Petition for Writ of Certiorari — Yaitsky v. United States (No. 09-349)

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349 SEP 21 2009

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dn the OFFICE OF THE CLERK

Supreme Court of the United States

VICTORIA YAITSKY,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Marcia G. Shein

Counsel of Record

LAW OFFICES OF

MARCIA G. SHEIN, PC

2392 N. Decatur Road

Decatur, Georgia 30033

(404) 633-3797

Counsel for Petitioner

GibsonMoore Appellate Services, LLC

421 East Franklin Street ¢ Suite 230 ¢ Richmond, VA 23219

804-249-7770 # www.gibsonmoore.net

QUESTION PRESENTED

WHETHER THE MANDATORY WORD

“SHALL” IN 28 U.S.C. § 2255(b) REQUIRES

SPECIFIC FINDINGS BY A DISTRICT COURT

IF THE PETITION IS DENIED WITHOUT A

HEARING.

1l

LIST OF PARTIES

All of the parties to the proceeding are listed in

the caption.

TABLE OF CONTENTS

Page

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PETITION FOR A WRIT OF CERTIORART ............ 1

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JURISDICTION OF THE SUPREME COURT

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CONSTITUTIONAL PROVISIONS INVOLVED..... 2

STATEMENT OF FEL CABG oes veccserssessscssncscesessiionsocs 2

STATEMENT REGARDING WHY # THE

PETITION FOR WRIT OF CERTIORARI

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APPENDIX:

Judgment

United States Court of Appeals

for the Fourth Circuit

a Oy ee | A-1

1V

Unpublished Opinion

United States Court of Appeals

for the Fourth Circuit

IE FITEE BF, BI viccccscncenecccsscsccaxscsccesece A-2

Judgment in a Civil Case

United States District Court

for the District of South Carolina

entered October 14, 2008 .......................00000- A-4

Order

Re: Motion to Vacate

The United States District Court

for the District of South Carolina

entered August 18, 2008 ......................000 wer.

Judgment

United States Court of Appeals

for the Fourth Circuit

entered September 25, 2006 ...................... A-11

Unpublished Opinion

United States Court of Appeals

for the Fourth Circuit

entered August 30, 2006 ....................ccceee ee A-13

Judgment in a Criminal Case

United States District Court

District of South Carolina

entered January 10, 2006 ...................2...04. A-17

Order

Re: Denial of Rehearing

United States Court of Appeals

for the Fourth Circuit

SHUCOHOE DUS BE, DOOD onc cnicccvcccccccccsncescccccas: A-27

TABLE OF AUTHORITIES

Page(s)

Cases:

Caminetti v. United States,

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Clay v. United States,

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Fontaine v. United States,

411 U.S. 213 (1978) ...cccccccccccesecsccsccesscesessceseseeees 5, 6

Hohn v. United States,

I peau annbminwsapiaseuenees 1

Machibroda v. United States,

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Raines v. United States,

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United States v. Banks,

166 F.3d 334, 1998 WL 808408

EN RST Se oP I PE 10

United States v. Magint,

ere ge i 9 EC Ee ae ) 7

United States v. Moore,

Be Fe 70 CUE GAP, Ba ive soscsccccsevevecscccvcsesenssses 9g

United States v. Ramirez,

122 Fed. Appx. 14 (4th Cir. 20083) .............. AE gos 9

vl

United States v. Robinson,

238 Fed. Appx. 954 (4th Cir. 2007)..................... 7

United States v. Stevens,

129 F.3d 1261, 1997 WL 716228

ah ih iclostadearanes cipieaccbarsnssarencnstée 10

United States v. White,

BOW WoO BOE CGEM Civ. BOOM). .....0...cccecscccscecsoccesses 6

Waley v. Johnston,

ND oso cscssedessssarsccesccoccassccasencsnns 4

Walker v. Johnston,

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Statutes:

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28 U.S.C. § 1254(1)..ccccccccscceee. et ee ae 1

AE Oe I oc sccnecknduusansesevese eRe es DORN DEE passim

28 U.S.C. § 2255(b) .............. Te ceteut tenet! 4,6, 9, 10

Rule:

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Constitutional Provisions:

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PETITION FOR A WRIT OF CERTIORARI

Petitioner Victoria Yaitsky respectfully request

that a writ of certiorari issue to review the decision

rendered by the Fourth Circuit Court of Appeals in

this case.

OPINION BELOW

The opinions by the Fourth Circuit Court of

Appeals [A-2, A-13]. and district court [A-5]. are

unpublished opinions. The court of appeals issued

its opinion on June 23, 2009.

JURISDICTION OF THE

SUPREME COURT OF THE UNITED STATES

Petitioner respectfully seeks review on Certiorari

from the decision rendered by the Fourth Circuit on

June 23, 2009.

Pursuant to Supreme Court Rule 10, jurisdiction

in the Supreme Court is now appropriate, as the

Fourth Circuit is believed to have entered a decision

that is in conflict with the United States

Constitution, precedent of the Supreme Court, and

the plain meaning of Congress's enactment.

Additionally, pursuant to 28 U.S.C. § 1254(1),

which provides in relevant part that “cases in the

courts of appeals may be reviewed by the Supreme

Court” “by writ of certiorari,” this Court has

jurisdiction to review denials of applications for

certificates of appealability by a circuit judge or a

court of appeals panel. Hohn v. United States, 524

U.S. 236, 253 (1998).

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia,

when in actual service in time of War or public

danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

Sixth Amendment

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counse!] for his defense.

STATEMENT OF THE CASE

On December 8, 2004, a federal grand jury

returned a one-count indictment charging Petitioner

with murder-for-hire in violation of 18 U.S.C. §

1958(a). A four-day trial concluded with a guilty

verdict on June 38, 2005. On January 6, 2006,

Petitioner was sentenced to a term of imprisonment

of 120 months and an order of judgment was entered

on January 10, 2006. [A-17] On January 19, 2006,

Petitioner filed a Notice of Appeal and an Amended

Notice of Appeal. On August 30, 2006, Petitioner's

conviction was affirmed by the Fourth Circuit Court

of Appeals. [A-13] The conviction became final on

November 28, 2006 (the last day on which she could

have filed a certiorari petition with the United

States Supreme Court). See Clay v. United States,

537 U.S. 522, 527-28 (2003). On November 21, 2007,

Petitioner filed a motion to vacate, set aside, or

correct conviction, judgment, and sentence pursuant

to 28 U.S.C. § 2255. Petitioner’s § 2255 motion was

denied on August 18, 2008 without a hearing or

specific findings that supported the court’s denial of

a hearing. An _ application for certificate of

appealability was filed in the district court on

October 14, 2008 and docketed at the Fourth Circuit

on October 30, 2008. The Fourth Circuit denied the

certificate of appealability on April 17, 2009. [A-2] A

petition for rehearing en banc was filed on April 28,

2009 and denied on June 23, 2009 [A-27], and the

mandate was entered on July 1, 2009. Petitioner now

timely and respectfully requests this Honorable

Court to grant her petition for writ of certiorari.

STATEMENT REGARDING WHY

THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE GRANTED

Petitioner filed a petition pursuant to 28 U.S.C. §

2255 alleging various factual allegations which, if

true, entitled her to relief. The petition, when read

with the reply, also required’ credibility

determinations in order to resolve factual disputes.

Her petition was denied, without a hearing in the

district court and without stating reasons for such.

Her Application for Certificate of Appealability and

her Certificate of Appealability alleging that she

should have been granted a hearing on her § 2255

petition, were also denied. The denial of a hearing on

Petitioner's § 2255 motion was in violation of the

plain language of 28 U.S.C. § 2255, Supreme Court

precedent, and Fourth Circuit precedent, as such,

her Constitutional Due Process rights were violated.

Petitioner's Writ of Certiorari presents an important

federal question: does 28 U.S.C. § 2255 require a

hearing on a petition pursuant to 18 U.S.C. § 2255 or

in the alternative, specific findings that support the

conclusion that a determination can be made

without a hearing?

Statutory Interpretation

28 U.S.C. § 2255(b) states, “[uJnless the motion

and the files and records of the case conclusively

show that the prisoner is entitled to no relief, the

court shall cause notice thereof to be served upon

the United States attorney, grant a prompt hearing

thereon, determine the issues and make findings of

fact and conclusions of law with respect thereto.”

(emphasis added). This Court has held that an

evidentiary hearing was required in a habeas action

whenever material allegations of fact are in dispute.

Waley v. Johnston, 316 U.S. 101, 104 (1942) (citing

Walker v. Johnston, 312 U.S. 275, 285 (1941).

Congress embodied the same requirements in §

2255 when it provided that a hearing “shall” be

granted unless it “conclusively” appears from the

“motion and the files and records of the case” that

no relief is possible. (emphasis added). The statute

speaks in mandatory terms, thus, a hearing is

required unless the exception is found. “Where the

language is plain and admits of no more than one

meaning, the duty of interpretation does not arise,

and the rules which are to aid doubtful meanings

need no discussion.” Caminetti v. United States, 242

U.S. 470, 485 (1917). The issue in this case is

narrowly centered on the statutory language and its

plain meaning.

The Fourth Circuit failed to follow the statutory

standard in denying Petitioner a hearing on her §

2255 petition because, if true, her allegations were

sufficient to warrant relief. The district court failed

to hold a hearing or make a particular finding that

the exception was found. Accordingly, she was

wrongfully denied a hearing below.

In Machibroda v. United States, 368 U.S. 487,

494-96 (1962), the petitioner submitted an affidavit

supporting his § 2255 contentions and _ the

government submitted an affidavit contradicting

petitioner. This Court held that affidavits may not

be used to resolve contested factual issues unless

they are supported by other evidence. Id.

In Fontaine v. United States, 411 U.S. 213, 215

(1973) the Court remanded Petitioners § 2255

petition for an evidentiary hearing because the

record did not permit the Court to "conclude with the

assurance required by the statutory standard .. .

that under no circumstances could the petitioner

establish facts warranting relief under § 2255.” In

Fontaine, the petitioner pled guilty but in his §

2255 petition, asserted that his plea was coerced by

law enforcement. Jd. at 213-14. The district court

denied a hearing finding that the petitioner

acknowledged his plea was knowing and voluntary

during the Rule 11 colloquy, and therefore, he could

not collaterally attack his plea. Jd. at 214. The

Supreme Court held that a coerced plea is open to

collateral attack and where a petitioner offered

supporting factual allegations of coercion, he was

entitled to a hearing on the evidence. Jd. at 214-15.

The offer of evidence did not “conclusively show

that the prisoner is entitled to no relief .. ..” Id. at

215. Unlike Fontaine, Petitioner's case was resolved

after a trial and there is no record wherein she

made assertions contrary to her assertions in her §

2255 Petition. As such, Fontaine should be

construed even more favorably in a case like

Petitioner's where there is no hearing wherein she

stated the opposite of what she alleged in her

habeas petition.

Under the law of the Fourth Circuit, unless it

is clear from the pleadings, files, and records that

the prisoner is entitled to no relief, § 2255(b) makes

a hearing mandatory. Raines v. United States, 423

F.2d 526, 529 (4th Cir. 1970); United States v.

White, 366 F.3d 291, 297 (4th Cir. 2004) (“if the

parties produce evidence disputing material facts

with respect to non-frivolous habeas allegations, a

court must hold an evidentiary hearing to resolve

those disputes”). The Fourth Circuit failed to follow

the standard mandated in its published opinions

in denying Petitioner a hearing on her § 2255

petition.

Where the issue is one of credibility, Fourth

Circuit law makes a hearing mandatory. Raines,

423 F.2d at 530 ("there will remain a category of

petitions, usually involving credibility, that will

require an evidentiary hearing in open court.").

"When the issue is one of credibility, resolution on

the basis of affidavits can rarely be conclusive... ."

Id. The Fourth Circuit has stated, “when a movant

presents a colorable Sixth Amendment claim

showing disputed facts involving inconsistencies

beyond the record, a hearing is mandated.” United

States v. Robinson, 238 Fed. Appx. 954, 955 (4th

Cir. 2007) (citing United States v. Magini, 973 F.2d

261, 264 (4th Cir. 1992)). In Magini, the court held

that a district court "must hold an evidentiary

hearing when the petitioner alleges facts which, if

true, would entitle [him] to relief". 973 F.2d at 264.

Despite the fact that Petitioner’s main issue in her

§ 2255 petition involved credibility determinations,

she was denied a hearing.

The circuit's deviation from this. standard

warrants this Court’s review. The circuit has

departed from the plain meaning of the statute,

Congressional intent, and this Court's previous

holdings.

Petitioner's § 2255 petition, the government's

response, including trial counsel's affidavit, and the

opinion of the district court indicate that

Petitioner's claims are rife with “disputed facts

involving inconsistencies beyond the record.” The

following constitute just some examples of those

disputed facts. These are the most serious issues in

dispute and comport with the Fourth Circuit's

standards on requiring a full habeas hearing in

order to present an accurate and full record for

review and protect the Petitioner’s Fifth and Sixth

Amendment rights.

1. Petitioner asserted that trial counsel should

have investigated the case and called Yakov

Lindenbaum. Petitioner asserts that Lindenbaum’s

testimony would have been exculpatory while

Petitioner's trial counsel asserts that Lindenbaum’s

testimony would have been’ unflattering’ to

Petitioner. Without actual testimony this conflict

could not be resolved fairly.

2. Petitioner asserted that there were witnesses

available to testify regarding the efforts of

Petitioner's accusers to take over her business.

Petitioner’s trial counsel asserts that these witnesses

would have depicted Petitioner as a _ ruthless

business woman. One has no relation to the other.

Being a ruthless business women does not make a

person a criminal.

3. Petitioner asserted that trial counsel had

information that would have allowed him to refute

the testimony of Neil Tan. The government asserted

counsel did not have this information.

4. Petitioner asserted that she provided trial

counsel with information regarding telephone calls

between herself Igor Kirstak and Smolakovs.

Counsel asserted that he did not have this

information.

5. As noted in the district court opinion,

“Petitioner and Trial Counsel differ on why

Petitioner testified in English.” [A-10]. This is a

factual issue that is unresolved by the record.

6. The district court concluded that counsel's

failure to call an expert witness was strategic, but

the record is clear that counsel had every intention

of calling an expert and only failed to do so in the

face of the government's motion to disallow the

testimony based on untimely notice, a due process

violation of its own and ineffective assistance.

7. The district court determined that counsel’s

failure to object to the government calling Petitioner

a liar fifteen (15) times during closing argument was

strategic; however, counsel’s affidavit was silent on

this issue. This was a judicial determination without

evidence and contrary to this Court’s precedent.

The law in the Fourth Circuit is clear; the

government is not permitted to refer to the defense

witnesses as liars. United States v. Moore, 11 F.3d

475, 481 (4th Cir. 1993).1 In Moore, the court of

appeals suggested that calling a defendant a liar

twice was too much and bordered on reversible error.

Surely 15 times cannot be classified as proper. This

alone should have remanded this case for a new

trial. At the very least a hearing should have been

held to determine why counsel failed to object during

or after the 15 times the government disparaged the

Petitioner in a manner forbidden by Circuit

precedent. The conflict above triggers the intent of §

2255(b)’s requirement of a hearing to resolve the

issue.

Other allegations sworn by Petitioner were met

by no response in counsel’s affidavit and, therefore,

merit a hearing for credibility determinations. See

United States v. Ramirez, 122 Fed. Appx. 14, 15 (4th

Cir. 2005)(the district court ignored Petitioner’s

sworn statements and instead accepted the

Government's unverified assertions which was error

1 Jn Moore, the prosecutor referred to one defendant as a liar

once and the other as a liar twice, which this Court concluded

“skirts the precipice of reversible error”. 11 F.3d at 481. In

1993, when Moore was decided, twelve years before Petitioner's

trial, this Court stated, “But once again--hopefully for the last

time--the government is strongly admonished to ‘clean up its

act.” Moore, 11 F.3d at 482, n. 9.

10

and required remand for a hearing). These other

allegations involve sworn statements and evidence

by both Petitioner and her attorney that are in

conflict and, therefore, require a hearing. See United

States. v. Banks, 166 F.3d 334, 1998 WL 808408, 3

(4th Cir.1998) (“Because the sworn evidence on this

issue is conflicting, the district court should have

conducted a hearing...”); See also United States v.

Stevens, 129 F.3d 1261, 1997 WL 716228, *2 (4th

Cir. 1997) (“The district court cannot prefer the

lawyer's affidavit to Appellant's without a hearing”).

(Emphasis added). The district court did not address

a reason, if there was one, why the statute was not

complied with. The lengthy decision denying the §

2255 petition does not meet the _ statutory

requirements. The statute is clear — the court “shall”

hold a hearing ““[uJnless the motion and the files

and records of the case conclusively show that the

prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).

No such finding occurred. Where the district court

violates the plain meaning of a statute without

specific findings of the exceptions that override that

meaning, this Honorable Court should remand the

case for compliance with the statute. A denial of the

§ 2255 petition, no matter how long the opinion,

without finding the exception to the statute cannot

overcome the plain meaning of its application.

Petitioner respectfully requests that this

Honorable Court reverse the Fourth Circuit and

remand her case to the district court for a hearing on

her § 2255 petition in accordance with the

Constitution and Appellate and well established

Supreme Court precedent.

11

Respectfully submitted,

/s/Marcia G. Shein

MARCIA G. SHEIN

Counsel of Record

Federal Bar No. 53667

GA State Bar No. 639820

2392 North Decatur Road

Decatur, Georgia 30033

(404) 633-3797

(404) 633-7980(F ax)

Marcia@msheinlaw.com

A-1

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-8255

(2:04-cr-01097-PMD-1)

UNITED STATES OF AMERICA,

Plaintiff — Appellee,

Vv.

VICTORIA YAITSKY,

Defendant — Appellant.

filed April 17, 2009

fentered April 17, 2009]

JUDGMENT

In accordance with the decision of this Court, a

certificate of appealability is denied and the appeal

is dismissed.

This judgment shall take effect upon issuance of

this Court's mandate in accordance with Fed. R.

App. P. 41.

_/s/_ Patricia S. Connor, Clerk

A-2

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-8255

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

Vv.

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-01097-PMD)

Submitted: April 8, 2009

Decided: April 17, 2009

[Entered April 17, 2009]

Before WILKINSON and NIEMEYER, Circuit

Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

A-3

Marcia G. Shein, LAW OFFICE OF MARCIA G.

SHEIN, PC, Decatur, Georgia, for Appellant. Alston

Calhoun Badger, Jr., Assistant United States

Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in

this circuit

PER CURIAM:

Victoria Yaitsky seeks to appeal the district

court’s order denying relief on her 28 U.S.C.A. §

2255 (West Supp. 2008) motion. The order is not

appealable unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1)

(2006). A certificate of appealability will not issue

absent “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A

prisoner satisfies this standard by demonstrating

that reasonable jurists would find that any

assessment of the constitutional claims by the

district court is debatable or wrong and that any

dispositive procedural] ruling by the district court is

likewise debatable. Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473,

484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th

Cir. 2001). We have independently reviewed the

record and conclude that Yaitsky has not made the

requisite showing. Accordingly, we deny a certificate

of appealability and dismiss the appeal. 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.

DISMISSED

A-4

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Victoria Yaitsky,

Plaintiff

Vv.

United States of America

Defendant

Filed October 14, 2008

[Entered October 14, 2008]

JUDGMENT IN A CIVIL CASE

Case Number: 2:04-cr-1097-PMD

Decision on the Record. This action came before

the court of the record, Honorable Patrick Michael

Duffy, District Judge presiding. The issues have

been reviewed and a decision rendered.

IT IS ORDERED AND ADJUDGED that the

Government's Motion for Summary Judgment is

GRANTED. It is further ordered that Yaitsky’s

Motion to Vacate, Set Aside, or Correct Sentence is

DENIED.

LARRY W. PROPES, Clerk

/s/ Melissa Newman

Deputy Clerk

October 14, 2008

A-5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Victoria Yaitsky,

Petitioner,

Vv.

United States of America,

Respondent.

Filed August 18, 2008

[Entered August 18, 2008]

ORDER

This matter is before the court upon Petitioner

Victoria Yaitsky’ s (“Yaitsky” or “Petitioner”) Motion

to Vacate, Set Aside, or Correct Sentence pursuant

to 28 U.S.C. § 2255. For the following reasons, the

court denies Yaitsky’s motion and grants the

Government's Motion for Summary Judgment.

BACKGROUND

On December 8, 2004, a federal grand jury

returned a one-count indictment charging Petitioner

with murder-for-hire in violation of I 8 U.S.C. §

1958(a). (See Indictment.) Yaitsky filed a Motion to

Suppress on May 23, 2005, seeking an order of the

court suppressing “the interception of certain tape

recorded conversations that... violate’ the

prohibitions of 18 U.S.C. 2511 (2)(d) and 18 U.S.C.

2515.” (Mot. to Suppress.) The court held a hearing

on the Motion to Suppress on May 31, 2005, in which

it denied the motion.

A-6

A jury trial was held on May 31, 2005, through

June 3, 2005. During the course of trial, on June 2,

2005, the Government filed a Motion to Exclude

Evidence, seeking an order of the court excluding

Yaitsky’s expert witness testimony as being in

violation of Rule 16(b)(1)(C) of the Federal Rules of

Criminal Procedure. The Government’s motion

states that on April 4, 2005, the day before jury

selection was to be held, Yaitsky requested the trial

be continued beyond the scheduled trial date of May

3, 2005, because she had retained an expert witness

who was to render his opinion as to the authenticity

of certain audio recording evidence. (See Mot. to

Exclude at 1.) The court granted the continuance

and set the trial date for May 31, 2005. The

Government's Motion to Exclude indicates that

Yaitsky’s counsel never provided the written

summary requested by the Government but that the

court ordered Yaitsky to produce the expert for an

interview with the Government's attorneys. (ld. at

2.) Although the interview took place on the evening

of June 1, 2005, the Government indicates Yaitsky’s

attorneys “abruptly and profanely” announced they

were leaving and taking their expert with them after

only twenty minutes. (ld, at 3.) The motion further

states,

The expert maintained that the conclusion

that he reached on April 7, 2005 with regard

to the audio recordings has remained

unchanged since that time. It was also

apparent that the expert's testimony to be

offered would be well-beyond the scope and

content of the brief oral summary previously

rendered by the Defendant's attorney. The

expert informed the government for the first

A-7

time that he had performed specific scientific

experiments on the subject audio recordings.

These experiments, in part, formed the basis

of his ultimate opinion. Further, the expert

stated he would testify that the methods

employed by the FBI in reproducing the audio

recordings were subject to criticism and

impacted his opinion as to the authenticity of

the recordings. The government had not in

any manner whatsoever been previously

advised that such would be a basis for the

expert's opinion. When asked specifically

about that basis for his opinion and its

importance, the expert refused to answer the

government's questions and replied “you can

ask me that in court.”

(ld. at 2-3.) The court heard argument on the motion,

and Yaitsky’s counsel “conceded that the motion

should be granted.” (See Pet. at 5.) The expert's

testimony was thus not presented to the jury.

The jury returned a verdict of guilty on June 3,

2005, and Yaitsky’s sentencing hearing was held on

January 3, 2006. Petitioner was sentenced to a term

of imprisonment of 120 months, and she was ordered

to pay a special assessment fee of $100.00. Yaitsky

filed a Notice of Appeal on January 19, 2006, and on

appeal, she asserted the district court abused its

discretion when it denied her Motion to Suppress

audio recordings made by lIgors Smolakovs.

However, the United States Court of Appeals for the

Fourth Circuit affirmed the judgment of the district

court. Yaitsky filed the instant Motion to Vacate, Set

Aside, or Correct Sentence pursuant to 28 U.S.C. §

2255 on November 21, 2007.

A-8

STANDARD OF REVIEW

Yaitsky proceeds under 28 U.S.C. § 2255, which

provides, in relevant part:

A prisoner in custody under sentence of a

court established by Act of Congress claiming

the right to be released upon the ground that

the sentence was imposed in violation of the

Constitution or laws of the United States, or

that the court was without jurisdiction to

impose such sentence, or that the sentence

was in excess of the maximum authorized by

law, or is otherwise subject to collateral

attack, may move the court which imposed the

sentence to vacate, set aside or correct the

sentence.

28 U.S.C. § 2255(a). On a motion to vacate, set

aside, or correct a sentence pursuant to 28 U.S.C. §

2255, the petitioner bears the burden of proving the

grounds for collateral attack by a preponderance of

the evidence. Miller v. United States, 261 F.2d 546,

547 (4th Cir. 1958). In deciding a § 2255 motion, the

court need not hold a hearing if’ the motion and the

files and records of the case conclusively show that

the prisoner is entitled to no relief.” 28 U.S.C. §

2255(b). The court has thoroughly reviewed the

motion, files, and records in this case and finds that

no hearing is necessary.

ANALYSIS

Yaitsky lists fourteen grounds for relief in her §

2255 petition, and she has also attached a

Memorandum in Support of her motion. The grounds

and supporting facts are as follows:

A-9

GROUND ONE: Mrs. Yaitsky’s trial counsel

rendered ineffective assistance of counsel by

failing to timely disclose a defense expert

witness.

*“**

own use. only handing over to the FBI $10,000 of the

original $20,000. (Trial Tr. vol. 2, 255-57, June

1,2005.) In addition, on cross-examination of the FBI

Agent ("Agent”), Trial Counsel discussed the Agent's

failure to pursue the whereabouts of the remaining

$10.000. (Trial Tr. vol. 2. 315:17, June1.2005.) This

court reiterates that Trial Counsel is not required to

discuss every piece of evidence brought to its

attention See Byram, 339 F.3d at 209; Green, 143

F.3d at 892. Although Trial Counsel did not bring up

the last payment of 520,000 during his cross-

examination of Smolakovs or the Agent, the record

establishes that counsel's actions in discussing the

$10,000 ",went to proving the same thing that

discussion of the $20,000 could prove — Smolakovs’

credibility.'5

Notwithstanding the performance prong,

Petitioner has not met the prejudice prong. Trial

Counsel cross-examined Smolakovs on various issues

relating to his credibility - pending federal charges,

motives for testifying, and associations with other

witnesses - with the jury present. (Trial Tr. vol. 2,

25457, June 1, 2005.) There is no reasonable

probability that, but for Trial Counsel not bringing

up the additional $20,000 issue, that the outcome of

16 Trial Counsel brought up the final payment of

$20,000 during his closing argument and used it as a

reasonable inference that Igors scammed the FBI out of more

than just the $10,000.

A-10

the case would have changed - the jury already

heard a significant amount of evidence that cast

doubt upon Smolakov's credibility. The court

therefore concludes that Petitioner is not entitled to

relief on this claim.

L. Ground Eleven: Ineffective Assistance of

Counsel for "recommending that Yaitsky

testify in English."!6

Petitioner and Trial Counsel differ on why

Petitioner testified in English. According to Trial

Counsel, Petitioner decided prior to trial that she

would testify in English. (Trial Counsel Aff. at 12.)

xe &

CONCLUSION

It is therefore ORDERED, for the foregoing

reasons, that the Government’s Motion for Summary

Judgment is GRANTED. It is further ORDERED

that Yaitsky’s Motion to Vacate, Set Aside, or

Correct Sentence is DENIED.

AND IT IS SO ORDERED.

Patrick Michael Duffy

United States District Judge

Charleston, South Carolina

August 17, 2008

‘© Ground Ten concerned Tmal Counsel's failure to

obtain and compare fingerprints from fraudulent letters. This

contention was addressed under Ground Three.

A-11

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4068

2:04-cr-1097-PMD

UNITED STATES OF AMERICA,

Plaintiff — Appellee,

Vv.

VICTORIA YAITSKY,

Defendant —- Appellant.

JUDGMENT

FILED: August 30, 2006

[ENTERED: September 25, 2006]

Appeal from the United States District Court for the

District of South Carolina

at Charleston

In accordance with the written opinion of this

Court filed this day, the Court affirms the judgment

of the District Court. A certified copy of this

judgment will be provided to the District Court upon

issuance of the mandate. The judgment will take

effect upon issuance of the mandate.

/s/ Patricia S. Connor

CLERK

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4063

2:04-cr-1097-PMD

UNITED STATES OF AMERICA,

Plaintiff — Appellee,

Vv.

VICTORIA YAITSKY,

Defendant — Appellant.

[Entered: September 21, 2006]

MANDATE

The judgment of this Court, entered 8/30/06,

takes effect this date. A certified copy of this Court’s

judgment and a copy of its decision are issued to the

district court and constitute the mandate of this

Court.

/s/ Patricia S. Connor

CLERK

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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

Entered: 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 & OCONNELL, P.A.,

A-14

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 Smolakov5. 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

A-15

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 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) Id) (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’

A-16

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 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

A-17

United States District Court

District ofSouth Carolina

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or

After November 1987)

UNITED STATES OF AMERICA

vs.

VICTORIA YAITSKY

Case Number: 2:04-1097 (1)

US Marshal’s Number: 11869-171

DALE DUTREMBLE, ESQ,

MICHAEL O’CONNELL, ESQ

WILLIAM THROWER, ESQ,

Defendant’s Attorney

Entered: January 10, 2006

THE DEFENDANT:

[ ] pleaded guilty to count(s) on

[ ] pleaded nolo contendere to count(s) on which was

accepted by the court.

[X] was found guilty on count(s) 1 OF THE

INDICTMENT on JUNE 3, 2005 after a plea of not

guilty.

Accordingly, the court has adjudicated that the

defendant is guilty of the following offense(s):

A-18

Title & Section - 18:1958(a)

Nature of Offense - Please see indictment

Date Offense Concluded - 10/8/04

Count Number(s) — 1

The defendant is sentenced as provided in pages

2 through 5 of this judgment. The sentence is

imposed pursuant to the Sentencing Reform Act of

1984.

[] The defendant has been found not guilty on

count(s)

[] Count(s) D is Dare dismissed on the motion of the

United States.

[] Forfeiture provision is hereby dismissed on

motion of the United States Attorney.

IT IS ORDERED that the defendant shall notify

the United States Attorney for this district within 30

days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

assessments imposed by this judgment are fully

paid. If ordered to pay restitution, the defendant

shall notify the court or United States attorney of

any material change in the defendant’s economic

circumstances.

January 3, 2006

P MICHAEL DUFFY, US DISTRICT JUDGE

IMPRISONMENT

The defendant is hereby committed to the custody

of the United States Bureau of Prisons to be

imprisoned for a total term of one hundred twenty

(120) months and shall pay a $100.00 special

assessment fee, due beginning immediately.

A-19

[X] The court makes the following recommendations

to the Bureau of Prisons: The defendant be

designated to the Women’s Federal Correctional

Institution either at Marianna, Florida or Coleman,

Florida.

[X] The defendant is remanded to the custody of the

United States Marshal.

[ ]The defendant shall surrender to the United

States Marshal for this district:

[] at a.m./p.m. on.

[ ] as notified by the United States Marshal.

[ ] The defendant shall surrender for service of

sentence at the institution designated by the Bureau

of Prisons:

[ ] before 2 p.m. on

[ ] as notified by the United States Marshal.

[ ] as notified by the Probation or Pretrial

Services Office.

RETURN

I have executed this Judgment as follows:

Defendant delivered on to

at

with a certified copy of this Judgment.

UNITED STATES MARSHAL

Deputy United States Marshal

A-20

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of three (3)

years. While on supervised release the defendant

shall comply with the standard conditions of

supervision as well as the following special

condition: She shall participate in a program of

mental health counseling and treatment as deemed

necessary by the US Probation Officer until such

time as she is released from the program by the US

Probation Officer.

The defendant shall report to the probation office

in the district to which the defendant is released

within 72 hours of release from the custody of the

Bureau of Prisons.

The defendant shall not commit another federal,

state, or local crime.

The defendant shall not illegally possess a controlled

substance.

For offenses committed on or after September 13,

1994:

The defendant shall refrain from any unlawful

use of a controlled substance. The defendant shall

submit to one drug test within 15 days of release

from imprisonment and at least two periodic drug

tests thereafter.

[ ] The above drug testing condition is suspended

based on the court’s determination that the

defendant poses a low risk of future substance

abuse. (Check, if applicable.)

A-21

[X] The defendant shall not possess a firearm,

destructive device, or any other dangerous

weapon. (Check, if applicable)

[(X] The defendant shall cooperate in the

collection of DNA as directed by the Probation

Office. (Check, if applicable)

[| The defendant shall register with the state sex

offender registration agency in the state where

the defendant resides, works, or is a student, as

directed by the Probation Office. (Check, if

applicable)

{] The defendant shall participate in an approved

rehabilitation program for domestic violence.

(Check, if applicable)

If this judgment imposes a fine or a restitution

obligation, it shall be a condition of supervised

release that the defendant pay any such fine or

restitution that remains ounpaid-= at _ the

commencement of the term of supervised release in

accordance with the Schedule of Payments set forth

in the Criminal Monetary Penalties sheet of this

judgment.

The defendant shall comply with the standard

conditions that have been adopted by this court (set

forth below). The defendant shall also comply with

the additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial

district without the permission of the court or

probation officer;

2) the defendant shall report to the probation

officer and shall submit a truthful and

3)

4)

d)

6)

7)

8)

9)

10)

A-22

complete written report within the first five

days of each month;

the defendant shall answer truthfully ail

inquiries by the probation officer and follow

the instructions of the probation officer;

the defendant shall support his or her

dependents and meet other family

responsibilities;

the defendant shall work regularly at a

lawful occupation unless excused by the

probation officer for schooling, training, or

other acceptable reasons;

the defendant shall notify the probation

officer at least ten days prior to any change in

residence or employment;

the defendant shall refrain from excessive use

of alcoho] and shall not purchase, possess, use,

distribute, or administer any controlled

substance or any paraphernalia related to

controlled substances, except as prescribed by

a physician;

the defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered;

the defendant shall not associate with any

persons engaged in criminal activity, and

shall not associate with any person convicted

of a felony unless granted permission to do so

by the probation officer;

the defendant shall permit a probation officer

to visit him or her at any time at home or

elsewhere and shall permit confiscation of any

A-23

contraband observed in plain view by the

probation officer;

11) the defendant shall notify the probation

officer within seventy-two hours of being

arrested or questioned by a law enforcement

officer;

12) the defendant shall not enter into any

agreement to act as an informer or a special

agent of a law enforcement agency without the

permission of the court;

13) as directed by the probation officer, the

defendant shall notify third parties of risks

that may be occasioned by the defendant’s

criminal record or personal history or

characteristics, and shall permit the probation

officer to make such notifications and to

confirm the defendant’s compliance with such

notification requirement.

CRIMINAL MONETARY PENALTIES

The defendant will make all checks and money

orders payable to the “Clerk, U.S. District Court”

unless otherwise directed by the court.

The defendant shall pay the following total

criminal monetary penalties in accordance with the

schedule of

payments set forth on Sheet 5, Part B.

Assessment - Totals: $ 100.00

[ ] The determination of restitution is deferred until

An Amended Judgment in a Criminal Case will be

entered after such determination.

A-24

[ ] The defendant shall make restitution (including

community restitution) to the following payees in the

amount listed on the next page.

If the defendant makes a partial payment,

each payee shall receive an approximately

proportioned payment unless specified in the

priority order or percentage payment column

on the next page. However, pursuant to 18

U.S.C. § 3664(8), all nonfederal victims must

be paid in full prior to the United States

receiving payment.

SEE VICTIM(S) LIST ON THE NEXT PAGE

[ ] If applicable, restitution amount ordered

pursuant to plea agreement................. $.

| ] The defendant shall pay interest on any fine or

restitution of more than $2,500, unless the fine or

restitution is paid in full before the fifteenth day

after the date of judgment, pursuant to 18 U.S.C. §

3612(f). All of the payment options on Sheet 5, Part

B, may be subject to penalties for default and

delinquency pursuant to 18 U.S.C. §3612(g).

{ | The court determined that the defendant does not

have the ability to pay interest and it is ordered

that:

{ ] The interest requirement is waived for the D

fine and/or D restitution.

[ ] The interest requirement for the D fine and/or

[ | restitution is modified as follows:

**Findings for the total amount oflosses are required

under Chapters 109A, 110, 110A, and 113A of Title

18 for offenses committed on or after September 13,

1994, but before April 23, 1996.

A-25

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay,

payment of the total criminal monetary penalties

shall be due as follows:

A |x] Lump sum special assessment payment of $

100.00 due beginning immediately.

[ ] not later than, or

[ ] in accordance with [ JC, []D, or [ JE below; or

B [ ] Payments to begin immediately (may be

combined with []C, [ }D, or [ JE below); or

C [ ] Payments in (e.g., equal, weekly, monthly,

quarterly) installments of $. over a period of (e.g.,

months or years), to commence after the date of this

judgment; or

D [ ] Payments in (e.g., equal, weekly, monthly,

quarterly) installments of$. over a period of (e.g.,

months or years), to commence (e.g., 30 or 60 days)

after release from imprisonment to a term of

supervision; or

E [|] Payment during the term of supervised release

will commence within (e.g., 30 or 60 days) after

release from imprisonment. The court will set the

payment plan based on an assessment of the

defendant’s ability to pay at that time; or

F [ ] Special instructions regarding the payment of

criminal monetary penalties:

Unless the court has expressly ordered otherwise in

the special instructions above, if this judgment

imposes a period of imprisonment, payment of

criminal monetary penalties shall be due during the

period of imprisonment. All criminal monetary

A-26

penalties, except those payments made through the

Federal Bureau of Prisons’ Inmate Financial

Responsibility Program, are made to the clerk of

court, unless otherwise directed by the court.

The Defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

[ ] Joint and Several

Defendant and Co-Defendant names and case

numbers (including defendant number), total

amount, joint and several amount, and

corresponding payee, if applicable.

[|] The defendant shall pay the cost of prosecution.

[ ] The defendant shall pay the following court

cost(s):

[ ] The defendant shall forfeit the defendant’s

interest in property as directed in the Preliminary

Order of Forfeiture, filed and the said order is

incorporated herein as part of this judgment:

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3) restitution

interest, (4) fine principal, (5) community restitution,

(6) fine interest, (7) penalties, and (8) costs,

including cost of prosecution and court costs

A-27

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-8255

(2:04-cr-01097-PMD-1)

UNITED STATES OF AMERICA,

Plaintiff — Appellee,

Vv.

VICTORIA YAITSKY,

Defendant - Appellant.

Filed June 23, 2009

Entered: June 23, 2009

Order

The Court denies the petition for rehearing and

rehearing en banc. No judge requested a poll under

Fed. R. App. P. 35 on the petition for rehearing en

banc.

Entered at the direction of the panel: Judge

Wilkinson, Judge Niemeyer and Senior Judge

Hamilton.

For the Court.

/s/_ Patricia S. Connor, Clerk