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State v. Morales

Supreme Court of Kansas

September 8, 2017

State of Kansas, Appellee,
Donaldo Morales, Appellant.

          Review of the judgment of the Court of Appeals in an unpublished opinion filed January 8, 2016.


         Defendant's 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.

         Appeal from Johnson District Court; Kevin P. Moriarty, judge.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, was on the brief for appellant.

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


          BEIER, J.

         This 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.

         The 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 A panel of the Court of Appeals affirmed Morales' convictions in an unpublished opinion.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).

         Morales 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.

         Factual and Procedural History

         On 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.

         In 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 someone else.

         Initially 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.

         Morales 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."

         Morales 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.

         Jody 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.

         Sherri 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 ...

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