United States v. Yaitsky ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4063
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VICTORIA YAITSKY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:04-cr-1097-PMD)
Submitted: August 4, 2006 Decided: August 30, 2006
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Daphne A. Burns, DAPHNE A. BURNS, L.L.C., Mount Pleasant, South
Carolina; Michael P. O’Connell, STIRLING & O’CONNELL, P.A.,
Charleston, South Carolina, for Appellant. Reginald I. Lloyd,
United States Attorney, Alston C. Badger, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Victoria Yaitsky was convicted and sentenced to 120
months’ imprisonment for knowingly and intentionally causing
another to travel in interstate commerce with the intent to commit
murder for hire, in violation of 18 U.S.C. § 1958(a) (2000).
Yaitsky appeals, contending the district court abused its
discretion when it denied her motion to suppress audio recordings
that were surreptitiously made by Igors Smolakovs, who was employed
by Yaitsky. In the tapes, Yaitsky discussed the murder for hire
plot.
We review the admission of a tape recording for abuse of
discretion. See United States v. Capers, 61 F.3d 1100, 1106 (4th
Cir. 1995). The district court’s determination that the proffered
tape was made for a legitimate purpose is reviewed for clear error.
See Traficant v. Commissioner, 884 F.2d 258, 266 (6th Cir. 1989).
To withstand clear error analysis, the district court’s
determination of facts underlying the findings must be supported by
a preponderance of the evidence. United States v. Crump, 120 F.3d
462, 468 (4th Cir. 1997). Yaitsky contends the district court
denied her motion to suppress the audio tapes in violation of the
applicable federal statute, which states:
It shall not be unlawful under this chapter for a person
not acting under color of law to intercept a wire, oral,
or electronic communication where such person is a party
to the communication or where one of the parties to the
communication has given prior consent to such
interception unless such communication is intercepted for
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the purpose of committing any criminal or tortious act in
violation of the Constitution or laws of the United
States or any State.
18 U.S.C. § 2511(2)(d) (2000).
Yaitsky contends Smolakovs and his associate made and
turned over the recordings to the Government for a criminal or
tortious purpose--namely, as part of a plot to “scam” Yaitsky and
assume her business interests while she was incarcerated for the
murder for hire plot. The district court rejected this argument in
denying Yaitsky’s suppression motion, finding it was speculative,
as it was premised primarily on a single sentence contained in the
summary of an FBI interview with Smolakovs.
In assessing the purpose of the interception, courts look
to the intended use of the recording. In re High Fructose Corn
Syrup Antitrust Litig., 216 F.3d 621, 626 (7th Cir. 2000). It is
the intended use of the recordings that determines a violation of
the Act, not whether the taping itself violates a state law. See
id. at 625; Sussman v. American Broadcasting Cos., 186 F.3d 1200,
1202-03 (9th Cir. 1999). We agree with the district court’s
finding that Smolakovs’ determinative purpose in recording the
conversations was to document Yaitsky’s plot and report it to the
Government; any benefit to Smolakovs from Yaitsky’s anticipated
incarceration for her illegal conduct does not alter this
conclusion. Thus, pursuant to § 2511(2)(d), his purpose for making
the tapes was neither criminal nor tortious. See In re High
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Fructose Corn Syrup Antitrust Litig., 216 F.3d at 626 (citing cases
holding that making recordings with a purpose of gathering evidence
of a violation of law is not criminal or tortious).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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