                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-4063



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


VICTORIA YAITSKY,

                                               Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (2:04-cr-1097-PMD)


Submitted:   August 4, 2006                 Decided:   August 30, 2006


Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Daphne A. Burns, DAPHNE A. BURNS, L.L.C., Mount Pleasant, South
Carolina; Michael P. O’Connell, STIRLING & O’CONNELL, P.A.,
Charleston, South Carolina, for Appellant.    Reginald I. Lloyd,
United States Attorney, Alston C. Badger, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Victoria Yaitsky was convicted and sentenced to 120

months’   imprisonment   for   knowingly    and    intentionally    causing

another to travel in interstate commerce with the intent to commit

murder for hire, in violation of 18 U.S.C. § 1958(a) (2000).

Yaitsky   appeals,   contending    the     district     court   abused   its

discretion when it denied her motion to suppress audio recordings

that were surreptitiously made by Igors Smolakovs, who was employed

by Yaitsky.   In the tapes, Yaitsky discussed the murder for hire

plot.

           We review the admission of a tape recording for abuse of

discretion.   See United States v. Capers, 61 F.3d 1100, 1106 (4th

Cir. 1995).   The district court’s determination that the proffered

tape was made for a legitimate purpose is reviewed for clear error.

See Traficant v. Commissioner, 884 F.2d 258, 266 (6th Cir. 1989).

To   withstand   clear   error    analysis,       the   district    court’s

determination of facts underlying the findings must be supported by

a preponderance of the evidence.     United States v. Crump, 120 F.3d

462, 468 (4th Cir. 1997).        Yaitsky contends the district court

denied her motion to suppress the audio tapes in violation of the

applicable federal statute, which states:

     It shall not be unlawful under this chapter for a person
     not acting under color of law to intercept a wire, oral,
     or electronic communication where such person is a party
     to the communication or where one of the parties to the
     communication   has   given   prior   consent   to   such
     interception unless such communication is intercepted for

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     the purpose of committing any criminal or tortious act in
     violation of the Constitution or laws of the United
     States or any State.

18 U.S.C. § 2511(2)(d) (2000).

          Yaitsky contends Smolakovs and his associate made and

turned over the recordings to the Government for a criminal or

tortious purpose--namely, as part of a plot to “scam” Yaitsky and

assume her business interests while she was incarcerated for the

murder for hire plot. The district court rejected this argument in

denying Yaitsky’s suppression motion, finding it was speculative,

as it was premised primarily on a single sentence contained in the

summary of an FBI interview with Smolakovs.

          In assessing the purpose of the interception, courts look

to the intended use of the recording.       In re High Fructose Corn

Syrup Antitrust Litig., 216 F.3d 621, 626 (7th Cir. 2000).           It is

the intended use of the recordings that determines a violation of

the Act, not whether the taping itself violates a state law.          See

id. at 625; Sussman v. American Broadcasting Cos., 186 F.3d 1200,

1202-03 (9th Cir. 1999).       We agree with the district court’s

finding that Smolakovs’ determinative purpose in recording the

conversations was to document Yaitsky’s plot and report it to the

Government; any benefit to Smolakovs from Yaitsky’s anticipated

incarceration   for   her   illegal   conduct   does   not   alter   this

conclusion. Thus, pursuant to § 2511(2)(d), his purpose for making

the tapes was neither criminal nor tortious.           See In re High


                                 - 3 -
Fructose Corn Syrup Antitrust Litig., 216 F.3d at 626 (citing cases

holding that making recordings with a purpose of gathering evidence

of a violation of law is not criminal or tortious).

           Accordingly, we affirm the judgment of the district

court.   We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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