U.S. v. Drinkall, 84-1240
| Decision Date | 26 November 1984 |
| Docket Number | No. 84-1240,84-1240 |
| Citation | 749 F.2d 20 |
| Parties | UNITED STATES of America, Appellee, v. Betty Jo Blackwell DRINKALL, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robin L. Hermann, Des Moines, Iowa, for appellant.
Richard C. Turner, U.S. Atty. and Ronald M. Kayser, Asst. U.S. Atty., Des Moines, Iowa, for appellee.
Before HEANEY, BRIGHT and ROSS, Circuit Judges.
Betty Jo Blackwell Drinkall appeals the judgment of the district court revoking her probation and ordering her to serve the remainder of her sentence. For the reasons set forth below, we reverse and remand for further proceedings.
Drinkall was indicted by a federal grand jury on April 20, 1983, on charges of forgery and embezzlement of social security checks payable to her deceased mother-in-law, Edna Blackwell. Drinkall entered into a plea agreement with the United States Attorney, and pled guilty to several of the charges of the indictment on August 19, 1983. The district court accepted the plea and sentenced her to imprisonment for two years on each of four counts to run concurrently, to serve three months of the sentence with the remainder suspended. Drinkall was also placed on three years' probation to begin with her release from confinement.
Several months later, the United States Attorney filed an application to revoke probation, alleging that Drinkall violated the terms of her probation by fraudulently obtaining and negotiating social security benefits under the widow's and mother's benefits program. On February 10, 1984, the district court held a hearing and found that the government had established that Drinkall violated her probation by violating federal law. The court ended the suspension of her sentence, revoked probation, and ordered that she serve the remainder of her sentence. Drinkall then brought this appeal.
We review the trial court's decision to revoke probation, on an abuse of discretion standard. United States v. Rifen, 634 F.2d 1142, 1143, 1144 (8th Cir.1980). Drinkall argues that the district court abused its discretion: (1) in finding that she had violated the terms of her probation without finding that she had fraudulently obtained benefits to which she was not entitled, and 2) in revoking her probation for alleged criminal acts which the court or the government knew of prior to the date that her original sentence was imposed. Based on her failure to report her remarriage to Arthur Drinkall to the Social Security Administration, the district court found that Drinkall violated federal law. In support of this determination, the court cited that Drinkall signed her application for widow's and mother's benefits in 1976, which required that she notify the Social Security Administration if she remarries; that she married Arthur Drinkall on May 19, 1979; that on August 18, 1980, she filed a statement with the Social Security Administration responding "No" to the question, "Have you remarried since filing for social security benefits?" and signed it "Betty Blackwell;" and that she initialed an affidavit on November 23, 1982 to James Marsicek from the Office of Investigations, Department of Health and Human Services, which stated, 1 The government also introduced into evidence two social security checks which Drinkall endorsed "Betty Blackwell" and negotiated while she was on probation.
Remarriage generally disqualifies a woman from continuing to receive widow's and mother's social security benefits. See 42 U.S.C. Secs. 402(e), 402(g). Section 402(g) provides, however, that for mother's and father's benefits:
(3) In the case of a surviving spouse or surviving divorced parent who marries--
(A) an individual entitled to benefits under...
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