United States v. Alison Gu, 8 F.4th 82

Alison Gu was convicted by a jury of bank fraud, making false statements in support of a passport application (18 U.S.C. § 1542), and aggravated identity theft (18 U.S.C. § 1028A) arising from use of a fabricated identity.
On March 27, 2015 Gu presented a fully completed but unsigned DS‑11 passport form listing a false name and SSN, plus supporting forged/false identity documents and a falsified itinerary, to a passport specialist at the St. Albans passport agency.
The passport specialist questioned Gu, had her complete and sign a supplemental DS‑5520 (perjury warning), copied her materials, and Gu then told the agent she would withdraw and left without taking the oath, signing the DS‑11, or paying fees.
Prosecutors investigated, charged Gu, and at trial she conceded submission of the unsigned DS‑11 but argued that because she never signed/swore or completed the process (and withdrew), the conduct was not an "application for passport" under § 1542; the district court denied Rule 29 relief and convicted.
The Second Circuit affirmed: under the statutory/regulatory scheme a passport application exists when the DS‑11 and supporting materials are submitted to a passport official for review, so signature/oath are not prerequisites to criminal liability; withdrawal did not negate the offense and supported the aggravated identity theft conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an unsigned, unsworn, later‑withdrawn DS‑11 submitted to a passport official qualifies as "an application for passport" under 18 U.S.C. § 1542	Gu: signature and oath are required to make the form an "application"; absent them §1542 cannot be violated.	Government: regulations define "passport application" as the DS‑11 plus supporting documents submitted for review; signature/oath occur later—crime complete on submission with intent.	The court held the application exists upon submission of the DS‑11 and supporting materials to an official; signature/oath are not prerequisites; §1542 satisfied.
Whether withdrawal before oath/signature negates criminal liability and the aggravated‑identity‑theft predicate	Gu: withdrawal and lack of formal execution meant no real chance to obtain a passport; criminal liability should not attach.	Government: nothing in the statute allows a withdrawal defense once a fraudulent application is submitted with intent to obtain a passport.	The court held withdrawal does not absolve liability; the passport‑fraud conviction stands and supplies the predicate for aggravated identity theft.

Duncan v. Walker, 533 U.S. 167 (statutory interpretation begins with statutory text)
United States v. Epskamp, 832 F.3d 154 (2d Cir. 2016) (use statutory scheme/context to interpret terms)
Brogan v. United States, 522 U.S. 398 (rejects narrowing a statute to a particular evil beyond text)
Moskal v. United States, 498 U.S. 103 (rule of lenity applies only where reasonable doubt persists after other tools of interpretation)
United States v. Salinas, 373 F.3d 161 (1st Cir. 2004) (describes §1542 as a point‑in‑time offense when false statement is made)
United States v. George, 386 F.3d 383 (2d Cir. 2004) (context of submitted application discussed)
United States v. Scott, 990 F.3d 94 (2d Cir. 2021) (discusses scope of rule of lenity)
Anders v. California, 386 U.S. 738 (procedural standard for counsel to seek withdrawal when appeal is frivolous)