of the judgment of the Court of Appeals in an unpublished
opinion filed January 8, 2016.
BY THE COURT
prosecution for identity theft and making false information
for using another person's Social Security number to
obtain employment was expressly preempted by the federal
Immigration Reform and Control Act of 1986.
from Johnson District Court; Kevin P. Moriarty, judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office,
was on the brief for appellant.
J. Obermeier, senior deputy district attorney, Stephen M.
Howe, district attorney, and Derek Schmidt, attorney general,
were on the brief for appellee.
companion case to State v. Garcia, 306 Kan.___, ___
P.3d ___ (No. 112, 502, this day decided), and State v.
Ochoa-Lara, 306 Kan.___, ___P.3d ___ (No. 112, 322, this
day decided), involves defendant Donaldo Morales'
convictions on one count of identity theft and two counts of
making a false information.
State's basis for the charges was Morales' use of
another person's Social Security number to obtain
restaurant employment. Morales was convicted after a bench
trial. A panel of the Court of Appeals affirmed Morales'
convictions in an unpublished opinion. See State v.
Morales, No. 111, 904, 2016 WL 97848 (2016).
successfully petitioned this court for review of two of the
three issues he raised in the Court of Appeals: (1) whether
the evidence of his intent to defraud was sufficient, and (2)
whether the Immigration Reform and Control Act of 1986 (IRCA)
preempted the prosecution. Because we decide that
Morales' convictions must be reversed and the case
dismissed because the prosecution based on the Social
Security number was expressly preempted, we do not reach
Morales' sufficiency issue.
and Procedural History
October 1, 2010, Morales completed an employment application
seeking employment at a Jose Pepper's restaurant in
Johnson County. On the application, Morales provided a Social
Security number. Morales also provided the restaurant with a
permanent resident card and a Social Security card as proof
of his identity. The number on the Social Security card
matched the number he provided on the application. As part of
the hiring process, Morales completed a federal I-9 form and
W-4 and K-4 forms. He provided the same Social Security
number on each form.
2012, Special Agent Joseph Espinosa of the Social Security
Office of the Inspector General learned that a person might
be working at Jose Pepper's under an incorrect Social
Security number. Espinosa's investigation determined that
the Social Security number Morales had provided belonged to
the State charged Morales with four counts-one for identity
theft and one for making a false information through each of
the three forms, the I-9, the W-4, and the K-4.
filed a motion to dismiss the I-9 and the W-4 counts, arguing
that the State's pursuit of those two counts was
preempted by IRCA. At a hearing on the motion, the State
agreed that the I-9 count should be dismissed. Morales'
counsel argued that the W-4 fell under the "same . . .
umbrella that [the] I-9 does." The district judge
disagreed, "With respect to the W-4, I think that is
more . . . akin to the [S]ocial [S]ecurity number than it is
to something specifically related to immigration as addressed
in the State v. Arizona case."
testified at trial that he had purchased the Social Security
number he used in the Jose Pepper's hiring process from
someone in a park in 2002. He said he obtained the number so
that he could work and never used it for any other purpose.
He confirmed that he completed the I-9, W-4, and K-4 using
the number and acknowledged that he was paid for the work he
did at Jose Pepper's.
Sight, the director of human resources for the restaurant,
described the employment application process. Applicants are
required to fill out an application and do an interview with
an on-site manager. If the individual is hired, he or she is
brought back for orientation. During orientation, a new hire
is required to complete employment paperwork, including
filling out I-9, W-4, and K-4 forms.
Ann Miller, a risk and payroll manager for Jose Pepper's,
provided Morales with the I-9, W-4, and K-4 forms to fill
out. She also photocopied the permanent resident card and
Social Security card Morales provided. Miller testified that
an applicant would not be employed if he or she did not
complete the W-4 and K-4 forms. Sight testified that a person