Opinion
No. 112,502.
01-29-2016
STATE of Kansas, Appellee, v. Ramiro GARCIA, Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM.
Ramiro Garcia appeals his conviction of identity theft for having used someone else's social security number to obtain employment in Kansas. He contends that insufficient evidence shows his intent to defraud, that the Immigration Reform and Control Act of 1986 (IRCA) preempts the Kansas identity theft statute, and that the district court should have given a unanimity instruction. Finding no reversible error, we affirm.
Procedural Background
In August of 2012, an Overland Park police officer stopped Garcia for speeding. Garcia told the officer he was on his way to a Leawood restaurant where he worked. After checking Garcia's records, the officer contacted a financial crimes detective who interviewed Garcia briefly before letting him go.
The next day, the detective contacted the restaurant where Garcia worked and requested and received Garcia's employment documents. Some of those documents listed a social security number, so the detective contacted a Social Security Administration special agent to verify that the number listed belonged to Garcia. It did not.
After a jury found Garcia guilty of one count of identity theft, the district court sentenced him to 18 months' probation. He timely appeals.
Does sufficient evidence show Garcia's intent to defraud?
Garcia first argues that the State failed to prove that he acted with intent to defraud. According to Garcia, he did not receive “any benefit” from his use of another's social security number; rather, he earned his paycheck by working at the restaurant.
Standard of Review
In a criminal case, when the evidence's sufficiency is challenged, this court's standard of review is “ ‘whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ “ State v. Kesserling, 279 Kan. 671, 679, 112 P.3d 175 (2005) (quoting State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 2003 ). To the extent statutory interpretation is required, our review is unlimited. See State v. Storey, 286 Kan. 7, 9–10, 179 P.3d 1137 (2008).
Discussion
K.S.A.2012 Supp. 21–6107(a) defined identity theft as:
“[O]btaining, possessing, transferring, using, selling or purchasing any personal identifying information, or document containing the same, belonging to or issued to another person, with the intent to defraud that person, or any one else, in order to receive any benefit.”
“Intent to defraud” is defined as “an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.” K.S.A.2012 Supp. 21–5111(o).
Here, according to the statute's plain language, Garcia committed identity theft. He used a social security number belonging to another person on his W–4 and K–4. He used the number with the intent to make his potential employer think the number belonged to Garcia, so he had the intent to defraud required by the statute. Further, Garcia did so in order to receive employment from that employer, which the jury found to be a benefit.
But is the receipt of employment a “benefit” within the meaning of this statute? Garcia contends he did a day's work for the day's pay, which he earned, so his wages were not a benefit. We answered this question affirmatively in State v. Meza, 38 Kan.App.2d 245, 165 P.3d 298 (2007), rev. denied 285 Kan. 1176 (2007), concluding the receipt of employment is a benefit. We specifically found that the defendant, who had used someone else's social security number to get a job, acted with the intent to defraud because she induced her employer to believe that she was eligible to be employed when she was not. 38 Kan.App.2d at 248–49. We further noted that the employer invested in the defendant certain property rights that were attached to the job, such as “access to any available employee benefits, rights under federal laws such as ERISA, together with her entitlement to the protection of the laws of Kansas relating to employment, wage and hour regulations, workers compensation and unemployment benefits.” 38 Kan.App.2d at 249.
Like the defendant in Meza, Garcia induced his potential employer to believe he was eligible to be employed by using a stolen social security number on his W–4 and K–4. Had Garcia not used a false social security number, he would not have obtained the job and would not have been entitled to receive the wages and insurance benefits that flowed directly from his employment. Although Garcia did not actually steal money or services from his employer, he did obtain employment, compensation, and insurance benefits by misrepresenting himself as someone else. The statute does not require him to defraud his employer by stealing money or by being compensated for services not actually rendered in order to be guilty of identity theft. Here, the fraudulent behavior consisted of defendant's knowing use of the victim's identifying information to obtain employment, wages, and benefits to which he would not otherwise have been entitled. See Meza, 38 Kan.App.2d at 249–50. No more is required.
Garcia argues this court should apply City of Liberal v. Vargas, 28 Kan.App.2d 867, 24 P.3d 155, rev. denied 271 Kan. 1035 (2001). In Vargas, we stated that the defendant did not act with intent to defraud because he used a false identity only to get a job. 28 Kan.App.2d at 870. We also noted our uncertainty how the defendant received an economic benefit because he was paid for the time he worked. 28 Kan.App.2d at 870. But in Meza, this court reviewed the Vargas decision and noted that the language about not receiving an economic benefit was dicta. Meza, 38 Kan.App.2d at 248. We agree. The decision was based on the defendant's use of the identity of a “totally fictitious person,” but the statute was intended to protect only real persons so the statute did not apply. 38 Kan.App.2d at 248; see State v. Oswald, 36 Kan.App.2d 144, 148–49, 137 P.3d 1066, rev. denied 282 Kan. 795 (2006) (finding Vargas language about not receiving an economic benefit to be dicta).
Finally, Garcia mentions that the benefits discussed in Meza are “second-order benefits, not directly connected to the use of a social security number,” because those benefits were conferred for his time worked, not for his use of the stolen number. As mentioned, however, Garcia would not have been hired and thus would not have received either a paycheck or fringe benefits of the job had he not used the social security number.
We find the State presented sufficient evidence to show that Garcia acted with intent to defraud his potential employer in order to receive a benefit.
Does the Immigration Reform and Control Act preempt Kansas' identity theft statute?
Garcia next argues that the Immigration Reform and Control Act of 1986 (IRCA) preempts the Kansas identity theft statute. He claims that because federal law preempts K.S.A.2012 Supp. 21–6107, the State could not prosecute him for identity theft. Garcia has properly preserved this issue for our review.
Standard of Review
Preemption is a question of law. State ex rel. Kline v. Transmasters Towing, 38 Kan.App.2d 537, Syl. ¶ 2, 168 P.3d 60, rev. denied 285 Kan. 1175 (2007). We have unlimited review over issues of federal preemption. Transmasters Towing, 38 Kan.App.2d 537, Syl. ¶ 2. As noted, issues of statutory interpretation are also subject to unlimited review. See Storey, 286 Kan. at 9–10.
Discussion
The United States Constitution provides: “[T]he 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. State laws that conflict with federal law cannot be enforced. Wichita Terminal Ass'n v. F.Y.G. Investments, Inc., 48 Kan.App.2d 1071, 1078, 305 P.3d 13 (2013). To determine whether a Kansas law is preempted, we must consider the federal statute's language and its framework. 48 Kan.App.2d at 1078 (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485–86, 116 S.Ct. 2240, 135 L.Ed.2d 700 1996 ). We should also assume that “ ‘the historic police powers of the State's are not superseded ‘unless that was the clear and manifest purpose of Congress.’ “ Arizona v. United States, 567 U.S.––––, 132 S.Ct. 2492, 2501, 185 L.Ed.2d 351 (2012). [Citation omitted.]
The relevant IRCA provision provides: “A form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of Title 18.” 8 U.S.C. § 1324a(b)(5) (2012). In Arizona v. United States, the United States Supreme Court found that the IRCA preempted an Arizona law which made it illegal for an unauthorized alien to seek employment or work in Arizona. 132 S.Ct. at 2503–05. The Court held that the Arizona law was preempted because “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” 132 S.Ct. at 2504.
But Garcia was convicted of identity theft under K.S.A.2012 Supp. 21–6107(a). That statute, unlike Arizona's, does not penalize aliens for working or attempting to work in Kansas. The purpose of our statute “is to criminalize theft of another person's personal identifying information.” State v. Saldana, No. 111,429, 2015 WL 4486779, at *3 (Kan.App.2015) (unpublished opinion), petition for rev. filed August 5, 2015; see Meza, 38 Kan.App.2d at 250–51. So the Kansas identity theft statute “has nothing to do with immigration or creating criminal penalties for illegal aliens working in the state.” Saldana, 2015 WL 4486779, at *3.
This court has repeatedly rejected similar preemption arguments, most recently in State v. Ochoa–Lara, 52 Kan.App.2d ––––, 362 P.3d 606, 612 (Kan.App.2015):
“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.”
We agree with the court's analysis and conclusion in Ochoa–Lara and adopt it here. See also Saldana, 2015 4486779, at *2–4; State v. Dorantes, No. 111,224, 2015 WL 4366452, at *2–4 (Kan.App.2015) (unpublished opinion), petition for rev. filed, July 23, 2015; State v. Lopez–Navarrete, No. 111,190, 2014 WL 7566851, at *2–4 (Kan.App.2014) (unpublished opinion); State v. Flores–Sanchez, No. 110,457, 2014 WL 7565673, at *3–4 (Kan.App.2014) (unpublished opinion), rev. denied 302 Kan. –––– (August, 20, 2015).
Further, we find the federal district court case on which Garcia relies to be distinguishable. In Puente Arizona v. Arpaio, 76 F.Supp.3d 833, 842, 854–56 (D.Ariz.2015), the court, in granting a temporary injunction, determined that it could consider whether the IRCA preempted Arizona's facially neutral identity theft laws because according to legislative history, the purpose and intent of that statute was to impose criminal penalties on unauthorized aliens seeking employment in Arizona. It then found that “Congress has occupied the field of unauthorized-alien fraud in obtaining employment” and that Arizona's identity theft laws are likely preempted because they have the purpose and effect of regulating that field. 76 F.Supp.3d at 857. The court concluded that because the identity theft laws and the IRCA share the same purpose but have overlapping penalties, the laws likely conflict. 76 F.Supp.3d at 858.
But the legislative history of K.S.A.2012 Supp. 21–6107 does not indicate that its purpose is to impose criminal penalties on unauthorized aliens seeking work in Kansas. See Meza, 38 Kan.App.2d at 250–51 (summarizing the testimony presented to the House Committee on Federal and State Affairs before K.S.A.2012 Supp. 21–6107 [then 21–4018] was enacted in 1998). Instead, as mentioned, K.S.A.2012 Supp. 21–6107's purpose “is to criminalize theft of another person's personal identifying information.” Saldana, 2015 WL 4486779, at *3.
Nor do we find United States v. South Carolina, 906 F.Supp.2d 463 (D.S.C.2012) to be persuasive. There, the United States District Court found the South Carolina immigration statute's “self harboring” provisions, which criminalized a person's unlawful presence in the United States, was preempted by federal law in accordance with Arizona. 906 F.Supp.2d at 468–69. But K.S.A.2012 Supp. 21–6107 is not an immigration statute; it neither contains any “self harboring” provisions, nor does it impose criminal penalties on unauthorized aliens.
Accordingly, we find the Kansas identity theft statute is not preempted by federal law and the State was not prevented from prosecuting Garcia under K.S.A.2012 Supp. 21–6107.
Should a unanimity instruction have been given?
Lastly, Garcia argues that a unanimity instruction should have been given. He claims that some jurors may have found him guilty of identity theft because he used someone else's social security number on a K–4 form, while other jurors may have based his guilt on his use of that same number on a W–4 form. Garcia did not request a unanimity instruction.
Standard of Review
Our review of this issue is governed by a three-part framework. State v. Castleberry, 301 Kan. 170, 185, 339 P.3d 795 (2014). We first determine whether the case involved multiple acts by considering the central question of “whether jurors heard evidence of multiple acts, each of which could have supported conviction on a charged crime.” 301 Kan. at 185. This consideration is a question of law subject to unlimited review. 301 Kan. at 185. If the case did involve multiple acts, we then consider whether error occurred. 301 Kan. at 185. The State must have told the jury which act to rely on, or the district court must have instructed the jury that it was to agree on a specific act. 301 Kan. at 185. Failure to do either is error. If error occurred, we then determine whether it was reversible error. 301 Kan. at 186. When, as here, the defendant did not request a unanimity instruction, we apply the clearly erroneous standard of K.S.A.2012 Supp. 22–3414(3). 301 Kan. at 186. Under that standard, an error is clearly erroneous if the court is “firmly convinced that under the facts the jury would have returned a different verdict if the unanimity instruction had been given.” State v. Santos–Vega, 299 Kan. 11, 18, 321 P.3d 1 (2014).
Discussion
“Multiple acts” means “legally and factually separate incidents that independently satisfy the elements of the charged offense.” State v. De La Torre, 300 Kan. 591, 598, 331 P.3d 815 (2014). When criminal behavior occurred at different times or different locations, or when a fresh impulse motivates a new criminal act, the incidents are factually separate and thus not unitary. 300 Kan. at 598. The factors we consider when determining whether conduct was unitary are: (1) whether the acts occurred at or near the same time; (2) whether the acts occurred at the same location; (3) whether there was a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there was a fresh impulse motivating some of the conduct. State v. Schoonover, 281 Kan. 453, 497, 133 P.3d 48 (2006).
Here, the restaurants' managing partner never specifically indicated when or where Garcia filled out, or when and where a prospective employee usually fills out, the W–4 and K–4 forms. But the managing partner did testify that a W–4 and a K–4 had to be signed before an applicant could move forward in the process, and that an applicant cannot be hired without providing a social security number. And both forms required an applicant to provide a social security number. Because the purpose of filling out the forms was the same, Garcia apparently filled out his W–4 and K–4 at or near the same time and place. A causal relationship is also shown because Garcia filled out both forms for the specific purpose of securing a job at the restaurant. The record does not indicate, and Garcia does not point to, any intervening event. Finally, and perhaps most importantly, Garcia's decision to use someone else's social security number on his W–4 and K–4 was not motivated by a fresh impulse because he filled out both forms with the intent of getting a job at only one restaurant. To complete that deception, Garcia had to sign two forms, both of which required him to provide a social security number.
Garcia fails to insightfully address how using the stolen social security number on his W–4 and K–4 constituted multiple acts. Our review of caselaw refutes that proposition. In State v. Staggs, 27 Kan.App.2d 865, 9 P.3d 601, rev. denied 270 Kan. 903 (2000), the defendant, who was convicted of aggravated battery, claimed that a unanimity instruction should have been given because some jurors could have found that he kicked the victim and others could have found that he punched the victim. This court concluded that the defendant could not have been charged with two counts of aggravated battery because the charges would have been multiplicitous since the incident was continuous and not factually separated. 27 Kan.App.2d at 867–68. In contrast, in State v. Green, 38 Kan.App.2d 781, 172 P.3d 1213 (2007), rev. denied 286 Kan. 1182 (2008), the defendant had used a stolen identity at three different retailers over a 2–day period. We found that each store gave the defendant a fresh impulse to use the stolen identity, thus the defendant's multiple convictions for identity theft were proper. 38 Kan.App.2d at 784–87.
We find this case to be more like Staggs than Green. Because Garcia's conduct was unitary, his acts of using the stolen social security number on both his W–4 and K–4 were not factually separate and distinct incidents. And since Garcia's conduct did not constitute multiple acts, a unanimity instruction was not required. We find it unnecessary to address the next two steps in the analysis. See Castleberry, 301 Kan. at 187; State v. Ultreras, 296 Kan. 828, 856–57, 295 P.3d 1020 (2013) (finding the defendant did not meet the first step of the multiple acts analysis and holding that the district court did not err by not giving a unanimity instruction).
Affirmed.