IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

CASE NO. 11-cr-00355-MSK

UNITED STATES OF AMERICA,

Plaintiff,

v.

1. WUANITA WEINGART, 

2. JOHN PHILLIP GALLEGOS, AND

3. ALOIS CRAIG WEINGART,

Defendants.

__________________________________________________________________

MOTION TO WITHDRAW

AND FOR APPOINTMENT OF COUNSEL FROM THE

CRIMINAL JUSTICE ACT PANEL

__________________________________________________________________

Comes now, the Defendant, Wuanita Weingart by and through her attorney,

Edward A. Pluss, Assistant Federal Public Defender, and hereby requests the court

to allow the Office of the Federal Public Defender to withdraw from further

representation of the Ms. Weingart and the court appoint counsel for Ms. Weingart

from the Criminal Justice Act Panel, and as grounds therefore states as follows:

1. Ms. Wreingart is charged in an Indictment, along with her son, John

Phillip Gallegos, and her husband, Alois Craig Weingart in a 18 count indictment. 

Ms. Weingart, specifically is charged with 11 counts of Wire Fraud in violation of

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18 U.S.C. § 1343 and 5 counts of Engaging in Monetary Transactions in Property

Derived from Specified Unlawful Activity in violation of 18 U.S.C. § 1957. 

2. On September 20, 2011, Ms. Weingart filed an Unopposed Motion

for Ends of Justice Continuance of Deadline to File Pretrial Motions and Trial and

to Exclude Time Under the Speedy Trial Act (Docket No. 26) which the Court

granted on October 14, 2011 (see Docket No. 42). Pre-Trial Motions are currently

due on March 12, 2012 and a non-evidentiary motions hearing is scheduled for

April 5, 2012 at 4:00 p.m. A 15 day trial is currently scheduled to commence on

September 17, 2012. 

3. Ms. Weingart has represented to undersigned counsel that she will no

longer wishes to meet with counsel and has requested undersigned counsel to

withdraw from any further representation of her and wishes the appointment of

new counsel. She has based this request on what she believes is his

unprofessional conduct by ignoring her right to a proper defense and her complete

lack of faith and confidence in her present counsel. Because of the attorney-client

privilege, counsel cannot further elaborate except to state the counsel’s

representation has been competent. However, undersigned counsel would state the

relationship between Ms. Weingart and counsel has deteriorated to the point that

counsel no longer believes he has the ability to properly advise her.

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4. Undersigned counsel does believe that there has been a total and

complete breakdown in communications between Ms. Weingart and undersigned

counsel that would mandate the withdraw of counsel and that continued

representation of Ms. Weingart by the Office of the Federal Public Defender

would be impossible. Thus, the Office of the Federal Public Defender moves to

withdraw from any further representation of the Defendant and for appointment of

Criminal Justice Act panel.

5. “To warrant the substitution of counsel, a defendant must show good

cause, such as a conflict of interest, a complete breakdown of communications,

or an irreconcilable conflict which leads to an apparently unjust verdict.” United

States v. Padilla, 819 F.2d 952, 955 (10 Cir. 1987). “Good cause for substitution th

of counsel consists of more than a mere strategic disagreement between the

Defendant and his attorney ... rather there must be a total breakdown in

communications.” United States v. Lott, 310 F.3d 1231, 1249 (10 Cir. 2002). To th

prove a total breakdown in communications, a defendant must put forth evidence

of a severe and pervasive conflict with his attorney or evidence that he had such

minimal contact with the attorney that meaningful communication was not

possible. Id. In making this assessment, the Court should look at whether (1) the

defendant’s request was timely; (2) the trial court adequately inquired into

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defendant’s reasons for making a request; (3) the defendant-attorney conflict was

so great that it led to total lack of communications precluding an adequate defense;

and (4) the defendant substantially and unreasonably contributed to the

communications breakdown. See, United States v. Porter, 405 F.3d 1136, 1140

(10 Cir. 2005)

th

6. Because there has been such a total and complete breakdown in

communications between the Defendant and the Office of the Federal Public

Defender, as evidenced by the above severe and pervasive conflict, the Office of

the Federal Public Defender moves to withdraw from any further representation of

the Defendant and moves for appointment of counsel from the CJA panel.

7. This request is timely and no party will be prejudiced by granting the

motion allowing undersigned counsel to withdraw since this case is in the 

discovery stage and the first trial setting in this matter is not until September 17,

2012. 

WHEREFORE, due to the complete breakdown in communications and the

attorney client relationship between Ms. Weingart and counsel, the Office of the

Federal Public Defender moves to withdraw from representation of Ms. Weingart

and for an order appointing counsel from the Criminal Justice Panel.

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Respectfully submitted,

RAYMOND P. MOORE

Federal Public Defender

s/ Edward A. Pluss 

EDWARD A. PLUSS

Assistant Federal Public Defender

633 - 17 Street, Suite 1000 th

Denver, Colorado 80202

Telephone: (303) 294-7002

FAX: (303) 294-1192

 Edward_Pluss@fd.org

Attorney for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on March 2, 2012, I electronically filed the foregoing

with the Clerk of Court using the CM/ECF system which will send notification of

such filing to the following e-mail addresses:

Linda Kaufman, Assistant U.S. Attorney

linda.kaufman@usdoj.gov

Paula M. Ray

paulamray@eathlink.net

William Lewis Taylor

wltaylorpc@gmail.com

Darlene Ann Bagley

bagley@ridleylaw.com

and I hereby certify that I have mailed or served the document or paper to the

following non CM/ECF participant in the manner (mail, hand-delivery, etc.)

indicated by the non-participant’s name:

Wuanita Weingart (via Email & US Mail)

8547 E. Arapahoe Road, #236-J

Greenwood Village, CO 80112

s/ Edward A. Pluss 

Edward A. Pluss

Assistant Federal Public Defender

633 - 17 Street, Suite 1000 th

Denver, CO 80202

Telephone: (303) 294-7002

FAX: (303) 294-1192

 Edward_Pluss@fd.org

Attorney for Defendant

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