State v. Prieto-Lozoya

488 P.3d 715

STATE of New Mexico, Plaintiff-Appellee,

v.Daniel PRIETO-LOZOYA, Defendant-Appellant.

No. A-1-CA-35715

Court of Appeals of New Mexico.

Filing Date: February 11, 2021

Certiorari Denied, March 31, 2021, S-1-SC-38728

Hector H. Balderas, Attorney General, Santa Fe, NM, John Kloss, Assistant Attorney General, Laurie P. Blevins, Assistant Attorney General, Albuquerque, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant

ATTREP, Judge.

{1} The State charged Defendant Daniel Prieto-Lozoya with identity theft for using another's personal identifying information on documents Defendant submitted to his employer during the hiring process. Among these documents was a federal Employment Eligibility Verification Form (hereinafter I-9), in which the federal government requires employers to verify that an employee may lawfully work in the United States. In this appeal, we examine whether the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C.), preempts Defendant's conviction for identity theft under these circumstances. We conclude that the State's use of the I-9 at Defendant's trial was expressly preempted by IRCA. Because Defendant's conviction may well have been predicated on the I-9, as opposed to another document relied on by the State, we reverse and remand for a new trial. We conclude that Defendant's other claims of error are without merit.

BACKGROUND

{2} At trial, the State presented evidence that in March 2012 Defendant applied for a job in Farmington, New Mexico, with a company called Hurricane Air and Swabbing Services (Hurricane). Defendant, who apparently was not authorized to be in the United States at the time, did not apply for the job in his own name; instead, Defendant used the identity of someone else, Ulysses Tafoya.

{3} Cesar Polanco, the person responsible for hiring at Hurricane during the relevant time, identified Defendant at trial and testified that Defendant submitted documentation to him as part of the hiring process. In particular, Defendant submitted: a social security card bearing Tafoya's name and social security number; a permanent resident card bearing Tafoya's name and date of birth, but with Defendant's image; a W-4 (a federal tax-withholding form), bearing Tafoya's name and social security number; an I-9 bearing Tafoya's name, social security number, and date of birth; and an employee signature card, signed in Tafoya's name. During Defendant's employment with Hurricane, a number of paychecks were issued in Tafoya's name and cashed, but no witness could establish who cashed the checks.

{4} Tafoya also testified, explaining that, at some point, he was contacted by the Internal Revenue Service (IRS) and informed that he owed taxes on his ostensible earnings from work in Farmington. Tafoya, who was a lifelong resident of El Paso, Texas, had never visited Farmington, let alone worked there. After speaking with the IRS, Tafoya filed a police report in El Paso claiming that his identity had been stolen. Tafoya also called Hurricane to inform the company that somebody was using his name and social security number to work there. Tafoya additionally testified that he did not authorize Defendant to use his personal identifying information.

{5} Defendant was tried for one count of identity theft, in violation of NMSA 1978, Section 30-16-24.1 (2009) ; one count of altered, forged, or fictitious license, in violation of NMSA 1978, Section 66-5-18(C) (2004) ; and eight counts of forgery, in violation of NMSA 1978, Section 30-16-10(A) (2006). One of the forgery counts alleged Defendant forged Tafoya's signature on the W-4. The remaining forgery counts alleged Defendant forged Tafoya's signature on several paychecks issued in Tafoya's name. After the district court dismissed the count pertaining to the license, the jury acquitted Defendant of all the forgery charges but convicted him of identity theft. We reserve further discussion of the facts for our analysis.

DISCUSSION

{6} Defendant makes numerous arguments on appeal, asserting: (1) his conviction for identity theft is preempted by IRCA; (2) insufficient evidence supports his conviction; (3) his right to a speedy trial was violated; (4) he received ineffective assistance of counsel; and (5) the district court abused its discretion in admitting a particular exhibit. We first conclude that Defendant's conviction for identity theft is expressly preempted by IRCA and, thus, reverse his conviction on this basis. Because we conclude that sufficient evidence exists to sustain Defendant's conviction, we remand for retrial. We additionally examine Defendant's speedy trial claim because, if successful, it would afford Defendant greater relief; but we affirm the district court's denial of Defendant's speedy trial motion. We do not reach Defendant's remaining contentions because they do not affect our disposition of this appeal.

I. Preemption

{7} Defendant's core contention on appeal is that his conviction for identity theft is preempted by federal law. In particular, he argues that the State's use of the I-9 is expressly preempted by IRCA. He further argues that his conviction for identity theft, involving alleged misfeasance during the hiring process by a person not authorized to be in this country, is a matter of federal policy and enforcement and is impliedly preempted by IRCA. We first examine the appropriate standard of review for Defendant's preemption claim because Defendant did not raise this issue below. We then examine federal preemption principles and IRCA and, with these in mind, evaluate Defendant's preemption arguments. We conclude that IRCA expressly preempts Defendant's conviction to the extent it was based on the I-9. Because we cannot discern whether the jury relied on this preempted basis or some other, non-preempted basis, we conclude fundamental error has resulted and we reverse Defendant's conviction. Finally, we conclude that Defendant's implied preemption argument is foreclosed by the United States Supreme Court's decision in Kansas v. Garcia (Garcia II ), ––– U.S. ––––, 140 S. Ct. 791, 206 L.Ed.2d 146 (2020), the Court's most recent examination of IRCA's preemptive effect.¹

A. Preservation and Standard of Review

{8} Defendant acknowledges that he did not raise his preemption challenge in district court. He nevertheless assumes federal preemption is a jurisdictional issue that may be raised at any time, and the State agrees with this assumption. See Rule 12-321(B)(1) NMRA ("Subject matter jurisdiction of the trial or appellate court may be raised at any time."). Neither party, however, cites any authority for the proposition that a state court loses jurisdiction when a federal law preempts the application of a state criminal law. And in New Mexico, our Supreme Court has indicated that the question is not as clear as the parties assume. See, e.g. , Gonzales v. Surgidev Corp. , 1995-NMSC-036, ¶¶ 10-17, 120 N.M. 133, 899 P.2d 576 (discussing, in a civil context, the difference between "choice-of-forum preemption," which deprives a state court of subject matter jurisdiction, and "choice-of-law preemption," which does not); cf. State v. Orosco , 1992-NMSC-006, ¶ 7, 113 N.M. 780, 833 P.2d 1146 ("[T]he term ‘jurisdictional error’ should be confined to instances in which the court was not competent to act and ... it is inappropriate to equate jurisdictional error with other instances in which an error may be raised for the first time on appeal."). In the absence of briefing from the parties on this matter, we decline to decide this question today. See, e.g. , Elane Photography, LLC v. Willock , 2013-NMSC-040, ¶ 70, 309 P.3d 53 (stating that "[i]t is of no benefit either to the parties or to future litigants for [a c]ourt to promulgate case law based on [its] own speculation rather than the parties’ carefully considered arguments").

{9} We instead exercise our discretion to review Defendant's preemption claim for fundamental error. See Rule 12-321(B)(2)(c) (providing that an appellate court, in its discretion, may consider issues of fundamental error for the first time on appeal); State v. Samora , 2013-NMSC-038, ¶ 5, 307 P.3d 328 (reviewing unpreserved constitutional claim for fundamental error); see also Corcoran v. Sullivan , 112 F.3d 836, 837 (7th Cir. 1997) ("Any claim of federal preemption of a state statute is a federal constitutional claim because the basis of such preemption is the supremacy clause[.]"); Fuentes-Espinoza v. People , 2017 CO 98, ¶ 19, 408 P.3d 445 (exercising discretion to review an unpreserved preemption claim where "doing so would best serve the goals of efficiency and judicial economy").

B. Preemption Principles

{10} The Supremacy Clause of the United States Constitution provides that the United States Constitution, federal statutes, and treaties are "the supreme Law of the Land." U.S. Const. art. VI, cl. 2 ; see also Garcia II , 140 S. Ct. at 801. This clause grants Congress the power to preempt the application or exercise of state law in particular areas and under particular circumstances. See Arizona v. United States , 567 U.S. 387, 399, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). Congress may do so expressly or impliedly. Id. Express preemption occurs when Congress "withdraw[s] specified powers from the [s]tates by enacting a statute containing an express preemption provision." Id. Implied preemption may take one of two forms: field preemption, when federal interests, regulation, or activity occupy an entire field, leaving no room for states to act; or conflict preemption, when a state law conflicts with a federal law. See id. A state law not appearing on its face to be preempted may in fact be preempted as applied to a particular situation. See United States v. Supreme Court of N.M. , 839 F.3d 888, 907 (10th Cir. 2016).

{11} New Mexico's...