2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-1-2015

USA v. Regina Tolliver

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"USA v. Regina Tolliver" (2015). 2015 Decisions. Paper 941.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________________________

No. 14-3929

__________________________

UNITED STATES OF AMERICA,

Appellant

v.

REGINA TOLLIVER,

______________

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

(D.C. Crim. No.: 2-08-cr-00026-001)

District Judge: Hon. Berle M. Schiller

_____________

Argued May 21, 2015

______________

Before: FUENTES, GREENAWAY, JR., and

NYGAARD, Circuit Judges.

(Opinion Filed: September 1, 2015)
2

ZANE DAVID MEMEGER

United States Attorney

United States Attorney’s Office

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

ROBERT A. ZAUZMER [ARGUED]

Assistant United States Attorney

Chief of Appeals

K.T. NEWTON

Assistant United States Attorney

 Counsel for Appellant

MATTHEW STIEGLER, Esq. [ARGUED]

Post Office Box 18861

Philadelphia, PA 19119

 Counsel for Appellee

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

I. INTRODUCTION

The Government appeals the District Court’s grant of 

Regina Tolliver’s (“Appellee” or “Tolliver”) 28 U.S.C. 

§ 2255 motion. Because material facts are in dispute
3

surrounding Tolliver’s ineffective assistance of counsel 

(“IAC”) allegations based on her trial counsel’s failure to 

investigate, the District Court abused its discretion in granting 

the § 2255 motion without first holding an evidentiary 

hearing. As such, we will vacate and remand, so that a 

hearing may be held.

II. FACTUAL AND PROCEDURAL BACKGROUND

Between March and November 2007 fraudulent checks 

in the amount of $181,577 were cashed against the accounts 

of seven Citizens Bank customers in branches in upstate New 

York, western Pennsylvania, and Delaware. Citizens Bank 

senior fraud investigator Todd Swoyer ran a report for each of 

the compromised accounts and discovered that Tolliver’s 

employee number was the only one used to access all seven 

of the customer accounts; the accounts were accessed on 

February 5 and 8, 2007, and on March 7, 8, and 9, 2007. 

Employee attendance records confirmed that only Tolliver 

and branch assistant manager Angela Anderson worked on all 

of these days. Tolliver’s logbook did not indicate that she 

was assigned to contact any of these account holders for sales 

purposes on those dates or that she did, in fact, contact them.

Swoyer, United States Postal Inspector Frank Busch, 

and a Secret Service agent interviewed Tolliver on March 15, 

2007. At trial, Swoyer testified that he reviewed Tolliver’s 

entire logbook with her during her interview and that the only

passwords in her logbook were for HR Express, a system 

unrelated to the systems used to access customer data. 

Further, he testified that Tolliver told him that she had not 

given her password to anyone and that she always logged off 

her computer when she walked away from a terminal. All 
4

seven of Tolliver’s former co-workers who testified said they 

never knew Tolliver’s password or saw it written down.

A jury convicted Tolliver of bank fraud in violation of 

18 U.S.C. § 1344, aggravated identity theft in violation of 18 

U.S.C. §§ 1028A(a)(1), (c)(5), and 2, and unauthorized use of 

a computer in violation of 18 U.S.C. § 1030. The District 

Court denied a motion for acquittal or new trial. At the 

sentencing hearing, the District Court imposed a belowGuidelines sentence of 30 months’ imprisonment, a five-year 

term of supervised release, and ordered Tolliver to pay 

$181,577 in restitution and a special assessment of $900. We 

affirmed on direct appeal, 451 F. App’x 97 (3d Cir. 2011), 

cert. denied, 133 S. Ct. 105 (2012).

In September 2013, Tolliver, represented by newly 

appointed counsel, filed a 28 U.S.C. § 2255 motion and on 

March 10, 2014, filed an amended motion. Tolliver claimed 

that her trial counsel was ineffective for various reasons, 

including his failure to investigate her case.1 She asserted 

that subsequent investigations undertaken by her new counsel 

and by her private investigator, Diane Cowan, had uncovered 

evidence that established that she was prejudiced by her trial 

 

1 Tolliver also alleged IAC based on her trial 

counsel’s: 1) failure to cross-examine prosecution witnesses 

adequately; 2) failure to prepare the character witnesses; 3) 

instruction that Tolliver not testify; 4) failure to object to 

prosecutorial misconduct; and 5) failure to prepare a 

sentencing memorandum. Because the District Court did not 

address these claims, we will not consider them here.
5

counsel’s ineffectiveness. Tolliver presented this evidence as 

exhibits to her § 2255 motion, including: 1) documents 

reflecting that two of her Citizens Bank co-workers had 

financial difficulties and 2) affidavits asserting that additional 

co-conspirators, including the “ringleader” Miguel Bell and 

his “right hand man” Christopher Russell, denied knowing 

Tolliver. Tolliver also asserted that her co-workers Angela 

Anderson and Linda Carter knew Tolliver’s password. 

Tolliver sought release or a new trial; or, in the alternative, an 

evidentiary hearing.

Magistrate Judge Jacob P. Hart issued his Report and 

Recommendation “recommend[ing] that the motion be denied 

without an evidentiary hearing,” and concluding that the 

“motion, files and records show conclusively that the prisoner 

is entitled to no relief.” Id. at 771. The District Court did not 

adopt the Report and Recommendation and instead granted 

the § 2255 motion without holding a hearing and ordered a 

new trial. Specifically, the District Court stated: 

The verdict against Tolliver, which relied 

solely on the use of her employee identification 

number, was only weakly supported by the 

record. On these facts, it was not appropriate 

to decline to find prejudice simply because the 

information which trial counsel failed to 

discover was something less than a smoking 

gun.

United States v. Tolliver, No. 08-026, 2014 U.S. Dist. LEXIS 

96232, at *8 (E.D. Pa. July 15, 2014). In reaching this 

conclusion, the District Court found “that several of 

Tolliver’s co-workers, particularly Anderson, had pressing 

financial needs” and stated that “although counsel argued to 
6

the jury that the prosecution lacked evidence that the other 

participants in the fraud knew Tolliver, he was not able to 

argue affirmatively that they denied knowing her, because he 

did not interview any of them.” Id. at *8–9. The District 

Court did not comment on Tolliver’s assertion that Anderson 

knew her password or the fact that this assertion directly 

contradicted a prior statement by Tolliver and the testimony 

of all of her co-workers.

Tolliver was ordered released on bail on July 17, 2014, 

and a new jury trial was set for October 6, 2014. The 

Government filed this appeal on September 15, 2014.

III. ANALYSIS

The District Court had jurisdiction to consider 

Tolliver’s 28 U.S.C. § 2255 motion pursuant to that statute. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. See 

United States v. Allen, 613 F.2d 1248, 1250 (3d Cir. 1980) 

(holding that “the grant of a new trial is a final, appealable 

order in proceedings under § 2255”). “[T]he district court 

abuses its discretion if it fails to hold an evidentiary hearing 

when the files and records of the case are inconclusive as to 

whether the movant is entitled to relief.” United States v. 

Booth, 432 F.3d 542, 546 (3d Cir. 2005). “It is irrelevant 

whether the Government or [movant] requested the hearing 

because § 2255 requires the District Court to hold a hearing 

sua sponte when, as here, the files and records do not show 

conclusively that [the movant] was not entitled to relief.” 

Solis v. United States, 252 F.3d 289, 294 (3d Cir. 2001).
7

A. 28 U.S.C. § 2255 Legal Standards

28 U.S.C. § 2255(b) states: “Unless 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.” 

We have interpreted this to mean that where a “‘petition 

allege[s] any facts warranting relief under § 2255 that are not 

clearly resolved by the record, the District Court [is] 

obligated to follow the statutory mandate to hold an 

evidentiary hearing.’” Booth, 432 F.3d at 546 (quoting 

United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005)).

Though the germane precedents all involve cases 

wherein a district court denied a § 2255 motion without first 

holding an evidentiary hearing, they apply with equal force 

here — where the District Court granted Tolliver’s § 2255 

without first holding a hearing. The same standard applies so 

that a district court abuses its discretion if, in the face of 

disputes of material fact, it grants or denies a § 2255 motion 

without first holding an evidentiary hearing.

A district court considering a § 2255 motion “‘must 

accept the truth of the movant’s factual allegations unless 

they are clearly frivolous on the basis of the existing record.’” 

Id. at 545 (quoting Gov’t of V.I. v. Forte, 865 F.2d 59, 62 (3d 

Cir. 1989)). In the IAC context, a movant need only “raise[] 
8

sufficient allegations” that his counsel was ineffective in 

order to warrant a hearing.2 Id. at 549. 

 

2 The familiar Strickland standard governs whether a 

§ 2255 movant has established an IAC claim. Strickland v. 

Washington, 466 U.S. 668, 687 (1984). The first prong 

requires the movant to show “that counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ 

guaranteed the defendant by the Sixth Amendment.” Id. To 

establish Strickland’s second prong, the movant must “show[] 

that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.” Id. 

This equates to “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceedings 

would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the 

outcome.” Id. at 694. The Government does not appear to 

dispute that the first Strickland prong is met. Tolliver’s trial 

counsel signed an affidavit stating that he failed to perform 

any investigation and relied solely on records turned over by 

the prosecution. App. at 577 (“They could not afford to hire a 

private investigator. . . .”). Tolliver’s trial counsel also 

admitted that he did not interview any witnesses. Id. (“I do 

not interview witnesses myself to keep from becoming a 

witness in my own case, so I was not able to interview any 

witnesses before trial.”). “‘[F]ailure to investigate a critical 

source of potentially exculpatory evidence may present a case 

of constitutionally defective representation.’” United States 

v. Travillion, 759 F.3d 281, 293 n.23 (3d Cir. 2014) (quoting 

United States v. Baynes, 622 F.2d 66, 69 (3d Cir. 1980)).
9

B. Disputed Material Facts

The following evidence, put forth by Tolliver in her 

§ 2255 motion, creates disputes of material fact such that a 

hearing is necessary before the District Court can address

Tolliver’s underlying claim that her trial counsel was 

constitutionally ineffective.

1. Co-Workers’ Financial Troubles

Tolliver presented evidence that her co-workers 

Angela Anderson and Linda Carter experienced financial 

difficulties and asserted that their troubles occurred around 

the time of the fraud. For instance, exhibits attached to 

Tolliver’s § 2255 motion show that a foreclosure suit was 

initiated against Anderson on March 6, 2006 and discontinued 

on April 3, 2006. The exhibits also show that Discover Bank 

initiated a suit against Anderson on August 23, 2005 alleging 

that Anderson owed a balance of $5,944.65; this suit was 

discontinued on January 12, 2007. Other exhibits attached to 

Tolliver’s amended § 2255 motion show that Carter was sued 

by a school district for unpaid school taxes in the amount of 

$6,164.54. The school district suit against Carter was filed on 

June 28, 2007, and she satisfied her debt by February 29, 

2008. Tolliver argues that this evidence establishes that her 

co-workers had a stronger motive than she to commit the 

Citizens Bank fraud.

2. Not Known by Co-Conspirators

Tolliver appended affidavits to her § 2255 motion 

from co-conspirators Miguel Bell and Christopher Russell 

asserting that they do not know her. Tolliver also submitted 

affidavits from Cowan (her private investigator), which state 
10

that five identified co-conspirators allegedly informed Cowan 

that they did not know Tolliver (Rashin Owens, Victor 

O’Connor, Elton Harris, Michael Merin, and Tiffany Brodie), 

however these individuals either refused or failed to complete 

an affidavit to that effect.3

Tolliver argues that this evidence establishes that she 

could not have taken part in the Citizens Bank fraud. 

However, as the Government argues in its Reply Brief, no 

one has asserted or established that each of the middle men 

involved in this fraud was apprehended. Reply Br. at 9. 

Additionally, nothing in the Bell and Russell affidavits 

suggests that they necessarily would have known Tolliver if 

she had been involved in the fraud.

3. An Evidentiary Hearing Is Required

Based on Tolliver’s newly presented evidence, the 

District Court concluded: 1) that “a reasonable probability 

clearly exists that, if the jury knew that several of Tolliver’s 

co-workers, particularly Anderson, had pressing financial 

needs which Tolliver lacked, it could have changed the 

 

3 To satisfy the prejudice prong of Strickland the 

movant “must establish a reasonable probability — one 

sufficient to undermine our confidence in the outcome — that 

the jury’s verdict would have been different if not for 

counsel’s errors. Such a showing may not be based on mere 

speculation about what the witnesses [the attorney] failed to 

locate might have said.” United States v. Gray, 878 F.2d 702, 

712 (3d Cir. 1989) (internal citations omitted).
11

outcome at trial”; and 2) that “it is now clear that not even 

those identified as ‘insiders’ knew [Tolliver],” a fact that, had 

it been known by trial counsel, “would have meaningfully 

strengthened his defense.” Tolliver, 2014 U.S. Dist. LEXIS 

96232, at *8–9. 

The problem with these conclusions is that the District 

Court failed to follow the procedure put forth in 

§ 2255: where there are disputes of material fact, the first 

step is to hold an evidentiary hearing. Only then, after 

Tolliver’s factual assertions have been tested, is the District 

Court in the position to assess the merits of her underlying 

IAC claim and to grant or deny her § 2255 motion. It was an 

abuse of discretion for the District Court not to hold a hearing 

to resolve these disputes before granting Tolliver’s § 2255 

motion.4 Booth, 432 F.3d at 546.

 

4 The District Court did not specifically address 

Tolliver’s contention that her password was not, in fact, 

secure and was known by her co-workers, including 

Anderson. However, at trial, the Government presented 

evidence that, when interviewed by Swoyer and Busch, 

Tolliver stated that she complied with Bank policy by not 

writing down her password and keeping it secret from her coworkers. Tolliver specifically told Swoyer and Busch that 

she kept a list of her passwords for other programs (e.g., the 

HR system), but, in keeping with the Bank’s policy, did not 

write down her password for accessing customer data. 

Additionally, as the District Court noted when it denied 

Tolliver’s post-trial motion for acquittal, “all of Defendant’s 

former co-workers who testified at trial stated that they did 

not know Defendant’s password.” App. at 52. This is an 

additional disputed material fact that must be addressed at an 
12

IV. CONCLUSION

For the foregoing reasons we will vacate and remand 

with instructions that the District Court hold an evidentiary 

hearing to resolve the disputes of material fact.

 

evidentiary hearing. The materiality of whether Tolliver’s 

password was secret is underscored by Swoyer’s testimony 

on cross-examination that he was not aware of a single bank 

fraud conspiracy where an employee’s password was 

compromised and used by a co-worker to commit a fraud.