NOT PRECEDENTIAL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 District Court for the Eastern District of Pennsylvania (D.C. No. 2-17-cr-00549-001) Honorable Gerald A. McHugh, U.S. District Judge __________

Submitted Under Third Circuit L.A.R. 34.1(a) on March 5, 2021

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. 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 statute went into effect. Because we conclude that Goodchild was not prejudiced by

any error in the instructions, we will affirm.

A. Discussion1

Goodchild’s indictment and subsequent conviction for aggravated identity theft

arose from his use of his employer’s name to open an account and make illicit transfers

via PayPal, an online financial transaction service. Specifically, the proof at trial showed

that Goodchild opened the account in 2002, and then regularly used it to make payments

to himself from 2005 through 2012.

Goodchild’s sole argument on appeal is that the statute under which he was

convicted, the Identity Theft Penalty Enhancement Act,

Stat.

831, was not enacted until 2004 and, consequently, his creation of the account in 2002

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

, and we have jurisdiction over Goodchild’s appeal under

.

2 from before 2004, and he now maintains that this failure requires a new 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,

, at *14 (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 those errors that “seriously affect the fairness, integrity or

public reputation of judicial proceedings.” United States v. Olano,

(1993).

Goodchild maintains that the jury instructions allowed him to be convicted “solely

on the basis of conduct that was not criminal when [he] engaged in [it],” United States v.

Marcus,

(2010), in violation of his right to due process.2 The

instructions as a whole, however, did not permit the jury to convict him of aggravated

identity theft solely on the basis of pre-enactment conduct. We therefore perceive no

constitutional 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 identity theft count, it ameliorated that error

2 As the Supreme Court explained in Marcus, while a statute that purports to impose new 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.

.

3 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 explanation 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, here the wire fraud with which Goodchild 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 aggravated identity theft, and that it must find as an element of the

offense that Goodchild committed identity theft “during and in relation to a violation of

the wire fraud statute.” JA 399–400. And the earliest wire transmission charged as an

instance of wire fraud in the indictment, a copy of which the jury was provided, did not

take place until 2012. As a result, the jury could have convicted Goodchild for identity

theft only from 2012 onwards.

In short, any error in failing to give the additional instruction Goodchild now

requests did not “affect[] substantial rights,” Smukler, --- F.3d at ----,

,

at *14, because the jury, as it was instructed, was not permitted to convict on the basis of

4 pre-enactment conduct. Thus, the absence of Goodchild’s proposed instruction was not

plain error. See

B. Conclusion

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

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