State v. Ochoa-Lara

No. 112,322

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GUADALUPE OCHOA-LARA,
Appellant.

SYLLABUS BY THE COURT

1.
Whether a state statute is preempted by federal law involves statutory
interpretation and raises a question of law over which an appellate court exercises de
novo review.

2.
To determine whether a state law is preempted by a federal law, Congressional
intent is determined by interpreting the language of the preemption statute and the
statutory framework surrounding it. When there is an express preemption clause, an
appellate court should focus on the plain wording of the clause which is the best evidence
of Congressional intent.

3.
When conducting a preemption analysis, an appellate court should presume that
the historic police powers of the State are not superseded unless that was the clear and
manifest purpose of Congress.

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4.
The Immigration Reform and Control Act (IRCA) establishes a system of
employment-related verification of immigration status. The preemption language of 8
U.S.C. § 1324a(b)(5) (2012) prohibits individual states from establishing criminal
penalties in this area.

5.
The Kansas identity theft statute does not regulate conduct associated with the
employment-related verification of immigration status, nor does it create criminal
penalties for unauthorized aliens working or seeking work in Kansas. The state
prosecution of identity theft based upon the unlawful use of another's Social Security
number is not preempted by the IRCA.

6.
Kansas Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an
appellant raising a constitutional issue for the first time on appeal to affirmatively invoke
and argue in the appeal brief an exception to the general rule that such claims may not be
raised for the first time on appeal. Failure to comply with this requirement risks a
determination by the appellate court that the issue has been abandoned.

Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed November 25,
2015. Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

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

Before LEBEN, P.J., GREEN, J., and JEFFREY E. GOERING, District Judge, assigned.

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 GOERING, J.: Guadalupe Ochoa-Lara was convicted of two counts of identity theft
following a bench trial on stipulated facts. Ochoa-Lara argues on appeal that the charges
should have been dismissed by the district court because the Immigration Reform and
Control Act (IRCA) preempts state prosecution for identity theft based on the unlawful
use of another person's Social Security number. Ochoa-Lara also argues that the charges
were multiplicitous. We find that the IRCA does not preempt state prosecution for
identity theft. We further find that Ochoa-Lara failed to raise the issue of multiplicity in
the district court and he has failed to preserve this issue for appellate review.

The facts to which the parties stipulated at trial are as follows:

"1. During November and December of 2011, Overland Park Police Department
officers and DHS/ICE agents were attempting to contact Christian Ochoa-Lara at 9135
Robinson, Apartment 2G, Overland Park, Johnson County, Kansas. At that location,
officers learned that the apartment was leased to Guadalupe Ochoa-Lara. Officers
obtained a copy of the lease and determined Guadalupe Ochoa-Lara, the defendant, used
a social security number issued to another individual to lease the apartment. Officers
contacted [T.M.], who is lawfully issued the social security number used by Guadalupe
Ochoa-Lara to rent the apartment, and she advised she had no knowledge her number was
being used and did not consent to it being used. [T.M.] later reported that she contacted
the IRS and was notified that income had been reported under her social security number
which she reported was not earned by her.
"2. Officers determined that Guadalupe Ochoa-Lara was employed at the Long
Branch Steakhouse in Lenexa, Johnson County, Kansas. Officers contacted personnel for
Long Branch Steakhouse and confirmed that Guadalupe Ochoa-Lara did work at the
Lenexa location from approximately May of 2011 to December of 2011. Officers
reviewed the Form W-4 completed by Ochoa-Lara on May 10, 2011 in Lenexa, Johnson
County, Kansas and observed he used the social security number issued to [T.M.] to
complete the form. Personnel for Long Branch Steakhouse confirmed a social security
number is required in order for individuals to be hired by their company and also for both
federal and state tax withholding purposes.

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 "3. Investigators reported Guadalupe Ochoa-Lara does not have a social security
number lawfully issued to him and he used [T.M.'s] number in order to gain
employment."

Prior to trial, Ochoa-Lara filed two separate motions to dismiss. In his first motion,
Ochoa-Lara argued that his case should be dismissed because the complaint was
fundamentally flawed. Specifically, Ochoa-Lara maintained that because the Kansas
identity theft statute had changed during the time he was charged he did not have proper
notice of the charges against him and could not adequately prepare his defense. In his
second motion to dismiss, Ochoa-Lara argued that his case should be dismissed for lack
of jurisdiction because the IRCA preempted the prosecution of him for violating Kansas'
identity theft statute.

At the hearing of the motions before the district court, the State agreed to dismiss
two of Ochoa-Lara's charges based on jurisdiction. The State then requested to split count
1 into two separate charges due to the fact that the Kansas identity theft statute had
changed. Effective July 1, 2011, K.S.A. 21-4018 was repealed and replaced by K.S.A.
2011 Supp. 21-6107. As such, count 1 of the amended complaint covered conduct prior
to July 1, 2011, and count 2 covered conduct post July 1, 2011. Ochoa-Lara did not argue
to the district court that the counts in the amended complaint were multiplicitous.

Based on the stipulated facts, the district court found Ochoa-Lara guilty of both
counts of identity theft. Ochoa-Lara was given a concurrent sentence of 7 months on each
count and was granted probation for 18 months.

Does federal law preempt the State's prosecution of Ochoa-Lara for identity theft?

In his motion to dismiss for lack of jurisdiction, Ochoa-Lara argued to the district
court that under the preemption provision of the IRCA, the

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 "[S]tate cannot use an I-9 for the purpose of convicting an individual of identity theft,
identity fraud, or making a false writing under a State statute. Additionally, any
information contained in the I-9, including names and social security numbers, and any
supporting documents cannot be used for State conviction purposes."

Ochoa-Lara cited Arizona v. United States, 567 U.S. ___, 132 S. Ct. 2492, 2504, 183 L.
Ed. 2d 351 (2012), in which the United States Supreme Court held that "any information
employees submit to indicate their work status 'may not be used' for purposes other than
prosecution under specified federal criminal statutes for fraud, perjury, and related
conduct."

At the hearing on the motion to dismiss, the district court denied the motion, ruling
that "[w]e're not relying on the I-9 at this time or any of the other federally described
statutes and codes that are set forth in the Arizona case." On appeal, Ochoa-Lara argues
that his convictions for identity theft "are simply state-level penalties for conduct
prescribed under federal law."

Whether a state statute is preempted by federal law involves statutory
interpretation and raises a question of law over which we exercise de novo review.
Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, 974, 218 P.3d 400
(2009); Steffes v. City of Lawrence, 284 Kan. 380, 385, 160 P.3d 843 (2007).

Under the Supremacy Clause of the United States Constitution, "the Laws of the
United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding." U.S. Const. Art. VI, cl. 2.
"Simply put, the Supremacy Clause invalidates state laws that interfere with, or are
contrary to, federal law." Board of Miami County Comm'rs v. Kanza Rail-Trails
Conservancy, Inc., 292 Kan. 285, 294, 255 P.3d 1186 (2011).

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 To determine whether a state law is preempted by a federal law, we must
determine Congress' intent by interpreting the "'language of the pre-emption statute and
the "statutory framework" surrounding it.'" Wichita Terminal Ass'n v. F.Y.G.
Investments, Inc., 48 Kan. App. 2d 1071, 1078, 305 P.3d 13 (2013) (quoting Medtronic,
Inc. v. Lohr, 518 U.S. 470, 485-86, 116 S. Ct. 2240, 135 L. Ed. 2d 700 [1996]). When
there is an express preemption clause in a federal law, the court should "focus on the
plain wording of the clause, which necessarily contains the best evidence of Congress'
pre-emptive intent." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S. Ct.
1732, 123 L. Ed. 2d 387 (1993). In conducting a preemption analysis, "courts should
assume that 'the historic police powers of the States' are not superseded 'unless that was
the clear and manifest purpose of Congress.'" Arizona, 132 S. Ct. at 2501.

As to the IRCA, we begin our preemption analysis with a review of the federal
statute at issue, 8 U.S.C. § 1324a (2012), which governs the unlawful employment of
aliens. In Chamber of Commerce of United States v. Whiting, 563 U.S. 582, 131 S. Ct.
1968, 1974, 179 L. Ed. 2d 1031 (2011), the United States Supreme Court summarized
8 U.S.C. § 1324a as follows:

"IRCA makes it 'unlawful for a person or other entity . . . to hire, or to recruit or refer for
a fee, for employment in the United States an alien knowing the alien is an unauthorized
alien.' 8 U.S.C. § 1324a(a)(1)(A). IRCA defines an 'unauthorized alien' as an alien who is
not 'lawfully admitted for permanent residence' or not otherwise authorized by the
Attorney General to be employed in the United States. § 1324a(h)(3).
"To facilitate compliance with this prohibition, IRCA requires that employers
review documents establishing an employee's eligibility for employment. § 1324a(b). An
employer can confirm an employee's authorization to work by reviewing the employee's
United States passport, resident alien card, alien registration card, or other document
approved by the Attorney General; or by reviewing a combination of other documents
such as a driver's license and social security card. § 1324a(b)(1)(B)-(D). The employer
must attest under penalty of perjury on Department of Homeland Security Form I-9 that
he 'has verified that the individual is not an unauthorized alien' by reviewing these

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 documents. § 1324a(b)(1)(A). The form I-9 itself 'and any information contained in or
appended to [it] . . . may not be used for purposes other than for enforcement of' IRCA
and other specified provisions of federal law. § 1324a(b)(5)."

An employer who is charged with violating 8 U.S.C. § 1324a has an affirmative defense
if there has been good-faith compliance with the IRCA's I-9 document review
requirements. 8 U.S.C. § 1324a(a)(3); Whiting, 131 S. Ct. at 1975.

The express preemption language is found in 8 U.S.C. § 1324a(b)(5), which states
that the I-9 form and documents appended to it "may not be used for purposes other than
for enforcement of this [Act]" and other specified provisions of federal law. The
interpretation of this language should be done in the context of the entire statute. The I-9
form and the information appended to that form are all part of an employment
verification system. See 8 U.S.C. § 1324a(b). When read in this light, it becomes clear
that the Congressional intent of 8 U.S.C. § 1324(b)(5) was to preempt the area of
employment-related verification of immigration status and to prevent individual states
from establishing criminal penalties in this area. See, e.g., State v. Reynua, 807 N.W.2d
473, 480 (Minn. App. 2011) (state perjury prosecution preempted by the IRCA).

Neither the current nor former Kansas identity theft statutes have anything to do
with the employment-related verification of immigration status, nor do they create
criminal penalties for unauthorized aliens working or seeking work in Kansas. K.S.A. 21-
4018(a), under which Ochoa-Lara was charged in count 1, prohibits obtaining,
possessing, transferring, or using the personal identification number of another person, or
attempting to do so, with the intent to defraud for any benefit. K.S.A. 2011 Supp. 21-
6107(a)(1), under which Ochoa-Lara was charged in count 2, prohibits "obtaining,
possessing, transferring, using, selling or purchasing any personal identification number,
or document containing the same, belonging to or issued to another person" with the
intent to defraud that person in order to receive any benefit. The gravamen of the offenses

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for which Ochoa-Lara was prosecuted are the unauthorized uses of another person's
Social Security number. There is nothing in the IRCA or its express preemption language
that remotely suggests that Congress intended to supersede Kansas' historic police power
to prosecute identity thieves.

Further, as the district court noted, neither the I-9 form nor the documents
appended to the I-9 form were used to prosecute Ochoa-Lara. There is nothing in the
preemption language that prohibits the State from proving identity theft by using
information from sources other than the I-9 form, even though that information may also
be contained on the I-9 form and the documents appended thereto. See Whiting, 131 S.
Ct. at 1982 n.9. At the end of the day, while Ochoa-Lara's use of another's Social Security
number may have resulted in a falsified I-9 form or a falsified W-4 form, he was not
prosecuted in this case for falsifying federal forms. As such, whether federal penalties
exist for falsifying an I-9 form or a W-4 form does not prevent the State from prosecuting
Ochoa-Lara for identity theft.

This case was tried to the district court on stipulated facts. The evidence
supporting Ochoa-Lara's convictions was his stipulation that he used the Social Security
number of another person to complete a W-4 form in order to gain employment. Given
this stipulation, the State did not have to admit any documents at all to prove the elements
necessary to convict Ochoa-Lara for violating the current and former Kansas identity
theft statutes, much less the I-9 form and the documents appended thereto. Again, just
because Ochoa-Lara used the Social Security number of another person in connection
with the completion of the I-9 form does not mean that he gets the proverbial "Get Out of
Jail Free" card for other illegal uses of that Social Security number that violate Kansas
statutes.

The same conclusion was reached by the Minnesota Court of Appeals in Reynua,
807 N.W.2d. 473. That case involved, among other things, a prosecution for forgery

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based on the use of a Minnesota identification card. The court in that case concluded that
the preemption language in 8 U.S.C. § 1324a(b)(5) did not bar prosecution for the display
or possession of a fraudulently altered Minnesota identification card simply because that
card had been presented in support of an I-9 form:

"IRCA bars use of the I-9 form and 'any information contained in or appended to
such form' for purposes other than enforcement of the federal immigration statute and the
federal perjury and false-statement provisions. 8 U.S.C. § 1324a(b)(5). But we cannot
read this provision so broadly as to preempt a state from enforcing its laws relating to its
own identification documents.
"We conclude that the state, for example, is not barred from prosecuting the
crime of display or possession of a fictitious or fraudulently altered Minnesota
identification card, [citation omitted], merely because that card has been presented in
support of an I-9 federal employment-eligibility verification form. There is a general
presumption that the 'historic police powers of the State' are not superseded by federal
legislation 'unless that was the clear and manifest purpose of Congress.' Altria Group,
Inc. v. Good, 555 U.S. 70, 129 S. Ct. 538, 543, 172 L. Ed. 2d 398 (2008) (quotation
omitted).
"Section 1324a(b)(5) prohibits non-federal use of 'information' appended to the I-
9 form. That language does not exhibit a 'clear and manifest purpose' to bar enforcement
of state laws pertaining to state identification cards. It would be a significant limitation on
state powers to preempt prosecution of state laws prohibiting falsification of state-issued
identification cards, let alone to prohibit all use of such cards merely because they are
also used to support the federal employment-verification application. [Citations omitted.]
We note here that Reynua did not use the [falsified] identification card solely to apply for
employment, but also to apply for certificates of title.
....
"The state proved the simple-forgery count by presenting evidence tending to
show that the photograph on the Minnesota identification card was that of Reynua, but
the card was issued in the name of 'Laura Romero.' Reynua's sister testified that the
photograph was of Reynua, the district court found that the photograph was of the same
person as the person in the Reynua family photographs, and the court took judicial notice
that the person in all the photographs was the same person that appeared in court to

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 answer the complaint. Although the Minnesota identification card in the name of 'Laura
Romero' was presented with the I-9 form, the state's proof of the falsity of the
identification card did not rely on its use in support of the I-9 form. The falsity of the
identification card was shown primarily by the evidence establishing that the person
whose photograph was shown on the card was Reynua, not Romero." 807 N.W.2d at 480-
81.

Various other panels of our court in unpublished decisions have likewise held that
the IRCA does not preempt state prosecution of identity theft based on the unlawful use
of another's Social Security number. See State v. Saldana, No. 111,429, 2015 WL
4486779 (Kan. App. 2015) (unpublished opinion), petition for rev. filed August 5, 2015;
State v. Dorantes, No. 111,224, 2015 WL 4366452 (Kan. App. 2015) (unpublished
opinion), petition for rev. filed July 23, 2015; State v. Flores-Sanchez, No. 110,457, 2014
WL 7565673 (Kan. App. 2014) (unpublished opinion), rev. denied 302 Kan. ___ (August
20, 2015); State v. Lopez-Navarrete, No. 111,190, 2014 WL 7566851 (Kan. App. 2014)
(unpublished opinion). Those panels each reached the same conclusion as we do in this
case. The State's prosecution of Ochoa-Lara for the illegal use of another's Social
Security number did not depend on his immigration status, the lawfulness of his presence
in the United States, or his eligibility for employment. The other panels of our court
noted in those decisions, as we do here, that the possible illegal uses of another's Social
Security number are myriad. There is nothing in the IRCA that suggests that Congress
intended the comprehensive preemption of the police powers of the State to prosecute all
such instances of identity theft. The State's prosecution of Ochoa-Lara for violations of
Kansas identity theft statutes was not preempted by the IRCA.

Did Ochoa-Lara preserve the issue of multiplicity for appellate review?

Ochoa-Lara next argues that his convictions of two counts of identity theft
violated the rule prohibiting multiplicitous convictions. Ochoa-Lara contends that the
State took what was a single and continuous criminal act and separated it into multiple

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counts in the amended complaint. Ochoa-Lara has not properly preserved this issue for
appellate review.

As noted above, the State sought permission from the district court to split what
had been a single count of identity theft into two separate charges due to the fact that the
identity theft statute in Kansas had changed. At the hearing before the district court,
Ochoa-Lara did not make any argument that the State's requested amendment violated the
prohibition against multiplicitous counts, nor did he make any effort to raise the issue
with the district court thereafter.

It is well settled that "constitutional grounds for reversal asserted for the first time
on appeal are not properly preserved for appellate review." State v. Guadina, 284 Kan.
354, 372, 160 P.3d 854 (2007). This rule is subject to three recognized exceptions: (1)
The newly asserted issue involves only a question of law arising on proved or admitted
facts and is finally determinative of the case; (2) consideration of the issue is necessary to
serve the ends of justice or prevent a denial of fundamental rights; and (3) the judgment
of the trial court may be upheld on appeal despite relying on the wrong ground or
assigning the wrong reason for its decision. State v. Gomez, 290 Kan. 858, 862, 235 P.3d
1203 (2010).

A party who wishes to raise a constitutional issue for the first time on appeal must
proactively invoke an exception and argue why the issue is properly before the appellate
court. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Kansas Supreme
Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 41) states that the contents of an
appellant's brief must include:

"The arguments and authorities relied on, separated by issue if there is more than one.
Each issue must begin with citation to the appropriate standard of appellate review and a
pinpoint reference to the location in the record on appeal where the issue was raised and

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 ruled on. If the issue was not raised below, there must be an explanation why the issue is
properly before the court." (Emphasis added.)

Recently in State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), our
Supreme Court warned litigants that the failure to comply with Rule 6.02(a)(5) risks
having issues deemed waived or abandoned. The court in Godfrey noted that "[w]e are
now sufficiently post-Williams that litigants have no excuse for noncompliance with Rule
6.02(a)(5)." Godfrey, 300 Kan. at 1044.

In this case, Ochoa-Lara raises the issue of multiplicity for the first time in his
appellate brief, but he makes no effort to articulate any of the exceptions that would allow
us to consider this issue for the first time on appeal. The State, in its brief, argues that this
issue has not been appropriately preserved for appellate review. Nevertheless, Ochoa-
Lara chose not to submit a reply brief to respond to the State's preservation argument.
Ochoa-Lara's brief does not comply with Rule 6.02(a)(5). Because Ochoa-Lara failed to
raise the issue of multiplicity with the district court and because he failed to articulate in
his brief any exception that would permit us to review the issue for the first time on
appeal, we choose not to reach the merits of this issue as it has been abandoned by
Ochoa-Lara's failure to properly brief it.

Affirmed.

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