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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

vupreme VOoun, u.S.
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No. @ 09-

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349 SEP 21 2009

a

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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Statutory LmtOPMTOCACION.......ccessccssncccsssassecvssacesesss 4
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Unpublished Opinion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Unpublished Opinion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,

ee nn ss svicsencddedneniacconsscecsecntets 5
Clay v. United States,

re ES. ss avinckivceuepsccepinsess soenewasunt 3
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,

BS Bk BO CNG CAR, FOTO) oicccccosvescessncscscesccccces 6
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,

I EN 09... case cscsesvasnetsbenesavacesissnassees 4
Statutes:
os cree nicancunvavesiesiobeossvcansseinn 2
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1022%3A1. Public record. Not legal advice.