NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-1866

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UNITED STATES OF AMERICA

v. 

VICTOR GATES, 

Appellant

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Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 2-17-cr-00564-001)

District Judge: Honorable Wendy Beetlestone

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Submitted Under Third Circuit L.A.R. 34.1(a)

January 23, 2020

Before: AMBRO, MATEY, and ROTH, Circuit Judges

(Opinion filed: March 5, 2020)

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OPINION*

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AMBRO, Circuit Judge

A jury found Victor Gates guilty of honest services mail fraud conspiracy in 

violation of 18 U.S.C. §§ 1341, 1346, and 1349 (Count 1), honest services mail fraud in 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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violation of §§ 1341 and 1346 (Counts 2 through 15), and making false statements within 

a federal jurisdiction in violation of 18 U.S.C. § 1001 (Counts 16 and 17). After his

conviction, the District Court ordered Gates to forfeit the proceeds he received from the 

fraud in the amount of $653,319.10. He asserts several errors on appeal. We disagree 

with his arguments and affirm the District Court’s judgment.1

The charges stem from a seven-year scheme in which Gates, a former Philadelphia 

police officer, used his friend, Detective Patrick Pelosi at the Philadelphia Police 

Department, to maintain Gates’ lucrative auto recovery business. Gates contracted with 

rental agencies to recover cars that were stolen from them. All stolen cars are placed in 

the National Crime Information Center database and, once recovered, must be deleted

from the database by an authorized official before the rental agencies can rent them out 

again. There is often a delay in removing the recovered cars from the database because,

per Philadelphia Police Department policy, the detective in charge of the database must

confirm formally that the cars were recovered. This requires that the detective physically 

identify the recovered car. 

Detective Pelosi was that detective for southwest Philadelphia. Accordingly, 

Gates would pay Pelosi $300–$400 per month (about $25,000 total) to remove the cars he 

had recovered from the database whenever needed, even without validating their 

recovery. Gates used his ability to have cars removed expeditiously from the database as 

1

It exercised jurisdiction under 18 U.S.C. § 3231. We have jurisdiction per 28 U.S.C. 

§ 1291. 
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a selling point to rental agencies. The FBI eventually uncovered the scheme and an 

indictment followed.

A three-day trial resulted in a guilty verdict on all counts. The District Court then 

determined that the proceeds subject to forfeiture from the scheme were $653,319.10 and 

ordered Gates to forfeit that amount. 

I. Ineffective Assistance of Counsel

Gates first raises an ineffective-assistance-of-counsel claim. He contends that his 

trial counsel was constitutionally ineffective for failing to give an opening statement and 

for not calling any character witnesses. We do not entertain ineffectiveness claims on 

direct appeal where the record is insufficient to allow determination of the issue. See 

Massaro v. United States, 538 U.S. 500, 505 (2003); United States v. Thornton, 327 F.3d 

268, 271–72 (3d Cir. 2003). The record is insufficient here—it contains no evidence 

regarding strategic decisions made by Gates’s counsel or how any prejudice may have 

resulted. Gates can properly raise his claims in a petition for collateral relief under 28 

U.S.C. § 2255, where he may seek an evidentiary hearing.

II. Insufficient Evidence 

Gates next argues that the evidence at trial was insufficient to support a guilty 

verdict on all counts. The bar is very high to overturn a jury’s verdict. Our review of 

evidence sufficiency is “highly deferential,” and a “verdict must be upheld as long as it 

does not ‘fall below the threshold of bare rationality.’” United States v. CaraballoRodriguez, 726 F.3d 418, 430–31 (3d Cir. 2013) (en banc). As a principle of process, we 
4

must not “usurp the role of the jury by weighing credibility and assigning weight to the 

evidence.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005). 

That evidence indicated Gates had specific knowledge that Philadelphia Police 

Department policy required an officer to confirm a stolen vehicle’s return before 

removing it from the system and barred outside employment without consent. He 

nonetheless paid Detective Pelosi $300–$400 per month (in checks sent through the mail 

that Pelosi then deposited) to violate this policy and remove the vehicles whenever asked,

validation notwithstanding. Moreover, the evidence showed that Gates kept secret these 

payments and acknowledged that what he was doing “don’t fly.” App. 522. Yet he used 

his relationship with Pelosi as a selling point to generate additional business. From this a 

rational juror could conclude that Gates knowingly devised or participated in a scheme 

and intended to defraud the public of its intangible right to honest government services. 

See Pattern Crim. Jury Instr. 3d Cir. § 6.18.1341 (2015); cf. United States v. Carbo, 572 

F.3d 112, 118 (3d Cir. 2009) (“If the evidence is sufficient for a reasonable jury to 

conclude that the [private citizen] defendant participated in a scheme to assist a public 

official in hiding a conflict of interest, and that the defendant knew that the law forbade 

the official from engaging in that form of undisclosed conflict of interest, a conviction for 

honest services mail fraud should be upheld.”). The same evidence supports the 

conspiracy count.2 

2 An agreement to engage in honest services mail fraud “need not be explicit, and the 

public official need not specify the means that he will use to perform his end of the 

bargain.” McDonnell v. United States, 136 S. Ct. 2355, 2371 (2016). “A jury could, for 

example, conclude that an agreement was reached if the evidence shows that the public 
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As for false statements, the Government pointed to substantial evidence that Gates 

lied about having made the payments to an FBI agent when explicitly asked about them. 

Three witnesses, including the FBI agent herself, testified as to Gates’s false statements

to a federal agent. They are material because the payments to Pelosi form the basis of the 

honest services mail fraud charges.

III. Convictions as Against the Weight of the Evidence

Gates further contends that we should reverse his convictions as against the weight 

of the evidence. Our standard is even higher here. We will only reverse if the conviction 

would result in a “miscarriage of justice.” United States v. Johnson, 302 F.3d 139, 150 

(3d Cir. 2002). Gates’s claim for a new trial is reviewed for plain error because he did 

not make a motion for a new trial before the District Court under Federal Rule of 

Criminal Procedure 33. An error that is plain must be obvious and affect the substantial 

rights of the defendant. Johnson, 302 F.3d at 153. Because Gates relies on the same 

arguments as his sufficiency-of-the-evidence claim, our rationale is the same for denying 

it here. 

IV. The District Court’s Forfeiture Determination 

Finally, Gates argues that the District Court erred in ordering him to forfeit 

$653,319.10, claiming instead the correct amount is $21,750. He contends that the

Court’s forfeiture calculation erred because it reflected the “gross figure from all his 

official received a thing of value knowing that it was given with the expectation that the 

official would perform an ‘official act’ in return.” Id. 
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towing business,” whereas the suggested lower figure represents only his profits from 

cars recovered for Avis in southwest Philadelphia—Pelosi’s division. Appellant’s Br. 69. 

This argument fails for two reasons. First, the forfeiture amount does not reflect 

Gates’s gross proceeds; rather, the District Court subtracted his direct costs in revising 

down the forfeiture amount from the Government’s initial request of $704,785. While 

Gates contends that overhead should have been deducted, the applicable statute—18 

U.S.C. § 981(a)(2)(B)—specifically states that overhead expenses are not included in 

direct costs. 

Second, in United States v. Ofchinick, 883 F.2d 1172, 1183 (3d Cir. 1989), we 

held that a defendant must forfeit property that “would not have been acquired ‘but for’” 

his criminal activity. Here, the evidence, particularly through the testimony of the Avis 

security manager, tended to show that, but for Gates’s connection to Pelosi, Avis would 

not have continued its relationship with Gates, which included paying for recovered cars 

beyond southwest Philadelphia. Further, the Government showed that Gates used 

Pelosi’s access to remove cars found outside his division of southwest Philadelphia. 

Accordingly, the District Court did not err, clearly or otherwise, in determining that the 

honest services fraud was the but for cause of the Avis revenue.

* * * * *

For these reasons, we affirm in full the District Court’s judgment.