Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Ochoa-Lara

Supreme Court of Kansas

September 8, 2017

State of Kansas, Appellee,
v.
Guadalupe Ochoa-Lara, Appellant.

         SYLLABUS BY THE COURT

         Defendant's prosecution for identity theft for using another person's Social Security number to obtain employment was expressly preempted by the federal Immigration Reform and Control Act of 1986.

         Review of the judgment of the Court of Appeals in 52 Kan.App.2d 86, 362 P.3d 606 (2015).

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

          Rick Kittel, 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.

          OPINION

          BEIER, J.

         This companion case to State v. Garcia, 306 Kan.___, ___ P.3d ___ (No. 112, 502, this day decided), and State v. Morales, 306 Kan.___, ___ P.3d ___ (No. 111, 904, this day decided), involves defendant Guadalupe Ochoa-Lara's convictions on two counts of identity theft.

         Ochoa-Lara's two convictions arose out of a single period of restaurant employment. One conviction covered the portion of the period before a 2011 criminal statute recodification went into effect; the other covered the portion of the period after the recodification went into effect. Each count was based on Ochoa-Lara's use of Tiffany McFarland's Social Security number to obtain the employment at the beginning of the first period.

         A district court judge convicted Ochoa-Lara based on stipulated facts. Ochoa-Lara's appeal to the Court of Appeals raised two issues: (1) whether the federal Immigration Reform and Control Act of 1986 (IRCA) preempted the prosecution; and (2) whether the two counts were multiplicitous. A Court of Appeals panel affirmed Ochoa-Lara's convictions. See State v. Ochoa-Lara, 52 Kan.App.2d 86, 362 P.3d 606 (2015).

         We granted Ochoa-Lara's petition for review of both issues. Because we decide that IRCA preempts this prosecution and thus both of Ochoa-Lara's convictions must be reversed, we do not reach the multiplicity claim.

         Factual and Procedural Background

         The State initially charged Ochoa-Lara with two counts of identity theft and one count of making a false information. The two identity theft counts recited that Ochoa-Lara had "obtain[ed], possess[ed] or use[d]" a Social Security number and a resident alien card number belonging to another person during the entire time Ochoa-Lara was employed at Longbranch Steakhouse. On the first count, the Social Security number belonged to Tiffany McFarland; on the second, the resident alien card number belonged to Pierrie Lecuyer. The making of a false information count recited that Ochoa-Lara "ma[de], generate[d], or distribute[d]" a false I-9 form, which is used to determine employment eligibility under IRCA.

         Before trial, Ochoa-Lara filed two motions to dismiss. The first motion argued that the first identity theft count should be dismissed because it alleged that Ochoa-Lara violated K.S.A. 2011 Supp. 21-6107 between May 10, 2011, and December 6, 2011, and the recodified statute was not effective until July 1, 2011. The second motion challenged subject matter jurisdiction on ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.