1

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.

DEFENDANTS’ MOTION TO CONTINUE JURY TRIAL

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

Martin Stuart, and moves this Court for the entry of an Order to continue the jury trial 

that is currently set to commence on September 17, 2012, and requests an ends-ofjustice continuance of 120 days.

AS GROUNDS:

1. On October 14, 2011, this Court scheduled the jury trial in this case to 

commence on September 17, 2012. [Doc 42] At that time, it was anticipated that the 

trial would last 15 trial days. As indicated in the Joint Motion to Expand the Number of 

Days Allotted for Trial [Doc. 123], it is now anticipated that the trial will last anywhere 

between 20 and 25 trial days. 

2. The substantial increase in the amount of days necessary to try this case 

is based primarily on the large number of witnesses that the prosecution will call to 

testify.

Case No. 1:11-cr-00355-MSK Document 127 filed 08/20/12 USDC Colorado pg 1 of 10
2

3. As referenced in the Joint Motion [Doc. 123], the government provided its 

preliminary (or draft) list of anticipated prosecution witnesses to defense counsel on 

August 16, 2012. This list consists of 157 witnesses the government has characterized 

as “will call” witnesses: 135 named witnesses and 22 witnesses currently identified only 

by their title as custodians of records for different banks. 

4. Prior to August 2, 2012, defense counsel had received 14 witness reports 

(primarily FBI 302s) as well as grand jury transcripts detailing the testimony of two 

federal agents in this case. On August 2, 2012, the prosecution provided the disclosure 

of its proffered summary/lay/expert witness, Ms. Dana Chamberlin: a 107-page 

pleading supplemented by approximately six inches of appendices. On August 3, 2012, 

in open court just moments prior to the commencement of the motions hearing, the 

prosecution provided defense counsel with 35 new reports memorializing recent witness 

interviews, the majority of said witnesses who were previously unknown to defense 

counsel. The prosecution informed defense counsel that all of these witnesses will be 

called at trial, and that they are all substantive witnesses, that is to say that none of 

them are mere document custodians being called to authenticate or lay the foundation 

for trial exhibits.

5. On August 16, 2012, the prosecution informed defense counsel that there 

are an additional 25 such memoranda of interview “in the pipeline” and an additional 

number will be provided thereafter. It appears, based on information provided by the 

government that it anticipates providing an additional 75 (or so) FBI 302s or IRS 

Memoranda of Interview in the next 28 days leading up to the scheduled 

commencement for trial. The government informs the defense that these reports are 

Case No. 1:11-cr-00355-MSK Document 127 filed 08/20/12 USDC Colorado pg 2 of 10
3

based on interviews of additional witnesses that the government has just recently 

conducted or plans to conduct in the immediate future. 

6. The sheer volume of newly identified witnesses, the timing and volume of 

the disclosures by the government, and the nature of the newly disclosed information all 

deprive the defense of a meaningful opportunity in the time left before trial to prepare 

effectively to defend their clients. Defense counsel will need adequate time to review 

these additional reports independently and with their client, and then to investigate the 

new information accordingly. Making this venture more difficult is the fact that no 

contact information has been provided for the 135 named substantive witnesses. 

Moreover, no identifying information of any sort has been provided for the twenty-two 

document custodians. No criminal histories have been provided for any of the 

witnesses that the prosecution intends to call in its case-in-chief, nor have criminal 

histories of the named defendants been provided, despite repeated requests for this 

information.

7. In addition, defense counsel’s wife is scheduled to have the birth of their 

child on or about October 29, 2012. Defense counsel will therefore be unavailable on 

the date of the birth and the following day unless complications arise. Prior to the 

receipt of the government’s August 16th expected witness list, defense counsel believed 

that Ms. Weingart’s trial would have concluded weeks before the expected arrival of his 

new child and therefore did not raise this issue previously.

8. Without reference to new discovery “in the pipeline,” information in the 35 

witness interview memoranda provided at the motions hearing on August 3, 2012, has 

driven additional investigation required in order for defense counsel to provide effective 

Case No. 1:11-cr-00355-MSK Document 127 filed 08/20/12 USDC Colorado pg 3 of 10
4

representation for their clients. For instance, the new reports include allegations that 

specific conversations involving parties to the case occurred on specific dates. 

Investigation must now be conducted to determine whether an alibi may be established 

for the date in question. This will prove time-consuming as many of these alleged 

conversations happened between five and ten years ago, and it may prove impossible 

to complete in the time remaining prior to trial.

9. Additional investigation must also be undertaken to interview many of the 

newly-discovered witnesses. Again, as no contact information (not even so much as 

identifying the witness’ state of residence) has been provided, it will prove timeconsuming to locate, let alone speak with, them. Locating and interviewing more than 

100 newly identified witnesses in the time remaining prior to trial is simply not possible. 

Even if the government were to provide contact information, it is now impossible for 

defense counsel to read and analyze the material, prepare investigation requests for its 

investigators, for the investigators to contact and interview the witnesses, prepare 

witness interview memoranda for the defense, and for defense counsel to analyze that 

information and prepare witness examinations of the 100-plus newly discovered 

witnesses. There simply is not adequate time remaining before trial.

10. Further, the additional discovery provided by the government at the 

motions hearing has required counsel to have to undertake new factual and legal 

research in support of potential motions, chief among them a possible new motion to 

sever defendants, on grounds that were unknown at the time of the August 3 motions 

hearing.

Case No. 1:11-cr-00355-MSK Document 127 filed 08/20/12 USDC Colorado pg 4 of 10
5

11. In addition to the 100-plus new witness statements that have been/remain 

to be provided, the prosecution anticipates producing certifications pursuant to FRE 

902(11) to defense counsel “sometime next week” (meaning the week of August 20, 

2012). Again, this will be less than 28 days prior to the scheduled commencement of 

trial. Although the defense has requested that the government provide any certifications 

or declarations that may be ready to the defense now so that the defense can begin to 

vet them, the prosecution has declined to produce them, saying only that they prefer to 

deliver them all at once when they are all completed. The defense assumes, but cannot 

be sure, that it will receive 22 such certifications – one for each custodian referenced on 

the government’s list.

12. Once defense counsel receives the 22 anticipated FRE 902(11) 

certifications, defense counsel will need time to review and investigate each certification 

properly. This vetting process is of the utmost importance in this case as the 

authenticity of documents is at issue. This fair opportunity to challenge such 

certifications is required by the rule itself: “Before the trial or hearing, the proponent 

must give an adverse party reasonable written notice of the intent to offer the record—

and must make the record and certification available for inspection—so that the party 

has a fair opportunity to challenge them.” FRE 902(11). It is defense counsels’ position 

that less than 28 days to properly vet 22 certifications—while simultaneously reviewing 

70+ new witness statements and otherwise preparing for trial—is not a “fair opportunity 

to challenge.”

13. Defense counsel is not here alleging a violation of Fed. Crim. P. 16 or of 

this Court’s discovery order in connection with the timing of the government’s production 

Case No. 1:11-cr-00355-MSK Document 127 filed 08/20/12 USDC Colorado pg 5 of 10
6

of discoverable material. It is not disputed that the government did not have this 

information to discover until such time as it was created by the government. However, 

the timing of the government’s production of discoverable material makes it so that 

proceeding to trial as currently scheduled would violate the defendants’ constitutional 

rights to a fair trial and effective assistance of counsel because, quite simply, there is 

insufficient time for defense counsel to effectively review, process, and confront this 

new material. When the government waits until the day of the last scheduled motions 

hearing and the last month before trial to begin to produce to the defense nearly 90% of 

the information it intends to offer through witnesses at trial, through more than 150 trial 

witnesses, the resulting trial cannot possibly be a fair one. The government’s 

obedience to the rules and the Court’s orders here does not equate to the provision to 

the defendants of a fair trial, given the completely unanticipated and unanticipatable 

number of witnesses the government now intends to call, and the discovery lately 

provided and promised.

14. The Sixth Amendment of the United States Constitution guarantees an 

accused the right to a fair trial and effective assistance of counsel. It is defense 

counsels’ position that, if required to proceed to trial on the currently scheduled 

commencement date of September 17, 2012, Ms. Weingart’s Sixth Amendment rights 

would be violated.

15. Defense counsel has spoken with his client and can represent to this 

Court that Ms. Weingart understands her constitutional right to a speedy trial and 

understands that her rights to due process of law and a fair trial and to the effective 

assistance of her appointed counsel here trumps her right to a speedy trial. 

Case No. 1:11-cr-00355-MSK Document 127 filed 08/20/12 USDC Colorado pg 6 of 10
7

16. Pursuant to 18 U.S.C. §3161(h)(7)(A) and (B), defense counsel 

respectfully requests an ends-of-justice continuance of this trial. As set forth in this 

pleading, good cause has been established that the ends of justice served by granting 

this request outweigh the best interest of the public and of the defendants in a speedy 

trial. MSK Cr. Practice Standards II.E.1,2; V.5A.2.

17. In determining whether an ends-of-justice continuance is merited, the 

court is to consider the factors enumerated in 18 U.S.C. §3161(h)(7)(B)(i)-(iv) and 

determine whether the ends of justice served by the granting of such a continuance 

outweigh the best interests of the public and the defendant in a speedy trial. U.S. v. 

Toombs, 574 P.2d 1262, 1268 (10th Cir. 2009). In making its findings, both the parties 

and the court must provide an explanation of why the occurrence of the identified event 

prompting the request to continue necessitates additional time. Id. at 1271 (citing U.S. 

v. Williams, 511 F.3d 1044, 1058 (10th Cir. 2007)).

18. As previously detailed, a continuance will allow defense counsel to 

effectively represent Ms. Weingart as guaranteed by the United States Constitution. 

Specifically, it will allow defense counsel sufficient time to adequately review the 

voluminous newly-discovered evidence and investigate and challenge said evidence. It 

is not for lack of due diligence that this request is being made; effective preparation 

simply cannot be accomplished in the time remaining before trial with the voluminous 

amount of discovery recently produced and anticipated to be produced in the immediate 

weeks prior to trial. 18 U.S.C. §3161(h)(7)(B)(iv). (See U.S. v. Bowman, 2009 WL 

5101771, 2-3 (N.D. Okla. 2009) (while not declaring the case complex, the court found 

that it would be unreasonable to expect counsel to review the voluminous discovery 

Case No. 1:11-cr-00355-MSK Document 127 filed 08/20/12 USDC Colorado pg 7 of 10
8

recently produced by the government and prepare the case for trial within the allotted 

schedule, and that failure to grant a continuance would unreasonably deny counsel for 

the defendant the reasonable time necessary for effective preparation, taking into 

account the exercise of due diligence).

19. Moreover, failure to grant this continuance would be likely to result in the 

denial of guaranteed constitutional rights and a miscarriage of justice. 18 U.S.C. 

§3161(h)(7)(B)(i). As recognized by the Bowman court, supra, “While a speedy 

resolution in criminal cases serves the public interest, it does not benefit the public if a 

criminal case is rushed and a miscarriage of justice results.” Id. at 3. It is unreasonable 

to expect adequate preparation for the trial itself with the timing as it currently stands: 

over 100 new witnesses and reports produced within 45 days of the trial 

commencement (the majority of which have yet to be produced with only 28 days until 

commencement); 22 FRE 902(11) certifications that have yet to be produced and for 

which defense counsel is entitled to a “fair opportunity to challenge”; and newlydiscovered evidence (with more to come less than 28 days prior to trial) that requires 

follow-up interviews and additional investigation pertaining to possible alibi defenses. 

18 U.S.C. §3161(h)(7)(B)(i),(iv).

20. With the statutory factors established to support this requested 

continuance, Ms. Weingart respectfully submits to this Court that good cause has been 

established with particularity in support of her request to continue the jury trial. 18 

U.S.C. §3161(h)(7)(A),(B); MSK Cr. Practice Standards II.E.2, V.5.A.2.

21. Ms. Weingart respectfully requests an additional four months to 

adequately prepare for this trial.

Case No. 1:11-cr-00355-MSK Document 127 filed 08/20/12 USDC Colorado pg 8 of 10
9

22. Counsel for co-defendant Mr. Gallegos provided the government with a 

draft of this motion and sought the position of the government on it. Undersigned 

counsel also discussed this motion with the government. The government has 

authorized co-defendant John Gallegos’ counsel to state as follows: “The government 

has stated that it does not object to the granting of a continuance of the September 17, 

2012 trial date consistent with the limitations of the Speedy Trial Act, 18 U.S.C [§] 

3161. The government will file a more detailed response to this motion promptly.” Ms. 

Weingart’s motion is in large part identical to co-defendant John Gallegos’ motion to 

continue.

23. Undersigned counsel has consulted with defense counsel for Mr. Weingart

and Mr. Gallegos, respectively, who both have authorized the undersigned to state that 

they are in agreement with the request for continuance contained in this motion.

WHEREFORE, Ms. Weingart respectfully requests that this Court GRANT her

Motion to Continue.

Respectfully submitted,

Dated:August 20, 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

Case No. 1:11-cr-00355-MSK Document 127 filed 08/20/12 USDC Colorado pg 9 of 10
10

CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of August 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

Case No. 1:11-cr-00355-MSK Document 127 filed 08/20/12 USDC Colorado pg 10 of 10