. at 7). Spinosa has not made any
arguments 	regarding 	the 	legal 	significance 	of 	these 	factual 	claims, 	nor—even
accepted as true—do they change the analysis of her motion. The Second Circuit has
held that a grand jury witness does not have a Sixth Amendment right to counsel.
United States v. Vasquez, 675 F.2d 16, 17 (2d Cir. 1982); see also Conn v. Gabbert,
526 U.S. 286, 292 (1999) (“A grand jury witness has no constitutional right to have
counsel present during the grand jury proceeding[.]”); United States v. Coronado, No.
12-CR-83S, 	2017 	WL 	2930573, 	at 	*15 	(W.D.N.Y. 	July 	10, 	2017) 	(“The 	Sixth
Amendment could not have come into play . . . because grand jury proceedings are
not adversarial proceedings.”).
Moreover, even if the AUSA’s statements violated some right of Carmella
Spinosa’s, Spinosa has again failed to identify any legal theory pursuant to which she
would be entitled to relief based on the violation of a third party’s rights. See Conn,
526 U.S. at 292 (finding that attorney “clearly had no standing to raise the alleged
infringement of the rights of his client” in context of grand jury proceedings).
In sum, Spinosa has failed to demonstrate any basis to dismiss the indictment
as a result of the grand jury proceedings in this matter. I accordingly recommend that
the District Judge deny her motion seeking such relief.
V. 	Motion to Dismiss for Prosecutorial Misconduct Based on Sharing
Discovery with an Unretained Attorney (Dkt. 111)
Spinosa’s fourth supplemental motion based on “prosecutorial misconduct”
seeks dismissal because the government allegedly improperly shared the discovery in
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this case with Attorney Guerrieri. (Dkt. 111). This motion is entirely without merit.
As detailed above, after being advised that Spinosa was requesting appointment of
counsel, the Court contacted Attorney Guerrieri and requested that he accept the
assignment. The government shared the discovery with Attorney Guerrieri in an
effort to facilitate the transition between attorneys and to avoid any unnecessary
delay, furthering Spinosa’s rights to both the assistance of counsel and a speedy trial.
Spinosa asserts a “denial of her rights as a defendant” as a result of the
government’s conduct (Id. at ¶ 8), but has failed to articulate what “rights” she is
contending she was denied. At oral argument, defense counsel suggested that the
right at issue was a right to “privacy,” but was unable to identify any statutory or
constitutional basis for such a right. Even assuming arguendo that such a right
exists, Spinosa has failed to explain how it was violated by the sharing of discovery
with an attorney that the government reasonably understood was going to be
representing her in connection with this matter.
Further, Attorney Guerrieri “has confirmed with the government that while he
downloaded the investigative materials, he did not review them[.]” (Dkt. 118 at ¶ 37).
Spinosa has submitted nothing to the contrary. And in any event, Attorney Guerrieri
is bound by the attorney-client privilege with respect to any information that he
learned in connection with this matter. There has accordingly been no prejudice
whatsoever to Spinosa, and there would be no basis for dismissal of the second
superseding indictment even if the government had in some fashion conducted itself
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improperly. See United States v. Turner, 23 F. Supp. 3d 290, 319 (S.D.N.Y. 2014)
(“[A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the
indictment due to government misconduct is plainly inappropriate[.]”) (original
alteration omitted and quoting United States v. Morrison, 449 U.S. 361, 365 (1981)).
I therefore recommend that the District Judge deny Spinosa’s motion to dismiss
based on the government having sent a discovery link to Attorney Guerrieri.
VI. 	Motion to Dismiss Based on Inconsistent Statements by Giannini (Dkt.
112)
Spinosa’s final motion to dismiss argues that Giannini has made inconsistent
statements regarding the subject matter of this proceeding, thus calling into question
“which account by Mr. Giannini represents the truth and which represents falsity.”
(Dkt. 112 at ¶¶ 5-10). Spinosa submits an affidavit from Carmella Spinosa recounting
a conversation in which Giannini allegedly stated that he took full responsibility for
having filed a particular PPP loan application. (Id. at 7). Spinosa requests that
Giannini “be deposed under oath as to his inconsistent statements, and that, if his
account of facts as reflected in Carmella Spinosa’s Affidavit is found to be true, that
the case against Ms. Spinosa then be dismissed.” (Id. at ¶ 11).
The Federal Rules of Criminal Procedure allow for a pre-trial deposition only
in limited circumstances. Specifically, Rule 15(a) provides that the Court may grant
a motion “that a prospective witness be deposed in order to preserve testimony for
trial” only “because of exceptional circumstances and in the interest of justice.” Fed.
R. Crim. P. 15(a); see also United States v. Cohen, 260 F.3d 68, 78 (2d Cir. 2001) (“A
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movant [under Rule 15(a)] must show that (1) the prospective witness is unavailable
for trial, (2) the witness’ testimony is material, and (3) the testimony is necessary to
prevent a failure of justice.”).
Spinosa does not cite Rule 15(a) in her motion or address the standard
thereunder. She does not argue that a deposition is necessary to preserve Giannini’s
testimony for trial nor does she identify the required exceptional circumstances.
Further, Spinosa’s contention that the Court could make a factual determination
regarding the credibility of Giannini’s testimony and dismiss the indictment is
supported by no legal authority and is contrary to well-established rules of criminal
procedure. Assessing the credibility of witnesses and choosing between inconsistent
factual representations is solely the province of the jury. See United States v. Payne,
591 F.3d 46, 60 (2d Cir. 2010). Moreover, “the mere fact that evidence itself is
unreliable is not sufficient to require a dismissal of the indictment[.]” Williams, 505
U.S. at 54 (quotation omitted). There is accordingly no mechanism whereby the Court
could dismiss the indictment based on a determination that Giannini’s testimony is
unreliable. I therefore recommend that Spinosa’s motion seeking a deposition of
Giannini and dismissal of the second superseding indictment based thereon be
denied.
CONCLUSION
For all the foregoing reasons, I recommend that the District Judge deny each
of Spinosa’s pending motions to dismiss.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED that this Report and
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Recommendation be filed with the Clerk of Court.
Any objections to this Report and Recommendation must be filed with the
Clerk of Court within fourteen days of service of this Report and Recommendation in
accordance with the above statute, Federal Rules of Criminal Procedure 45 and 59(b),
and Local Rule of Criminal Procedure 59. 2
Failure to file objections, or to request an extension of time to file
objections, 	within 	fourteen 	days 	of 	service 	of 	this 	Report 	and
Recommendation waives the right to appeal the District Court’s Order. See
Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile,
P.C., 596 F.3d 84, 92 (2d Cir. 2010).
The District Judge will ordinarily refuse to consider de novo arguments, case
law, and/or evidentiary material which could have been, but were not, presented to
the Magistrate Judge in the first instance.
Pursuant to Local Rule of Criminal Procedure 59(c)(2), written objections “shall
specifically identify the portions of the proposed findings and recommendations to
which objection is made and the basis for each objection, and shall be supported by
legal authority.” Failure to comply with these provisions may result in the
2 	Counsel is advised that a new period of excludable time pursuant to 18 U.S.C.
§ 3161(h)(1)(D) commences with the filing of this Report and Recommendation. Such
period 	of 	excludable 	delay 	lasts 	only 	until 	objections 	to 	this 	Report 	and
Recommendation are filed or until the fourteen days allowed for filing objections has
elapsed. See United States v. Andress, 943 F.2d 622, 626 (6th Cir. 1991); United States
v. Long, 900 F.2d 1270, 1275 (8th Cir. 1990).
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District Judge’s refusal to consider the objection.
SO ORDERED.
_______________________________
COLLEEN D. HOLLAND
United States Magistrate Judge
DATED: 	January 14, 2026
Rochester, New York
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CO	CO	CO	CO	CO	CO	CO	CO	CO	CO	CO	CO	CO	CO	CO	C	CO	CO	C 	LLEEN D H	H	H	HOL	OL	OL	O 	LA	LA	L 	ND
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