A claimant's guilty plea to the charge of Conspiracy to Commit Murder in the State of Missouri would preclude that claimant from being entitled to survivor benefits. Under regulations at 20 C.F.R. 404.250(b), the claimant would be precluded from receiving benefits based on the NH's account if he or she was "convicted of a felony or an act in the nature of a felony of intentionally causing" the NH's death. Based on Missouri law, the claimant's conviction for Conspiracy to Commit Murder is the equivalent of a conviction in the felonious and intentional homicide of the NH.

You requested a legal opinion regarding whether a guilty plea to conspiracy to commit murder in Missouri precludes entitlement to survivor benefits. Based on the facts provided in the request for an opinion, we believe that a guilty plea would preclude entitlement to survivor benefits.

Factual Background

Your memorandum indicates the number holder (NH), Larry W. H~, was killed by a gunshot wound to the head on November 21, 2000. The claimant, Tammy L. H~, applied for Lump Sum Death Payment and Mother's insurance benefits on November 30, 2000. There was no evidence that the claimant was involved in the death of the NH. The claimant was awarded survivor benefits.

On January 21, 2001, the claimant was charged with first degree murder in the death of the NH. The claimant went to trial, and on January 31, 2003, while jury deliberations were ongoing, she pled guilty to a single count of Conspiracy to Commit Murder, a class B felony. The claimant was sentenced to seven years confinement in the Missouri Department of Corrections. Material submitted with the request for legal opinion indicates that claimant's guilty plea was an "A~ Plea." An A~ Plea, which refers to North Carolina v. Alford, 400 U.S. 25 (1970), is a plea in which an individual concedes that enough evidence exists to produce a conviction, but maintains that he or she is innocent.

Analysis

Regulations at 20 C.F.R. § 404.250(b) (2003) state that:

[(b) Person's death caused by an intentional act. You may not become entitled to or continue to receive any survivor's benefits or payments on the earnings record of any person, or receive any underpayment due a person, if you were convicted of a felony or an act in the nature of a felony of intentionally causing that person's death. If you were subject to the juvenile justice system, you may not become entitled to or continue to receive survivor's benefits or payments on the earnings record of any person, or receive any underpayment due a person, if you were found by a court of competent jurisdiction to have intentionally caused that person's death by committing an act which, if committed by an adult, would have been considered a felony or an act in the nature of a felony.

Id. Therefore, the claimant would be precluded from receiving benefits based on the NH's account if she was "convicted of a felony or an act in the nature of a felony of intentionally causing" the NH's death. Id.

The Program Operations Manual System (POMS) ^[1] defines intent as used in 20 C.F.R. § 404.250 as "a wish or an expectancy that an act will have a certain result" or "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." POMS GN 00304.060. It further defines felonious and intentional homicide as "crimes committed by adults that are considered intentionally and legally felonious. . . ." Id.

In Missouri, conspiracy to commit murder is a class B felony. See Mo. Ann. Stat. § 564.016 (2004). Missouri statutes provide that, "[a] person is guilty of conspiracy with another person or persons to commit an offense if, with the purpose of promoting to facilitating its commission he agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such offense." Id. Further, Missouri case law is consistent with the general legal principle that an individual who is a member of a conspiracy is responsible for the acts of coconspirators in furtherance of the conspiracy. See State v. Nasello, 30 S.W.2d 132 (Mo. 1930); State v. Linders, 253 S.W. 716 (Mo. 1923).

Therefore, the effect of claimant's plea of guilty to conspiracy to commit murder is that she is legally responsible for the murder of the NH that was committed by a third party. Claimant's participation in a conspiracy to murder the NH is a felony of intentionally causing the death of the NH. This is consistent with the underlying policy of 20 C.F.R. § 404.250(b) that the regulation is "based on the well-established principle that an individual should not profit from intentionally causing another person's death." Social Security; Limitation on Survivor's Benefits and Payments to Persons Who Intentionally Cause the Death of a Worker on Whose Earning's Record the Benefits and Payments are Based, 47 Fed. Reg. 13,324 (March 30, 1982).

First, as an initial matter, Mrs. C~ has not provided any of the proper “preferred” methods for determining death described by the Social Security regulations. “Preferred evidence” of death includes a certified copy of a death certificate, a statement by a doctor or funeral home director, an official death report by an agency of the United States, or other evidence such as the signed statements of two people with knowledge of the death. See 20 C.F.R. § 404.720(b-c) (2002). There has never been any remains to present to a doctor or funeral home director, and no two people have personal knowledge of Mr. C~'s death.

However, because her plea was an "A~ Plea," we must evaluate the effect, if any, of Claimant's statement that she was innocent of the charge. In a Missouri case involving an A~ Plea, Haffner v. Saulters, 77 S.W.3d 45 (Mo. Ct. App. 2002), the Missouri Court of Appeals held that an A~ Plea did not eliminate the requirement for a defendant to register as a sex offender. The Court of Appeals noted that an A~ Plea is a guilty plea. See H~, 77 S.W.3d at 47. The Court held that there was no actual distinction between pleading guilty to the offense of abuse of a child and committing the offense of abuse of a child. Id. at 47-48. The Court stated that "by entering his plea, [defendant] was subject to the criminal penalty for abuse of a child." Id. at 48. The Court of Appeals held, for purposes of the sex offender registration statute, "[w]e fail to find a meaningful difference between pleading guilty to an offense and pleading guilty to committing an offense. A plea of guilty is a plea of guilty." Id. This is consistent with the majority view that an A~ Plea of guilty is considered a guilty plea in all material respects. See 21 Am. Jur. 2d Criminal Law § 716 (2003). Therefore, the fact that Claimant pled guilty using an A~ Plea does not substantively change the fact that she was convicted of conspiracy to commit murder.

CONCLUSION

Based on our analysis of Missouri law, we believe that Claimant's conviction for conspiracy to commit murder is the equivalent of a conviction in the felonious and intentional homicide of the NH. Further, the fact that Claimant's conviction was based on an "A~ Plea" is immaterial for purposes of the regulation.

Frank S~ III

Chief Counsel,

Region VII

By

Sean N. S~

Assistant Regional Counsel

 

Missouri law states that a person missing for 5 years may be presumed dead. However, for SSA purposes when presuming a person's death, use the 7-year period required by regulation at 20 C.F.R. 404.721. SSA will not accept a Missouri death certificate as preferred proof of death if it indicates a person's presumed date of death based on Missouri law.

You have asked for an opinion regarding a possible conflict between the Missouri statute for determining if a missing person is presumed to be dead, and the Social Security regulation addressing the same issue. The Missouri law states that a person missing for five years may be presumed dead. Mo. Rev. Stat. § 456.620 (2002). The Social Security regulation provides that a person will not be presumed dead unless they are missing for at least seven years. See 20 C.F.R. § 404.721 (2002). Our review of the law and the facts as you presented them indicates that state law does not control in this situation, and that the number holder may not be presumed dead for purposes of Social Security until he has been missing for seven years.

Factual Background

Mr. C~ has been missing since November 19, 1996. On that date, Mr. C~'s minivan was found parked on the Jefferson Barracks Bridge over the Mississippi River in south St. Louis County. The report of the police officer who investigated the parked van indicated that the vehicle was partially unlocked, and that the keys were in the vehicle. Missouri Motorist Assist had placed a sticker on the van on November 18, 1996, indicating that the Motorist Assist driver had arrived to offer assistance, but had been unable to locate the driver of the van. A police canvas of the area did not reveal any sign of Mr. C~. The officer observed that there was a black scuffmark, which could have been made with a shoe, on the cement wall of the bridge near the vehicle. Mr. C~'s wife, Michelle C~, reported that nothing unusual was missing from the home, and that Mr. C~ had been in low spirits after being arrested for driving while intoxicated, and recent and painful back surgery. Mrs. C~ also reported that she had recently lost her job. Mr. C~'s sister said she had last seen him two weeks previously at a birthday party, at which time he reported increased back pain.

Mrs. C~ filed a claim for Social Security childrens' benefits and for a lump sum death payment in February 1997. A Social Security administrative law judge denied her claims on July 6, 1998.

On June 28, 2002, the probate division of the St. Louis County Circuit Court entered a judgment that Mr. C~ was presumed dead because he had been missing for the five years required under Missouri law. The court's order only stated that Mr. C~ “has been absent from the place of his last known domicile within this state for a period of more than five (5) consecutive years from November 19, 1996.” The only person who testified before the state court was Mrs. C~. There is no indication from the court documents that the proceeding before the state court was contested or adversarial. The Commissioner was not a party to this proceeding. As a result of the court's finding, a certificate of death was issued on July 11, 2002. The death certificate indicates that death was presumed, that the cause of death was unknown, and that the date of death was November 19, 1996.

On July 22, 2002, Mrs. C~ filed a new claim with the Social Security Administration, contending that the July 28, 2002, decision of the probate court was sufficient evidence that Mr. C~ was dead, and again requesting Social Security benefits.

Analysis

Determining the fact and date of death is governed by the regulations found at 20 C.F.R. §§ 404.720, 404.721 (2002). “Preferred evidence” of death includes a certified copy of a death certificate, a statement by a doctor or funeral home director, an official death report by an agency of the United States, or other evidence such as the signed statements of two people with knowledge of the death. See 20 C.F.R. § 404.720(b-c). Another regulation, 20 C.F.R. § 404.721, applies when none of the “preferred” means are available. Death may be presumed if there are

[s]igned statements by those in a position to know and other records which show that the person has been absent from his or her residence and has not been heard from for at least 7 years. If the presumption of death is not rebutted pursuant to § 404.722, we will use as the person's date of death either the date he or she left home, the date ending the 7 year period, or some other date depending upon what the evidence shows is the most likely date of death.

20 C.F.R. § 404.721 (2002). See also 20 C.F.R. § 404.722 (2002) (presumed death after absence of seven years can be rebutted by “evidence that establishes that the person is still alive or explains the individual's absence in a manner consistent with continued life rather than death”).

The Missouri statute regarding presumption of death for a missing person states, in relevant part:

A person who is absent for a continuous period of five years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.

Mo. Rev. Stat. § 456.620.3 (2002). Therefore, as noted, the Missouri and Social Security presumptions of death are in conflict.

First, as an initial matter, Mrs. C~ has not provided any of the proper “preferred” methods for determining death described by the Social Security regulations. “Preferred evidence” of death includes a certified copy of a death certificate, a statement by a doctor or funeral home director, an official death report by an agency of the United States, or other evidence such as the signed statements of two people with knowledge of the death. See 20 C.F.R. § 404.720(b-c) (2002). There has never been any remains to present to a doctor or funeral home director, and no two people have personal knowledge of Mr. C~'s death.

Based on the state court order, Mrs. C~ obtained a certified death certificate stating Joseph A. C~'s date of death as November 19, 1996. This is not sufficient “preferred” evidence because it is not an actual finding of death based on the presence or identification of a body, but merely the application of the state law presumption in the absence of any proof of death. A “certificate issued by the public record of death” is only sufficient where it provides personal knowledge of the death in the sense of describing the date, place, and cause of death. See Daubert v. Sullivan, 905 F.2d 266, 270 (9th Cir. 1990) (coroner's jury resulted in certificate of death in a case of a missing drug dealer, but this was not adequate when understood in the context of the Social Security regulations, which require actual proof of death not simply presumption of death). See also McKee v. Sullivan, 903 F.2d 1436, 1440 (11th Cir. 1990) (in case of NTSB report of disappeared employee, court found a “presumption of death is not the equivalent of a finding of death or a report of death,” and determination must be of “death in fact”). In other words, the death certificate in this case does not control because it is merely the expression of a presumption of death based upon Missouri law, and does not provide the factual evidence of death contemplated by 20 C.F.R. § 404.720. As will be discussed more fully below, this state law presumption of death does not control for determination of Social Security benefits.

Having determined that “preferred evidence” is unavailable, the five-year state presumption clearly does not supplant the seven-year requirement found in the Social Security regulations. Courts have been very consistent in finding ex parte state determinations of death ineffective for Social Security purposes. In the recent Missouri case of Duncan v. Massanari, 200 F.Supp.2d 1068, 1073 (E.D.Mo. 2001), the court, in determining the exact date of death for Social Security purposes, refused to give effect to a circuit court order finding that the missing person was dead. Presumably, the Missouri court had determined that Duncan was deceased based on the five-year statute. The Duncan court wrote that the finding of the state court was “merely that he was presumed dead under Missouri law.” Id. The court added that the state court had not made a finding that the missing person died on any specific date nor was the judgment binding on the Commissioner. Id. See also, Shelnutt v. Heckler, 723 F.2d1131, 1133 (3d Cir. 1983) (state ex parte order determining fact of death not binding on Commissioner); Dowell v. Gardner, 386 F.2d 809, 810 (6th Cir.1967) (same); Cain v. Secretary of Health, Educ. and Welfare, 377 F.2d 55, 58 (4th Cir.1967) (state ex parte order not binding on Commissioner).

In this case, the state court's decision was ex parte. As noted above, Mrs. C~ was the only party who testified, and there is no indication the Commissioner or any other adverse party participated in the state court proceeding. As the court held in D~, the state determination of presumption of death did not include the Commissioner as a party, and it is not binding on the Commissioner or on a federal court. See D~, 200 F.Supp.2d at 1073. Other courts are in agreement that such ex parte proceedings do not bind the Commissioner. In the fact situation you describe, the Missouri probate court's presumption of death after five years is not controlling. Social Security may make its own determination of presumed death and date of death after the required seven years have passed.

Frank S~ III

Chief Counsel,

Region VII

By

Kevin B. M~

Assistant Regional Counsel

Under Missouri law, a medical examiner or coroner is obligated to list the “date of death” on a death certificate for a person who is missing and whose remains are later found, as the date the person's remains are found, not the date that death actually occurred or may have occurred. On a case by case basis, SSA may use as the person's date of death either: the date the individual left home or some other date depending upon what the evidence shows is the most likely date of death.

You requested a legal opinion regarding the presumed date of death of Jeri M. S~ for entitlement to survivor's benefits for her two minor children. Using the date of death listed on the death certificate, Ms. S~ would not be insured under the Social Security Act (the Act) at the time of her death. Based on the facts presented, we believe it is reasonable to conclude that Ms. S~'s date of death was October 12, 1999, the date she disappeared.

Factual Background

You stated that Jeri M. S~, the number holder, disappeared on October 12, 1999, and was not heard from thereafter. On January 17, 2002, skeletal remains were identified as Ms. S~. On March 14, 2002, the medical examiner of Jefferson County, Missouri, Mary C~, M.D., certified that Ms. S~'s cause of death was “homicidal violence,” and that her date of death was January 17, 2002.

Pursuant to your request, Dr. C~ wrote a letter to SSA in which she stated that January 17, 2002, was listed as the date of death because when bodies or remains are found, pronouncement of death is on the date and time found. Dr. C~ further stated that “[b]ased on the skeletonized nature of the remains it is, however, evident that this person has been dead for some length of time, certainly longer than 1 month.”

In April 2002, survivor and lump sum death claims were filed on the record of Ms. S~ for her two surviving children. However, Ms. S~'s insured status under the Act expired on December 31, 2001. Based on the date listed on the death certificate, Ms. S~ did not meet the insured status requirements of the Act for any possible survivor benefits on her record.

You inquired as to whether Ms. S~'s date of death, for SSA purposes, could be established prior to the date listed on the death certificate.

On May 20, 2002, we requested additional information concerning whether there were statements on file attesting to the time of Ms. S~'s disappearance. The materials you provided indicated that Ms. S~ disappeared on October 12, 1999, and was not seen again. Her mother, Ms. V~, signed a statement in which she said that she spoke to Ms. S~ that evening, but that Ms. S~ then left home and did not return. She called the police, and was advised to file a missing persons report with the police on October 14, 1999. You also forwarded to us a missing persons poster produced by Nation's Missing Children Organization, which identifies Ms. S~ as missing as of October 12, 1999, and states that she was last seen when she went to drop off a video tape. You also included various newspaper clippings which further document Ms. S~'s disappearance, the search, and the subsequent recovery of her remains. A report of contact with a police detective verified that according to the detective, a missing persons report had been made and the report number was identified. Dwana J. P~, a friend of the family, stated that Ms. S~ would never have left home without telling someone where she was going or making arrangements for her children. Ms. P~ also noted that she had last spoken to Ms. S~ on October 12, 1999.

Analysis

The Social Security Act provides that child's insurance benefits will be paid to children when, among other factors, the child was dependent on the individual “if such individual has died, at the time of such death . . .” 42 U.S.C. §402(d)(1)(C)(ii). The Act does not contain criteria for determining the date of death. Social Security regulations state that evidence of an individual's death is required if there is an application for benefits filed on the record of the deceased person. See 20 C.F.R. § 404.720 (2001). The Regulation states that the “preferred” evidence of death is a certified copy of the public record of death. See id. Other “preferred” evidence is a statement from a funeral director, an extract from an official report made by a federal agency, or a report from the State Department for foreign deaths. See id. If the “preferred”"evidence of death cannot be obtained, the individual will be asked to provide “other convincing evidence,” such as signed statements from two or more people with personal knowledge of the death, giving the place, date, and cause of death. See id.

Under the regulations, if the claimant cannot prove that an individual is dead, evidence can be provided which would allow SSA to presume an individual died at a certain time. See 20 C.F.R. § 404.721 (2001). A claimant may present signed statements by “those in a position to know” and other records which show that an individual has been absent from his or her residence for at least seven years. Id. In that event, SSA may use as the person's date of death either: 1) the date the individual left home; 2) the date ending the seven-year period; or, 3) some “other date depending upon what the evidence shows is the most likely date of death.” Id. Here, a unique situation presents itself in which the individual is without question deceased, but was at one time missing, and her body was found prior to the end of the seven-year period described in the regulation. See id.

The normal “best evidence” of death would be the death certificate, however, the death certificate date does not purport to be the actual date of death in this case. As the medical examiner stated, under Missouri law a medical examiner or coroner is obligated to list the date that the remains are found, not the date that death actually occurred or may have occurred, as the “date of death” on a death certificate. See Mo. Ann. Stat. § 193.145 (West 2002). The death certificate should not then be considered “preferred” evidence of the date of death in this case, but is “preferred” evidence only to the fact that death occurred.

Courts have interpreted the SSA regulations in this area in accordance with the common law presumption of continued life. The United States District Court for the Eastern District of Missouri has recently stated that SSA's interpretation of 20 C.F.R. § 404.721 would be evaluated under the “common law principles” of presumed date of death. See Duncan v. Massanari, No. 4:00CV1175DDN, 2001 WL 1862824 (E.D. Mo. Sept. 20, 2001). The common law presumption is that, [w]hile death may be presumed from the absence, for seven years, of one not heard from, where news from him, if living, would probably have been had, yet this period of seven years during which the presumption of continued life runs, and at the end of which it is presumed that life ceases, may be shortened by proof of such facts and circumstances connected with his habits and customs of life, as submitted to the test of reason and experience, would show to your satisfaction by a preponderance of the evidence that the person was dead.

Id. at *5 (quoting Fidelity Mut. Life Ass'n of Phil. v. Mettler, 185 U.S. 308, 316 (1902) (emphasis added in D~). The D~ court went on to note that either party is free to prove an earlier time of death, but that in the absence or insufficiency of such proof, the fact-finding tribunal should determine that the individual died at the close of the period. See id. at *5 (internal citations omitted).

In Meriwether v. Apfel, No. CIV. A. 98-2172-KHV, 1999 WL 450899 (D. Kan. May 11, 1999) aff'd 242 F.3d 389 (10th Cir. 2000) (table, text in Westlaw), the United States District Court determined that the presumption of continued life could be rebutted by the facts of that case. These included the individual's depression and likely suicide, the closeness and frequency of contact prior to the disappearance, and the lack of unexplained activity in credit or bank accounts. See id. at *4. The court found that the Commissioner could use the date of an individual's disappearance as the date of his presumed death. See id. at *6. In D~, the court also noted that evidence that the wage earner had no reason to leave home and every reason to remain might be substantial evidence of death at the time of disappearance which would be sufficient to rebut the presumption of continued life. See D~, 2001 WL 1862824 at *6. This interpretation is consistent with long-standing Eighth Circuit case law.

See Claywell v. Inter-Southern Life Ins. Co. of Louisville, 70 F.2d 569 (8th Cir. 1934) (death of absentee might be proven by circumstantial evidence, but party alleging death must prove facts and circumstances connected with the absence of the person warranted reasonable conclusion of death); Browne v. New York Life Ins. Co., 57 F.2d 62 (8th Cir. 1932) (death may be proven by circumstantial evidence). This principal has been codified in Missouri statutes. See Mo. Ann. Stat. § 456.620 (West 2002) (death presumed to have occurred at the end of the specified period unless there is sufficient evidence for determining that death occurred earlier).

Social Security policy states that the agency will use the common law presumption of death analysis, which is the same analysis followed in the cases cited above. Social Security Ruling (SSR) 99-1p states that [t]he presumption of death, founded on common law, is widely accepted in State and Federal courts to determine entitlement to property and is codified in our regulations. We use this regulatory presumption to establish the fact of death for entitlement purposes, and will also use it to determined that entitlement ends.

SSR 99-1p. Although this Ruling explains how SSA will terminate entitlement upon death, we believe that the same principles apply to establish initial entitlement to survivor benefits. The Ruling restates the section of 20 C.F.R. § 404.721, which states that death will be presumed to have occurred on the date of disappearance, the date ending the seven-year waiting period, or some other date depending upon what the evidence shows is the most likely date of death. See SSR 99-1p.

Additionally, according to the Programs Operations Manual System (POMS), a date of death at or near the date of disappearance may be found if the facts of the case fit into any of the following four situations: 1) the missing person encountered some specific peril at or about the time of disappearance; 2) the missing person was suicidal; 3) the missing person was in such a poor state of health and was so destitute that survival was improbable for any length of time after the disappearance; or, 4) the missing person was attentive to domestic duties, had a home to which he/she was attached and suddenly, finally, and without explanation disappeared. See POMS GN 00304.050.6 (Presumption of Death). Here, the missing individual was subsequently determined to have died as a result of homicide, and the missing person was normally attentive to domestic duties, was attached to the home, and disappeared suddenly without explanation.

On the facts here, we believe that it is reasonable to conclude that Ms S~'s date of death is not the date listed on the death certificate. Therefore, another date that represents the “most likely” date of death must be used. We believe that under 20 C.F.R. § 404.721 and the common law, it is reasonable to conclude that Ms. S~'s “most likely date of death” was October 12, 1999. Courts, particularly the United States District Court for the Eastern District of Missouri (wherein the claimant resides), would in all likelihood find that the common law presumption of continued life was shortened based upon the statements from Ms. V~ and Dr. C~, the police report, the documentation from the newspapers relating to the disappearance, and the fact that there is no evidence that Ms. S~ was alive after October 12, 1999.

Please note that this opinion should not be considered precedential for all situations in which an individual is missing and then found prior to the time their death can be presumed under the regulations. Each claim should be considered on a case-by-case basis.

Frank V. S~ III

Chief Counsel,

Region VII

By

Bert W. C~

Assistant Regional Counsel