United States v. Gu
| Decision Date | 05 August 2021 |
| Docket Number | August Term, 2020,Docket Nos. 19-86-cr (L),19-136-cr (con) |
| Citation | 8 F.4th 82 |
| Parties | UNITED STATES of America, Appellee, v. Alison GU, aka Alison Ling, aka Ally Koo, aka Ai J. Chen, aka Jing Shao, aka Yijing Gu, aka Yijing Lin, aka Alison Yi Gu, aka Ai Jen Chen, and Matthew Abel, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
JESSE M. SIEGEL, New York, N.Y., for Defendant-Appellant Alison Gu.
RANDOLPH Z. VOLKELL, Merrick, N.Y., for Defendant-Appellant Matthew Abel.
MICHAEL P. DRESCHER, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Jonathan A. Ophardt, Acting United States Attorney for the District of Vermont, Burlington, VT, for Appellee.
Before: POOLER, RAGGI, and CARNEY, Circuit Judges.
Defendant-Appellant Alison Gu seeks to vacate her conviction and sentence for two of the three counts of her conviction. At trial, Gu was convicted of three counts: (1) bank fraud, in violation of 18 U.S.C. §§ 1344(1) & 2; (2) making false statements in support of a passport application, in violation of 18 U.S.C. § 1542 ; and (3) aggravated identity theft, in violation of 18 U.S.C § 1028A(a)(1). On appeal, Gu seeks to reverse her convictions as to Counts 2 and 3. Before the district court, Gu argued that her withdrawal of her passport application and failure to sign and swear the required oath to finalize the application, meant that as a matter of law, she could not be convicted of passport fraud and, therefore, of aggravated identity theft.1 The district court rejected this argument, holding that the jury could conclude Gu submitted a falsified application with the intent to obtain a passport and that her subsequent withdrawal of the application did not abrogate Gu's criminal liability for that submission.
We agree. Gu's argument that an oath and signature on the passport application form are required to establish criminal liability is not supported by the statute and regulations defining a passport application. The statute and regulations define a passport application as the submitted application form and supporting documents. Submission occurs when a person provides a federal official with an application form and any supporting materials for review. Gu acknowledged submission of a falsified application form to a passport officer. Therefore, we affirm the judgment of the district court.
On July 19, 2016, a grand jury in Burlington, Vermont, charged Gu and Matthew Abel with a scheme to defraud several banks by obtaining mortgages for certain real properties in multiple states using several false identities. Gu was also charged with making a false statement in an application for a United States passport and with aggravated identity theft, based on her use of the identity of another in the commission of the passport offense. On October 17, 2017, Abel pled guilty to the bank fraud offense and was subsequently sentenced to six months of imprisonment followed by five years of supervised release.2 Gu proceeded to trial.
At trial, the government called two witnesses to testify regarding the charge of making false statements in support of passport application. Passport Specialist Manuel Pacheco testified that, on March 27, 2015, he was on duty at the St. Albans, Vermont United States Passport Agency station. Pacheco's role was to adjudicate passport applications, which included reviewing applications for evidence of citizenship and making decisions about expediting passports. The St. Albans office serves individuals seeking passports on expedited bases, largely for imminent international travel.
Pacheco testified as to the required process for applying for a passport at the passport agency. The applicant must provide a passport application form ("DS-11") completed in all respects except for the applicant's attesting signature. With the form, the applicant must submit a passport photo, certified copies of evidence of citizenship, and a primary form of identification. A DS-11 form is entitled "APPLICATION FOR A U.S. PASSPORT." Suppl. App'x at 134. The application form contains a portion that specifically notes that an individual should "STOP" there and "NOT SIGN [THE] APPLICATION UNTIL REQUESTED TO DO SO BY AN AUTHORIZED AGENT." Suppl. App'x at 134. Pacheco testified that passport specialists, upon concluding that an application satisfies the requirements for a passport, administer an oath to the applicant, which is printed in full on the application form, and direct the applicant to sign the application.
On March 27, 2015, Gu arrived at the St. Albans, Vermont office and provided Pacheco a DS-11 form that, consistent with the form's own instructions, was complete up to the point where applicants are instructed to stop; thus, the application remained unsigned. The application falsely provided Gu's name as Ally Lynn Koo and provided a false social security number ending in 5683. Gu concedes that the name and social security number were not hers.
In support of her application, Gu provided an identification card from Johnson State College, a temporary New Hampshire driver's license, and a social security card, all in the name of Ally Lynn Koo. She also provided a Texas birth certification for Thi Thanh Thuy Tran, along with a May 2014 amendment changing Tran's name to Ally Lynn Koo under the authority of a court order from an Alabama probate court. As part of her expedited application, Gu provided a falsified JetBlue itinerary, showing that she planned to travel to Jamaica in April 2015. Pacheco conducted an interview where he asked Gu questions about her request for a passport. This interview led Pacheco to ask further questions about the submission.
Due to the unusual nature of the submission, Pacheco asked Gu to fill out a supplemental form ("DS-5520"), entitled "SUPPLEMENTAL QUESTIONNAIRE TO DETERMINE IDENTITY FOR A U.S. PASSPORT." Suppl. App'x at 140. Pacheco testified that he wanted to verify Gu's statements based on her answers to this questionnaire. Gu filled out this form, in which she falsely stated that she was Ally Lynn Koo, her birth date was October 20, 1982, her social security number ended in 6783, falsely named her parents, and provided a false high school. Gu signed this form. The form noted that the signature was under penalty of perjury.
When she provided the form to Pacheco, Gu told him that she wanted to abandon the application and return to New Hampshire and apply there, as she had more identification documents in New Hampshire. Pacheco made copies of the materials submitted by Gu and then returned them to her. Gu asked for and received a new passport application form. She left the office without swearing the oath or signing the withdrawn application form. Pacheco testified that the entire interaction lasted about an hour.
After Gu left, Pacheco suspected fraud and looked up the birth name on the Texas birth certificate provided by Gu. From an internet search, he discovered the individual named on the certificate was deceased. He provided the documents to his superiors to investigate. Scott Rogers, a Diplomatic Security Service investigator, received the case from the director of the passport agency station in St. Albans. Rogers testified that he reviewed Gu's submitted documents, interviewed Pacheco, and examined the video of the interaction between Gu and Pacheco, all of which were entered into evidence at trial. Based on Rogers's investigation, the government concluded that Gu had manufactured the Ally Lynn Koo identity and falsified a number of identity documents.
Gu testified in her own defense. She denied that she was in the passport office on the day in question. At the conclusion of evidence, Gu moved for an acquittal on Counts 2 and 3, see Fed. R. Crim. P. 29(a), arguing that the evidence was insufficient as a matter of law to support guilty verdicts on those counts because a withdrawn DS-11 was not a "passport application" under the relevant federal passport fraud statute. The district court denied the motion, finding nothing in the statute required the passport application form to be completed for the charged crime to occur. The jury returned a guilty verdict on all counts on November 7, 2017.
After the verdict, Gu again moved for an acquittal or new trial on Counts 2 and 3 under Rules 29 and 33 of the Federal Rules of Criminal Procedure. Gu argued that "the application was initially submitted but then clearly and permanently withdrawn," and this prevented criminal liability from attaching to her conduct. Suppl. App'x at 116. Gu also argued that, as she had never signed or sworn to the DS-11 form, it could not be considered a passport application. In a written order denying Gu's motion, the district court found that Gu submitted a passport application, and a withdrawal did not eliminate criminal liability. See United States v. Gu , No. 16-cr-84, 2018 WL 671227, at *4–5 (D. Vt. Feb. 1, 2018).
On December 27, 2018, the district court sentenced Gu to concurrent twelve month terms of imprisonment on Counts 1 and 2, followed by a mandatory, consecutive twenty-four month term of imprisonment on Count 3, and a total of three years of supervised release. With respect to the Count 1 bank fraud, the district court also ordered restitution in the amount of $107,117.55 to the Bank of Bennington, and a forfeiture money judgment of $109,104.00. Judgment was entered on December 28, 2018. Gu filed a timely notice of appeal on January 8, 2019.
We review de novo a district court's denial of a motion for judgment of acquittal. See United States v. Greer , 631 F.3d 608, 613 (2d Cir. 2011). Where, as here, an acquittal motion is based on the purported insufficiency of the evidence, we apply the same standard for sufficiency as the district court. See United States v. Jackson , 335 F.3d 170, 180 (2d Cir. 2003). A defendant challenging the sufficiency of the evidence supporting her...
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