United States v. Regina Tolliver

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 10-3439
___________

UNITED STATES OF AMERICA

v.

REGINA TOLLIVER,
Appellant
_______________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 08-cr-00026-001
(Honorable Berle M. Schiller)
______________

Submitted Pursuant to Third Circuit LAR 34.1(a)
September 13, 2011

Before: SLOVITER, SCIRICA and SMITH, Circuit Judges.

(Filed: September 15, 2011)
_________________

OPINION OF THE COURT
_________________

SCIRICA, Circuit Judge.

Regina Tolliver was convicted by a jury of bank fraud, aggravated identity theft,

and unauthorized access of a computer, in violation of 18 U.S.C. §§ 1344, 1028A, and

1030, respectively. She was sentenced to 30 months’ imprisonment and a five-year term
of supervised release. Tolliver was ordered to pay restitution of $181,577 and a special

assessment of $900. We will affirm.

I.

A.

Between March and November 2007 two different “check runners” cashed

fraudulent checks against the accounts of seven Citizens Bank customers in branches in

upstate New York, western Pennsylvania, and Delaware. 1 The checks were drawn on

banks other than Citizens Bank and were rejected as fraudulent. Initially the Citizens

Bank customers were charged the checks’ face value. However, once it was determined

the customers were the victims of fraud, Citizens Bank credited their accounts and

absorbed the total loss of $181,577.

At the time of the fraud, Citizens Bank used computer systems to manage and

track its customer accounts. The systems contained customers’ personal information,

including names, addresses, dates of birth, Social Security numbers, driver’s license

numbers, and Citizens Bank account numbers and balances. Bank employees could

access this information in either the mainframe or touch point computer systems by

entering their employee number and password. 2

1
A check runner is member of a bank fraud scheme who is responsible for cashing
fraudulent checks at a bank. Eileen Comire and Richard Maden were identified as the
check runners in the scheme in which Tolliver was involved. They were indicted
separately, and each entered guilty pleas. Neither testified at Tolliver’s trial.
2
The mainframe system is the basic system to which tellers would generally have access.
The touch point system is the platform to which customer service and management staff
would have access. The touch point system allows employees to access customers by
2
 Testimony at trial revealed that Citizens Bank employees are assigned a non-

confidential employee number and then choose their passwords. Employees are

instructed to keep their passwords secure, confidential, and not to write them down.

Employees are not allowed to share their passwords with anyone else, including each

other. If someone believes that another person has learned of his password, he is required

to inform management and change the password. If an employee must leave a computer

terminal where he is working, the employee is required to temporarily lock the terminal

or sign off completely. Employees use their passwords between ten and fifteen times a

day and are required to change them every two to three months.

When an employee accesses either the mainframe or touch point systems, data

concerning the activity is archived in an employee tracking system for approximately six

months. This system is known as the “employee footprint” and can be recalled to

determine the employee number entered to access certain accounts. Citizens Bank senior

fraud investigator Todd Swoyer ran a footprint report for each of the compromised

accounts. He discovered that Tolliver’s employee number was the only one that was

associated with each of the accounts. In addition, his investigation showed that, with one

exception, after Tolliver’s number and password were entered to look up account

information, someone called the Citizens Bank automated system to check the accounts.

These calls were made either the day after the accounts were accessed or a few days to

name or account number and provides a brief history of the customer, including personal
information, account numbers, and balances.
3
weeks before the fraudulent checks were cashed against them. All five of the victims

who testified said they did not make these calls.

Swoyer’s investigation revealed that the seven customers’ accounts were accessed

under Tolliver’s employee number on February 5 and 8, 2007, and on March 7, 8, and 9,

2007. The Citizens Bank information technology service determined that on February 5

accounts from the first three victims were compromised from the King of Prussia Mall

branch where Tolliver was employed. 3 Attendance records confirmed that only Tolliver

and branch assistant manager Angela Anderson worked on all of these days. Anderson

testified she never knew Tolliver’s password and never signed into a computer terminal

someone else was already using.

During the time of the investigation, Citizens Bank employees who contacted a

customer during the business day were required to record it in their logbook. Tolliver’s

logbook did not show that she contacted any of the seven victims for business purposes

on the dates their accounts were accessed. Tolliver was also not assigned to contact any

of these individuals for sales purposes on those dates. Citizens Bank employees were not

permitted to look at a customer’s account and personal information without a business

purpose.

Swoyer, United States Postal Inspector Frank Busch, and a Secret Service agent

interviewed Tolliver on March 15, 2007. Swoyer testified that he reviewed Tolliver’s

entire logbook with her during her interview. Her book included a page that had

3
It was not determined from which Citizens Bank branch accounts were accessed on the
other four days.
4
passwords written on it. Swoyer testified that the passwords were for HR Express, a

system unrelated to the mainframe or touch point systems. Further, he stated 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 seven of Tolliver’s

former co-workers who testified said they never knew her password or saw it written

down. Tolliver was terminated immediately following her interview.

On January 17, 2008, Tolliver was indicted on one count of bank fraud, and aiding

and abetting bank fraud, in violation of 18 U.S.C. § 1344; seven counts of aggravated

identity theft, and aiding and abetting aggravated identity theft, in violation of 18 U.S.C.

§ 1028A; and one count of access of a computer in excess of authorization to obtain a

financial record, in violation of 18 U.S.C. § 1030. She was the only defendant charged in

the indictment.

B.

At trial, the Government called United States Postal Inspector Frank Busch to

testify as an expert on the operation of bank fraud schemes. Busch had over fourteen

years of experience investigating financial crimes with the United States Postal

Inspection Service. He received extensive training in criminal financial investigations

from multiple agencies, including the United States Attorney’s Office and the

International Association of Financial Crimes Investigators. He estimated that he had

completed 1000 fraud and identity theft investigations and acted mainly as lead

investigator in such matters. He stated he investigated hundreds of bank fraud and

5
identity theft cases in Philadelphia, including twenty involving bank employees. Defense

counsel did not object to Busch testifying as an expert witness.

Busch testified that there are certain players involved in a typical bank

fraud/identity theft scheme: a designated ringleader; a second in command who

facilitates recruiting other members; individuals, such as bank employees, who access

personal information of account holders to use in the scheme; individuals who access or

create counterfeit documents; drivers who take check runners to the banks; and check

runners who cash the checks. According to Busch, a bank employee who was part of a

scheme usually would be in touch with the ringleader of the operation or the middle man

who recruited him, but would not have contact with the check runners. In Busch’s

experience, check runners generally did not know the identity of the person who was

obtaining the information necessary to facilitate the crime.

Busch explained that a bank employee involved in a fraudulent scheme would

access personal information about an account holder, write it down or print it out, and

then pass it along to other members of the operation in exchange for money. He testified

that it is common for someone in the scheme to call a bank’s automated system to

confirm that the targeted accounts are active and functioning properly.

Tolliver did not testify at trial. She was found guilty by the jury of all charges.

Following her conviction, she submitted a motion seeking judgment of acquittal and/or a

new trial, contending that the prosecution’s evidence was insufficient to support the

6
jury’s verdict and the government improperly shifted the burden of proof to her. 4 The

District Court denied the motions. After being appointed new counsel, 5 Tolliver filed a

supplemental motion for judgment of acquittal and/or motion for a new trial. Tolliver

again challenged the sufficiency of the evidence. She also asserted that her trial

counsel’s performance was constitutionally ineffective and that the District Court

committed plain error by allowing Inspector Busch’s expert testimony. The District

Court denied both motions.

II.

Tolliver raises four issues on appeal. 6 She contends (1) there was insufficient

evidence to support the jury’s verdict; (2) the District Court erred by allowing Inspector

Busch’s expert testimony on the modus operandi of bank fraud schemes; (3) the District

Court erred by determining her trial counsel was not constitutionally ineffective for

failing to object to Inspector Busch’s testimony; and (4) the District Court erred by

denying her post-trial motions for judgment of acquittal and for a new trial pursuant to

Fed. R. Crim. P. 29 and 33, respectively.

A.

4
Tolliver had previously moved for a judgment of acquittal after the close of the
prosecution’s case. The motion was denied.
5
After Tolliver’s trial counsel failed to submit a sentencing memorandum for her
sentencing hearing, the District Judge held an in-chambers conference with both the
prosecution and defense. Afterwards he informed Tolliver he would reschedule the
sentencing to another date and would appoint her new counsel. The Court then appointed
Tolliver’s present counsel.
6
The District Court had jurisdiction under 18 U.S.C. § 3231, and we exercise appellate
jurisdiction under 28 U.S.C. § 1291.
7
 Tolliver contends the government failed to prove beyond a reasonable doubt that it

was she who used her employee information to access the victims’ accounts. 7

Specifically, she contends there was no evidence to show from which Citizens Bank

branch victims’ accounts were accessed on four out of the five days in question. Nor was

there evidence that the accounts were accessed from a specific computer terminal that

Tolliver was using. In addition, Tolliver claims there was no proof that she had any

knowledge or connection to other members in the bank fraud, or that she had a romantic

or financial motive to participate in the scheme. Nonetheless, there was sufficient

evidence to find her guilty.

1. Bank fraud

The government needed to prove beyond a reasonable doubt that Tolliver

“knowingly execute[d], or attempt[ed] to execute a scheme or artifice (1) to defraud a

financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities,

or other property owned by, or under the custody or control of, a financial institution, by

means of false or fraudulent pretenses, representations or promises.” 18 U.S.C. § 1344.

“[W]here the bank is a direct target of the deceptive conduct or scheme, § 1344 is

satisfied by proof of a specific intent to defraud the bank plus fraudulent conduct (e.g.,

7
We “apply a particularly deferential standard of review when deciding whether a jury
verdict rests on legally sufficient evidence.” United States v. Dent, 149 F.3d 180, 187 (3d
Cir. 1998). We view the evidence in the light most favorable to the government, however
“[i]t is not for us to weigh the evidence or to determine the credibility of the witnesses.”
Id. (quoting United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996)). Considering the
evidence in this light, together with “inferences logically deducible therefrom,” we must
determine whether a rational trier of fact could have found guilt beyond a reasonable
doubt. United States v. McNeill, 887 F.2d 448, 450 (3d Cir.1989).
8
misrepresentations) which creates an actual loss or risk of loss.” United States v. Leahy,

445 F.3d 634, 646 (3d Cir. 2006). To convict Tolliver of aiding and abetting bank fraud,

the government had to prove: “(1) that [bank fraud] ha[d] been committed; and (2) that

[Tolliver] knew of the commission of the [bank fraud] and acted with intent to facilitate

it.” United States v. Soto, 539 F.3d 191, 194 (3d Cir. 2008).

When viewed in the light most favorable to the government, the evidence, and its

corresponding inferences, were sufficient for a rational jury to convict Tolliver of bank

fraud and of aiding abetting bank fraud. The government proved that Tolliver’s

employee number was the only one that was used to look up confidential information for

all of the victims’ accounts. Further, the accounts were accessed on five days that only

Tolliver and one other employee worked at the King of Prussia Mall branch. That

employee testified she did not know Tolliver’s password and never used a computer

terminal that someone was already using. This testimony jibes with what Tolliver told

investigators during her interview, to wit, that she always logged out of her computer

when she left a terminal and she never gave her password to anyone. This all supports

the conclusion that it was Tolliver who accessed the accounts. That she had no business

purpose for doing so, that her access was soon followed by phone calls to check the

accounts, and that individuals later cashed fraudulent checks against the accounts support

the inference that Tolliver’s access was the first step in a “fraudulent scheme that placed

the bank at a risk of loss.” United States v. Khorozian, 333 F.3d 498, 505 (3d Cir. 2003).

Since “§ 1344’s specific intent requirement is satisfied if an individual commits an act

that could put the bank at a risk of loss,” id., the government established that Tolliver had

9
the requisite intent to facilitate the bank fraud. These findings support not only the

conviction for bank fraud but the conviction for aiding and abetting the crime as well.

Tolliver contends that the existence of a page in her logbook containing passwords

and the potential for employees to log in to multiple computers at once undermine the

jury’s verdict. We disagree. First, there was nothing at trial to suggest Tolliver’s

password had been compromised. Further, “evidence does not need to be inconsistent

with every conclusion save that of guilt if it does establish a case from which the jury can

find the defendant guilty beyond a reasonable doubt.” United States v. Sandini, 888 F.2d

300, 311 (3d Cir. 1989) (quoting United States v. Cooper, 567 F.2d 252, 254 (3d

Cir.1977)). Because a rational trier of fact could have inferred from the evidence that

Tolliver committed the bank fraud, it is not necessary that all other potential inferences

be excluded. “There is no requirement . . . that the inference drawn by the jury be the

only inference possible or that the government’s evidence foreclose every possible

innocent explanation.” United States v. Iafelice, 978 F.2d 92, 97 n.3 (3d Cir. 1992).

Therefore we will affirm the bank fraud convictions.

2. Aggravated identity theft

To convict Tolliver of aggravated identity theft, the government had to prove that

she “knowingly transfer[red], possesse[d], or use[d], without lawful authority, a means of

identification of another person” during the commission of bank fraud. 18 U.S.C. §

1028A(a)(1), (c). For her charge of aiding and abetting, the government was required to

prove: “(1) that [identity theft] ha[d] been committed; and (2) that [Tolliver] knew of the

10
commission of the [identity theft] and acted with intent to facilitate it.” Soto, 539 F.3d at

194.

There was sufficient evidence to support Tolliver’s aggravated identity theft

convictions. The government showed that Tolliver’s employee number was used to

access the victims’ account information and that she had no legitimate business purpose

to do so. The government also showed that someone later called the Citizens Bank phone

system to check these accounts, and two people eventually cashed false checks against

them. A rational jury could infer from this that Tolliver accessed the customer accounts

and then passed the information along to someone else to further the bank fraud scheme.

These inferences would support the aggravated identity theft convictions.

Tolliver contends that the fact that the check runners did not implicate her

undermines the validity of the verdict. However, Inspector Busch’s testimony made clear

that check runners typically do not know the bank employee “insider” who supplies

information because the employee has a coveted position within the scheme and deals

with someone higher in the chain of command. Though Tolliver is correct that Inspector

Busch also testified that a typical bank fraud involves more individuals than just a bank

insider, check runners, and someone who calls to check on the accounts, the lack of

evidence of other actors in the present case does not negate the jury’s verdict. The jury

was free to focus on the similarities between the evidence presented and a typical scheme

rather than the differences. Furthermore, there was a “logical and convincing connection

between the facts established and the conclusion inferred.” McNeill, 887 F.2d at 450.

We will affirm the jury’s verdict accordingly.

11
 3. Unauthorized access of a financial record

To prove Tolliver was guilty of unauthorized access of a financial record, the

government was required to establish that she “intentionally accesse[d] a computer

without authorization or exceed[ed] authorized access, and thereby obtain[ed] . . .

information contained in a financial record of a financial institution.” 18 U.S.C. §

1030(a)(2)(A) (2008). “Actual asportation, in the sense of physically removing the data

from its original location or transcribing the data, need not be proved in order to establish

a violation of [subsection 1030(a)(2)].” S. Rep. No. 99-432 at 2484 (1986).

As already discussed, there was sufficient evidence from which to infer that

Tolliver intentionally accessed the customers’ accounts and that she did not have a

business purpose to do so. As such, the government established that Tolliver exceeded

her authorized access, and we will affirm her conviction for this offense.

We conclude that all of Tolliver’s convictions were premised on sufficient

evidence, and thus we will deny her request for relief on this ground. We also will affirm

the District Court’s denial of Tolliver’s motion for judgment of acquittal and/or a new

trial based on insufficiency of the evidence.

B.

Tolliver contends the District Court committed plain error by allowing

Investigator Busch to testify as an expert witness on the modus operandi of bank fraud

schemes because the testimony violated Fed. R. Evid. 702, 403, and the Confrontation

12
Clause of the Sixth Amendment. 8 Specifically, she claims Busch’s testimony lacked

foundation and fit because many of the features of a typical bank fraud scheme, including

the existence of a broad network of offenders, were absent from her case. As such, she

says the danger of unfair prejudice outweighed the probative value of Busch’s remarks.

Tolliver also claims Busch’s testimony was based on out-of-court statements that were

offered for their truth and that were made by individuals who were shielded from cross

examination. By failing to limit Busch’s testimony to the facts of the case, Tolliver

argues the District Court erred and a new trial should be granted. We disagree.

Fed. R. Evid. 702 “embodies a trilogy of restrictions on expert testimony:

qualification, reliability and fit.” Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003).

Regarding fit, expert testimony “must be relevant for the purposes of the case and must

assist the trier of fact.” Id. In other words, it must be “sufficiently tied to the facts of the

case that it will aid the jury in resolving a factual dispute.” United States v. Downing, 753

F.2d 1224, 1242 (3d Cir. 1985).

Inspector Busch’s testimony was both relevant and adequately linked to the facts

of the case to be helpful to the jury. Tolliver was charged with participating in a bank

fraud scheme involving identity theft, and Busch testified about the typical features of

such an operation. Several of these features, including the participants, their relationship,

and the timing of events, were present in Tolliver’s case. That all of the features were not

8
The decision to correct a plain error is within the discretion of the court of appeals.
United States v. Olano, 507 U.S. 725, 732 (1993). We will not grant relief unless the
District Court committed clear or obvious errors that “seriously affect[ed] the fairness,
13
in evidence does not mean that Busch’s testimony lacked fit. Fitness speaks “primarily to

relevance” and requires that “evidence or testimony ‘assist the trier of fact to understand

the evidence or to determine a fact in issue.’” Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 591 (1993) (quoting Fed. R. Evid. 702). Busch’s testimony provided

information to assist the jury in understanding how a bank employee who improperly

accessed customer accounts could be related to individuals who subsequently cashed

fraudulent checks against them. It was thus helpful and sufficiently related to both the

facts and issues to be admissible under Fed. R. Evid. 702.

Tolliver contends that Busch’s remarks should nonetheless have been excluded

because they unfairly prejudiced the jury. She claims his testimony was offered to fill

evidentiary gaps in the prosecution’s case and to support the inference that she acted

consistently with the behavior of someone involved in a typical bank fraud. Further,

because Busch was one of the agents who investigated Tolliver, the jury was misled to

believe he had information not presented to them. We disagree.

Under Fed. R. Evid. 403, relevant evidence should not be allowed if “its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury.” Most of Busch’s testimony concerned the nature of a

typical bank fraud scheme involving identity theft. He discussed Tolliver’s case only to

respond to defense counsel’s questions regarding the absence of certain features common

to other investigations, and to explain, in general terms, the scope of the broader bank

integrity or public reputation of judicial proceedings.” Id. (internal quotation marks
omitted).
14
fraud of which Tolliver’s case was thought to be a part. Busch did not offer any opinions

about whether he thought Tolliver’s case was typical or whether she was guilty. Though

Busch was both an expert witness and a case agent, he did not stray from relevant topics

or offer sweeping conclusions about Tolliver’s activities. See United States v. Dukagjini,

326 F.3d 45, 54 (2d Cir. 2002). Thus we conclude that his testimony was neither

prejudicial nor misleading, and its probative value outweighed any danger of confusion.

Tolliver’s final contention is that Busch’s testimony violated the Confrontation

Clause. Busch referenced interviews with people from past investigations when

responding to questions from both the prosecution and defense. Tolliver claims these

remarks were prejudicial and should have been excluded. We disagree.

The Supreme Court has held that, with limited exceptions, the Sixth Amendment

bars out-of-court testimonial statements of absent witnesses. Crawford v. Washington,

541 U.S. 36, 53-4 (2004). Regarding experts, the Fourth Circuit has found that Crawford

“in no way prevents [them] from offering their independent judgments merely because

those judgments were in some part informed by their exposure to otherwise inadmissible

evidence.” United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009). Only “where

the [expert] witness is used as little more than a conduit or transmitter for testimonial

hearsay” would his reliance on inadmissible hearsay become problematic. Id. “The

question is whether the expert is, in essence, giving an independent judgment or merely

acting as a transmitter for testimonial hearsay.” Id.

Busch was not simply a means of passing impermissible hearsay to the jury. He

was an expert who testified on a range of topics concerning bank fraud and identity theft

15
schemes. The times he did specifically reference interviews from past investigations it

was clear his answers “derived over many years and from multiple sources.” Id. at 636.

He was not simply parroting witnesses’ out-of-court testimonial statements, but rather

applying his own expertise to answer the questions posed to him by counsel. Id. at 635.

Further, his responses did not suggest that he was relying on information supplied by

informants associated with his investigation of Tolliver. 9 Because Busch’s remarks were

based on his extensive experience and were subject to cross examination during which

counsel could explore his sources, his testimony did not violate the Confrontation Clause.

We conclude that allowing Busch’s testimony did not “seriously affect the

fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732

(internal quotation marks omitted). Thus, the District Court did not commit plain error,

and we will deny Tolliver’s request for relief on that ground.

C.

Tolliver’s final contention is that she deserves a new trial because her trial counsel

was constitutionally ineffective. She claims that her counsel should have requested

information regarding the foundation for Busch’s opinions beyond what was disclosed in

the government’s letter disclosure pursuant to Fed. Crim. P. 16(a)(1)(G). Similarly,

9
During cross examination, counsel asked Busch if there was evidence that Tolliver had
contacted any “bad guys.” Busch said the investigators received information that
Tolliver had been contacting Jeffrey Thomas. Through follow-up questions, defense
counsel elicited that Thomas was being investigated but had not been arrested as part of
the case. There was no other testimony about Thomas. During re-direct examination,
and upon defense counsel’s objection, the Court asked Busch whether anyone other than
the two check runners had been arrested and had any connection to Tolliver. Busch
answered no.
16
counsel should have raised more questions or offered more objections to Busch’s

testimony during trial. By failing to take these steps, Tolliver claims her counsel did not

subject the prosecution’s case to “meaningful adversarial testing.” Kansas v. Ventris, 129

S. Ct. 1841, 1845 (2009) (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).

In general, we will not entertain claims of ineffective assistance of counsel on

direct appeal. United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998). “We have

repeatedly held that the proper avenue for pursuing such claims is through a collateral

proceeding in which the factual basis for the claim may be developed.” Id. (internal

quotation marks omitted). However, there is a narrow exception for cases in which the

record is sufficiently robust as to allow a determination on the merits without the benefit

of an evidentiary hearing. See id. Although both parties contend the record contains

enough information on which to base a conclusive assessment of trial counsel’s

performance, we think the most prudent course is to bring Tolliver’s claim up on

collateral review. This disposition leaves Tolliver free to pursue her ineffective

assistance claim in a proceeding under 28 U.S.C. § 2255.

III.

For the foregoing reasons, we will affirm the judgment of the District Court. If

Tolliver elects to pursue her ineffective assistance of counsel claim further, she may do

so within the framework of a collateral review proceeding.

17