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State v. Rey

Supreme Court of Minnesota

January 3, 2018

State of Minnesota, Respondent,
v.
Emile Rey, Appellant.

         Court of Appeals Office of Appellate Courts

          Lori Swanson, Attorney General, Saint Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant County Attorney, Hastings, Minnesota, for respondent.

          Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, Saint Paul, Minnesota, for appellant.

          Michael Everson, Assistant Attorney General, Saint Paul, Minnesota, for amicus curiae Minnesota Attorney General.

         SYLLABUS

         1. The district court's imposition of mandatory-minimum restitution following appellant's conviction of identity theft did not result in a procedural or substantive due process violation.

         2. The district court's order requiring appellant to pay mandatory-minimum restitution of $1, 000 to each of the 66 direct victims of appellant's offense was restitution, not an unconstitutional fine.

         Affirmed.

          OPINION

          ANDERSON, Justice.

         Appellant Emile Rey pleaded guilty to one count of identity theft involving eight or more direct victims, [1] Minn. Stat. § 609.527, subds. 2, 3(5) (2016). The district court ordered Rey to pay the mandatory-minimum restitution of $1, 000 to each of his 66 direct victims, totaling $66, 000. Minn. Stat. § 609.527, subd. 4(b) (2016). Rey appealed, asserting that the mandatory-minimum restitution he was ordered to pay violated his procedural and substantive due process rights and is an unconstitutional fine. The court of appeals affirmed. Rey asks us to declare the statute unconstitutional, vacate the restitution order, and remand the matter for a restitution hearing or a Blakely trial.[2] We affirm.

         FACTS

         In March 2015, the Eagan Police Department began investigating the reported use of a cloned credit card[3] by an unknown male at a Target store in Eagan. An investigator learned from Target's loss-prevention personnel that the same unknown male had been to the store on five other occasions to purchase gift cards with what appeared to be cloned credit cards. On one of the occasions, the unknown male was observed arriving at the Target store in a 2002 or 2003 Kia Spectra sedan.

         In late March, Target loss-prevention personnel at a Bloomington store captured the license plate number of the Kia Spectra and forwarded it to the investigator. The investigator then spoke with the registered owner of the vehicle, who reported having sold it to another person, eventually identified as Rey's female accomplice, S.R. After obtaining a court order, an electronic tracking device was installed on S.R.'s vehicle.

         Over the course of approximately one month, the investigator tracked the vehicle to Target stores on 39 occasions and to Walmart stores on nine other occasions. The investigator obtained a list of transactions from those stores during those visits. From that list, the investigator identified 25 different credit card numbers used to purchase gift cards. All of the credit card numbers were associated with credit cards issued by Wells Fargo that had been compromised by a recent breach of Home Depot's information systems.

         The investigator learned from Target that some of the gift cards were redeemed in the greater Chicago area. The electronic tracking data from S.R.'s vehicle showed that on one day in May, the vehicle traveled to the Minneapolis-Saint Paul Airport, stayed for approximately one minute, and returned to S.R.'s residence. On that day, airport police, having received a photo of Rey (who was yet unidentified), reviewed surveillance video and observed him boarding a flight to ...


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