U.S. v. Keszthelyi
| Decision Date | 17 October 2002 |
| Docket Number | No. 00-6630.,00-6630. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rudolph KESZTHELYI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Paul W. Laymon, Jr. (argued and briefed), Assistant United States Attorney, Chattanooga, TN, for Plaintiff-Appellee.
Peter J. Strianse (argued and briefed), Tune, Entrekin & White, Nashville, TN, for Defendant-Appellant.
Before: BOGGS, SILER, and MOORE, Circuit Judges.
MOORE, J., delivered the opinion of the court, in which SILER, J., joined. BOGGS, J. (p. 580), delivered a separate concurring opinion.
Defendant-Appellant Rudolph Keszthelyi appeals the district court's denial of his motion to suppress evidence seized during three searches of his house, as well as the sentence imposed by the district court following his plea of guilty to distributing cocaine and engaging in a monetary transaction in criminally derived property. Defendant contends, first, that the warrant authorizing the initial search of his residence was invalid due to material factual omissions in the warrant affidavit. Defendant also argues that his Fourth Amendment rights were violated when law enforcement agents conducted a second search of his home without obtaining a new search warrant. In relation to his sentence, Keszthelyi objects to the district court's determination of drug quantity by extrapolating from unexplained deposits into Keszthelyi's bank accounts over a five-year period, and to the application of a two-level upward adjustment based upon Keszthelyi's possession of firearms in connection with the drug offenses. For the reasons stated below, we AFFIRM.
On October 27, 1999, a grand jury in the Eastern District of Tennessee returned a sixteen-count indictment against defendant Keszthelyi. The indictment was followed by three superseding indictments, culminating in the eighty-seven count Third Superseding Indictment filed on March 28, 2000. The Third Superseding Indictment charged Keszthelyi with conspiracy to distribute cocaine hydrochloride numerous counts of engaging in monetary transactions in criminally derived property, numerous counts of distributing cocaine hydrochloride, possessing firearms in connection with drug trafficking, possessing firearms as an alien illegally in the United States, and multiple counts of obstructing justice and persuading witnesses to withhold testimony.
On July 5, 2000, Keszthelyi entered into a plea agreement, whereby he pleaded guilty to one count of knowingly engaging in a monetary transaction in criminally derived property in violation of 18 U.S.C. § 1957 (Count Two) and one count of distributing cocaine hydrochloride in violation of 21 U.S.C. § 841 (Count Forty-Two). In exchange, the United States dismissed the remaining counts of the indictment. The plea agreement contained no agreement as to the quantity of drugs involved in Keszthelyi's criminal conduct. Pursuant to the plea agreement, Keszthelyi reserved the right to appeal the district court's denial of his motion to suppress evidence seized during three searches of his residence.
Keszthelyi migrated from South Africa to the United States in October of 1992 on a work visa. Keszthelyi settled in Chattanooga, Tennessee, where he began employment with a company called E & R Products. This company produced various woodwork products, including customized van interiors. In 1994, Keszthelyi purchased E & R Products and obtained a business license, which was in effect from 1994 to 1995. There is no record of E & R Products operating after 1995. Keszthelyi's visa expired in 1995, but he continued to remain in the United States illegally.
In December of 1998, the Chattanooga Police Department ("CPD"), the Drug Enforcement Agency ("DEA"), and the Bureau of Alcohol, Tobacco, and Firearms ("ATF") initiated an undercover investigation to identify individuals selling cocaine in Chattanooga night clubs. Keszthelyi, a suspected cocaine dealer, was the primary target of this investigation. ATF Special Agent Jeff Harwood worked undercover, posing as a successful Nashville businessman named Jeff Harris who was on probation for prior drug arrests. Harwood frequented night clubs in Chattanooga in an effort to befriend targets of the investigation. Harwood was wired and monitored by a control agent during these activities. Over the course of the investigation, Harwood made a number of controlled purchases of cocaine from the defendant Keszthelyi. Sometime after July 18, 1999, Harwood returned to Nashville and ceased to be involved in the investigation.
On October 8, 1999, law enforcement authorities obtained a warrant to search Keszthelyi's home from a magistrate judge. The warrant instructed the officers to search the home "on or before October 18, 1999 (not to exceed 10 days)." Joint Appendix ("J.A.") at 60. Agent James Isom of the DEA submitted an affidavit in support of the warrant. A substantial portion of the affidavit described a number of controlled purchases of cocaine from the defendant made by a confidential informant identified as CI-4. The affidavit explains that in August of 1999, CI-4 was apprehended leaving Keszthelyi's residence, at which time he informed law enforcement officials that he had just purchased a gram of cocaine from the defendant and had been buying one to two grams per week from Keszthelyi for approximately one year. CI-4 agreed to cooperate with the investigation at that time. In August, September, and October of 1999, CI-4 engaged in six controlled purchases of cocaine from the defendant in quantities ranging from one to five grams. These transactions were electronically monitored and observed by law enforcement agents. Three of these purchases occurred at Keszthelyi's residence. The final purchase at his residence occurred on October 7, 1999, the day before the warrant was issued.
In addition to the information concerning CI-4, Agent Isom's affidavit described two controlled purchases of cocaine made by Agent Harwood while working undercover. The affidavit also noted the statements of three other confidential informants, identified as CI-1, CI-2, and CI-3, describing Keszthelyi's cocaine distribution activities. Finally, the affidavit described the results of an extensive financial investigation of Keszthelyi, which revealed that the defendant had made cash deposits into multiple bank accounts totaling $240,034 over five years and had made a number of very expensive purchases despite having no appreciable legitimate income.
Law enforcement agents arrested Keszthelyi at approximately 3:00 p.m. on October 8, 1999. On that day, agents waited for Keszthelyi to leave his residence and arrested him in his vehicle as he was driving away from his home. Agents searched the vehicle at that time and found four grams of cocaine hidden inside the defendant's garage door opener. Shortly after arresting the defendant, agents commenced a search of Keszthelyi's home pursuant to the search warrant obtained earlier that day. Agents found a loaded semi-automatic pistol inside a night table in Keszthelyi's bedroom and a loaded pistol-gripped shotgun in the bedroom closet. Agents discovered approximately $1000 cash in the pocket of a jacket hanging in the bedroom closet. Agents also found a digital scale, electronic surveillance equipment set up to monitor the exterior of the house, business records, several boxes of ammunition, a digital pager, numerous bottles of pills, a box of syringes, and various other items. No cocaine was found on the premises. The agents concluded their search and left the property at approximately 5:00 p.m.
On October 9, Agent Isom, who had not participated in the initial search of Keszthelyi's residence, telephoned the U.S. Attorney's office about returning to the residence to continue the search. Isom stated that he "felt very strongly that there was something there that had not been located" during the initial search. J.A. at 309 (Suppression Hrg. at 22). The decision was made to re-enter the residence and continue the search without obtaining a new search warrant. During the second search of defendant's residence, Isom noticed that the oven in defendant's kitchen was moveable. He moved the oven and discovered a plastic bottle containing approximately one ounce of cocaine.
After Keszthelyi's arrest, law enforcement agents interviewed a number of additional witnesses, including three confidential informants identified as W-1, W-2, and W-3. Witnesses W-1, W-2, and W-3 were known to the police before October 8, 1999, but the investigation team waited to interview them until after Keszthelyi was in custody in order to ensure that Keszthelyi would not influence them. These witnesses informed the agents that they had purchased cocaine from Keszthelyi, and stated that Keszthelyi had buried money on his property.
On October 11, Agent Isom obtained a new warrant to search defendant's property once again. The affidavit in support of the new warrant summarized the information contained in the first affidavit, and added information concerning the cocaine and other evidence seized from the defendant's car and home on October 8 and 9, as well as the information obtained from W-1, W-2, and W-3. Pursuant to the warrant agents searched Keszthelyi's home again on October 11, 1999, but no money or drugs were found.
In the district court, Keszthelyi moved to suppress all evidence seized as a result of the three searches of his home. Keszthelyi argued that the affidavit in support of the first warrant was insufficient to demonstrate probable cause, and that the affidavit contained material omissions concerning allegations of misconduct on the part of Agent Harwood. Keszthelyi further objected that...
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