U.S. v. Bornfield, No. 97-2169

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore BALDOCK, BARRETT, and LOGAN; BARRETT
Citation145 F.3d 1123
Parties49 Fed. R. Evid. Serv. 601, 98 CJ C.A.R. 2275 UNITED STATES of America, Plaintiff-Appellee, v. Mikel BORNFIELD, Defendant-Appellant.
Docket NumberNo. 97-2169
Decision Date13 May 1998

Page 1123

145 F.3d 1123
49 Fed. R. Evid. Serv. 601, 98 CJ C.A.R. 2275
UNITED STATES of America, Plaintiff-Appellee,
v.
Mikel BORNFIELD, Defendant-Appellant.
No. 97-2169.
United States Court of Appeals,
Tenth Circuit.
May 13, 1998.

Page 1127

Billy R. Blackburn, Albuquerque, NM, for Defendant-Appellant.

Stefan D. Cassella and Lena D. Watkins, United States Department of Justice, Washington, DC (John C. Keeney and Theresa M.B. Van Vliet, United States Department of Justice, Washington, DC, with them on the brief), for Plaintiff-Appellee.

Before BALDOCK, BARRETT, and LOGAN, Circuit Judges.

BARRETT, Senior Circuit Judge.

Mikel Bornfield (Bornfield) appeals from his conviction and sentence following a jury trial wherein he was found guilty of engaging in a monetary transaction in criminally derived property, in violation of 18 U.S.C. §§ 2 and 1957(a).

Background

Bornfield is a certified public accountant in Albuquerque, New Mexico. In the late 1980s, he prepared tax returns for Sidney and Laurenda Terrell (the Terrells) and Richard Gonzagowski (Gonzagowski). During this time, Sidney Terrell (Terrell) owned a variety of fledgling businesses and Gonzagowski was self-employed in the roofing business. However, Terrell and Gonzagowski both testified that they earned most of their income in the late 1980s and early 1990s from drug trafficking. 1

On March 2, 1993, Bornfield lent Terrell $7,000. Terrell asked for the loan in order to make his half of a land payment on the Los Lunas property, which he owned jointly with Gonzagowski through their company, Manana Brothers. Due to problems in the past, the escrow company, Southwest Escrow Company (Southwest), would not accept personal checks from the Terrells. Accordingly, Bornfield accepted $5,000 from Terrell, added it to the $7,000 loan, and wrote a check from his business account payable to Southwest in the amount of $12,000 on behalf of Terrell.

On March 3, 1993, Terrell's wife, Laurenda Terrell (Laurenda), obtained $13,000 in cash from Gonzagowski for his half of the land payment. With the $12,000 check from Bornfield and the $13,000 cash from Gonzagowski, Laurenda attempted to make the land payment. However, for security reasons, Southwest refused to accept such a large quantity of cash.

Laurenda then called on Bornfield, her accountant and tax advisor, for assistance. She gave Bornfield the cash she received from Gonzagowski and Bornfield wrote a check from his personal account to Southwest in the amount of $13,007.42. Thereafter, deposits were made to Bornfield's personal account on March 4, 1993, in the amounts of $3,880 and $3,010 and on March 9, 1993, in the amount of $6,003. 2

On November 8, 1995, a grand jury returned a five-count First Superseding Indictment against Bornfield and three codefendants. On October 25, 1996, following plea agreements by the codefendants, the indictment was amended to redact portions that did not pertain to Bornfield and to drop the conspiracy charge. The amended indictment charged Bornfield with one count of engaging in a monetary transaction in criminally derived property, in violation of 18 U.S.C. §§ 2 and 1957 (Count 1), and one count of structuring transactions with a domestic institution knowingly and willfully and for the purpose of evading the reporting requirements of 31 U.S.C. § 5313(a), in violation of 31 U.S.C. §§ 5322(b) and 5324(a)(3) (Count 2). The indictment also contained a forfeiture allegation that Bornfield shall forfeit all property, real and personal, involved in the money laundering offense in Count 1 and the structuring currency transactions offense in Count 2, pursuant to 18 U.S.C. § 982(a)(1). In addition, the forfeiture allegation provided for substitute property to be forfeited, if necessary, pursuant to 18 U.S.C. § 982(b)(1)(A) and 21 U.S.C. § 853(p).

Page 1128

Prior to trial, the government proffered the testimony of Bornfield's codefendants, Terrell and Gonzagowski, as to their observations and other knowledge of Bornfield's recreational use of cocaine and marijuana. The government proffered Terrell's testimony that he provided Bornfield with cocaine and used cocaine with Bornfield 30 to 40 times between 1988 and 1993 and Gonzagowski's testimony that he provided Bornfield with approximately $200 worth of cocaine on four or five occasions in exchange for Bornfield's preparation of falsified tax returns. The government asserted that the evidence was inextricably intertwined with the money laundering and structuring offenses showing the long standing relationship between Bornfield, Terrell, and Gonzagowski. In the alternative, the government argued that pursuant to Fed.R.Evid. 404(b) the evidence circumstantially established Bornfield's knowledge that the $13,000 in cash he received from Laurenda and deposited in his bank account was from drug trafficking. Bornfield, in turn, filed a motion in limine to exclude this evidence on the grounds that it was inadmissible under Fed.R.Evid. 404(b).

The district court denied Bornfield's motion. The court determined that Terrell could testify he provided cocaine to and used cocaine with Bornfield and that Gonzagowski could testify that he paid Bornfield for tax preparation services with cocaine. The court excluded cumulative testimony of drug usage and testimony that Terrell and/or Gonzagowski merely observed Bornfield using cocaine. Although neither party sought a limiting instruction regarding this evidence, the court, on its own motion, included such an instruction advising the jury that it could only consider the evidence of Bornfield's drug usage for the limited purpose of determining whether he had the state of mind or knowledge necessary to commit the crime charged in Count 1 of the indictment. (Appellant's Appendix, Vol. III at 946-51). See id. Vol. I at 157; Vol. III at 986-87.

On January 13, 1997, Bornfield's trial commenced. At the beginning of the fourth day of trial, the courtroom clerk and the court reporter informed the court and the parties that on two occasions a juror voiced dissatisfaction with the pace of the trial. The courtroom clerk advised that a juror asked her about the length of the trial, expressing her displeasure with the repetitive nature of the questioning process and, specifically, with counsel for the government. Id. Vol. II at 683. The courtroom clerk commented that the juror was "very irate" and "really upset." Id. The disgruntled juror voiced this opinion in the presence of two other jurors and made similar comments to the court reporter. Id. at 683-84 After discussion with counsel and over Bornfield's objection, the court decided to dismiss the juror in question as the alternate at the end of the trial. Id. at 690-91.

On January 17, 1997, the jury returned a verdict of guilty of money laundering in Count 1 and not guilty of structuring currency transactions in Count 2. The jury also returned a special verdict in favor of forfeiture with respect to Count 1. On May 5, 1997, the district court ordered forfeiture of $13,007.42 contained in account number 01-2620936-0 at Sunwest Bank, Albuquerque, New Mexico. In addition, Bornfield was sentenced to 24 months imprisonment and two years of supervised release.

On appeal, Bornfield contends that: (1) the district court erred by instructing the jury on deliberate ignorance; (2) the district court erred in admitting evidence of his prior recreational drug use; (3) there is insufficient evidence to support his conviction; (4) he was denied his Sixth Amendment right to an impartial jury when the district court refused to excuse a juror for misconduct and bias toward the parties; and (5) the district court erred in ordering the forfeiture of $13,007.42 from his bank account.

Discussion

I. Deliberate Ignorance Instruction

Bornfield contends that the district court erred by instructing the jury on deliberate ignorance with respect to Count 1, the money laundering charge. He contends that the government failed to present evidence he performed deliberate acts to avoid actual knowledge that the $13,000 cash from Gonzagowski was criminally derived property and that the form of the instruction was erroneous.

Page 1129

Bornfield failed to object to the deliberate ignorance jury instruction with respect to Count 1. Although Bornfield successfully argued against the instruction with regard to Count 2, his statements during the jury instruction conference that "this could be error to admit this particular instruction," id. Vol. III at 963, "the Ostrich instruction, by deliberate ignorance, shouldn't be given," id., and "I think it's contrary to the case law now," id. at 964, do not qualify as proper objections to the instruction. See Walters v. Monarch Life Ins. Co., 57 F.3d 899, 904 (10th Cir.1995) ("inconsistent" and "unfair" is argument, not specific objection); United States v. Zang, 703 F.2d 1186, 1196 (10th Cir.1982) (generalized objection insufficient), cert. denied, 464 U.S. 828, 104 S.Ct. 103, 78 L.Ed.2d 107 (1983). In addition, he did not renew his "objection" to the deliberate ignorance instruction after the court finalized it or prior to the court instructing the jury. 3 See Fed.R.Crim.P. 30 ("No party may assign as error any portion of the [jury] charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection."). Finally, Bornfield failed to object to the form of the instruction as given. Therefore, we review the district court's deliberate ignorance instruction, both as to propriety and as to form, for plain error. See United States v. Lee, 54 F.3d 1534, 1540 (10th Cir.), cert. denied, 516 U.S. 895, 116 S.Ct. 247, 133 L.Ed.2d 173 (1995). Plain error exists when a clear or obvious error affecting substantial rights has seriously affected the fairness, integrity, or public reputation of the judicial proceeding. Johnson v....

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  • United States v. Kenner, No. 3-CR-607 (JFB) (AYS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 10, 2020
    ...from untainted sources." United States v. Nicolo , 597 F. Supp. 2d 342, 348 (W.D.N.Y. 2009) (quoting United States v. Bornfield , 145 F.3d 1123, 1134 (10th Cir. 1998) ); see also United States v. $8,221,877.16 in U.S. Currency , 330 F.3d 141, 158 (3d Cir. 2003) ("in the criminal forfeiture ......
  • United States v. Rodella, No. CR 14-2783 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 6, 2015
    ...a 'substantial influence' on the outcome or leaves one in 'grave doubt' as to whether it had such effect." United States v. Bornfield, 145 F.3d 1123, 1131 (10th Cir. 1998)(quoting United States v. Cass, 127 F.3d 1218, 1224 (10th Cir. 1997)). "Under that standard, [the Court should] review t......
  • United States v. Bader, No. 10–1263.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 3, 2012
    ...between the property forfeited and an offense of conviction that authorizes forfeiture. See [678 F.3d 895]United States v. Bornfield, 145 F.3d 1123, 1137 n. 8 (10th Cir.1998) (dismissing the government's suggestion that both bank accounts at issue were tied to the structuring count because ......
  • U.S. v. Hasson, No. 00-13180.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 12, 2003
    ...standard generally applies. See Barakat, 130 F.3d at 1452; accord Dicter, 198 F.3d at 1289. See also United States v. Bornfield, 145 F.3d 1123, 1138 n. 12 (10th Cir.1998) (forfeiture under § 982 is a sentencing The parallels between § 982 and 21 U.S.C. § 853 are reinforced by § 982(b)(1), w......
  • Request a trial to view additional results
93 cases
  • United States v. Kenner, No. 3-CR-607 (JFB) (AYS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 10, 2020
    ...from untainted sources." United States v. Nicolo , 597 F. Supp. 2d 342, 348 (W.D.N.Y. 2009) (quoting United States v. Bornfield , 145 F.3d 1123, 1134 (10th Cir. 1998) ); see also United States v. $8,221,877.16 in U.S. Currency , 330 F.3d 141, 158 (3d Cir. 2003) ("in the criminal forfeiture ......
  • United States v. Rodella, No. CR 14-2783 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 6, 2015
    ...a 'substantial influence' on the outcome or leaves one in 'grave doubt' as to whether it had such effect." United States v. Bornfield, 145 F.3d 1123, 1131 (10th Cir. 1998)(quoting United States v. Cass, 127 F.3d 1218, 1224 (10th Cir. 1997)). "Under that standard, [the Court should] review t......
  • United States v. Bader, No. 10–1263.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 3, 2012
    ...between the property forfeited and an offense of conviction that authorizes forfeiture. See [678 F.3d 895]United States v. Bornfield, 145 F.3d 1123, 1137 n. 8 (10th Cir.1998) (dismissing the government's suggestion that both bank accounts at issue were tied to the structuring count because ......
  • U.S. v. Hasson, No. 00-13180.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 12, 2003
    ...standard generally applies. See Barakat, 130 F.3d at 1452; accord Dicter, 198 F.3d at 1289. See also United States v. Bornfield, 145 F.3d 1123, 1138 n. 12 (10th Cir.1998) (forfeiture under § 982 is a sentencing The parallels between § 982 and 21 U.S.C. § 853 are reinforced by § 982(b)(1), w......
  • Request a trial to view additional results

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