1

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

_____________________________________________________________________

DEFENDANT JOHN GALLEGOS’ OBJECTIONS TO PRESENTENCE INVESTIGATION 

REPORT

_____________________________________________________________________

Pursuant to Fed. R. Crim. P. 32(f), John Gallegos through counsel hereby files this 

Objection to the Presentence Investigation Report (“PSIR”). [Doc. 244]

CORRECTIONS

1. In the section entitled “Physical Condition” Mr. Gallegos is described in pertinent 

part as “a white, non-Hispanic male.” [PSIR, p. 10, para. 54]. In fact, Mr. Gallegos is a 

Hispanic male also of American Indian descent. 

OBJECTIONS

I. The factual basis as set forth in the PSIR does not reflect the factual basis 

accepted by this Court as satisfactory at the providency hearing. 

The factual basis as set forth in the PSIR recites the Statement of Facts as written in the 

Plea Agreement [Doc. 215, pp. 4-11]; per this Court’s Order Probation did not conduct an 

Case No. 1:11-cr-00355-MSK Document 253 filed 04/15/13 USDC Colorado pg 1 of 6
2

independent investigation. [Doc. 217]. However, a review of the transcript from the Change of 

Plea hearing (attached hereto as Exhibit A) provides that the Court did not find this factual 

basis satisfactory to sustain the plea.

Specifically, at the conclusion of the government’s recitation of the factual basis as 

included in the written plea agreement and a presentation of case law in support of said factual 

basis, the following discussion ensued:

[The Court]: I’m not satisfied. 

The—the case law that you just cited does, indeed, stand for the proposition that you 

can make a statement as to fact by a written or a verbal or a conduct type of statement. 

I’m not satisfied that there is a statement here that the defendant knew was false that 

was made as to repayment, because I don’t believe that is a fact. It’s a statement as to 

future intent.

But I suspect that there is a statement at the end of the loan application which reflects 

that the defendant represented to the bank that he read the entirety of the loan 

application and it was truthful and accurate information contained in it. Is there such a 

statement at the end of the application?

[Mr. Taylor]: Yes, Your Honor, there is.

[Ms. Kaufman]: Yes, Your Honor.

[The Court]: And is it the position of the defendant that notwithstanding the statement 

that—at the end of the application, that he had read all of the information in the 

application and that it was true and accurate, that it is his position and statement today 

that he had not read all of the information in the application and he had no idea whether 

it was truthful and accurate?

[Mr. Taylor]: That’s correct, Your Honor.

[The Court]: Thank you. I find that that is a false statement.

[Mr. Taylor]: Very well.

Case No. 1:11-cr-00355-MSK Document 253 filed 04/15/13 USDC Colorado pg 2 of 6
3

[The Court]: Sufficient to support the element of a false statement.

Let me make sure, Mr. Gallegos, you understand what your attorney just said. Do you 

admit that you did not read this application, you did not know whether the information 

was truthful and accurate, even though you signed an application saying that you had?

[The Defendant]: That’s correct, Your Honor.

[Please see attached Exhibit A: Transcript of Change of Plea Hearing, pp. 24-26].

As the Court rejected the factual basis as presented in the Plea Agreement and as 

repeated in the PSIR and found it unsatisfactory, Mr. Gallegos respectfully objects to any 

reliance on said factual basis. In its stead, Mr. Gallegos requests that the above transcript 

excerpt, which accurately reflects the factual basis upon which this Court accepted Mr. 

Gallegos’ plea, be included in the PSIR as the offense conduct. 

II. The restitution request submitted by Fidelity is almost wholly inapplicable to 

the one-count information to which Mr. Gallegos pleaded guilty.

In response to Probation’s victim notification letters, Fidelity National Title Group 

submitted a Declaration of Victim Losses in the amount of $2, 653,740.49. [PSIR, p. 24 (Ex. 

B)]. However, only $17,833.32 of these losses are applicable to the one-count information to 

which Mr. Gallegos entered his guilty plea. 

Fidelity National Title Group provided the title insurance commitment for the April 11, 

2005, loan. [Bates No. 29116-29119, 29154-29166]. The April 11, 2005, loan had priority, so 

when the property was sold at foreclosure, the bank on this loan as well as Fidelity was able to 

recover the amount recovered at said foreclosure sale. The difference between the amount of 

the loan and the amount for which the property sold was (-)$17,833.32. 

Case No. 1:11-cr-00355-MSK Document 253 filed 04/15/13 USDC Colorado pg 3 of 6
4

For both the October 10, 2007, and January 23, 2008, loans and the line of credit 

related to the January 2008 loan, the entity identified as having provided title insurance is 

“Real Estate Title Agent for Land America-TICA.” [Bates Nos. 31508-31510, 31312; 26357, 

26373].

As such, Fidelity’s request for victim losses as currently presented must be denied. The 

amount of restitution owed to Fidelity relating to the property at issue in the one-count 

information to which Mr. Gallegos entered a guilty plea is $17,833.32. The remainder of the 

restitution request relates to the allegations contained in the original indictment that the 

Government dismissed in its entirety as to Mr. Gallegos and, thus, must not be ordered.

Mr. Gallegos reserves the right to object to future requests for restitution if, as here, they 

are inapplicable to the restitution agreed to for the one-count information to which Mr. Gallegos 

pled.

Case No. 1:11-cr-00355-MSK Document 253 filed 04/15/13 USDC Colorado pg 4 of 6
5

Respectfully submitted this 15th day of April, 2013.

/s/ William L. Taylor 

William L. Taylor, #21098

/s/ Darlene A. Bagley 

Darlene A. Bagley, #35728

RIDLEY, MCGREEVY & WINOCUR 

P.C.

303 16th Street, Suite 200

Denver, CO 80202

Telephone: (303) 629-9700

Fax: (303) 629-9702

E-Mail: wltaylorpc@gmail.com; 

taylor@ridleylaw.com; 

bagley@ridleylaw.com

Attorneys for John Phillip Gallegos

Case No. 1:11-cr-00355-MSK Document 253 filed 04/15/13 USDC Colorado pg 5 of 6
6

CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of April, 2013, I served a true and correct copy of the 

foregoing DEFENDANT JOHN GALLEGOS’ OBJECTIONS TO PRESENTENCE 

INVESTIGATION REPORT via CM/ECF to all parties listed therein including:

Linda Kaufman

Assistant United States Attorney

United States Attorney’s Office

1225 Seventeenth Street, Suite 700

Denver, Colorado 80202

Telephone: (303) 454-0100

FAX: (303) 454-0401

E-mail: Linda.Kaufman@usdoj.gov

Attorney for Government

Martha Paluch

Assistant United States Attorney

United States Attorney’s Office

1225 Seventeenth Street, Suite 700

Denver, Colorado 80202

Telephone: (303) 454-0100

FAX: (303) 454-0401

E-mail: martha.paluch@usdoj.gov

Paula M. Ray 

Paula M. Ray, P.C. 

P.O. Box 12554 

Denver, CO 80212-0554 

Telephone: 303-874-5170 

E-mail: paulamray@earthlink.net

Attorney for Craig Weingart

Martin Stuart

PortmanStuart, LLC

955 Bannock Street, suite 200

Denver, CO 80204

Phone: 303-355-6789

Fax: 303-623-0714

E-mail: mstuart@portmanstuart.com

Attorney for Waunita Weingart

Attorney for Government

/s/ Heather K. Cratty

Heather K. Cratty

Case No. 1:11-cr-00355-MSK Document 253 filed 04/15/13 USDC Colorado pg 6 of 6