of the judgment of the Court of Appeals in an unpublished
opinion filed January 29, 2016.
BY THE COURT
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
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.
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.
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.
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Garcia's conviction in an unpublished opinion.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.
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
and Procedural History
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.
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.
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)"
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
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.
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.
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.
receiving Garcia's application, Bonefish Grill decided to
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
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.
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.
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."
cross-examination, Espinosa testified that he had never
spoken to Munguia.
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."
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.
challenges his conviction because, in his view, this identity
theft prosecution against him was preempted by IRCA.
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
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.
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.
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).
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.").
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
of whether a particular challenge qualifies as facial or
as-applied, any preemption claim also fits one of two other
categories: express and implied.
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).
preemption arises when a federal statute's
"structure and purpose" demonstrate that state law
can have no application. Altria Grp., Inc. v. Good,