You have asked two questions regarding the effect of the dismissal of charges against
Barbara J~ to the charge of negligent homicide of her husband, James J~. First, you
asked whether Ms. J~ was convicted of a felony for purposes of 20 C.F.R. § 404.305(b).
Second, you asked if Ms. J~ was precluded from obtaining widow's benefits based on
the earnings of her deceased husband.
For the reasons discussed below, we believe that Ms. J~ was convicted of a felony
for the purposes of 20 C.F.R. § 404.305(b), but that her conviction does not preclude
her from receiving widow's benefits.
In March 1979, Ms. J~ pleaded guilty to the felony of negligent homicide in the March
1978 shooting death of her husband, James J~. Pursuant to state law, she was granted
a deferral of sentence for a term of three years. In March 1982, upon motion to the
court, Ms. J~ withdrew her guilty plea and entered a not guilty plea. Upon entry of
the not guilty plea, the court dismissed the charge. See MONT. CODE ANN. § 46-18-204 (1999).
An individual who is "convicted of a felony or an act in the nature of a felony of
intentionally causing [a] person's death" is not entitled to receive benefits on that
person's earnings record. 20 C.F.R. § 404.305(b). A line of federal cases has held
that a determination of whether an individual has been convicted within the purview
of a particular federal statute is necessarily a question of federal, not state, law
despite the fact that the predicate offense and its punishment are defined by state
law. "This makes for desirable national uniformity unaffected by varying state laws,
procedures, and definitions of conviction." Dickerson
v. New Banner Institute, Inc., 460 U.S. 103, 111 (1983). The decision in the Dickerson case approved of circuit
court decisions, which held state expunction statutes (such as the Montana statute)
were not controlling where a function of federal law is concerned. United States v. Woods, 695 F.2d 566 (8th Cir. 1982); United States v. Potts, 528 F.2d 883 (9th Cir. 1975); Hyland v. Fukuda, 580 F.2d 977 (9th Cir. 1978); United States v. Bergeman, 592 F.2d 533 (9th Cir. 1979); United States v. Lehmann, 613 F.2d 130 (5th Cir. 1980). Accordingly, once found guilty, either by a plea or
a verdict, an individual is "convicted" for purposes of federal law.
The rationale in these federal cases is persuasive with regard to the Social Security
regulation (20 C.F.R. § 404.305(b)) at issue here. As such, we believe that Ms. J~
has been convicted of a felony for purposes of 20 C.F.R. § 404.305(b).
Because we believe Ms. J~ was convicted of a felony, the next question to be resolved
is whether she "intentionally" caused her husband's death. Under SSA's guidelines,
"intent" is not simply the equivalent of "knowingly and purposely" which are elements
of "deliberate homicide" under Montana law. See MONT. CODE ANN. § 45-5-102 (1999). Rather, under the Program Operations Manual (POMS),
"intent" is: (a) a wish or expectancy that an act will have a certain result (regardless
of the actual likelihood of such a result); (b) [t]he 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 00304.060B.
Under Montana law, a person who commits negligent homicide is one "who negligently
causes the death of another human being." MONT. CODE ANN. § 45-5-104 (1999). A person
acts with criminal negligence when "the homicidal risk is of such a nature and degree
that to disregard it involves a "gross deviation" from the standard of conduct that
a reasonable person would observe in the actor's situation." MONT. CODE ANN. § 45-2-101
Based on this statutory law, we conclude that the Montana crime of "negligent homicide"
is analogous to the offense of "involuntary manslaughter." Indeed, the "negligent
homicide" statute replaced the "involuntary manslaughter" statute in Title 45, Chapter
5 of the Montana Code Annotated. "Involuntary manslaughter" is generally regarded
as an unintentional slaying and thus does not bar entitlement to benefits. POMS §
GN 00304.065. Thus, if someone in Montana is convicted of "negligent homicide" we believe a "lack
of intent [may be] presumed," although the presumption may be rebutted. Id. On the information presented to us, there appears to be no basis for rebutting the
presumption in this case.
In sum, based on the facts presented to us, we believe SSA would be justified in finding
Ms. J~ is entitled to Social Security benefits notwithstanding her conviction for
Mary A. S~
Acting Chief Counsel, Region VIII
Robert L. V~
Assistant Regional Counsel