IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Action No. 11-cr-355-MSK

UNITED STATES OF AMERICA,

Plaintiff,

v.

1. WAUNITA WEINGART,

2. JOHN PHILLIP GALLEGOS,

3. ALOIS CRAIG WEINGART,

Defendants.

GOVERNMENT’S MOTION FOR LEAVE TO DISCLOSE

REPORT OF INTERVIEW AND NEW DISCOVERY

The United States of America, by and through Assistant United States Attorneys

Linda Kaufman and Martha Paluch, hereby seek leave of the Court to disclose to

defense counsel a report of interview of one witness and six pages of new discovery in

the form of an email exchange pertaining to another witness’s previously disclosed

reports of interviews. In support of this motion, the United States states as follows:

1. On July 23, 2012, undersigned counsel interviewed witness Mary Lavenia.

Ms. Lavenia worked as an underwriter for Chevy Chase Bank with respect to a loan

made to Defendant Craig Weingart on September 7, 2005 (Loan Code S-18). Ms.

Lavenia is endorsed as a witness on the Government’s Witness List provided to

defense counsel on September 17, 2012, and the report of her interview was provided

to defense counsel on August 3, 2012.

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2. At the conclusion of the interview, Ms. Lavenia discussed with undersigned

counsel the fact she suffers from anxiety and airport and travel phobia. Ms. Lavenia’s

doctor advised against Ms. Lavenia traveling to Denver from her place of residence in

Lake Forest, California, to testify at trial. Ms. Lavenia recently advised a federal agent

that she is unable to travel to Denver to testify at the trial currently scheduled for March

13, 2013, based upon the advice of her doctor. 

3. Undersigned counsel identified Jonathan Buss as having worked on the

same loan as Ms. Lavenia. Mr. Buss was employed in September 2005 as a closer for

Chevy Chase Bank and worked on the loan in question. Mr. Buss is endorsed as a

witness on the Government’s Witness List provided to defense counsel on September

17, 2012. Undersigned counsel hoped to determine if Mr. Buss’s testimony would

obviate the need for Ms. Lavenia’s testimony. Federal agents attempted to locate Mr.

Buss prior to September 17, 2012, but were unable to do so.

4. Federal agents recently located Mr. Buss and AUSA Paluch interviewed

him on November 20, 2012. Through this motion, the United States seeks leave of the

Court to provide defense counsel with a copy of the report of the interview of Mr. Buss.

5. There are certain topics Ms. Lavenia can testify about that Mr. Buss

cannot, and vice versa. For this reason, and in light of Ms. Lavenia’s inability to travel,

through a separate motion the United States will seek to depose Ms. Lavenia in

California and to present her deposition testimony in lieu of calling her to testify in

person at trial.

6. In addition, through this motion, the United States seeks leave of the Court

to provide defense counsel with email exchanges pertaining to the previously disclosed

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reports of interviews of witness Paul Hastings. Mr. Hastings is endorsed as a witness

on the Government’s Witness List provided to defense counsel on September 17, 2012.

Mr. Hastings was interviewed on September 10, 2012, and September 12, 2012, and

copies of the reports of his interviews were provided to defense counsel on September

17, 2012.

7. On November 5, 2012, AUSA Paluch was contacted by Mr. Hastings’s

attorney, Mr. Louis Feuchtbaum, who indicated that he believed the reports of Mr.

Hastings’s interviews contained certain inaccuracies. AUSA Paluch asked Mr.

Feuchtbaum to put his concerns in writing. Mr. Feuchtbaum did so on November 6,

2012. AUSA Paluch then forwarded Mr. Feuchtbaum’s email to FBI Special Agent

David Strange who was present during these interviews and prepared the reports in

question. AUSA Paluch asked Special Agent Strange to compare the alleged

inaccuracies spelled out by Mr. Feuchtbaum with Special Agent Strange’s original

reports of interviews, as well as his notes of those interviews. Special Agent Strange

did so and responded via email to AUSA Paluch on November 14, 2012.

8. The United States seeks leave of the Court to provide these email

exchanges to defense counsel as they pertain to the previous discovery provided to

defense counsel relating to Mr. Hastings’s interviews.

9. By these disclosures, the government would not be augmenting the

number or identity of its witnesses or exhibits.

10. Undersigned counsel conferred with counsel for Waunita Weingart

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regarding this motion. Through counsel, Ms. Weingart takes the position that she does

not object to the disclosure, but reserves the right to make future objections based on

the timing and content of the disclosure.

12. Undersigned counsel conferred with counsel for Mr. Gallegos. Through

counsel, Mr. Gallegos takes the position that the materials should be disclosed

immediately, but does not waive and hereby reserves the right to object to the

admission of evidence and/or to seek other sanctions to the extent such evidence is a

product of a violation of the Court’s order requiring the government to complete its

disclosures to the defense in this case not later than September 17, 2012.

13. Undersigned counsel also conferred with counsel for Craig Weingart,

regarding this motion. Through counsel, Mr. Weingart stated that he has no objection to

this motion.

14. The United States submits that the disclosure of this information at this time

will not prejudice the defense.

For these reasons, the United States respectfully requests leave of the Court to

disclose the report of the interview of Mr. Jonathan Buss to defense counsel, as well as

the email exchanges pertaining to the reports of interviews of Mr. Paul Hastings.

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Respectfully submitted this 3rd day of December, 2012.

JOHN F. WALSH

United States Attorney

By: s/ Linda Kaufman 

LINDA KAUFMAN

Assistant United States Attorney

1225 Seventeenth Street, Suite 700

Denver, Colorado 80202

Telephone: (303) 454-0100

Facsimile: (303) 454-0404

E-mail: Linda.Kaufman@usdoj.gov

By: s/ Martha Paluch

MARTHA PAULCH

Assistant United States Attorneys

1225 Seventeenth Street, Suite 700

Denver, Colorado 80202

Telephone: (303) 454-0100

Facsimile: (303) 454-0404

E-mail: Martha.Paluch@usdoj.gov

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CERTIFICATE OF SERVICE

I certify that on this 3rd day of December, 2012, I electronically filed the foregoing

UNITED STATES’ MOTION FOR LEAVE TO DISCLOSE REPORT OF INTERVIEW

AND NEW DISCOVERY with the Clerk of the Court using the CM/ECF system which

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

Martin Adam Stuart

E-mail: martinstuartlaw@solucian.com

William Lewis Taylor

E-mail: wltaylorpc@gmail.com

Darlene Ann Bagley

E-mail: bagley@ridleylaw.com

Paula M. Ray

E-mail: paulamray@earthlnk.net

 

By: s/ Solange Reigel 

SOLANGE REIGEL

Legal Assistant to AUSA Linda Kaufman

United States Attorney’s Office

1225 - 17 Street, Suite 700 th

Denver, CO 80202

Telephone: (303) 454-0244

Fax: (303) 454-0402

E-mail: solange.reigel@usdoj.gov

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