IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Case No. 11–cr–000335-001-MSK

UNITED STATES OF AMERICA,

Plaintiff,

v.

1. WAUNITA WEINGART,

Defendant.

MOTION FOR PRODUCTION OF RULE 801(D)(2)(E) MATERIALS AND FOR A 

JAMES DETERMINATION OF ADMISSIBILITY OF ALLEGED CO-CONSPIRATOR 

STATEMENTS

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

Martin Stuart, and submits his Motion for Production of Rule 801(d)(2)(E) Materials and 

for a James Determination of Admissibility of Alleged Co-Conspirator Statements.

AS GROUNDS:

1. The defense anticipates that the Government may seek to admit 

statements allegedly made by co-defendants in the instant case as evidence at trial. 

Although the government has not charged the defendant with conspiracy, in an 

abundance of caution defense counsel seeks a determination by the Court of the 

admissibility of such statements as determined by the application of Fed. R. Evid. 

801(d)(2)(E) and Crawford v. Washington, 541 U.S. 36 (2004). In order to determine 

whether these alleged statements are properly admissible at trial pursuant to Rule 

801(d)(2)(E), the prosecution must show by a preponderance of evidence that a 

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conspiracy existed, that this Defendant and the declarant were members of the 

conspiracy, and that such statements were made in the course of and in furtherance of 

the conspiracy. United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996).

2. In order to admit co-conspirator statements under Rule 801(d)(2)(E), the 

Court must find that there is some evidence independent of the proffered co-conspirator 

statements themselves linking the defendant to the conspiracy. Id.

3. A pretrial hearing provides an appropriate, orderly means for determining 

the admissibility of co-conspirators’ statements outside the presence of the jury. United 

States v. James, 590 F.2d 575, 585-86 (5th Cir.), cert. denied, 442 U.S. 917 (1979). 

United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996). In LopezGutierrez, the Tenth Circuit held “that the preferred order of proof in determining the 

admissibility of coconspirator statements is first for the district court to hold a James

hearing, ‘outside the presence of the jury to determine by a preponderance of the 

evidence the existence of a predicate conspiracy.’” 83 F.3d at 1242 (citations omitted).

4. A James hearing is particularly appropriate in this case, as the case does 

not involve intercepted communications recorded pursuant to a wiretap. The discovery 

provided by the prosecution to date consists primarily of financial and other 

transactional records that do not reflect oral communications between or among 

members of the purported conspiracy. The Government’s case appears to be 

predicated upon financial records and the statements or alleged omissions in the

context of the defendants’ bankruptcy proceedings. As such, the defendant’s ability to 

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assess or confront the evidence that the prosecution may rely upon to carry its burden 

under Rule 801(d)(2)(E) is substantially reduced. 

WHEREFORE, Defendant moves the Court to hold a James hearing, outside the 

presence of the jury.

Respectfully submitted,

Dated:July 9, 2012 By: s/Martin Stuart_____ 

MARTIN STUART, counsel for Ms. 

Weingart

 PortmanStuart, LLC

955 Bannock Street, suite 200

 Denver, CO 80204

 Phone 303-355-6789

 Fax 303-623-0714

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CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of July 2012, I electronically filed the 

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

notification of such filing to the following e-mail addresses: 

Linda Kaufman

Assistant United States Attorney

1225 17th St., Ste. 700

Denver, CO 80202

Linda.kaufman@usdoj.gov

William Taylor

Attorney or John Gallegos

303 16th Street, #200

Denver, CO 80202

wltaylorpc@gmail.com

Paula Ray

Attorney for Alois Craig Weingart

1801 Broadway, suite 1100

Denver, CO 80202

paulamray@earthlink.net

/s/ Martin Stuart________

Martin Stuart

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