State v. Prieto-Lozoya

                                                                Office of the Director   New Mexico
                                                                 09:38:11 2021.06.24     Compilation
                                                                               '00'06-   Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: February 11, 2021

No. A-1-CA-35715

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

DANIEL PRIETO-LOZOYA,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
John A. Dean, Jr., District Judge

Certiorari Denied, March 31, 2021, No. S-1-SC-38728. Released for Publication June 29,
2021.

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

                                       OPINION

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), 

 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. ___,

 (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

1Defendant relied heavily on State v. Garcia (Garcia I), 

 (Kan. 2017), rev’d and remanded
by Garcia II, 

, in support of his contentions that his identity theft conviction is both expressly
and impliedly preempted. Because Garcia I was pending before the United States Supreme Court at the
time Defendant’s appeal was submitted and Garcia I raised preemption issues similar to those advanced
by Defendant, we stayed this matter. Upon issuance of the Supreme Court’s decision in Garcia II, we
ordered supplemental briefing from the parties to update their arguments in light of Garcia II. We have
duly considered Garcia II and the parties’ supplemental briefing in our resolution of this appeal.
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., 

, ¶¶ 10-
17, 

, 

 (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, 

,
¶ 7, 

, 

 (“[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,

, 

 (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, 

, ¶ 5, 

 (reviewing unpreserved constitutional
claim for fundamental error); see also Corcoran v. Sullivan, 

 (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, 

, 

 (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, 

. 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, 

 (2012). Congress may do so expressly or impliedly. 

 Express preemption occurs
when Congress “withdraw[s] specified powers from the [s]tates by enacting a statute
containing an express preemption provision.” 

 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 

 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., 

 (10th Cir. 2016).

{11} New Mexico’s identity theft statute, under which Defendant was convicted,
prohibits “obtaining, recording or transferring personal identifying information of another
person without the authorization or consent of that person and with the intent to defraud
that person or another[.]”2 Section 30-16-24.1(A). Defendant does not make a facial
challenge to the identity theft statute. He instead makes an as-applied challenge under
the circumstances of this case, contending that his identity theft conviction is expressly
and impliedly preempted by IRCA.

C.      IRCA

{12} IRCA has been described “as a comprehensive framework for combating the
employment of illegal aliens.”3 Arizona, 

 (internal quotation marks and
citation omitted). IRCA makes it unlawful for an employer to knowingly hire an
“unauthorized alien,” i.e., a non-citizen or non-national who is not authorized to work in
the United States. 

(a)(3), 1324a(1)(A), (h)(3). To enforce this
prohibition, IRCA created an “employment verification system” requiring employers to
attest under penalty of perjury on the I-9, or other designated form, that an employee is
not an unauthorized alien. § 1324a(b)(1)(A); 8 C.F.R. § 274a.2(a)(2) (2020) (creating
the I-9). The employer makes the attestation after reviewing approved documents
submitted by the employee, evidencing the employee’s identity and authorization to
work in the United States. § 1324a(b)(1)(A)(i), (ii); see also § 1324a(b)(1)(B)-(D) (listing
approved documents, such as a resident alien card or a social security card along with
an identification card). IRCA allows employers to copy and retain documents provided
by employees, but only “for the purpose of complying with the [employment verification
system].” § 1324a(b)(4).

{13} Critical to Defendant’s appeal, IRCA strictly limits how the I-9 and, more broadly,
the employment verification system as a whole may be used. Specifically, §
1324a(b)(5), titled “Limitation on use of attestation form,” provides that the I-9 “and any
information contained in or appended to such form, may not be used for purposes other
than for enforcement of this chapter” and certain enumerated federal criminal statutes.
Furthermore, IRCA provides that the employment verification “system may not be used
for law enforcement purposes,” other than for the enumerated exceptions just listed. §
1324a(d)(2)(F); see also § 1324a(d)(2)(C) (“Any personal information utilized by the
[employment verification] system may not be made available to [g]overnment agencies,
employers, and other persons except to the extent necessary to verify that an individual
is not an unauthorized alien.”).

D.      Express Preemption

{14} We turn now to Defendant’s express preemption argument. Because we review
this issue for fundamental error, we first examine whether there was error and, if so, we
then examine whether that error was fundamental. State v. Silva, 

, 

, 

.


2“Personal identifying information” consists of a “person’s name, . . . social security number, [or] date of
birth,” among other things. Section 30-16-24.1(C)(2).
3We use the term “alien” in this opinion because that is the term Congress uses to describe “any person
not a citizen or national of the United States.” 

(a)(3).
1.      The Use of the I-9 Was Expressly Preempted and Thus Constituted Error

{15} Defendant’s express preemption argument is straightforward: (1) § 1324a(b)(5)
prohibits the use of the I-9 except for the few enumerated purposes; (2) the State
introduced the I-9 to prove the identity theft charge, a non-enumerated purpose; and (3)
therefore Defendant’s identity theft conviction is preempted by § 1324a(b)(5).4 For the
reasons that follow, we conclude that the State’s use of the I-9 was prohibited by
§ 1324a(b)(5) and Defendant’s identity theft conviction was preempted to the extent it
was based on the I-9.

{16} “Because the question of whether state law has been preempted by federal
legislation depends upon whether Congress intended such a result, the purpose of
Congress is the ultimate touchstone.” State v. Herrera, 

, 

 (alteration, internal quotation marks, and citation omitted). Where, as here, “the
statute contains an express pre-emption clause, the task of statutory construction must
in the first instance focus on the plain wording of the clause, which necessarily contains
the best evidence of Congress’ pre-emptive intent.”5 CSX Transp., Inc. v. Easterwood,

 (1993). Turning then to the language of § 1324a(b)(5), we think
Congress’ intent is clear. This provision provides that an I-9 “may not be used for
purposes other than for enforcement of this chapter” and certain enumerated federal
criminal statutes. § 1324a(b)(5); see also § 1324a(d)(2)(F) (prohibiting the use of the
federal employment verification system, of which the I-9 is an integral part, for any law

4We limit our preemption analysis to the State’s use of the I-9 and the W-4, and we do not address the
State’s use of the social security or permanent resident cards or the federal employment verification
system more generally. We do so for several reasons. First, the parties’ briefing focuses on the I-9 and
the W-4 and makes no contentions about the use of the other documents. Second, it is not apparent from
the record whether the social security and permanent resident cards were submitted to Hurricane solely
as part of the employment verification process under IRCA or whether they served some other purpose—
a fact that very well could impact our analysis. See, e.g., Puente Arizona v. Arpaio, No. CV-14-01356-
PHX, 

, at *8 (order) (D. Ariz. Mar. 27, 2017) (holding that § 1324a(b)(5) preempts the
use of any documents or information submitted to an employer solely as part of the federal employment
verification system but does not preempt the use of such documents “if they were also submitted for a
purpose independent of the federal employment verification system”). Third, to the extent Defendant does
raise an argument about the use of the federal employment verification system more generally, we
observe that it was Defendant who inquired into matters about this system—questioning various
witnesses about the I-9 verification process and Immigration and Naturalization Service audits pertaining
to Hurricane’s hiring process. It is well-settled that invited error cannot provide the basis for fundamental
error. See State v. Handa, 

, ¶ 35, 

, 

 (“[T]he doctrine of
fundamental error has no application in cases where the defendant, by his own actions, invites error.”).
We consequently limit our analysis. We do, however, express concern that, at retrial, the State’s use of
documents submitted solely in connection with the I-9 or evidence pertaining to the federal employment
verification system in general might cause the same preemption problems we address today; and we
caution the State accordingly. See, e.g., Garcia II, 

 (observing that § 1324a(d)(2)(F)
“prohibits use of the federal employment verification system for law enforcement purposes other than
enforcement of IRCA and [a] handful of federal statutes mentioned in § 1324a(b)(5)” (internal quotation
marks and citation omitted)); Puente Arizona, No. CV-14-01356-PHX, 

, at *8
(“Congress clearly and manifestly intended to prohibit the use of the Form I-9, documents attached to the
Form I-9, and documents submitted as part of the I-9 employment verification process, whether attached
to the form or not, for state law enforcement purposes.”).
5Both parties treat § 1324a(b)(5) as an express preemption clause, and we do the same.
enforcement purpose, other than for these same enumerated exceptions). The State’s
prosecution of Defendant for identity theft plainly does not fall within the exceptions
enumerated in § 1324a(b)(5). From this, it is evident that Congress intended to forbid
the State from using the I-9 in state prosecutions like Defendant’s.

{17} Case law throughout the country is in line with this conclusion. We are aware of
no case holding that use of an I-9 as evidence in a state criminal prosecution is
permissible. In fact, in many of the cases discussing the matter, the prosecution either
disclaimed reliance on the I-9 if IRCA was invoked before trial or conceded on appeal
that it was error to introduce the I-9 at trial. See, e.g., Garcia II, 

(providing that, under § 1324a(b)(5), “I-9 forms and any information contained in or
appended to such forms may not be used for purposes other than for enforcement of
[this chapter] or other listed federal statutes” and observing that the state in response to
the defendants’ preemption challenges under § 1324a(b)(5) dismissed the charges
based on the I-9’s and agreed not to rely on the I-9’s at trial (alteration, internal
quotation marks, and citation omitted)); State v. Hernandez-Manrique, No. 110,950,

, at **1, 3 (Kan. Ct. App. Sept. 30, 2016) (per curiam) (nonprecedential) (observing that the court “has found the IRCA prohibits a state from
prosecuting a defendant for putting false information on an I-9 or other federal
employment eligibility form” and that the state amended its criminal complaint to omit
any reliance on the I-9 (internal quotation marks and citation omitted)); State v. Reynua,

 (Minn. Ct. App. 2011) (holding that IRCA bars the use of the I-
9 in state prosecutions and noting that the state conceded on appeal that it was
reversible error to admit the I-9 into evidence); see also, e.g., People v. Zarco, 

, ¶ 19 (order) (Ill. App. Ct. May 22, 2014) (holding that the
defendant’s forgery charge based on the I-9 was preempted by IRCA); Puente Arizona,
No. CV-14-01356-PHX, 

, at *8 (holding that, under IRCA, the
prosecution is “preempted from (a) employing or relying on (b) any documents or
information (c) submitted to an employer solely as part of the federal employment
verification process (d) for any investigative or prosecutorial purpose under the Arizona
identify theft and forgery statutes”).

{18} In an attempt to avoid IRCA’s preemptive effect here, the State argues: (1)
§ 1324a(b)(5) applies only to employers, not employees; and (2) even if its use of the I-
9 was preempted by IRCA, reversal is not warranted because the jury could have relied
on the W-4 in support of Defendant’s identity theft conviction, the use of which is not
preempted. We address the State’s first argument here and examine its second
argument within the context of our fundamental error analysis below.

{19} The State argues that IRCA’s preemption provision “precludes state legislation
establishing criminal sanctions against employers based on an I-9, but not ones against
employees.” This contention is belied by United States Supreme Court precedent. The
Court in Arizona observed that “Congress made a deliberate choice not to impose
criminal penalties on aliens who seek, or engage in, unauthorized employment” and
held that a state law criminalizing such conduct was preempted by IRCA. 

. This conclusion was underscored in Garcia II, where the Court plainly stated that it
is not a federal crime for an alien to work without authorization, and state laws
criminalizing such conduct are preempted. 

. What is more, the State’s
argument is refuted by the plain language of § 1324a(b)(5), which “broadly restricts any
use of an I-9, information contained in an I-9, and any documents appended to an I-9.”
Garcia II, 

 (describing § 1324a(b)(5) as “far more than a preemption
provision” because it applies not just to states but to the federal government and all
private actors); see also Crooks v. Harrelson, 

 (1930) (providing that a
court may depart from “the literal terms of a statute only under rare and exceptional
circumstances”). Further, none of the cases we have reviewed mention even the
possibility that § 1324a(b)(5) is restricted to employers, as the State suggests. The
State does not cite any state or federal court case law imposing such a limitation on
§ 1324a(b)(5), nor do the administrative law decisions the State cites support such a
limitation. See State v. Vigil-Giron, 

, 

 (noting,
where no authority is cited in support of an issue, appellate courts will not consider the
issue and will assume no such authority exists). In short, the State’s argument against
the applicability of § 1324a(b)(5) in this case is without merit.

{20} Congress’ intent being clear, we conclude that the State’s use of the I-9 in
support of Defendant’s identity theft conviction was prohibited by IRCA and constituted
error and that Defendant’s identity theft conviction was preempted to the extent it was
based on the I-9.

2.     The Use of the I-9 Constituted Fundamental Error

{21} We consider next whether this error is fundamental, requiring reversal of
Defendant’s conviction. See Silva, 

. As noted, the State contends
that reversal is not warranted because the W-4 supported Defendant’s conviction and
its use is not preempted by IRCA. Defendant, in contrast, contends that reversal is
required because the I-9 was the sole basis for his conviction. We first briefly
acknowledge that, under Garcia II, the use of a W-4, or other similar tax-withholding
form, is not preempted by IRCA. We next examine principles of fundamental error in this
context—i.e., where one possible basis for a conviction is preempted and the other is
not. Finally, determining that we cannot discern the basis for the jury’s verdict, we hold
that Defendant’s conviction constitutes fundamental error and we reverse and remand
for a new trial.

a.     The Use of the W-4

{22} Under Garcia II, it is clear that the State’s use of the W-4 at Defendant’s trial was
not preempted by IRCA. Garcia II involved three consolidated cases in which the
prosecutions proceeded on the theory that the defendants, all unauthorized aliens,
committed identity theft when using stolen social security numbers on W-4’s (and
equivalent state tax-withholding forms) submitted to their employers. Garcia II, 

. All three defendants were convicted of identity theft, but their convictions
were overturned by the Kansas Supreme Court on preemption grounds. 

. The
Kansas court adopted an expansive view of the preemption provision in § 1324a(b)(5).
Even though the I-9’s were not admitted at trial, the Kansas court reasoned that
because the stolen social security numbers used on the tax-withholding forms were
“contained in” the I-9’s, IRCA prohibited the prosecutions from relying on the tax-withholding forms as the bases for the convictions. Garcia I, 401 P.3d at 599; see also §
1324a(b)(5) (prohibiting the use of the I-9 “and any information contained in or
appended to such form”).

{23} The United States Supreme Court disagreed with this interpretation of
§ 1324a(b)(5), concluding that “the mere fact that an I-9 contains an item of information,
such as a name or address, does not mean that information ‘contained in’ the I-9 is
used whenever that name or address is later employed.” Garcia II, 

.
The Court also explained that tax-withholding forms, such as the W-4, are
“fundamentally unrelated” to the I-9 and the federal employment verification system and
observed that “using another person’s [s]ocial [s]ecurity number on tax forms threatens
harm that has no connection with immigration law.” 

; see also 

 (observing
that “[s]ubmitting W-4’s and K-4’s helped respondents get jobs, but this did not in any
way assist them in showing that they were authorized to work in this country”). The
Supreme Court thus limited the reach of § 1324a(b)(5)’s “contained in” clause, making
clear that the use of documents other than the I-9, such as the W-4, did not run afoul of
§ 1324a(b)(5), notwithstanding the fact that the W-4 contained information also found in
the I-9. Garcia II, 

. The Court, however, did nothing to modify the clear
prohibition in § 1324a(b)(5) against the use of the I-9 itself. See Garcia II, 

 (observing that § 1324a(b)(5) is “far more than a preemption provision” because it
“broadly restricts any use of an I-9” by states, the federal government, and all private
actors). Given Garcia II, we conclude that the State’s use of the W-4 in this case was
not prohibited or preempted by IRCA.

b.      Fundamental Error in This Context

{24} Whether, as the State suggests, the fact that the W-4 was not preempted means
the State’s use of the I-9 was not fundamental error is another matter.6 “Fundamental
error consists of error that goes to: (1) the foundation of a defendant’s rights, (2) the
foundation of the case, or (3) a right essential to the defense of an accused, which no
court could or ought to permit him to waive.” Campos v. Bravo, 

,

, 

 (internal quotation marks and citation omitted). Under the
doctrine of fundamental error, “a conviction will only be reversed if the defendant’s guilt
is so questionable that upholding a conviction would shock the conscience, or where,
notwithstanding the apparent culpability of the defendant, substantial justice has not
been served.” 

 (internal quotation marks and citation omitted). “Substantial justice has
not been served when a fundamental unfairness within the system has undermined
judicial integrity.” 

6With little explanation, the State contends the admission of the I-9 was non-constitutional harmless error.
As stated, we review Defendant’s unpreserved preemption challenge for fundamental, not harmless,
error.
{25} Our Supreme Court has held that “[i]t is fundamental error to convict a defendant
of a crime that does not exist.” State v. Maestas, 

, 

,

. By virtue of the Supremacy Clause, a “state statute (more precisely, so
much of it as is preempted) is wiped out as effectively as if it had been repealed; and
the defendant can no more be convicted under it, consistent with due process, than he
could be convicted under a repealed statute.” Corcoran, 

; see also, e.g.,
Rini v. United Van Lines, Inc., 

 (1st Cir. 1997) (“[A] state statute is
void to the extent it is in conflict with a federal statute.”); cf. Zarco, 

, ¶
21 (concluding that a plea agreement to a preempted forgery charge is void because
the charge is unenforceable or illegal). As a consequence, upholding a conviction under
a state statute that is preempted, or more precisely, to the extent it is preempted, would
be fundamental error. See Campos, 

 (concluding that it would be
fundamental error to uphold a conviction that is a legal nullity); cf. State v. Arrendondo,

, 

 (noting that our appellate courts have a
“responsibility to question sua sponte a conviction for a nonexistent crime, because
otherwise fundamental error would not be corrected”).

{26} In this case, one possible basis for Defendant’s conviction (the use of Tafoya’s
identity on the I-9) is preempted and thus is legally inadequate, while another possible
basis (the use of Tafoya’s identity on the W-4) is not. In such circumstances, reversal is
required if it is not possible to tell on which ground the jury based its verdict. See
Campos, 

 (holding that fundamental error occurs if a conviction
could be based on either of two alternatives, one of which is legally inadequate, even if
ample evidence supports the legally adequate alternative); State v. Olguin, 1995-
NMSC-077, ¶ 2, 

, 

 (holding that where a general verdict is
returned, a conviction must be reversed if the jury was presented with a legally
inadequate basis for conviction); see also Williams v. North Carolina, 

(1942) (“[T]he verdict of the jury for all we know may have been rendered on that
[unconstitutional] ground alone, since it did not specify the basis on which it rested. . . .
To say that a general verdict of guilty should be upheld though we cannot know that it
did not rest on the invalid constitutional ground on which the case was submitted to the
jury, would be to countenance a procedure which would cause a serious impairment of
constitutional rights.”); cf. State v. Crain, 

, 

, 

 (holding that courts will set aside a conviction where the verdict does not state the
alternative on which the jury relied and where one of the alternatives would violate the
defendant’s double jeopardy rights).

c.     The Basis for Defendant’s Conviction

{27} We therefore must determine whether we can discern the basis for the jury’s
verdict. Unlike the other charges against Defendant, the criminal information and jury
instruction for identity theft did not specify the document or documents that served as
the basis for this offense. And although the State opined, during its opening statement,
that Defendant used Tafoya’s personal identifying information “to get a job” at
Hurricane, the State never tied this theory to any specific document.7 Polanco testified
that, at the outset of Defendant’s employment with Hurricane, Defendant submitted a
packet of five documents: a social security card, a permanent resident card, the W-4,
the I-9, and an employee signature card. The State, however, did not identify which of
these documents supported its theory of identity theft or explain to the jury the
importance of any of these documents. Given this record, we are unable to discern
whether the I-9 served as the basis for Defendant’s identity theft conviction. And the
parties’ arguments on appeal do not clarify the matter.

{28} Defendant contends that the I-9 was the sole basis for the identity theft conviction
and that reversal is required. In support, Defendant argues that his acquittal on the
charge of forging the W-4 proves the jury did not rely on that form in reaching its identity
theft verdict and, thus, his conviction was based solely on the I-9. It, however, is
axiomatic that a jury may arrive at seemingly inconsistent results on different charges
and that such an occurrence does not invalidate a conviction. See State v. Roper, 2001-
NMCA-093, ¶ 24, 

, 

 (“We have frequently said that our
business is to review the verdicts of conviction, and not concern ourselves with any
alleged acquittals, and thus we do not entertain contentions alleging that the verdicts
are irreconcilable.”). In other words, we will not infer from an acquittal on a different
count that the jury must have reached a particular conclusion about the charge that
resulted in a conviction. See 

 Moreover, Defendant ignores the fact that the W-4
could have supported the State’s theory presented during opening statements. As
noted, Defendant submitted the W-4, along with other employment-related documents,
to Hurricane during the hiring process. According to the United States Supreme Court,
tax-withholding documents, such as the W-4, may play some role in assisting an
individual in obtaining employment. See Garcia II, 

 (“Submitting W-4’s
and K-4’s helped respondents get jobs[.]”).

{29} In contrast to Defendant, the State largely ignores the possibility that the I-9
might have served as a basis for Defendant’s conviction and, as noted, contends that
reversal is not warranted because the jury could have relied on the W-4. But, simply
stated, the State’s contention that the jury could have relied on the W-4 does nothing to
forestall a finding of fundamental error, when we are unable to determine that the jury in
fact relied only on the W-4. See, e.g., Campos, 

.



7The State did shift gears in closing argument, focusing on the W-4 and arguing, without any basis in the
evidence, that Defendant used Tafoya’s information to “defraud” the American taxpayers by claiming
more dependents than he should have. Given the lack of evidence in the record concerning the number
of dependents Defendant actually was entitled to claim, this argument only could have served to confuse
the jury. Moreover, the State abandons this argument on appeal. The State now argues that “Defendant
used stolen documents in order to deceive Hurricane’s hiring manager into believing that Defendant was
legally authorized to work.” But the State at trial was not this specific, telling the jury only that Defendant
used Tafoya’s identity “to get a job” at Hurricane. Had the State’s theory indeed been that Defendant
intended to deceive Hurricane into believing he was “legally authorized to work,” we would be hard
pressed to determine that anything other than the I-9 served as the basis for Defendant’s identity theft
conviction. See Garcia II, 

 (explaining how I-9 evidences “authorization to work”
and that a W-4 does not assist in showing authorization to work).
{30} In sum, notwithstanding the parties’ arguments, we cannot discern whether the
basis for Defendant’s identity theft conviction was the I-9, the W-4, or something else.
Because we cannot say that the jury did not convict Defendant on a federally preempted
basis, we conclude that substantial justice has not been served and fundamental error
has resulted. See id. ¶ 21 (“Since we have no idea whether [the defendant] was
convicted of a valid crime, substantial justice was not served at [the defendant’s] trial;
fundamental error results.”). We therefore reverse Defendant’s conviction and remand
for a new trial, at which the I-9 will play no role. See id. (vacating the defendant’s
conviction but remanding for a new trial “should the [s]tate elect to retry [the defendant]
using a valid predicate”); see also State v. Downey, 

, 

, 

 (relying on Campos and providing the same remedy where the
conviction “may have rested on an invalid legal basis”).

E.     Implied Preemption

{31} We briefly address Defendant’s implied preemption argument because, given its
breadth, retrial would appear to be barred if Defendant were successful on this claim.
Relying principally on a concurrence in Garcia I, Defendant asserts that IRCA prohibits
the State from prosecuting him, an unauthorized alien, “for identity theft based on false
documentation supplied to Hurricane during the hiring process” because Congress has
occupied the field of the employment of aliens and state enforcement of its laws in this
context would obstruct congressional policy.

{32} To the extent Defendant’s implied preemption argument is based, as was his
express preemption argument, on the use of the I-9, we deem it unnecessary to analyze
such a claim since we already have determined that the use of the I-9 was expressly
preempted. To the extent Defendant’s implied preemption argument is based on other
false documentation supplied to Hurricane, such as the W-4, the Supreme Court’s
holding in Garcia II squarely addressed and rejected such an argument. In brief, Garcia
II held that “IRCA certainly does not bar all state regulation regarding the use of false
documents when an unauthorized alien seeks employment. Nor does IRCA exclude a
[s]tate from the entire field of employment verification.” 

 (emphases
added) (omission, internal quotation marks, and citations omitted); see also 

(rejecting the contention that “the initiation of any legal action against an unauthorized
alien for using a false identity in applying for employment should rest exclusively within
the prosecutorial discretion of federal authorities”). For these same reasons, we likewise
reject Defendant’s argument that IRCA impliedly preempted the State from prosecuting
him for identity theft based on false documentation supplied to Hurricane.

II.    Sufficiency of the Evidence

{33} Defendant challenges the sufficiency of the evidence to support his identity theft
conviction. We address this issue because if Defendant prevailed, he would be entitled
to greater relief—his conviction would be reversed and retrial would be barred. See
State v. Verdugo, 

, 

, 

 (“[B]ecause [the
d]efendant would be entitled to dismissal of the charges if the evidence is insufficient to
support them, we address [the d]efendant’s challenge to the sufficiency of the evidence
issue.”). In conducting our review, we view the evidence in the light most favorable to
the state to determine whether substantial evidence exists to support a verdict of guilty
beyond a reasonable doubt with respect to every element essential to a conviction. See
State v. Montoya, 

, 

.

{34} The jury in this case was instructed on the elements of identity theft in
accordance with the statutory language. See State v. Jackson, 

, ¶ 22,

 (“Jury instructions become the law of the case against which the
sufficiency of the evidence is to be measured.” (internal quotation marks and citation
omitted)). In relevant part, the jury had to find that Defendant “willfully obtain[ed],
record[ed,] or transfer[red] personal identifying information of . . . Tafoya or another
person . . . with the intent to defraud . . . Tafoya, or another.” See § 30-16-24.1(A). In
New Mexico, an “intent to defraud” has been equated with an intent to deceive or cheat.
See State v. Rodarte, 

, 

, 

 (construing,
for the crime of fraudulent refusal to return leased property, “intent to defraud” as
meaning “intent to cheat or deceive” (alteration, internal quotation marks, and citation
omitted)); see also, e.g., UJI 14-1640 NMRA comm. cmt. (providing, for the crime of
fraud, that “ ‘[f]raudulent intent’ and ‘fraudulently’ are frequently defined as ‘with intent to
defraud’ or ‘with intent to cheat or deceive’ ”).

{35} In support of his sufficiency argument, Defendant challenges only one element—
intent to defraud—and we limit our discussion accordingly. In particular, Defendant
contends that the State did not prove he intended to deceive or cheat Tafoya or another
(that being Hurricane). Because we conclude sufficient evidence supports an intent to
defraud Hurricane, we need not and do not address Defendant’s alternative contention
that the State failed to prove an intent to defraud Tafoya. See Olguin, 

,
¶ 2 (holding that “due process does not require a guilty verdict to be set aside if an
alternative basis of conviction is only factually inadequate to support a conviction”).

{36} As for his argument pertaining to Hurricane, Defendant contends as an initial
matter that the State did not argue at trial that he intended to defraud Hurricane and, as
a result, the State cannot now rely on this theory on appeal. While there is legal support
for Defendant’s contention that the State cannot change its theory of the case in support
of an affirmance on appeal, see State v. Figueroa, 

, 

(“An appellate court cannot affirm a criminal conviction on the basis of a theory not
presented to the jury.” (alteration, internal quotation marks, and citation omitted)), cert.
denied, 2019-NMCERT-___, (S-1-SC-37904, Nov. 19, 2019), the State, as already
discussed, presented this employment-related theory to the jury. In particular, the State
told the jury in opening statements that Defendant used Tafoya’s personal identifying
information in order to get a job at Hurricane.

{37} Turning then to the substance of Defendant’s sufficiency challenge, we conclude
it is without merit. As discussed in our fundamental error analysis, evidence in the form
of the W-4 was presented at trial, which supported the State’s theory that Defendant
intended to deceive Hurricane to obtain a job. See Garcia II, 

.
Defendant does not argue otherwise; he instead advances only a legal argument why
such a theory is insufficient to support his identity theft conviction.

{38} Relying on a case from the Kansas Court of Appeals, City of Liberal v. Vargas,

 (Kan. Ct. App. 2001), Defendant asserts that using a stolen identity to
obtain employment is legally insufficient to support an identity theft conviction in the
absence of an intent to steal money from the employer or to be compensated for
services not actually rendered. See 

. Although Vargas contains language
supporting Defendant’s argument, it is inapposite for a number of reasons. First, at the
time Vargas was decided, Kansas defined identity theft as an “ ‘intent to defraud for
economic benefit,’ ” 

 at 156 (quoting 

 (repealed July 1,
2011)), and, consequently, the question before that court was whether securing
employment qualified as an “economic benefit.”8 Vargas, 

. Second, the
cited language is dicta; Vargas’s actual holding that insufficient evidence supported the
defendant’s conviction for identity theft was based on the fact that there was no
evidence the defendant had appropriated a real person’s identity. 

. Finally, the
Kansas Court of Appeals has subsequently disavowed the foregoing dicta in Vargas,
holding that evidence of a defendant’s use of another’s personal identifying information
to obtain a job is sufficient to support a conviction for identity theft in Kansas. See State
v. Meza, 

 (Kan. Ct. App. 2007). Several other courts in jurisdictions
with identity theft statutes similar to that of Kansas have come to like conclusions. See,
e.g., People v. Campos, 

, 

 (discussing cases
and affirming conviction because “employment is a ‘thing of value’ under [Colorado’s]
identity theft statute”); People v. Montoya, 

 (Ill. App. Ct. 2007)
(affirming conviction because the defendant “ ‘fraudulently obtained’ both money and
services as a result of her unauthorized use of [another person’s] name and social
security number” to obtain a job); State v. Ramirez, 

, 

, 

 (affirming conviction because the “economic benefits that flowed
from . . . employment . . . were things of value within the meaning of” Wisconsin’s
identity theft statute).

{39} For these reasons, we reject Defendant’s sufficiency argument dependent upon
Vargas. Defendant having made no other argument that the evidence adduced at trial
was insufficient to establish his intent to deceive Hurricane, we conclude sufficient
evidence supports his conviction for identity theft and retrial is not barred.

III.    Speedy Trial

{40} We review Defendant’s claim that the district court erred in denying his motion to
dismiss on speedy trial grounds because retrial would be prohibited were Defendant to
prevail on this issue. See State v. Flores, 

, 

(reversing convictions because of a speedy trial violation and remanding with
instructions to dismiss the charges). “The right of the accused to a speedy trial is
guaranteed by both the Sixth Amendment of the United States Constitution and Article

8Such a requirement is notably absent from the New Mexico identity theft statute. See § 30-16-24.1(A)
(requiring, in general, an “intent to defraud”).
II, Section 14 of the New Mexico Constitution.”9 Spearman, 

, ¶ 16. In
determining whether a defendant has been deprived of the right to a speedy trial, we
analyze the four factors set out by the United States Supreme Court in Barker v. Wingo,

 (1972): “(1) the length of delay in bringing the case to trial, (2) the reasons
for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) the
prejudice to the defendant caused by the delay.” State v. Serros, 

,

. In analyzing the Barker factors, “we give deference to the district court’s
factual findings, but we review the weighing and the balancing of the Barker factors de
novo.” Spearman, 

 (alterations, internal quotation marks, and
citation omitted).

A.      Length of Delay

{41} “The first factor, length of delay, is both the threshold question in the speedy trial
analysis and a factor to be weighed with the other three Barker factors.” State v. Ochoa,

, ¶ 12, 

. We agree with the parties that this was a simple
case and that the total length of delay from the date of arrest (in April 2014) to trial (in
October 2015) was just over eighteen months—six months beyond the twelve-month
presumptively prejudicial period. See, e.g., State v. Garza, 

,

, 

 (deeming twelve months of delay in a simple case the
threshold at which further inquiry into the Barker factors is warranted). We agree with
the State that this relatively short period of delay weighs slightly, not heavily, against it.
See State v. Wilson, 

, 

, 

 (“We cannot
say that the extended time of five months . . . requires us to weigh the length of delay
factor against the [s]tate more than slightly.”).

B.      Reasons for Delay

{42} “Closely related to length of delay is the reason the government assigns to justify
the delay[,]” with “different weights [being] assigned to different reasons for the delay.”
Garza, 

 (internal quotation marks and citation omitted). Turning to
the first period of delay, we observe that Defendant did not file any demand for a
speedy trial until eleven months after his arrest. The State contends, both below and
now on appeal, that during this period, the parties agreed the trial in this case would be
delayed until an older criminal case against Defendant was resolved. Defendant takes
the contrary view that no such agreement existed. After hearing argument from counsel
at the hearing on Defendant’s speedy trial motion and considering the record, the
district court could reasonably have found the existence of such an agreement. In light
of this, we do not weigh this eleven-month delay against the State.10 See State v.
Moreno, 

, 

, 

 (agreeing “with the

9Defendant raises his speedy trial claim under both the federal and New Mexico Constitutions. But
because he does not assert that New Mexico’s speedy trial guarantee should be interpreted any
differently from the Sixth Amendment’s guarantee, and our courts have not done so in the past, we treat
both protections as the same here. State v. Spearman, 

, ¶ 16 n.1, 

.
10Even if there was no agreement, and, consequently, some or all of this period of delay weighed against
the State, Defendant’s speedy trial claim would nevertheless still fail under the remainder of the Barker
factors.
general principle that where a defendant causes or contributes to the delay, or consents
to the delay, he may not complain of a denial of the right to a speedy trial” (alteration,
internal quotation marks, and citation omitted)).

{43} The rest of the delay was occasioned by the State’s requested continuances of
trial settings in March 2015, June 2015, July 2015, and September 2015—all of which
Defendant opposed. The first motion to continue was based on the unavailability of
Tafoya, whose attendance the State did not secure because of the apparent agreement
to try Defendant’s older case first, which was set for trial the same day. The second
motion also was based on the unavailability of Tafoya, who could not attend due to lack
of childcare. The third motion was based on the unavailability of the investigating officer.
And the final motion was based on, among other things, the likelihood the case would
not go to trial because it was scheduled as a back-up case. All the continuances, then,
were a result of the unavailability of witnesses or negligent or administrative delay and,
consequently, do not weigh heavily against the State, if at all. See Garza, 2009-NMSC-
038, ¶¶ 26-28 (noting that a missing witness is a valid, neutral reason for delay, while
negligence on the part of the state is not weighed heavily when the delay is not
protracted).

{44} In sum, only a few months of the delay, none of which the State caused
intentionally or in bad faith, can be attributed to the State. We accordingly weigh this
factor only slightly against the State. See id. ¶ 30 (“[B]ecause the delay was negligent
but not protracted, this factor weighs only slightly in [the d]efendant’s favor.”).

C.     Assertion of the Right

{45} As for the assertion of the right, “we assess the timing of the defendant’s
assertion and the manner in which the right was asserted.” Id. ¶ 32. Defendant filed a
request for a speedy trial in March 2015, shortly after the first continuance was granted.
He also opposed all the State’s requested continuances and filed his motion to dismiss
for violation of his right to a speedy trial one week before trial. From this, it appears
Defendant made a genuine attempt to have the case tried, at least from March 2015
onward. But the strength of Defendant’s assertion is somewhat dampened by the fact
that Defendant did not assert his speedy trial right until nearly one year after being
arrested. In light of this, we weigh this factor in Defendant’s favor, although not heavily.
See State v. Brown, 

, 

 (determining that, where the
defendant made numerous assertions but also contributed to some of the delay, the
fourth Barker factor weighed in the defendant’s favor but not strongly); see also
Spearman, 

 (determining that, where the defendant asserted
his right in an early motion, opposed at least one requested continuance, and filed a
motion to dismiss, “[the d]efendant did not aggressively assert the right, [although] he
did not acquiesce to the delay” (alterations and internal quotation marks omitted)).

D.     Prejudice
{46} We turn next to the last Barker factor, prejudice to Defendant caused by the
delay. See Garza, 

 (“The heart of the right to a speedy trial is
preventing prejudice to the accused.”). “Ordinarily, a defendant bears the burden of
proof on this factor by showing ‘particularized prejudice’ when claiming a speedy trial
violation.” Serros, 

. To determine if Defendant was prejudiced, we
consider whether there was (1) undue and oppressive pretrial incarceration; (2) anxiety
and concern of the accused; and (3) impairment of the defense. See Garza, 2009-
NMSC-038, ¶ 12.

{47} For several reasons, we conclude Defendant suffered little, if any, prejudice.
First, although Defendant was in custody for fifteen months between his arrest and his
release three months prior to trial, he was in custody on other charges at the time of his
arrest in this case and continued to be held on those charges during the vast majority of
his pretrial incarceration in this case. Given this, Defendant has not demonstrated
oppressive pretrial incarceration. See State v. Urban, 

, 

, 

 (holding that the defendant did not suffer oppressive pretrial
incarceration because he was incarcerated on other charges during the relevant time
period).

{48} Second, at the hearing on his motion to dismiss, Defendant testified generally
that it had been “hard” for him to “keep going” with his life because he was unable to get
a job. Such non-specific testimony is insufficient to distinguish Defendant’s anxiety,
concern, and disruption of life from that befalling any individual awaiting trial on criminal
charges. See Garza, 

 (“[W]e weigh this factor in the defendant’s
favor only where . . . the anxiety suffered is undue.”).

{49} Third, although Defendant testified that he had been unable to contact two
potential alibi witnesses while he was incarcerated, he did not explain why his attorney
could not contact the potential witnesses, or whether the delay caused him to lose
contact with these witnesses. Moreover, Defendant admitted that the testimony of these
witnesses was cumulative of the testimony offered by other, available defense
witnesses. Under the circumstances, Defendant failed to demonstrate an impairment to
his defense. See id. ¶ 36 (“[T]he defendant must state with particularity what
exculpatory testimony would have been offered, and the defendant must also present
evidence that the delay caused the witness’s unavailability.” (alterations, internal
quotation marks, and citation omitted)).

E.     Balancing the Factors

{50} In weighing the speedy trial factors, we recognize no single consideration is
dispositive. See, e.g., Barker, 

 (explaining “they are related factors and
must be considered together with such other circumstances as may be relevant”). Here,
Defendant did not suffer the type of prejudice required by Garza, and the other three
Barker factors simply do not weigh heavily enough in Defendant’s favor to warrant
dismissal of the case. See Garza, 

 (“[A] defendant must show
particularized prejudice [unless] the length of delay and the reasons for the delay weigh
heavily in [the] defendant’s favor and [the] defendant has asserted his right and not
acquiesced to the delay[.]”). We affirm the denial of Defendant’s motion to dismiss for
violation of his right to a speedy trial.

IV.    Remaining Claims

{51} Defendant raises two additional claims on appeal: (1) he received ineffective
assistance of counsel when his attorney did not move to suppress the social security
and permanent resident cards seized during a search of his residence, and (2) the
district court abused its discretion by admitting a certain exhibit evidencing Defendant’s
address. Were Defendant to prevail on either of these issues, he would be entitled to no
more relief than he already has received. Because of this, we need not and do not
address these issues. See, e.g., State v. Sena, 

, 

(“Because we remand for a new trial, it is not necessary, and we decline to address,
whether the district court erred in [its admission of certain evidence].”); State v. Stanley,

, 

, 

 (“In light of the reversal of the [other]
issues, we do not review [the d]efendant’s ineffective assistance of counsel claim[.]”).

CONCLUSION

{52} We reverse Defendant’s conviction for identity theft and remand for proceedings
consistent with this opinion.

{53}   IT IS SO ORDERED.

JENNIFER L. ATTREP, Judge

WE CONCUR:

KRISTINA BOGARDUS, Judge

SHAMMARA H. HENDERSON, Judge