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State v. Garcia

Supreme Court of Kansas

September 8, 2017

State of Kansas, Appellee,
Ramiro Garcia, Appellant.

          Review of the judgment of the Court of Appeals in an unpublished opinion filed January 29, 2016.


         Defendant's prosecution for identity theft for using another person's Social Security number to obtain employment is 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, argued the cause, and Evan Freeman, legal intern, of the same office, was with him on the brief for appellant.

          Jacob M. Gontesky, assistant district attorney, argued the cause, and 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. Morales, 306 Kan. ___, ___ P.3d ___ (No. 111, 904, this day decided), and State v. Ochoa-Lara, 306 Kan.___, ___ P.3d ___ (No. 112, 322, this day decided), involves defendant Ramiro Garcia's conviction on one count of identity theft.

         The State's basis for the charge was Garcia's use of the Social Security number of Felisha Munguia to obtain restaurant employment. A Court of Appeals panel affirmed Garcia's conviction in an unpublished opinion. See State v. Garcia, No. 112, 502, 2016 WL 368054 (Kan. App. 2016).

         We granted Garcia's petition for review on three issues: (1) whether there was sufficient evidence that Garcia acted with an "intent to defraud, " an element of identity theft; (2) whether the federal Immigration Reform and Control Act of 1986 (IRCA) preempted the prosecution; and (3) whether it was clearly erroneous for the district court judge not to give a unanimity instruction. Because we decide that Garcia's conviction must be reversed because the State's prosecution based on the Social Security number was expressly preempted, we do not reach Garcia's two other issues.

         Factual and Procedural History

         On August 26, 2012, Officer Mike Gibson pulled Garcia over for speeding. Gibson asked Garcia where he was going in such a hurry. Garcia replied that he was on his way to work at Bonefish Grill. Based on the results of a routine records check on Garcia, Gibson contacted Detective Justin Russell, who worked in the financial crimes department of the Overland Park Police Department. Russell was in the neighborhood and came to the scene to speak with Garcia.

         The day after speaking with Garcia, Russell contacted Bonefish Grill and obtained Garcia's "[e]mployment application documents, possibly the W-2, the I-9 documents." Russell then spoke with Special Agent Joseph Espinosa of the Social Security Office of the Inspector General. Espinosa told Russell that the Social Security number Garcia had used on the forms belonged to Felisha Munguia of Edinburg, Texas.

         As a result of the investigation, Garcia was charged with one count of identity theft. The complaint alleged:

"That on or about the 25th day of May, 2012, in the City of Overland Park, County of Johnson, and State of Kansas, RAMIRO ENRIQUEZ GARCIA did then and there unlawfully, willfully, and feloniously obtain, possess, transfer, use, sell or purchase any personal identifying information, or document containing the same, to wit: [S]ocial [S]ecurity number belonging to or issued to another person, to wit: Felisha Munguia, with the intent to defraud that person, or anyone else, in order to receive any benefit, a severity level 8, nonperson felony, in violation of K.S.A. 21-6107, K.S.A. 21-6804 and K.S.A. 21-6807. (identity theft)"

         Before trial, Garcia filed a motion to suppress the I-9 form he had filled out during the hiring process, relying on an express preemption provision in IRCA. At the hearing on the motion, Garcia noted, and the State agreed, that the State did not intend to rely on the I-9 as a basis of prosecution. Garcia then argued that, because the information contained on the I-9 was transferred to a W-4 form, the W-4 should be suppressed as well. The district judge refused to suppress the W-4.

         At trial, Khalil Booshehri, a manager at Bonefish Grill, testified that Garcia had been a line cook for the restaurant and had been a good employee. Booshehri testified that Garcia was paid for his work as a line cook, was allowed to eat while on duty, and was eligible for overtime pay.

         Jason Gajan, a managing partner at Bonefish Grill, testified about the restaurant's hiring process. The process typically begins with a short, informal interview when a person comes in looking for an application. If the manager determines that the person meets the restaurant's basic requirements, he or she is given a card with instructions explaining how to fill out an online application.

         With respect to Garcia's hiring specifically, the State introduced his employment application into evidence. The application contained basic information about Garcia's work history and education. The application did not disclose a Social Security number, although it contained a statement by Garcia that, if hired, he could verify his identity and legal right to work in the United States.

         After receiving Garcia's application, Bonefish Grill decided to hire Garcia.

         Once a hiring decision has been made, the restaurant sends an e-mail to the new hire with a packet of information, including documents to fill out. Gajan believed that in addition to the information packet, new hires also received W-4 and I-9 forms.

         Garcia filled out electronic W-4 and K-4 tax forms, both of which were admitted into evidence. Each of the forms contained a Social Security number and was digitally signed by Garcia. Gajan testified that, in addition to the employee filling out the forms, Gajan would have had to see a paper Social Security card and then manually input the number from the card into an electronic document. After verifying the documents, Gajan would also have digitally signed the document himself. According to Gajan, he could not have proceeded with the hiring process if Garcia had not filled out the required forms.

         Gajan also testified about the benefits Bonefish Grill offered to employees and the benefits Garcia received. According to Gajan, Garcia was paid for the hours he worked at Bonefish Grill, including overtime pay on occasion. During his shifts, Garcia was allowed to eat at the restaurant. In addition, Bonefish Grill offered employees health and dental insurance, as well as paid vacation; but Gajan conceded that Garcia had not worked at Bonefish Grill long enough to receive these benefits. Gajan believed that Garcia would have received workers compensation benefits had he been injured on the job.

         The State's final witness was Espinosa. He testified that he had searched the "Social Security Master File Database" and determined that the Social Security number Garcia had used was not assigned to Garcia. The number was assigned to Felisha Mari Munguia, who was born in 1996. The database showed that Munguia had been issued a second Social Security card in 2000. Espinosa also provided examples of hypothetical consequences that might be caused by a person using someone else's Social Security number. In a "case specifically like this, " if a person were to

"come and work under your [S]ocial [S]ecurity number, it would report back wages for you[, ] presumably making you insured into federal government programs that you may have not otherwise been entitled to.
"Conversely to that, let's say that you were receiving some disability or retirement benefits from one of these government programs. These earnings could adversely affect you, because it would indicate that you are working when in fact you might not be working, and you could be terminated from those benefits."

         During cross-examination, Espinosa testified that he had never spoken to Munguia.

         In closing argument, the prosecutor acknowledged that Garcia was "a hard worker" and "did well at his job." He conceded that "Mr. Booshehri did everything but tell you he was a very valuable employee. Mr. Gajan had nothing bad to say about him. He worked hard for Bonefish." But, according to the State, those facts did not matter because "in the State of Kansas, you cannot work under someone else's [S]ocial [S]ecurity number." The prosecutor also noted that Gajan "would not have hired [Garcia] if he did not have a [S]ocial [S]ecurity number."

         After deliberations, the jury found Garcia guilty of identity theft. The district judge later sentenced Garcia to 7 months in prison but granted 18 months' probation.

         This appeal followed.


         Garcia challenges his conviction because, in his view, this identity theft prosecution against him was preempted by IRCA.

         All preemption arguments, including the as-applied one advanced by Garcia in this case, are based upon the Supremacy Clause of the United States Constitution. The Supremacy Clause gives Congress the power to preempt state law. Arizona v. United States, 567 U.S. 387, 398-99, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). When evaluating whether a state law is preempted, "'[t]he purpose of Congress is the ultimate touchstone.' Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 223, 11 L.Ed.2d 179 (1963)." Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978).

         Before focusing on the use of the Kansas identity theft statute challenged here, it is helpful to review the general law of preemption under the precedents of the United States Supreme Court and this court.

         When all types, categories, and subcategories of preemption claims are considered, we discern eight possible ways a party may challenge an application of state law, alleging it is preempted by federal law.

         First, there are traditionally two basic types of such challenges: facial and as-applied. When a party raises a facial challenge to application of state law, he or she claims that the law is preempted in all or virtually all cases. See California Coastal Com'n v. Granite Rock Co., 480 U.S. 572, 588-89, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987) (explaining concept of facial preemption).

         In contrast, when a party raises an as-applied preemption challenge, he or she argues that state law may be constitutional when applied in some cases but not in the particular circumstances of his or her case. See United States v. Supreme Court of New Mexico, 839 F.3d 888, 907 (10th Cir. 2016), petition for cert. filed June 5, 2017. In an as-applied challenge, the law under scrutiny can itself be "textually neutral, " meaning "one [cannot] tell that the" law undermines federal policy "by looking at the text [alone]. Only when studying certain applications of the laws" do conflicts arise. Puente Arizona v. Arpaio, 821 F.3d 1098, 1105 (9th Cir. 2016) (defining contours of as-applied challenge); see also 16 C.J.S., Constitutional Law § 243 ("An 'as applied' challenge is a claim that the operation of a statute is unconstitutional in a particular case while a facial challenge indicates that the statute may rarely or never be constitutionally applied.").

         All of this said, "facial" and "as-applied" labels "parties attach to claims are not determinative" of the analysis a court will ultimately employ in a preemption case. See Supreme Court of New Mexico, 839 F.3d at 914. And the boundary between the two types of challenges is not impenetrable. Still, as with other types of cases alleging that a law is unconstitutional, "[t]he distinction is both instructive and necessary, for it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint." Citizens United v. Federal Election Com'n, 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (considering regulation of corporate political speech). Garcia challenges the use of law of general application to himself alone, i.e., advances an as-applied claim. The State does not challenge his characterization. The relief provided in this case will flow solely to Garcia. The fact that the holding in his favor may have wider application, Morales, 306 Kan.___, and Ochoa-Lara, 306 Kan.___, does not mean his preemption argument should be labeled "facial."

         Regardless of whether a particular challenge qualifies as facial or as-applied, any preemption claim also fits one of two other categories: express and implied.

         Express preemption depends upon the words used by Congress, which may explicitly limit a state's ability to legislate or apply its own constitutional or common law. "There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision." Arizona, 567 U.S. at 399; see also Am. Trucking Associations, Inc. v. City of Los Angeles, Cal., 569 U.S.___, 133 S.Ct. 2096, 186 L.Ed.2d 177 (2013) (facial, express challenge: certain provisions of concession agreements in clean air action plan expressly preempted by Federal Aviation Administration Authorization Act, which preempts a state "law, regulation, or other provision having the force and effect of law"); Gobeille v. Liberty Mut. Ins. Co., 577 U.S.___, 136 S.Ct. 936, 194 L.Ed.2d 20 (2016) (as-applied, express challenge: Employee Retirement Income Security Act [ERISA] preempts Vermont statute establishing health care database for use in Vermont, by Vermont residents); Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 295, 255 P.3d 1186 (2011) (facial, express challenge: explicit statutory language from Congress compared to Kansas Recreational Trails Act).

         Implied preemption arises when a federal statute's "structure and purpose" demonstrate that state law can have no application. Altria Grp., Inc. v. Good, 555 ...

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