State v. Ochoa-Lara, 112,322.

• Decision Date: 25 November 2015
• Docket Number: No. 112,322.,112,322.
• Citation: 362 P.3d 606,52 Kan.App.2d 86
• Parties: STATE of Kansas, Appellee, v. Guadalupe OCHOA–LARA, Appellant.
• Court: Kansas Court of Appeals

52 Kan.App.2d 86

362 P.3d 606

STATE of Kansas, Appellee,

v.Guadalupe OCHOA–LARA, Appellant.

No. 112,322.

Court of Appeals of Kansas.

Nov. 25, 2015.

Review Granted Oct. 21, 2016.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., GREEN, J., and JEFFREY E. GOERING, District Judge, assigned.

GOERING, J.

Guadalupe Ochoa–Lara was convicted of two counts of identity theft following a bench trial on stipulated facts. Ochoa–Lara argues on appeal that the charges should have been dismissed by the district court because the Immigration Reform and Control Act (IRCA) preempts state prosecution for identity theft based on the unlawful use of another person's Social Security number. Ochoa–Lara also argues that the charges were multiplicitous. We find that the IRCA does not preempt state prosecution for identity theft. We further find that Ochoa–Lara failed to raise the issue of multiplicity in the district court and he has failed to preserve this issue for appellate review.

The facts to which the parties stipulated at trial are as follows:

"1. During November and December of 2011, Overland Park Police Department officers and DHS/ICE agents were attempting to contact Christian Ochoa–Lara at 9135 Robinson, Apartment 2G, Overland Park, Johnson County, Kansas. At that location, officers learned that the apartment was leased to Guadalupe Ochoa–Lara. Officers obtained a copy of the lease and determined Guadalupe Ochoa–Lara, the defendant, used a social security number issued to another individual to lease the apartment. Officers contacted [T.M.], who is lawfully issued the social security number used by Guadalupe Ochoa–Lara to rent the apartment, and she advised she had no knowledge her number was being used and did not consent to it being used. [T.M.] later reported that she contacted the IRS and was notified that income had been reported under her social security number which she reported was not earned by her.

"2. Officers determined that Guadalupe Ochoa–Lara was employed at the Long Branch Steakhouse in Lenexa, Johnson County, Kansas. Officers contacted personnel for Long Branch Steakhouse and confirmed that Guadalupe Ochoa–Lara did work at the Lenexa location from approximately May of 2011 to December of 2011. Officers reviewed the Form W–4 completed by Ochoa–Lara on May 10, 2011 in Lenexa, Johnson County, Kansas and observed he used the social security number issued to [T.M.] to complete the form. Personnel for Long Branch Steakhouse confirmed a social security number is required in order for individuals to be hired by their company and also for both federal and state tax withholding purposes.

"3. Investigators reported Guadalupe Ochoa–Lara does not have a social security number lawfully issued to him and he used [T.M.'s] number in order to gain employment."

Prior to trial, Ochoa–Lara filed two separate motions to dismiss. In his first motion, Ochoa–Lara argued that his case should be dismissed because the complaint was fundamentally flawed. Specifically, Ochoa–Lara maintained that because the Kansas identity theft statute had changed during the time he was charged he did not have proper notice of the charges against him and could not adequately prepare his defense. In his second motion to dismiss, Ochoa–Lara argued that his case should be dismissed for lack of jurisdiction because the IRCA preempted the prosecution of him for violating Kansas' identity theft statute.

At the hearing of the motions before the district court, the State agreed to dismiss two of Ochoa–Lara's charges based on jurisdiction. The State then requested to split count 1 into two separate charges due to the fact that the Kansas identity theft statute had changed. Effective July 1, 2011, K.S.A. 21–4018 was repealed and replaced by K.S.A.2011 Supp. 21–6107. As such, count 1 of the amended complaint covered conduct prior to July 1, 2011, and count 2 covered conduct post July 1, 2011. Ochoa–Lara did not argue to the district court that the counts in the amended complaint were multiplicitous.

Based on the stipulated facts, the district court found Ochoa–Lara guilty of both counts of identity theft. Ochoa–Lara was given a concurrent sentence of 7 months on each count and was granted probation for 18 months.

Does federal law preempt the State's prosecution of Ochoa–Lara for identity theft?

In his motion to dismiss for lack of jurisdiction, Ochoa–Lara argued to the district court that under the preemption provision of the IRCA, the

"[S]tate cannot use an I–9 for the purpose of convicting an individual of identity theft, identity fraud, or making a false writing under a State statute. Additionally, any information contained in the I–9, including names and social security numbers, and any supporting documents cannot be used for State conviction purposes."

Ochoa–Lara cited Arizona v. United States, 567 U.S. ––––, 132 S.Ct. 2492, 2504, 183 L.Ed.2d 351 (2012), in which the United States Supreme Court held that "any information employees submit to indicate their work status ‘may not be used’ for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct."

At the hearing on the motion to dismiss, the district court denied the motion, ruling that "[w]e're not relying on the I–9 at this time or any of the other federally described statutes and codes that are set forth in the Arizona case." On appeal, Ochoa–Lara argues that his convictions for identity theft "are simply state-level penalties for conduct prescribed under federal law."

Whether a state statute is preempted by federal law involves statutory interpretation and raises a question of law over which we exercise de novo review. Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, 974, 218 P.3d 400 (2009) ; Steffes v. City of Lawrence,

284 Kan. 380, 385, 160 P.3d 843 (2007).

Under the Supremacy Clause of the United States Constitution, "the Laws of the United States ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. Art. VI, cl. 2. "Simply put, the Supremacy Clause invalidates state laws that interfere with, or are contrary to, federal law." Board of Miami County Comm'rs v. Kanza Rail–Trails Conservancy, Inc., 292 Kan. 285, 294, 255 P.3d 1186 (2011).

To determine whether a state law is preempted by a federal law, we must determine Congress' intent by interpreting the " ‘language of the pre-emption statute and the "statutory framework" surrounding it.’ " Wichita Terminal Ass'n v. F.Y.G. Investments, Inc., 48 Kan.App.2d 1071, 1078, 305 P.3d 13 (2013) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485–86, 116 S.Ct. 2240, 135 L.Ed.2d 700 [1996] ). When there is an express preemption clause in a federal law, the court should "focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' pre-emptive intent." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). In conducting a preemption analysis, " courts should assume that ‘the historic police powers of the States' are not superseded ‘unless that was the clear and manifest purpose of Congress.’ " Arizona, 132 S.Ct. at 2501.

As to the IRCA, we begin our preemption analysis with a review of the federal statute at issue, 8 U.S.C. § 1324a (2012), which governs the unlawful employment of aliens. In Chamber of Commerce of United States v. Whiting, 563 U.S. 582, 131 S.Ct. 1968, 1974, 179 L.Ed.2d 1031 (2011), the United States Supreme Court summarized 8 U.S.C. § 1324a as follows:

"IRCA makes it ‘unlawful for a person or other entity ... to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.’ 8 U.S.C. § 1324a(a)(1)(A). IRCA defines an ‘unauthorized alien’ as an alien who is not ‘lawfully admitted for permanent residence’ or not otherwise authorized by the Attorney General to be employed in the United States. § 1324a(h)(3).

"To facilitate compliance with this prohibition, IRCA requires that employers review documents establishing an employee's eligibility for employment. § 1324a(b). An employer can confirm an employee's authorization to work by reviewing the employee's United States passport, resident alien card, alien registration card, or other document approved by the Attorney General; or by reviewing a combination of other documents such as a driver's license and social security card. § 1324a(b)(1)(B)–(D). The employer must attest under penalty of perjury on Department of Homeland Security Form I–9 that he ‘has verified that the individual is not an unauthorized alien’ by reviewing these documents. § 1324a(b)(1)(A). The form I–9 itself ‘and any information contained in or appended to [it] ... may not be used for purposes other than for enforcement of’ IRCA and other specified provisions of federal law. § 1324a(b)(5)."

An employer who is charged with violating 8 U.S.C. § 1324a has an affirmative defense if there has been good-faith compliance with the IRCA's I–9 document review requirements. 8 U.S.C. § 1324a(a)(3) ; Whiting, 131 S.Ct. at 1975.

The express preemption language is found in 8 U.S.C. § 1324a(b)(5), which states that the I–9 form and documents appended to it "may not be used for purposes other than for enforcement of this [Act]" and other specified provisions of federal law. The interpretation of this language should be done in the context of the entire statute. The I–9 form and the information appended to that form are all part of an employment verification system. See 8 U.S.C. § 1324a(b). When read in this light, it becomes clear that the Congressional intent of 8 U.S.C. § 1324(b)(5) was to preempt the area of employment-related verification of immigration status and to prevent individual states from...