IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Action No. 11-cr-00355-MSK-02

UNITED STATES OF AMERICA,

Plaintiff,

v.

1. WAUNITA WEINGART,

2. JOHN PHILLIP GALLEGOS,

3. ALOIS CRAIG WEINGART.

Defendants.

DEFENDANT JOHN GALLEGOS’ MOTION FOR SEVERANCE

Defendant John Gallegos, by and through undersigned counsel, respectfully requests that this

Court sever his trial from that of his co-defendants to protect his constitutional right to a fair trial. As 

grounds, Mr. Gallegos states as follows:

I. Background

Mr. Gallegos is charged together with two co-defendants in an eighteen count indictment. (Doc. 

1). Counts One through Twelve allege that the defendants knowingly devised and intended to devise a 

scheme to defraud lenders that funded residential mortgage loans and for obtaining money from them by 

means of materially false and fraudulent pretenses, representations, and promises. (Id. at ¶ 1). These 

substantive counts are based on allegations that the various defendants, individually or in some 

combination, obtained 41 residential mortgage loans on two separate properties (the Lost Angel and 

Saxeborough properties). (Id. at ¶ 2). Of the 41 loans, Mr. Gallegos is named as the sole recipient of 

seven, all of which pertained to the Lost Angel property. (Id. at ¶ 2(n)). The indictment also charges six 

substantive counts of engaging in monetary transactions in property derived from specified unlawful 

activity. (Id. at ¶ 5).

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Mr. Gallegos is charged in seven of the eighteen substantive counts: Counts One, Two, Five, 

Six, Twelve, Thirteen, and Fifteen. (Id. at ¶¶ 4, 5). Mr. Gallegos is only charged in two counts together 

with Mr. Weingart (Counts One and Two). (Id. at ¶ 4). These two counts pertain to loans taken out by 

Mr. Weingart for the Saxeborough property. (Id.). Mr. Gallegos is charged in five counts together with 

Ms. Weingart (Counts One, Five, Six, Thirteen, and Fifteen). (Id. at ¶¶ 4, 5). Only Count Five pertains 

to a loan in Mr. Gallegos’ name. (Id. at ¶ 4). Count Fifteen pertains to funds drawn from Ms. 

Weingart’s personal bank account. (Id. at ¶ 5).

It is likely that Ms. Weingart’s defense will necessary implicate Mr. Gallegos. Beyond a case of 

mere “finger-pointing,” the defenses will be so antagonistic that they are mutually exclusive, requiring 

severance.

II. Law and Argument

Joinder of defendants is proper “if they are alleged to have participated in the same act or 

transaction or the same series of acts or transactions constituting an offense or offenses.” Fed.R.Crim.P. 

8(b). However, even when defendants have been properly joined, a district court should exercise its 

discretion to grant a severance under Fed.R.Crim.P. 14 where, as here, there is a serious risk that the 

joinder “would compromise a specific trial right of one of the defendants, or prevent the jury from 

making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539 

(1993). Such a risk might occur when the government presents “[e]vidence that is probative of a 

defendant's guilt but technically admissible only against a codefendant” or when there are a number of 

codefendants with markedly different degrees of culpability. Id. Similarly, where defendants have 

mutually antagonistic defenses, a severance is also warranted. Id. at 538.

A. A Joint Trial Would Create a Risk of “Spillover” Prejudice.

When multiple defendants are tried together in a complex case and they have markedly different 

degrees of culpability, the risk of prejudice is heightened. See Kotteakos v. United States, 328 U.S. 750, 

774-775, 66 S.Ct. 1239, 1252-1253, 90 L.Ed. 1557 (1946). Here, Mr. Gallegos is charged in seven 

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substantive counts—six of which are charged with at least one of the co-defendants, and one in which he 

is solely charged. Notably, although Mr. Gallegos is charged with two counts involving the 

Saxeborough property, there is no allegation that Mr. Gallegos was the named recipient or borrower of 

any loans pertaining to that property. Instead, the Saxeborough property, which was the source of 26 of 

the 41 residential mortgage loans, had only Ms. and/or Mr. Weingart as the named borrowers on its 

loans. (Doc. 1 at ¶ 2(n)). As it relates to Ms. Weingart, the government has specified twenty loans for 

which Ms. Weingart is the named borrower (Id.); and she is named in fifteen of the eighteen counts at

issue in this case. (Id. at ¶¶ 4, 5). 

As a result, if Mr. Gallegos were required to proceed to a joint trial with Ms. Weingart, he would

be exposed to spillover prejudice unrelated to her alleged conduct. Thus, without the requested 

severance, inference and suspicion of guilt alone from a joint trial will prohibit the jury from fairly 

evaluating the individual culpability of Mr. Gallegos. Severance under these conditions is required. 

Fed.R.Crim.P. 14; United States v. Butler, 494 F.2d 1246, 1254-1257 (10th Cir. 1974); United States v. 

Kotteakos, 328 U.S. 750 (1946); United States v. Lane, 883 F.2d 1484, 1498 (10th Cir. 1989).

B. A Joint Trial Would Violate Mr. Gallegos’ Right to Confrontation.

In Bruton v. United States, 391 U.S. 123, 137 (1968), the Supreme Court held that admission of a 

non-testifying codefendant’s confession implicating another defendant at their joint trial violates the 

defendant’s rights under the Confrontation Clause of the Sixth Amendment. See also Gray v. Maryland, 

523 U.S. 185, 193-196 (1998). The Supreme Court held that in such circumstances, the admission is so 

powerfully incriminating that it would overcome the presumption that a jury will follow a limiting 

instruction. Bruton, 391 U.S. at 135. Further, even where the co-defendant's statement is not facially or 

directly inculpatory, Bruton nevertheless applies “when the statement is evidence of a fact critical to the 

prosecution’s case.” United States v. Sarracino, 340 F.3d 1148, 1160 (10th Cir. 2003) (citing United 

States v. Glass, 128 F.3d 1398, 1404 (10th Cir. 1997)). 

Mr. Gallegos’ co-defendants have made statements that implicate Bruton. Specifically, in their 

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respective bankruptcy proceedings, Mr. and Ms. Weingart provided statements pertaining to and 

admitting to liability for many of the residential mortgage loans upon which this case is based. 

(00027615 through 00027683). Admission of these statements would be highly prejudicial to Mr. 

Galleogs, without affording Mr. Gallegos the opportunity to confront Mr. and Ms. Weingart regarding 

said statements. 

Assuming the government intends to introduce Mr. and/or Ms. Weingart’s statements at trial, 

Mr. Gallegos cannot receive a fair trial without a meaningful opportunity to cross examine them, 

irrespective of the Court’s issuance of a limiting instruction. See United States v. McVeigh, 169 F.R.D. 

362, 366 (D.Colo. 1996). Accordingly, admission of their statements in a joint trial would deny Mr. 

Gallegos his right to confront witnesses against him as secured by the Sixth Amendment under Bruton. 

See Pointer v. State of Texas, 380 U.S. 400, 404, 406-407 (1965).

C. A Joint Trial Will Result in the Presentation of Mutually Exclusive Antagonistic

Defenses. 

Severance is appropriate under Fed. R. Crim. P. 14 where the defense of one co-defendant is so 

antagonistic to another co-defendant as to preclude a fair trial. Courts have long recognized that 

"'mutually antagonistic' or 'irreconcilable' defenses may be so prejudicial in some circumstances as to 

mandate severance." Zafiro, 506 U.S. at 538-39. In order to demonstrate the existence of antagonistic 

defenses, however, "more than mere finger pointing is required." Id. at 540-541. In this regard, the 

Tenth Circuit recognizes that "[t]he Defendant must demonstrate that the acceptance of one party's 

defense would tend to preclude the acquittal of the other, or that the guilt of one defendant tends to 

establish the innocence of the other." United States v. Peveto, 881 F.2d 844, 857 (10th Cir.) cert denied, 

493 U.S. 943 (1989). However, antagonism may also result from "substantial and significant 

differences in the tactical approaches taken by [codefendants] respective counsel," as well as "different 

positions on evidentiary objections, and different approaches to the cross-examination of the 

government's witnesses and in the presentation of defense witnesses." McVeigh, 169 F.R.D. at 370.

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Based upon investigation to date, it has become readily apparent that Mr. Gallegos intends to 

present a highly antagonistic defense to Ms. Weingart at trial. While undersigned counsel has no 

specific knowledge pertaining to the defense that Ms. Weingart intends to present at trial, aspects of Ms. 

Weingart’s modus operandi, including apparent forgeries of Mr. Gallegos’ signature, suggest that it was 

her intent all along to blame Mr. Gallegos for her own conduct. Thus, it appears that acquittal for Mr. 

Gallegos can only be had if he is successful in persuading the jury to reject Ms. Weingart’s presumed

defense. Mr. Gallegos’ defense at trial will establish that Ms. Weingart ran all business entities involved 

and named in the indictment (Doc. 1 at ¶ 2(b)); and she failed to inform him concerning the true 

circumstances surrounding the bank loans at issue and misled Mr. Gallegos into believing that loan 

paperwork signed by him pertaining to the Lost Angel property related to legitimate refinances. Mr. 

Gallegos’ defense will outline that Ms. Weingart used an unknowing Mr. Gallegos as a figurehead for 

her companies so she could fulfill her scheme.

Mr. Gallegos and Ms. Weingart’s defenses are beyond mere finger-pointing, but are so 

antagonistic that they are mutually exclusive and irreconcilable. Zafiro, 506 U.S. at 540-41. Acceptance 

of Ms. Weingart’s defense would necessarily preclude, or at a minimum, “tend to preclude” the acquittal 

of Mr. Gallegos. Simply put, in order to accept Mr. Gallegos’ defense, the jury must simultaneously 

reject any defense tendered by Ms. Weingart. Peveto, 881 F.2d at 857. In this most extreme case of 

irreconcilable defenses, a joint trial would be so prejudicial as to mandate severance. Zafiro, 506 U.S. at 

538-39.

It is likely, although not known with any certainty to date, that Mr. Weingart’s defense will be in 

alignment with Ms. Weingart’s defense. As such, argument in support of severance from Ms. Weingart 

is applicable to support severance from Mr. Weingart as well. 

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Respectfully submitted this 26th day of March, 2012.

s/William Taylor

William L. Taylor

RIDLEY, MCGREEVY & WINOCUR, P.C.

Attorney for John Gallegos

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CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of March, 2012, I filed the foregoing Defendant John 

Gallegos’ Motion for Severance with the Clerk of Court using the CM/ECF system to all interested 

parties.

/s/ Heather Cratty

Heather Cratty

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