State v. Ochoa-Lara
112322
| Kan. | Sep 8, 2017Background
- Defendant Guadalupe Ochoa-Lara was charged with two counts of identity theft for using another person’s Social Security number to obtain employment at Longbranch Steakhouse (May–Dec 2011). The prosecution relied on information from employment forms (W-4/I-9).
- The State dismissed two related counts before trial and amended the remaining identity-theft allegation into two counts to cover periods before and after a 2011 statutory recodification.
- The parties stipulated that Ochoa-Lara used Tiffany McFarland’s SSN to complete employment paperwork and to lease an apartment; the employer required an SSN for hiring/tax withholding and Ochoa-Lara lacked a lawful SSN.
- The district court convicted on both identity-theft counts based on the stipulated facts and imposed concurrent sentences and probation.
- On appeal, Ochoa-Lara argued (1) federal preemption by the Immigration Reform and Control Act of 1986 (IRCA) and (2) multiplicity. The Kansas Court of Appeals affirmed; the Kansas Supreme Court granted review.
- The Kansas Supreme Court reversed both convictions, holding the prosecution was preempted by 8 U.S.C. § 1324a(b)(5) because information from federal employment verification forms (I-9) may not be used for state-law enforcement purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether state prosecution for using another’s SSN on employment forms is preempted by federal IRCA | State: prosecution for identity theft is a valid state-law exercise and not barred by IRCA | Ochoa-Lara: IRCA (8 U.S.C. § 1324a(b)(5)) expressly preempts use of I-9 and information on it for state criminal prosecutions | Held: Reversed — IRCA preempts this prosecution; convictions vacated |
| Whether the two identity-theft counts were multiplicitous | State: splitting period into two counts was permissible | Ochoa-Lara: counts were multiplicitous because based on same conduct | Not reached (decision on preemption dispositive) |
Key Cases Cited
- Geier v. American Honda Motor Co., 529 U.S. 861 (2000) (express-preemption clause does not foreclose ordinary conflict preemption analysis)
- Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88 (1992) (discussion of field preemption and interplay with express preemption)
- United States v. Supreme Court of New Mexico, 839 F.3d 888 (10th Cir. 2016) (treats facial and as-applied preemption claims as legal and discusses scope of preemption analysis)