Conviction of reckless homicide would not constitute an intentional act under Kentucky law because such a conviction does not require the intent to kill as an essential element to the crime and by definition does not include the presence of will.

QUESTION

You have asked whether an individual's conviction of reckless homicide in the death of the number holder would constitute a felonious and intentional act under Kentucky law, precluding the convicted individual from receiving benefits on the deceased number holder's record.

ANSWER

For the reasons set forth below, a conviction of reckless homicide would not constitute an intentional act under Kentucky law.

BACKGROUND

According to your inquiry, number holder, Boyd C~ (NH), died on October 14, 1989, while domiciled in Kentucky. NH's death certificate lists the cause of death as homicide, and also states NH was shot by his wife, Martha C~ (Claimant). On July 21, 1992, Claimant entered a guilty plea for reckless homicide in the death of NH and received a sentence of five years probation.

DISCUSSION

An individual is not entitled to benefits on the earnings record of a number holder if she was convicted of a felony or an act in the nature of a felony of intentionally causing that person's death. 20 C.F.R. § 404.305(b) (2006); see Program Operations Manual System (POMS) GN 00304.060(A)(1). SSA's policy regarding the definition of "intent" is not limited to engaging in conduct with the purpose of causing the death of another but also encompasses:

A wish or an expectancy that an act will have a certain result (regardless of the actual likelihood of such a result); or

b. The presence of will in the commission of a criminal act where the individual is fully aware of the nature and probable consequences of the act which is to be done. This applies whether the individual desires that such consequences occur or is indifferent as to their occurrence.

POMS GN 00304.060(B)(1).

Social Security Ruling 89-6c also explains SSA's policy regarding the nature of feloniously and intentionally causing the death of another by reciting the Sixth Circuit Court of Appeals decision in D~ v. Secretary of Health and Human Services, 867 F.2d 336 (6th Cir. 1989). In D~, the defendant, who was convicted of second-degree manslaughter in the shooting death of her husband, applied for widow's benefits. Pursuant to 20 C.F.R. § 404.305(b), the Agency determined the defendant was not entitled to widow's benefits on her deceased husband's record. Defendant challenged the Agency's decision stating that she had not been convicted of an intentional act, and therefore, was not precluded from receiving widow's benefits. According to Kentucky law, an individual is guilty of second degree manslaughter when she wantonly causes the death of another. KY. REV. STAT. ANN. § 507.040 (West 2006). A person acts wantonly when she "is aware of and consciously disregards a substantial and unjustifiable risk." KY. REV. STAT. ANN. § 501.020(3) (West 2006). The court in D~ held that "a conviction for the indifferent performance of a voluntary act that the actor knows is potentially fatal to another, even if the death of the other is not specifically intended, disqualifies the actor from eligibility for survivor's benefits." D~, 867 F.2d at 340.

In this case, Claimant was convicted of reckless homicide in the shooting death of NH, pursuant to KY. REV. STAT. ANN. § 507.050(1) (West 2006). Kentucky classifies reckless homicide as a Class D felony. KY. REV. STAT. ANN. § 507.050(2). Under Kentucky law, a person commits the offense of reckless homicide when she "with recklessness causes the death of another person." KY. REV. STAT. ANN. § 507.050(1) (West 2006). Kentucky law further states that a "person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists." KY. REV. STAT. ANN. § 501.020(4) (West 2006). Kentucky courts have also held that reckless homicide is an "unintentional" homicide. See, e.g., E~ v. Commonwealth, 976 S.W.2d 416, 419 (Ky. 1998).

This case presents a very difficult judgment call. As stated above, reckless means a failure to perceive, but POMS requires at least an indifference to the occurrence of the death. While these may seem to be the same standard, we conclude there is a crucial difference between a failure to perceive and an indifferent attitude. By definition, reckless means a lack of awareness. See KY. REV. STAT. ANN. § 501.020(4) (West 2006); http://encarta.msn.com/dictionary_/reckless.html. Indifference, on the other hand, implies a person is aware of the events but disregards them. See http://encarta.msn.com/dictionary_1861620908/indifference.html. As such, indifference would equate to Kentucky's definition of wantonly, as opposed to recklessly, causing the death of another.

Here, Claimant's conviction of reckless homicide, as opposed to a more serious crime, indicates that she did not intentionally cause NH's death under Kentucky law. See 20 C.F.R. § 404.305(b); POMS GN 00304.060(A)(1). The evidence in the record does not indicate that Claimant otherwise had the intent as contemplated under the POMS. See POMS GN 00304.060(B)(1). Thus, because Claimant was convicted of reckless homicide which does not require the intent to kill as an essential element to the crime and by definition does not include the presence of will, her conviction was not an intentional homicide that would preclude her from receiving benefits on NH's record.

CONCLUSION

Claimant's conviction of reckless homicide in the death of NH was not an intentional act and thus her conviction would not preclude her from entitlement to benefits on NH's record.

Mary A. S~,

Regional Chief Counsel

By:_______________________

Jennifer L. P~

Assistant Regional Counsel

A Report of Presumptive Death of an American Citizen issued by a U.S.Consul's Office is strong evidence to establish circumstantial evidence of death. The adjudicator should consider such a report as one of the pieces of evidence, along with other circumstantial evidence of death listed in POMS GN 00304.025(B)(2), to be considered and/or gathered by the Agency when death occurs outside of the United States.

QUESTION

You asked whether survivor benefits can be paid to the survivors of Mark xxxxx, who has been missing at sea since July 29, 2005. Subsequently, you asked whether survivor benefits can be paid to the survivors of Mark's wife, Laura xxxxx, who was with Mark and disappeared at the same time.

ANSWER

We believe circumstantial evidence provides a strong basis for concluding that Mark and Laura died on July 30, 2005, and therefore, an SSA adjudicator could determine to pay survivor benefits to their survivors prior to the passage of seven years.

BACKGROUND

Mark and Laura were married approximately one year before they went on vacation in Costa Rica in July 2005. On July 29, 2005, Mark and Laura chartered a sail boat with a crew of three Costa Ricans for a half-day fishing trip. The boat never returned, and Mark, Laura, and the three crew members went missing.

A massive search was launched by the U.S. Coast Guard, Costa Rican Coast Guard, and the Nicaraguan Navy. The Costa Rican Coast Guard initiated a search on July 30 and was aided by boats and a plane from private sources.

The Nicaraguan Navy was alerted on July 31 and committed boats to the search. The U.S. Coast Guard conducted an extensive search by aircraft and watercraft beginning on August 1, and covered over 250,000 square miles.

The searchers did not find Mark and his wife, the three crew members, or the boat. The U.S. Coast Guard aerial and sea search continued until the morning of August 6. The Costa Rican Coast Guard and Nicaraguan Navy subsequently terminated their formal searches.

Mark and Laura's disappearance made local and national news, and several stories were published in newspapers and internet sites, including MSNBC.com.

Congressmen Ben C~'s office has been highly involved with obtaining information from the U.S. Embassy in Costa Rica and assisting the families of Mark and Laura. On September 2, 2005, an internet report indicated that Congressman C~ office has overseen the U.S. efforts to locate Mark and Laura. In an unsigned statement taken on September 21, 2005, Loren C~, field supervisor to Congressman Ben C~, indicated "all evidence gathered by federal agencies indicates that they are deceased," and that he was "not at liberty to discuss any specific details of active law enforcement investigations."

The record is also replete with statements from Mark's ex-wife, Laura's ex-husband, Mark and Laura's minister, and Mark's business partner. All of them stated that Mark and Laura had intended to return from their trip.

On September 26, 2005, the U.S. Consul's Office in San Jose, Costa Rica issued a Report of Presumptive Death of an American Citizen for both Mark and Laura. Both reports state that the date of death was July 30, 2005, and the cause of death was "Reported Missing at Sea" with no remains found.

Both NH and Laura were previously married. NH had three children from his prior marriage, and paid $600/month in child support. Laura has one child from her previous marriage.

DISCUSSION

The regulations and the Program Operations Manual System (POMS) provide that a claimant must produce either "preferred evidence" of the fact of death under 20 C.F.R. § 404.720(b) and POMS GN 00304.005, or "secondary evidence" of the fact of death under 20 C.F.R. § 404.720(c) and POMS GN 00304.015.

Where there is no preferred or secondary evidence of the fact of death and the body has not been recovered, POMS GN 00304.025 directs the field office to "establish the death based on circumstantial evidence."

This POMS provision further states:

The amount of evidence needed to establish death as the inevitable conclusion from all of the circumstances of the disappearance will depend on the facts developed. There is no prescribed amount of time which must pass before a death can be established based on circumstantial evidence.

POMS GN 00304.025A. If the disappearance was due to a drowning, POMS 00304.025(B)(3)(a) directs the field office to develop the evidence under POMS 00304.025(B)(2) and to "[g]et statements from at least three eyewitnesses." If there were no eyewitnesses, the field office is directed to "get statements from other people familiar with the disappearance." Id.

POMS 00304.025(B)(2) is captioned "Evidence-Body Not Recovered" and provides that the amount and type of evidence in any case "will depend on judgment."

This POMS provision also provides a list of evidence to obtain including, but not limited to:

* Statements from the claimant and persons with knowledge about the missing person

* Letters or notes left or sent by the missing person that may have a bearing on the disappearance

* Insurance investigations (e.g., the facts and date of death established by the insurance company's investigation or any life insurance policies carried on the missing person which were paid)

* Investigations conducted by Federal, State, or local agencies (e.g., reports by the FBI, coast guard, or police)

* Newspaper reports

* Information about others who disappeared at the same time

* Reports of casualty from the military

When circumstantial evidence does not establish the fact of death as an inevitable conclusion, the death may be presumed after seven years have elapsed since the disappearance. See 20 C.F.R. § 404.721(b); POMS GN 00304.050.

Here, the evidence gathered by the Agency provides a strong case to establish Mark and Laura's death by circumstantial evidence. Significant weight should be given to the Reports of Presumptive Death of an American Citizen issued by the U.S. Consul's Office in San Jose, Costa Rica on September 26, 2005, nearly two months after Mark and Laura were last seen.

The reports identify that Mark and Laura were presumed dead as of July 30, 2005, and the cause of death was "Reported Missing at Sea" with no remains found.

In addition, the record is replete with evidence of a massive search by the U.S. Coast Guard, Costa Rican Coast Guard, and Nicaraguan Navy. The Costa Rican Coast Guard initiated a search on July 30 and was aided by boats and a plane from private sources. The Nicaraguan Navy was alerted on July 31 and committed boats to the search. The U.S. Coast Guard conducted an extensive search by aircraft and watercraft beginning on August 1, and covered over 250,000 square miles. The search resulted in no findings of Mark, Laura, the crew members, or the boat. The U.S. Coast Guard's aerial and sea search continued until the morning of August 6, and the Costa Rican Coast Guard and Nicaraguan Navy subsequently terminated their formal searches.

The record is also replete with over a dozen local and national newspaper and internet newspaper reports, documenting the search for the couple as well as the Coast Guard's termination of the search. One internet report, posted September 2, 2005, indicated that the FBI continued to conduct an investigation after the Coast Guard searches were terminated.* There is no basis to question any of the reporters' credibility.

While the record does not include any reports of investigation from the FBI or other federal agencies, the record includes an unsigned statement from Loren C~, field supervisor to Congressman Ben C~, who stated that "all evidence gathered by federal agencies indicates that they are deceased," and that he was "not at liberty to discuss any specific details of active law enforcement investigations."

While there are no signed statements from eyewitnesses, there is an unverified report from Mark's brother, who indicated that he went down to Costa Rica, and spoke with witnesses that saw the couple get on the boat.

No further information was reported.

Furthermore, the record includes statements from sources familiar with Mark and Laura's disappearance, including statements from the ex-spouses of Mark and Laura. The statement from Mark's ex-wife indicates that when he left, he told his children that he would see them in a few days, and that "it was obvious that he planned to return." Likewise, the statement from Laura's ex-husband indicates that his last contact with Laura was on July 22 before he took a trip to Alaska with their son. On that date, Laura said goodbye to her son and ex-spouse, and her goodbyes were described as "normal" and that "there was no doubt that Laura intended to return and see our son on her return."

Mark and Laura's minister also provided a statement indicating that they were happy in their new marriage, and when they left for vacation, there was no doubt that they planned to return.

Mark's business partner, Todd E~, was asked to provide a statement regarding whether there was a problem with the business such that NH would falsify his death. In his statement, Mr. E~ assured SSA that the business was doing well, and that Mark had intended to return to work after his vacation.

There is no information in the record concerning any life insurance policies carried on Mark or Laura, any investigations conducted by an insurance company, and whether any insurance claims were filed.

In sum, there appears to be strong circumstantial evidence establishing that Mark and his wife drowned on or around July 30, 2005, the date used in the U.S. Consul's Report of Presumptive Death of an American Citizen. However, if you determine that further development of the record is needed, you could explore whether there were any insurance investigations subsequent to Mark and Laura's disappearance, and whether any insurance claims were filed and, if so, whether they were paid.

Furthermore, we believe that a Report of Presumptive Death of an American Citizen issued by a U.S. Consul's Office is strong evidence to establish "circumstantial evidence of death," and POMS GN 00304.025(B)(2) should be amended to include such a report as one of the pieces of evidence to be considered and/or gathered by the Agency when death occurs outside of the United States. Such an amendment would be consistent with 20 C.F.R. § 404.720(b)(4) and POMS GN 00304.005, both of which recognize that an official report of death from a U.S. Consul's office is listed as an example "preferred evidence" of death which SSA should obtain. Moreover, the POMS already recognizes that official reports of presumptive death for individuals in the armed forces are used as evidence to establish the fact of death, and such evidence if available should be gathered. See, e.g., POMS 00304.025(B)(2), POMS 00304.207. Thus, we believe that reports on presumptive death issued by a U.S. Consul's Office should also be obtained by the Agency when a civilian dies outside the United States, and by copy of this opinion, we refer this matter to the Office of Income Security Programs.

CONCLUSION

Based on the evidence provided by the Agency, we believe that there is circumstantial evidence of Mark and his wife's death, and an SSA adjudicator could determine to pay survivor benefits to the survivors of Mark and Laura prior to the passage of seven years.

Mary A. S~,

Regional Chief Counsel

By:_______________________

Brian S~

Assistant Regional Counsel