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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Case 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 OBJECTIONS TO PRESENTENCE INVESTIGATION REPORT 

(DOC. #244)

______________________________________________________________________

The United States of America, by United States Attorney John F. Walsh and 

Assistant United States Attorneys Linda Kaufman and Martha Paluch, hereby gives 

notice of its Objections to the Presentence Investigation Report. (“PSR”).

Victim Impact / Restitution (PSR Paragraphs 31, 92-95, Exhibit B)

1. The parties have agreed that the total restitution in this case is approximately 

$984,618.35. (Doc. 215 at 2).All restitution in this case is based solely on the losses 

realized by the victims of Defendant John Gallegos’ relevant conduct in connection with 

the loans he obtained to refinance his property at 7603 California Ave. SW, Seattle, 

Washington, as described in the Plea Agreement (Doc. 215 at 5-11). None of it relates 

to the charges against Mr. Gallegos in the original indictment, all of which the 

government moved to dismiss in accordance with the terms of the plea agreement.

2. Upon further examination of its calculation of restitution, however, the 

government has concluded that the total should be reduced to $965,847.32 because a

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portion of the $984,618.35 total included amounts beyond the unpaid principal which the 

government does not now seek as restitution. Accordingly, restitution should be paid as 

follows:

Bank of America $948,014.00

Regina R. Forest

Vice President, Investigative Services Manager

Corporate Security

201 N. Tryon St., 7th Floor

Mail Code NC1-022-07-11

Charlotte, NC 28255

J.P. Morgan Chase Bank $17,833.32

c/o Jennifer Arney

7610 W. Washington

Indianapolis, IN 40231

_____________

Total Restitution $965,847.32

3. The restitution due to Bank of America is based upon the following:

The October 10, 2007 loan: This loan was originally made by Countrywide 

Bank, FSB, which was acquired by Bank of America. The unpaid principal 

balance due to Bank of America is $464,814.00.

The January 23, 2008 loan: This loan was originally made by Bank of 

America. The unpaid principal balance due to Bank of America is 

$383,200.00. The government has determined that its earlier loss 

calculation of $398,021.52 for this loan included costs, interest and fees, 

which the government does not now seek as restitution.

The January 23, 2008 line of credit: This line of credit was funded by Bank 

of America in the amount of $100,000.00. The government has 

determined that its earlier loss calculation of $103,949.51 for this line of 

credit included costs, interest, and fees, which the government does not 

now seek as restitution.

4. The restitution due to J.P. Morgan Chase is based upon the following:

The April 11, 2005 loan: This loan was originally made by Washington 

Mutual Bank. Its successor in interest was J.P. Morgan Chase Bank. J.P. 

Morgan Chase Bank foreclosed on the California Avenue property and 

resold the property for $366,000.00, which was $17,833.32 less than the 

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principal sum it was owed, $383,833.32. (Attachment 1).

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5. Exhibit B to the PSR is a Declaration of Victim Losses filed by Fidelity 

National Title Group. It claims $2,653,740.49 in the John Gallegos and Waunita 

Weingart cases. These losses are associated with claims it paid to insured lenders and 

expenses it incurred in connection with various loans made for the refinancing of 7766 

Saxeborough Drive, Castle Rock, Colorado, 141 Lost Angel Road, Boulder, Colorado, 

and 430 East 6th Avenue, Denver, Colorado. None of these losses, however, is relevant 

to Defendant Gallegos’ case, because his count of conviction relates only to his 

California Avenue property, and the restitution he has agreed to pay relates only to 

loans he obtained to refinance his California Avenue property. Mr. Gallegos should 

therefore not be ordered to pay any restitution to Fidelity National Title Group.2

Specific Offense Characteristics: (PSR Paragraph 37)

6. The victims in this case are Bank of America and J.P. Morgan Chase 

Bank, as explained above.

Financial Condition: Ability to Pay (PSR Paragraphs 69, 70)

7. Paragraph 69 does not address certain facts which would be helpful to the 

Court in determining the defendant’s ability to pay restitution, and raises unanswered 

questions about his ability to pay that restitution.

 1 In Defendant John Gallegos’ Objections to Presentence Investigation Report, he states 

that the $17,833.32 is owed to Fidelity. In fact, while Fidelity served as Trustee in the 

foreclosure proceeding, it did not pay a claim in connection with this loan, and did not 

realize a loss. J.P. Morgan Chase did.

2 Fidelity, however, is a victim of co-defendant Waunita Weingart’s offenses. (See Doc. 

236 at 14, “Fidelity National Title Insurance Co.”). The government will seek restitution 

for Fidelity in Ms. Weingart’s case.

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8. For example, Paragraph 69 states that the defendant has no unsecured 

debts, but does not state whether he has secured debts, and if so, what those debts 

are, and how they are being paid. Further, although this paragraph states that the 

defendant has only one unencumbered asset and no equity in other assets, it gives no 

insight as to what those other assets are.

9. For example, John Gallegos is the record title holder of 430 East 6th

Avenue, Denver, Colorado and co-record title holder of 141 Lost Angel Road, Boulder, 

Colorado (with Waunita Weingart). (Attachments 2 and 3). These properties could

potentially generate rental income. It is unclear from the PSR whether the defendant 

has ownership interests in other real properties which could also generate rental 

income.

10.Paragraph 70 of the PSR states that claims were “scheduled to be 

discharged” in the defendant’s District of Arizona bankruptcy proceeding. In fact, the 

unsecured claims were discharged in 2010. (Attachments 4, 5). No creditors were listed 

as holding secured claims. (Attachment 6). The unsecured claims which were 

discharged included those relating to the defendant’s Lost Angel and 6th Avenue

properties.

11.A representative from Flagstar Bank informed government counsel this week 

that it has paid recent property taxes for 430 East 6th Avenue, Denver, Colorado, so that 

its interest in this property would not be subordinate to a tax lien. In addition, this 

representative indicated that Flagstar Bank intends to pursue a foreclosure action 

against the 6th Avenue property. Similarly, a representative from JP Morgan Chase 

informed government counsel this week that it has paid recent property taxes for 141 

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Lost Angel Road, Boulder, Colorado, so that its interest in this property would not be 

subordinate to a tax lien. This representative also indicated that JP Morgan Chase 

intends to pursue a foreclosure action against the Lost Angel Road property.

12.No foreclosure action has as yet been filed on either property. In any event,

each of these lenders is likely to face significant title issues. (See, e.g., Attachment 7).

Conditions of Supervised Release (PSR Paragraph 83)

13.The condition of supervised release suggested in this paragraph would 

prohibit the defendant from incurring new credit charges or opening additional lines of 

credit. This condition should be phrased to preclude the defendant from obtaining a loan 

of any type without the express approval of the supervising officer.

18 U.S.C. § 3553(a) Factors (PSR Paragraph 100, Page R-2)

14.These paragraphs note that it does not appear that the defendant now has 

anything financially to show for his involvement in the instant offense, but fail to note 

that several years have passed since his commission of the offense, and that he 

apparently spent the proceeds he received, as for example, the $50,000 deposited to 

his personal account from the $100,000 line of credit.(Doc. 215 at 11).

Factual Basis (PSR Paragraphs 8-30)

15.The defendant requests that the factual basis set forth in the presentence 

report be replaced in its entirety with a portion of the transcript of the change of plea

hearing. (Doc. 253 at 3). He now objects to any reliance on those stipulated facts, 

despite the fact that he agreed that they were true and relevant in the written plea 

agreement, and subsequently confirmed them to be true after hearing them read aloud 

at the hearing. (Doc. 253-1 at 15, 22-23).

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16.At the change of plea hearing, the Court indicated that it was not satisfied with 

the factual basis for one element of the offense. As a result of the Court’s inquiry, the 

record was expanded, as set forth in the transcript of the hearing. (Doc. 253-1).

17.Significantly, however, the Court did not state that as a result of this

modification all other facts set forth in the plea agreement were to be disregarded. To 

the contrary, the Court clearly informed the defendant that by entering into the plea 

agreement, he was “admitting that these facts are true,” and that the Court would “treat 

them as true, both for purposes of considering his plea and for purposes of sentencing.” 

(Doc. 253-1 at 15). Near the end of the hearing, the defendant confirmed that he still 

wanted to proceed with the plea agreement, “Exhibit 1”, and his counsel agreed that 

there was no reason not to accept the plea agreement. (Doc. 253-1 at 39 and Doc. 

215). The Court found that the defendant understood that the penalty imposed by the 

Court would be based in part on the facts stated in the plea agreement. (Doc. 253-1 at 

42). 

18.Further, the use of the stipulated facts is consistent with the parties’ 

agreement about the anticipated use of those facts in determining the advisory 

guidelines range, considering relevant conduct, and considering the other factors set 

forth in 18 U.S.C. § 3553 (Doc. 215 at 4), and the Court’s Order Concerning 

Presentence Investigation and Report as to John Gallegos. (Doc. 217).

19.It is therefore proper to include the stipulated facts set forth in the plea 

agreement as part of the presentence report. The probation officer and the Court may 

rely on them, as well as other facts brought out at the change of plea hearing, for 

purposes of sentencing.

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The Defendant’s Personal Data

20.See Attachment 8 (Restricted-Level 2), which sets forth the government’s

position as to Exhibit C of the PSR.

Respectfully submitted,

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 Paluch

Assistant United States Attorney

1225 Seventeenth Street, Suite 700

Denver, Colorado 80202

Telephone: (303) 454-0100 

Facsimile: (303) 454-0404

E-mail: Martha.Paluch@usdoj.gov

Attorneys for Government

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CERTIFICATE OF SERVICE

I certify that on this 18th day of April, 2013, I electronically filed the foregoing 

GOVERNMENT’S OBJECTIONS TO PRESENTENCE INVESTIGATION REPORT 

(DOC. #244) 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

and I hereby certify that I have mailed or served the document or paper to the following 

non-CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the nonparticipant’s name:

Nicole D. Peterson - U.S. Probation Officer

E-mail: Nicole_Peterson@cod.uscourts.gov

 By: s/ Solange Reigel 

SOLANGE REIGEL

Legal Assistant to AUSA Linda Kaufman

United States Attorney’s Office

1225 - 17th Street, Suite 700

Denver, CO 80202

Telephone: (303) 454-0244

Fax: (303) 454-0402

E-mail: Solange.Reigel@usdoj.gov

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