NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 19

- 3471

__________ UNITED STATES OF AMERICA

v. PETER GOODCHILD ,

Appellant

__________ On Appeal from the United States Distr ict Court for the Eastern District of Pennsylvania ( D

. C. No. 2

- 17

- c r - 00549

- 001 ) Honorable Gerald A

. McHugh , U.S. District Judge

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

on March 5 , 202 1 Before: KRAUSE, PHIPPS , and FUENTES, Circuit Judges

(Opinion filed: April 8, 2021 )

__________ OPINION *

__________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

KRAUSE, Circuit Judge

. A jury convicted Peter Goodchild of multiple offenses relating to a decade

- long scheme in which he defrauded his employer of over $ 1. 5 million , primarily by using a PayPal account he illicitly opened in his employer ’s name

. He now challenges his conviction for aggravated identify theft in violation of 18 U.S.C. § 1028A (a)(1) , arguing
that the jury instructions allowed him to be convicted for conduct that took place before that stat ute went into effect. Because we conclude that Goodchild was not prejudiced by
any error in the instructions , we will affirm. A. Discussion 1 Goodchild’s indictment and subsequent conviction for aggravated identity theft
arose from his use of his employer ’s n ame to open an account and make illicit transfers via PayPal , an online financial transaction service. Specifically , the proo f at trial showed that Goodchild opened the account in 2002, and then regular ly used it to make payments to himself from 2005 thro ugh 2012. Goodchild’s sole argument on appeal is that the statute under which he was convicted, the Identity Theft Penalty Enhancement Act, P ub. L. No. 108

- 275, 118 Stat. 831, was not enacted until 2004 and, consequently, his creation of the account in 2 002
cannot form the basis of his conviction. The District Court did not specifically instruct the jury that it could not convict Goodchild of aggravated identity theft based on conduct

1 The District Court had jurisdiction over this prosecution under 18 U.S.C. § 3231, and we have jurisdiction over Goodchild’s appeal und er 28 U.S.C. § 1291.3

from before 2004 , and he now maintains that this failure requires a ne w trial. We disagree.
Because Goodchild did not raise this issue at trial , we review for plain error. To prevail under that standard, a defendant must show that “ (1) an error occurred, (2) the error is plain, and (3) it affect[s] substantial rights.” United States v. Smukler , --- F.3d

---

- , No. 19

- 2151 , 2021 WL 1056021 , at *1 4 (3d Cir. Mar. 19 , 2021) (internal quotation marks omitted) (alteration in original). If those conditions are met, we will exercise our discretion to correct only thos e errors th at “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano , 507 U.S. 725, 736 (1993)

. Goodchild maintains that the jury instructions allowed him to be convicted “solely
on the basis of conduct that w as not criminal when [he] engaged in [it], ” United States v.
Marcus , 560 U.S. 258 , 263 ( 2010 ) , in violation of his right to due process

. 2 T he instructions as a whole, however, did not permit the jury to convict him of aggravated identity theft solely on t he basis of pre

- enactment conduct. W e therefore perceive no
constitutio nal error affecting Goodchild ’s substantial rights.
Even if the District Court erred by not giving a specific instruction concerning the time period at issue for the aggravated identi ty theft count, it ameliorated that error

2 As the Supreme Court explained in Marcus , while a statute that purports to impose n ew criminal consequences retroactively violates the Ex Post Facto Clause, permitting a jury to convict a defendant “ based exclusively on noncriminal , preenactment conduct” does not violate that clause but instead runs afoul of the ex post facto principles embodied in the Due Process Clause of the Fifth Amendment. Id. at 264.4

elsewhere in its instructions. At the close of its charge, the Court cautioned the jury:

Now , during the course of the trial, you’ve heard evidence dating back to 2005 , but what’s before you concerns only charges dating from 2012 on. So you may consider that evidence if it bears on your making a decision about the facts of the case, but I just wanted to emphasize that none of that gets charged in the case before you. JA 403

. The District Court’s appropriate exp lanation of the elements of identity theft also served to mitigate any risk that Goodchild would be convicted based on conduct that predated the offense. The statute criminalizes identity theft committed “during and in relation to” an enumerated felony, h ere the wire fraud with w hich Goodchi ld was charged in Counts 1 through 48. 18 U.S.C. § 1028A(a)(1 ) . The Court therefore instructed the jury that it must first convict Goodchild of at least one wire fraud offense before it could find him guilty of aggrav ated identity theft, and that it must find as an el ement of the offense that Goodchild committed identity theft “during and in relation to a violation of the wire fraud statute.” JA 3 9 9

– 400. And the earliest wire transmission charged as an
instance of wi re fraud in the indictmen t, a copy of which the jury was provided, did not take place until 2012. As a result, the jury could have convict ed Goodchild for identity theft only from 2012 onwards

. In short, any error in failing to give the additional instruc tion Goodchild now requests did not “affect [] substantial rights , ” Smukler , --- F.3d at

---- , 2021 WL 1056021, at *14, because the jury , as it was instructed , was not permitted to convict on the basis of5

pre - enactment conduct

. Thus , the absence of Goodchi ld’s proposed instruction was not plain error. See i d.
B. Conclusion For the foregoing reasons, we will affirm the judgment of the District Court

.