State v. Rey

Decision Date03 January 2018
Docket NumberA16-0198
Citation905 N.W.2d 490
Parties STATE of Minnesota, Respondent, v. Emile REY, Appellant.
CourtMinnesota Supreme Court

Lori Swanson, Attorney General, Saint Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant County Attorney, Hastings, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, Saint Paul, Minnesota, for appellant.

Michael Everson, Assistant Attorney General, Saint Paul, Minnesota, for amicus curiae Minnesota Attorney General.

OPINION

ANDERSON, Justice.

Appellant Emile Rey pleaded guilty to one count of identity theft involving eight or more direct victims,1 Minn. Stat. § 609.527, subds. 2, 3(5) (2016). The district court ordered Rey to pay the mandatory-minimum restitution of $1,000 to each of his 66 direct victims, totaling $66,000. Minn. Stat. § 609.527, subd. 4(b) (2016). Rey appealed, asserting that the mandatory-minimum restitution he was ordered to pay violated his procedural and substantive due process rights and is an unconstitutional fine. The court of appeals affirmed. Rey asks us to declare the statute unconstitutional, vacate the restitution order, and remand the matter for a restitution hearing or a Blakely trial.2 We affirm.

FACTS

In March 2015, the Eagan Police Department began investigating the reported use of a cloned credit card3 by an unknown male at a Target store in Eagan. An investigator learned from Target's loss-prevention personnel that the same unknown male had been to the store on five other occasions to purchase gift cards with what appeared to be cloned credit cards. On one of the occasions, the unknown male was observed arriving at the Target store in a 2002 or 2003 Kia Spectra sedan.

In late March, Target loss-prevention personnel at a Bloomington store captured the license plate number of the Kia Spectra and forwarded it to the investigator. The investigator then spoke with the registered owner of the vehicle, who reported having sold it to another person, eventually identified as Rey's female accomplice, S.R. After obtaining a court order, an electronic tracking device was installed on S.R.'s vehicle.

Over the course of approximately one month, the investigator tracked the vehicle to Target stores on 39 occasions and to Walmart stores on nine other occasions. The investigator obtained a list of transactions from those stores during those visits. From that list, the investigator identified 25 different credit card numbers used to purchase gift cards. All of the credit card numbers were associated with credit cards issued by Wells Fargo that had been compromised by a recent breach of Home Depot's information systems.

The investigator learned from Target that some of the gift cards were redeemed in the greater Chicago area. The electronic tracking data from S.R.'s vehicle showed that on one day in May, the vehicle traveled to the Minneapolis-Saint Paul Airport, stayed for approximately one minute, and returned to S.R.'s residence. On that day, airport police, having received a photo of Rey (who was yet unidentified), reviewed surveillance video and observed him boarding a flight to Chicago. The airline provided the investigator with possible names. The investigator then identified Rey from his Facebook profile.

Several weeks later, Eagan police arrested Rey and S.R. after they attempted to use cloned credit cards at a Target store in Eagan. A search of S.R.'s residence that same day turned up 66 cloned credit cards and numerous gift cards. The investigator contacted at least 13 people whose credit cards had been cloned and confirmed that none of them had given permission to Rey or S.R. to use their credit card information.

The State charged Rey with one count of identity theft, involving more than eight direct victims. See Minn. Stat. § 609.527, subds. 2, 3(5). Rey pleaded guilty, admitting to the possession and use of 66 cloned credit cards belonging to 66 different victims. Police sent forms for restitution requests and victim-impact statements to all 66 victims. By the time of sentencing, six victims had returned victim-impact statements and only one victim had returned a restitution-request form, which did not make a claim for restitution.

Rey moved the district court to declare the mandatory-minimum restitution provision in the identity-theft statute, Minn. Stat. § 609.527, subd. 4(b), unconstitutional on the grounds that it violated his procedural and substantive due process rights. Rey also argued that ordering the mandatory-minimum restitution in his case would amount to an unconstitutional fine. The district court denied the motion and ordered Rey to pay the mandatory-minimum restitution of $1,000 to each of his 66 victims, totaling $66,000. Rey appealed, and the court of appeals affirmed. State v. Rey , 890 N.W.2d 135, 143 (Minn. App. 2017). We granted Rey's petition for review.

ANALYSIS

The identity-theft statute requires a district court to order a person convicted of identity theft to pay restitution in an amount not less than $1,000 to each direct victim of the crime. Minn. Stat. § 609.527, subd. 4(b). Direct victims are those whose identities were transferred, used, or possessed, and who suffered loss or harm. See Minn. Stat. §§ 609.527, subd. 1(b) (2016), 611A.01(b) (2016) (defining a "victim" generally as a natural person, corporation, or government entity "who incurs loss or harm as a result of a crime"). Unlike other proceedings for restitution under Minn. Stat. § 611A.045 (2016), the identity-theft statute does not expressly require a district court to consider the amount of economic loss suffered by the victim or the defendant's ability to pay when ordering restitution.

Rey argues that the mandatory-minimum restitution requirement in the identity-theft statute is unconstitutional because it: (1) violates procedural due process; (2) violates substantive due process; and (3) amounts to an unconstitutional fine. We review constitutional challenges to statutes de novo. See State v. Cox , 798 N.W.2d 517, 519 (Minn. 2011). We presume statutes are constitutional and will exercise our "power to declare a statute unconstitutional with extreme caution and only when absolutely necessary." State v. Craig , 826 N.W.2d 789, 791 (Minn. 2013) (citation omitted) (internal quotation marks omitted).

I.

The United States and Minnesota Constitutions provide that the government shall not deprive a person of "life, liberty, or property without due process of law." U.S. Const. amends. V, XIV ; Minn. Const. art. I, § 7. "The due process protection provided under the Minnesota Constitution is identical to the due proces[s] guaranteed under the Constitution of the United States." State v. Krause , 817 N.W.2d 136, 144 (Minn. 2012) (alteration in the original) (citation omitted) (internal quotation marks omitted). Rey asks us to hold that the imposition of the mandatory-minimum restitution in the identity-theft statute violated procedural and substantive due process. We address each issue in turn.

A.

"Whether the government has violated a person's procedural due process rights is a question of law that we review de novo." Sawh v. City of Lino Lakes , 823 N.W.2d 627, 632 (Minn. 2012). Fundamentally, procedural due process requires "notice and an opportunity to be heard at a meaningful time and in a meaningful manner." Id. (citation omitted) (internal quotation marks omitted). Rey argues that the procedures afforded to him were not constitutionally sufficient under the three-factor test from Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The three-factor balancing test in Mathews requires us to consider:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. But we are not persuaded that the Mathews test applies to a restitution order at a sentencing proceeding. See Medina v. California , 505 U.S. 437, 443, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) ("[T]he Mathews balancing test does not provide the appropriate framework for assessing the validity of state procedural rules [that] ... are part of the criminal process."). The restitution order here arises out of the criminal process, and Rey received the full range of procedural protections afforded to all criminal defendants.

Even if we applied the Mathews framework, however, Rey's claim would fail. Rey does not weigh the first and third factors of the test—i.e., the private interest at stake and the government's interest. Mathews , 424 U.S. at 335, 96 S.Ct. 893. Rey argues under the second factor that the risk of erroneous deprivation, id. , is so high that we should conclude that the mandatory-minimum-restitution requirement is unconstitutional. The risk of erroneous deprivation , however, is nil. Rey's guilty plea included an express admission of the only material facts necessary for the restitution order: that 66 persons were direct victims of his criminal conduct. Rey's argument—that the procedures afforded will result in erroneous deprivations because some victims may receive more in restitution payments than their actual loss or harm—takes aim at the substance of the law, not the adequacy of the procedures. Rey's argument is really that the mandatory-minimum restitution will result in erroneous compensation , not that more or different procedures would have changed the amount of restitution awarded, which the Legislature has fixed at a minimum of $1,000 per direct victim.

Moreover, there is no dispute that Rey received notice that he would be required to potentially pay $66,000 in mandatory restitution, in the...

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