THE PEOPLE, Plaintiff and Respondent, v. LEO CARLTON LOOKADOO, JR., Defendant and Appellant.
Richard M. Grossberg, under appointment by the Supreme Court, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, Edsel W. Haws, John L. Giordano and Daniel J. Kremer, Deputy Attorneys General, for Plaintiff and Respondent.
This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment, after trial before the court without a jury, finding defendant guilty of murder in the first degree and imposing the death penalty.
Facts: Early in the morning on Sunday, October 25, 1964, defendant took his .22 caliber rifle, left his apartment, and drove to a service station in Modesto operated by John Arthur Inman. He bought a dollar's worth of gasoline and a quart of oil. He then asked for a package of cigarettes, and when Inman went back into the living area of the station to get the cigarettes, defendant picked up his rifle, followed Inman inside, and said, "This is a stick-up, I want to get some money." Turning around, Inman replied, "Nobody is going to get me," and moved toward defendant, reaching for the rifle.
Defendant started firing at Inman. He fired six shells in all, and when Inman continued to advance toward him, defendant hit him with the rifle and knocked him to the floor unconscious. He poured a pan of gasoline over Inman's outstretched body, took the money from the cash register, struck a match to the gasoline-soaked body, and fled.
On February 11, 1965, defendant entered a plea of not guilty and not guilty by reason of insanity to the murder charge and thereafter waived the 60-day time limitation. (Pen. Code, § 1382, subd. 2.) On April 14, 1965, he appeared in court with counsel and made motions for leave to waive a jury trial and to withdraw his plea of not guilty by reason of insanity. Both motions were granted.
On April 19, 1965, defendant, represented by counsel, was tried before the court without a jury and found guilty of [66 Cal. 2d 311] murder in the first degree. The court fixed the penalty at death.
First. That in view of his mental condition he should not have been permitted to waive a jury trial.
Two court-appointed psychiatrists examined defendant prior to the hearing at which he waived a jury trial. One classified him "in the borderline mental defective groups," and the other estimated him to be "of dull normal intelligence." Defendant contends that he should therefore not have been permitted to waive a jury.
In People v. Monk, 56 Cal. 2d 288, 298  [14 Cal. Rptr. 633, 363 P.2d 865], we rejected the defendant's claim that because of his lack of education and his mental state, as evidenced by psychiatrists' reports, he was unable to understand the consequences of waiving a jury trial. The reports showed that he was emotionally disordered but sane, that his native intelligence was adequate, and that he had been in school to perhaps the tenth grade.
[1a] In the present case both psychiatrists concluded that defendant was sane. One of them reported that on direct examination defendant was found to be in contact with his environment, that he could think quickly and easily, that there was no blocking of thought, and that on the Bellvue Verbal test he scored highest in comprehension, arithmetical reasoning, and retention. The other reported that his responses were coherent and relevant and without evidence of any disorder in his thought processes. Defendant started school at five or six years of age and quit at sixteen in the ninth grade. Accordingly, our holding in the Monk case is controlling here.
[1b] The judge asked defendant numerous times if he understood the explanations given to him, and defendant repeatedly replied that he did and also acknowledged that his attorney had fully explained them to him before the hearing at which he waived a jury trial.
The excerpt from the reporter's transcript quoted in the footnote fn. 1 shows that the matter was presented in such clear and concise language that even one "in the borderline mental defective groups" or one "of dull normal intelligence" must be presumed to have understood what his rights were [66 Cal. 2d 313] when he gave as clear an indication of comprehension as defendant did.
Under the circumstances, the trial court properly accepted defendant's waiver.
This contention is likewise without merit. The first degree murder conviction is warranted on the theory that the homicide was committed during the perpetration of a robbery. The evidence leaves no doubt that defendant robbed the victim and killed him in the perpetration of the robbery.
Even independent of the felony-murder rule, however, the first degree murder conviction finds adequate support in the theory that defendant committed a deliberate and premeditated killing.
[7a] The record shows that defendant coldly, dispassionately, and without mercy murdered his victim. As hereinabove indicated, defendant left his apartment with his newly purchased .22 caliber automatic rifle and went to the service station operated by the victim at a time when other customers were unlikely to be there. He purchased a dollar's worth of gasoline. The victim chatted with defendant and asked him how his children were. After the gasoline was put in the car, defendant asked for some cigarettes. When the victim went inside to obtain a package, defendant reached inside the car, took his rifle from the floorboards in the back of the car, and followed him. Once inside, he told the victim he was going to [66 Cal. 2d 316] rob him, and when the victim turned, defendant started shooting. He shot all six shells, four bullets striking the victim. When the victim did not fall and reached for the rifle, defendant struck him with it. The victim then slumped to the floor, and defendant poured gasoline over him, took the contents of the cash register, lit the gasoline on the victim's body, and fled.
There is no merit in defendant's argument that in view of his mental condition the doctrine of "diminished responsibility" should be a factor and that thus the evidence is insufficient to show deliberation and premeditation.
 A claim of diminished responsibility is defensive matter and must be raised by the defendant in the trial on the issue of his guilt. (See People v. Henderson, 60 Cal. 2d 482, 490-491 [5, 6] [35 Cal. Rptr. 77, 386 P.2d 677].) [7b] In the present case, no evidence entitling defendant to rely on such defense was introduced during the guilt phase. The reports of the medical experts apparently relied on by defendant were introduced during the penalty phase. Accordingly, the doctrine is inapplicable here.
Even assuming, however, that the medical reports were introduced during the guilt phase, they would not support defendant's contention. fn. 2 Such reports and the reasonable inferences [66 Cal. 2d 317] to be drawn therefrom support the conclusion that defendant possessed sufficient mental capacity to commit a deliberate and premeditated murder and, accordingly, would not entitle him to rely on the doctrine of diminished responsibility.
Third. That his statements were improperly received in evidence.
The record shows that while defendant was in custody in Bakersfield on another charge, Sergeant Hall, of the Stanislaus County sheriff's office, went to the Kern County jail to question him about his involvement in the killing of Mr. Inman.
Before questioning defendant, Sergeant Hall told him that he had a right to an attorney and did not have to make any statement to the police if he did not desire to do so, and defendant said, "I know about that."
Defendant was then taken to a small interrogation room, where Lieutenant Kilroy was sitting. As Sergeant Hall and defendant entered the room, Sergeant Hall told the lieutenant that he had advised defendant of his rights and that defendant had stated he knew about them. Lieutenant Kilroy said to defendant, "You want to remember this, Leo, as we go along," and defendant nodded in an affirmative manner.
The interview with defendant commenced about 2:10 p.m., and he was questioned until 3 o'clock, at which time a 15-minute recess was taken when defendant indicated he wanted a drink and wished to use the restroom. During the questioning, defendant denied any involvement in the crime.
When interrogation was resumed at 3:15, defendant said he would like to confer with an attorney before he made any statement. He was asked if he planned, after being returned to Modesto, to obtain a private attorney or to utilize the services of the public defender, and he said he would probably utilize the services of the public defender. He was asked if he had a particular attorney in Kern County he wanted to call or have the officers call, and he said that he did not have an attorney and did not know any attorney to contact.
There was no refusal by the officers to call an attorney, and Sergeant Hall testified that defendant was not prohibited from contacting an attorney and was not told no attorney [66 Cal. 2d 318] would be contacted for him until after he had talked with the officers.
The officers questioned defendant until approximately 4:10 p.m., during which time defendant voluntarily talked with the officers but made no admissions or incriminating statements.
As the interview terminated, defendant stated that he would like to return to his cell, so that he could think it over, and he requested that the officers obtain for him, from his property in the Kern County jail, pictures of his children. This was done.
Almost three hours later, defendant was again brought to the interrogation room. At that time he said he wanted to talk with his mother before making a statement. The officers said it should be his decision and that his mother could not make the decision for him. They used a similar argument when he said he would like to talk with his wife and his father.
Thereafter, questioning was resumed, and during this interview defendant eventually confessed that he had robbed and killed Mr. Inman.
Defendant was returned to Modesto the following day. On the way, he voluntarily made another confession to the officers transporting him.
In Modesto, after conferring with his mother for about an hour, defendant made a lengthy statement, which was tape recorded. At that time the following proceedings occurred: "Q. [By Sergeant Hall] Now, Leo, as I told you down in Bakersfield about your rights to an attorney and statement and such as that, you remember my telling you that when we came down the hallway there? A. Yes, sir. Q. All right. And you understand that you have these rights? A. Yes, sir."
Defendant thereafter proceeded to make his statement, with no further request for an attorney.
The United States Supreme Court recently held, in Miranda v. Arizona, 384 U.S. 436 [16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974], that before an accused is subjected to interrogation, he must be informed in clear and unequivocal terms of his right to remain silent; that the warning must be accompanied by an explanation that anything said can be used against him in court; that he must also be clearly informed that he has the right to consult with an attorney and to have the attorney with him during interrogation and that if he is indigent, an attorney will be appointed to represent him if [66 Cal. 2d 319] desired; that if the accused indicates in any manner, either prior to or during questioning, that he wants to remain silent, the interrogation must cease; and that if he states that he wishes an attorney, the interrogation must cease until an attorney is present.
Defendant was advised that he had a right to an attorney and did not have to make any statement to the police if he did not want to do so, but it is clear that the warning given him fell short of that now required by the Miranda case and that under the rule established in that case defendant's interrogation should have ceased when he said he wanted to talk with an attorney before giving a statement.
Likewise, defendant is not entitled to the benefit of the rule that once an accused states he wishes an attorney, interrogation must cease until an attorney is present. However, he requested an attorney while he was in custody and while the police were carrying out a process of interrogations that lent itself to eliciting incriminating statements, and therefore under Escobedo he was entitled to have an attorney present at the interrogation (378 U.S. at pp. 484-487) unless he had waived the right (p. 490, fn. 14). We must therefore determine whether a waiver took place.
 In the present case, however, the officers did not deny defendant's request by explicit rejection or by evasion or neglect. On the contrary, the record shows that they asked him if there was any attorney in Kern County he wanted to call or have them call for him, and he told them he did not know any attorney to contact. They then continued to question defendant for an additional hour, during which time he freely gave his answers to their questions, maintaining his innocence throughout.
Fourth. That evidence of statements made by him to a fellow inmate at the jail was improperly admitted.
Wayne Lynn Grider testified that he was confined in the Stanislaus County jail at the time defendant was held there; [66 Cal. 2d 322] that during such time defendant approached him in the exercise area and asked him what he thought of defendant's chances of "beating" his case; that he told defendant he did not even know what defendant was in for; and that defendant proceeded to tell him. He then testified as to certain details related to him by defendant.
Mr. Grider testified that no one had suggested that he talk with defendant and that the conversation was started by defendant himself. He said that a representative from the district attorney's office who had seen him talking with defendant asked him if he knew defendant or anything about his case and that he then told him of the conversation.
 Defendant contends that the evidence of his statements to Mr. Grider was inadmissible, because the confessions he made to the police were inadmissible due to his having been deprived of counsel at the critical pretrial stage of his case, and his statements to Mr. Grider were made in a continuing pattern of "talking" about the crime, initiated by the police interrogation.
In the first place, as pointed out above, defendant had waived his right to counsel before he confessed to the police, and his confessions to the police were therefore admissible.
Even assuming, however, that such confessions were inadmissible, defendant's statements to Mr. Grider were made [66 Cal. 2d 323] after the court had appointed counsel for him and under circumstances entirely free of the compelling influence sometimes present in a police interrogation. As a result, it is clear that the statements were not given in the atmosphere condemned by Escobedo and Miranda. Accordingly, evidence of the statements was properly admitted.
Fifth. That the trial court committed prejudicial error during the penalty trial.
[7c] Defendant contends that the trial court abused its discretion in imposing the death penalty. In support of this proposition he argues that the finding of premeditation, on which he alleges imposition of the death penalty was based, was erroneous. This argument, it has been demonstrated above, is without merit.
 Defendant further argues that the court gave no indication that any consideration was given to, or weight placed upon, his mental condition. This argument is likewise without merit.
Although, as stated above, there is no basis in the record for applying the doctrine of "diminished responsibility," it is clear that the trial court carefully considered the evidence of defendant's mental condition and properly exercised its discretion.
"... The Court is not unmindful of the apparent lack of high intelligence, or unfortunate economic circumstances of this Defendant. But the law of this land does not authorize or condone the commission of such a crime as here involved because of economic or social background."
The judge also pointed out during the proceedings on the motion for a new trial that the killing had occurred during the course of an armed robbery, and said: "And I want to make it clear also that this Court did consider the circumstances of this defendant, the circumstances under which he grew up, and the thing is this, that this is not a circumstance that is just peculiar to this defendant. There are lots of people who have lived in rather poor background and have grown up and become good, solid citizens in this community, in spite of unfortunate economic circumstances. I just can't help but feel under the circumstances here that as long as we have the death penalty in this state, if it is to mean anything, and if the will of the people and the majority of the people who want it, want to continue to have it, and until some other extreme penalty or method is devised by the people of this [66 Cal. 2d 325] state, that this Court simply has no alternative but to allow the penalty to stand under the circumstances.
"I want to say now, if there were any questions that the Court were to sit here and say, 'Fine, it is great to be merciful, it is great to be considerate of other people,' and all of this, there must come a time, at least under the facts of this particular case in which this Court cannot in my judgment abdicate what I think is my duty as a trial judge in this case, and the facts and evidence of this case, and say that I can in the name of mercy or in kindness modify this particular sentence."
Sixth.  That the trial court committed prejudicial error in considering the pardoning power of the Governor and the reviewing function of the Supreme Court when imposing the death penalty.
This contention is likewise devoid of merit. Defendant argues that the court committed prejudicial error by placing great weight on the pardoning power of the Governor and the reviewing function of this court.
Initially, the record fails to show that the trial judge placed "great weight" on the pardoning power of the Governor and the automatic review by this court. fn. 5 At most, he was acknowledging the fact that man is fallible and that even as careful as he was in applying the law, he was capable of making an error.
Furthermore, People v. Morse, 60 Cal. 2d 631 [36 Cal. Rptr. 201, 388 P.2d 33], is inapplicable to the present case. This court there held that in the penalty phase of a first degree murder trial it was reversible error to give an instruction, and to allow evidence and argument, which permitted the jury to consider the possibility that the Adult Authority might at some future date grant a parole to the defendant if he were given a life sentence, and that whether or not a prisoner should be granted parole is a matter within the expert judgment of the Adult Authority and is not within the jury's province.
In the present case there was no jury, and there was no improper instruction or argument concerning parole or otherwise.
The court did not commit prejudicial error in the penalty trial.
Seventh.  That this court should exercise its judgment as to the choice of punishment.
Traynor, C. J., Mosk, J., Burke, J., and Sullivan, J., concurred.
The defendant was arrested in Kern County for an offense not here involved. The instant crime had occurred in Stanislaus County. Sergeant Hall, a law enforcement officer of Stanislaus County, came to Bakersfield for the purpose of interrogating defendant about the killing here involved. When Hall arrived defendant was called into the interrogation room to be questioned by Hall and the other officers. He was told of his right to an attorney and of his right to remain silent. He was then vigorously interrogated for 50 minutes. He consistently denied complicity in the Stanislaus County murder. During this interrogation a brief recess was called, and then the questioning was renewed. Defendant at that time stated that he wanted an attorney before making a statement. The police did not directly deny this request but asked defendant if he had an attorney in Bakersfield or Kern County and whether he intended to use a private attorney or the public defender in Stanislaus County. Upon receiving the reply that defendant had no Kern County lawyer and probably would use the public defender, the interrogation continued, and defendant continued to deny complicity in the murder. He then asked to be returned to his cell to think the matter over. After three hours he was again taken to the interrogation room. He immediately told the officers that before he made a statement he wanted to talk to his mother. The interrogating officers told him that that was [66 Cal. 2d 328] not necessary because the decision was his alone. Then defendant requested permission to consult with his wife, or with his father, but was dissuaded by the same arguments used to deny him access to his mother. Thereafter, in response to further questioning he confessed.
Looking at the interrogation in its entirety, as we are required to do, the conclusion is inevitable that the confession here involved was secured by evasion and artifice and certainly in violation of the fundamental philosophy behind Escobedo v. Illinois, 378 U.S. 478 [12 L. Ed. 2d 977, 84 S. Ct. 1758], and People v. Dorado, 62 Cal. 2d 338 [42 Cal. Rptr. 169, 398 P.2d 361].
The police were dealing with a young man of limited intelligence, a young man who was described by the court-appointed psychiatrists as being of "dull normal intelligence" and as being "in the borderline mental defective groups." Although defendant was told of his right to an attorney, the police failed to honor his request for one and continued to interrogate him. Then defendant demanded the right to see his mother, his wife, or his father, before making any further statements. The granting of these requests was avoided by specious arguments.
The majority, in apparent recognition that the interrogation should not have proceeded after defendant had made it clear that he wanted an attorney or a member of his family with whom to consult, urge that there was a waiver, because defendant continued to talk after his demands were parried and evaded. The quotation from Anderson, supra, demonstrates that no such inference is permissible. Although defendant continued to talk after he was unable to get a lawyer, he continued to deny complicity, and then, when called back to the interrogation room, he made it clear that he did not want to talk until he had consulted with some member of his family. The police parried the last request by the specious argument that the decision was his and that his family could not assist him. To hold that there was a waiver under such circumstances is contrary to the decided cases. A waiver must be knowingly and intelligently made. (Carnley v. Cochran, 369 U.S. 506 [8 L. Ed. 2d 70, 82 S. Ct. 884].) It is also contrary to the fundamental theory of Escobedo and Dorado, supra. The basic concept behind those cases and their numerous progeny, is that it is unfair, and encourages coercion, to continue to interrogate a layman in the unfriendly atmosphere of the stationhouse, after he has clearly indicated that he does not want to talk until he has consulted with an attorney or his family. The police, when such a request is made, may not continue to interrogate unless the accused makes a knowing and intelligent waiver. They cannot dissuade him by specious and evasive arguments and continue to interrogate him with the intent of eliciting incriminating statements. They must grant his request or stop the interrogation.
It was clearly error to admit the confession. Even if that error were not per se reversible (but see Payne v. Arkansas, 356 U.S. 560 [2 L. Ed. 2d 975, 78 S. Ct. 844]; Gideon v. Wainwright, 372 U.S. 335 [9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733]; Tumey v. Ohio, 273 U.S. 510 [71 L. Ed. 749, 47 S. Ct. 437, 50 A.L.R. 1243]; Lynumn v. Illinois, 372 U.S. 528 [9 L. Ed. 2d 922, 83 S. Ct. 917]; Malinski v. New York, 324 U.S. 401 [89 L. Ed. 1029, 65 S. Ct. 781]; Spano v. New York, 360 U.S. 315 [3 L. Ed. 2d 1265, 79 S. Ct. 1202]; Haynes v. Washington, 373 U.S. 503 [10 L. Ed. 2d 513, 83 S. Ct. 1336]; Jackson v. Denno, 378 U.S. 368 [12 L. Ed. 2d 908, 64 S. Ct. 1774, 1 A.L.R.2d 1205]; Chapman v. California, 386 U.S. 18 [17 L. Ed. 2d 705, 87 S.Ct. 824]), it was clearly prejudicial (Chapman v. California, supra). It was not cured by the subsequent confessions. [66 Cal. 2d 330] Those confessions must be deemed to have been induced by the earlier improper one (People v. Spencer, ante, p. 158 [57 Cal. Rptr. 163, 424 P.2d 715]).
The Court: Mr. Lookadoo, you heard your counsel's remarks in regard to the indicated request, which has been made in this matter [motions to waive a jury and withdraw defendant's plea of not guilty by reason of insanity]. Have you not?
The Court: And do you join in that request?
The Court:  I want you to understand  that you do have a constitutional right to have your question of guilt and the other issues that are raised by your pleas, determined by a jury. You understand that, do you?
Mr. Stone [Public defender, representing defendant]: I don't think he understands what you are saying. May I paraphrase the Court?
Mr. Stone: What the Judge says, you have a legal right to have your case tried by a jury.  What the Judge is asking is if it is your desire to have your case tried by the Judge, sitting up there without a jury?
The Court: That is your wish, Mr. Lookadoo?
The Court:  I am just trying to get it clear that you understand what your rights were. I realize your request. I understand it. I want you to know what I am trying to get across to you. Do you understand what your rights were?
The Court: I guess any man can waive his right to a jury trial, but I wanted you to understand what they were before you waive it.
Mr. Stone: May I again paraphrase?
Mr. Stone: When the Judge says "waive," he means you are saying you don't want this case tried by a jury. If you say "I want a jury," of course, you will get a jury, or you can say, "I waive," which is a legal way of saying, "I know I can have it, but I don't want it."
The Court: Do you understand now?
The Court: What I am asking now--what you are saying is you are not desirous of having a jury to hear the various issues, but you want a trial judge to hear it, is that your pleasure?
The Court: Is that what you want to do?
The Court: You understand by so doing, the issue of your guilt or innocence under the charge which has been made against you by the indictment will be heard by a trial judge. One judge is going to hear and decide the question. Do you understand that?
The Court:  is it your plan to waive the jury with respect to the penalty phase of this trial?
Mr. Wolfe [District Attorney]: I might say, if the defendant waives a jury on the guilt phase, under 190.1, he cannot be tried by a jury on the penalty phase.
The Court: Fine, but I don't want any doubt in Mr. Lookadoo's mind, or his counsel's mind. You understand when you waive a jury on the guilt phase  that  likewise you are waiving a jury trial in connection with  the penalty that might be imposed if you are found guilty. Do you understand that?
The Court:  You understand by waiving the jury, you say you are going to have the case tried by a judge. The trial judge hearing the case is also going to decide what penalty might be imposed in this case in the event you are found guilty.
Mr. Stone: May I ask him?
Mr. Stone: Do you understand the trial judge is going to decide the question of penalty in your case if you are found guilty? Do you understand that?
The Court: All right. Let me ask you this: Lastly, do you understand by the nature of the charge which is presently made against you, that the indictment charged you with first degree murder in this case? You understand that the penalties involved in this particular offense, what they are? Do you understand what the penalties are?
The Defendant: Yes, death or life.
The Court:  Are you aware of the fact  that the Court could, if the Court found you guilty,  sentence you to death. Do you understand that?
The Court: Do you understand that?
The Court: Do you also understand as an alternate, the Court could impose life imprisonment. Do you understand that?
The Court: The reason I am asking you  these questions is that I want you to understand what this all means with respect to your saying, "I am willing to try it with a trial judge. I am satisfied." I take it, Mr. Stone you have gone over this in some detail with Mr. Lookadoo.
The Court: You have talked with your counsel?
The Court: Has he explained all of this to you? Do you feel he has?
The Court: Do you feel you understand?
The Court: All right. Now, lastly, let me ask you this: Has anybody  made any promises of any kind to you at all? Has any menace, or any pressures or coercions or offers or anything else been made to you to induce you  to waive the jury trial, that has caused you to say, "I am going to try this case with a judge"?  Has anybody made you any promises that if you try the case before a judge rather than a jury, you are going to get some special treatment?
The Court: Or said there was going to be some special result forthcoming in this case. Has anybody done that?
The Court: Do you clearly understand? I am not here to prejudge it. I know nothing about the facts of the case, but I want you to understand this court could be terribly concerned if anybody made any representations to you at all that by not asking for the jury trial the judge is going to try the case, "Therefore I am not going to get death -- or I am going to get a life imprisonment, or" -- or has -- do you understand that?
Mr. Stone: I don't know.
The Court: All you -- you may paraphrase it.
Mr. Stone: What the judge is asking, has anybody, investigator, or anybody made any promises that if you try the case before the judge without a jury that there will be some specific promised result on either guilt or innocence or penalty?
The Defendant: No, no, sir.
The Court: All right. I take it then that you are, as far as you know, as you sit here now, freely and voluntarily waiving your right to a jury trial, both as to the issue of guilt and the question of sanity and penalty. Is that correct?
The Court: Do you know any fact, as either of you sit here now, you feel ought to be disclosed to the Court respecting the waiver of the jury trial, which could in any way have any effect on the decision of this Court to grant the defendant's request?
Mr. Stone: I have no knowledge.
The Court: Do you know of anything?
Mr. Wolfe: I know of nothing.
The Court: Under those circumstances, the Court will approve the waiver of a jury trial as to the entire case as requested. That motion then will be granted at the request of the defendant.
"He could think quickly and easily, there was no blocking of thought or autistic thinking. There were no delusions or hallucinations.
"His memory for remote events was sharp, he could remember dates and names. He was given two intelligence tests and scored an I.Q. of 75-82.
"On the Bellvue Verbal test, his deficiencies were in general knowledge and abstraction. He scored highest in comprehension, arithmetical reasoning and retention."
"The defendant was quiet and normally composed throughout the interview. He is estimated to be of dull normal intelligence. He did not manifest any unusual ideas or beliefs or other evidences of insanity. His responses were coherent and relevant and without evidence of any disorder in his thought processes. He understands the nature and the quality of the offense with which he is charged, that it would be wrong to commit such an act, and that in the event he is convicted of having done so, he will be liable to punishment. He understands the function of defense counsel and would be able to cooperate with such counsel in his own defense. It is my opinion that he is legally sane at this time, and that he was legally sane at the time of his alleged commission of the offense."
The Court:  Did Mr. Lookadoo [defendant] at any time during the interrogation that you are now referring to, ever make a request to see an attorney or contact an attorney?
A. He said that he would like to confer with an attorney before he made any statement.
The Court: He told you that at that time?
A. We asked if he had an attorney retained in Bakersfield.
The Court: And what else did you say?
A. And he--to that he replied "No," and we asked him then when we took him back to Modesto, if he had planned on obtaining an attorney, or if he would utilize the services of the Public Defender.
The Court: Did he make any particular request to talk to any particular attorney at that time in Bakersfield?
The Court: He merely said he would like to talk to the attorney before he made a statement?
A. Yes, this is true.
The Court: Did you do anything further in response to that request?
A. We asked him if he had a particular attorney that he wanted to call, or have us contact.
The Court: Did you tell him that you wouldn't contact the attorney until after you talked to him?
The Court: And did you in any other way--I realize he was incarcerated, but did you in any way prohibit him from contacting an attorney?
The Court: And at that particular time I take it that you then continued to interrogate him, both after the first interrogation and then beginning at 3:15 until 4:10, you continued to interrogate him, is that correct?
The Court: And did he voluntarily talk with you at that time?
A. He voluntarily talked to us all during the period, yes.
The Court:  When he said that he wanted to talk with an attorney before he made a statement, what happened right after that in respect to what was said, that you had apparently now indicated to the Court that he continued to talk to you, even though he said that he wanted to see an attorney before he talked to you?
A. I think I followed you in that he at no time stated that he wanted to have no more conversation with us. We did not force any conversation on him, Your Honor, in any part of our interview, and as our interview terminated just prior to 4:10 P.M., Leo stated that he would like to go back to the cell that he had been in, so that he could think this over.
The Court: All right, proceed.
Q. [By Mr. Wolfe, district attorney]: Was he permitted then to go back to his cell and think it over?
A. Yes, he said that he would like to get a couple of pictures of his children from his property in the Kern County Jail, and go back to his cell and think this over for an hour or so.
Q. Was he permitted to do so?
A. Yes, and we got pictures of his children out of his property for him.
Q. And after 4:10, when did you next see the Defendant?
The Court:  To your knowledge did Mr. Lookadoo make a request to make a phone call, or call an attorney or anything prior to the time that you had the conversation at 6:52 in the evening?
The Court: Did he express any desires, other than saying that he would like to talk to an attorney before he made a statement? He told you this, is that correct?
The Court: And at that time do I gather--you said, "Do you have an attorney here?"?
A. We asked him if he had an attorney in Bakersfield or Kern County that he wanted to contact.
Q. And what did he say in response to that?
Q. At that time, and I am speaking now in connection with this conversation concerning the request for an attorney, or that he wanted to talk with an attorney, where he expressed the desire to, did you at any time then make any indications or representations to him of any kind, "Well, we want to talk to you and you can talk to an attorney after we talk with you." Did you say anything like that to him?
A. No, sir, not--no, sir, not that he could talk to an attorney after we talked to him, no, sir. We did not make that statement.
Q. And do I gather that having been informed, as you have indicated that you informed him of his rights to counsel, and he having indicated to you that he would like to talk to an attorney before he made a statement, what I guess I am trying to get to is, can you fill the Court in on anything that the Defendant said at that particular time that indicated an indication on his part that he was willing to go ahead and talk with you, even though he had requested no attorney, or indicated that he wanted to talk to an attorney at that time, that would cause you to feel, "Well, all right, we will go ahead and talk with the defendant." Was this merely because he wanted to go ahead and voluntarily talk to you and indicated that he would talk to you in spite of that statement?
The Court: And what did you say to that?
A. We asked him what difference would that make in any statement that he gave us, what he was to tell us or would not tell us was his own decision, and this was something that we felt would be his decision, that his mother couldn't make this decision for him.
The Court: And what did he say in response to that?
A. He stated that he would still like to talk to his mother, and to his wife, and see his children, and too, he indicated that he would like to talk to his father, also.
The Court: Do you recall then what you said in response to that?
A. Here again we went back to the point that this was a decision whether he talked to us or not talk to us was a decision that he would have to make, and that we--this was a decision not to be left up to his father or wife.
The Court: What did he say in response to that?
A. To these points, this was about the extent of the conversation between this period of time, and he eventually told us that he had shot Mr. Inman.
The Court:  Do you think there is a difference in this particular case and the case where a perfect stranger would go into the gasoline station for the purpose of robbing Mr. Inman?
Mr. Stone: No, Your Honor, I do not.
The Court: You don't think there is any difference at all?
Mr. Stone: No, if you consider the mentality of this defendant.
The Court: You don't think that the defendant was acquainted with Mr. Inman?
Mr. Stone: Yes, he was, obviously.
The Court: Do you think that this man knew the defendant?
The Court: And you think that if he went in there for the purpose of robbing Mr. Inman, that he must also have known, and taking the gun calculatingly into the place with him, and after he had Mr. Inman go in to get some cigarettes  do you think at that time when he went inside the station, that in order to effectuate a robbery, this defendant knew that he had to kill Mr. Inman to do it?
Mr. Stone:  Apparently the Court is holding this man mentally to the same level of responsibility that he is accustomed in dealing with people in everyday life.
The Court: No, I am not doing that, Mr. Stone, and I don't want to do that. I only want to do this: Do you not have to look at the actual evidence that was presented, and in the light of what was done, and calculate that the defendant was as capable of doing that which he did as anybody else.
The Court:  Look at the time  the evidence appears to show that it occurred, somewhere around 6:00, 6:40 or 6:50 in the morning [ ] when discovery was highly unlikely from the standpoint of anyone else pulling into the station, for example.
Mr. Stone:  I would like to say further that the defendant's mentality, because the type of crime that he did commit--and I feel that this was--I hesitate to use the word, and in an incident of this nature, a childish crime, a foolish--a silly crime to take such horrible risk for the three or four hundred dollars that the Court feels that the defendant thought was there.
Certainly the defendant could have committed a robbery elsewhere, where he was not known, and I can truthfully say with no attempt at sarcasm or humor, that only a moron, a person of subnormal mentality would have committed a robbery of this nature. A person of anywhere near adequate intelligence, if he were so criminally inclined and wanted to rob a gas station, could have easily robbed--I don't know how many gas stations in the area, but there must be a hundred, and with an equal chance of getting the same amount of money, so that I feel the Court again, that only a mentally subnormal person would have committed a robbery of this nature, and I might add also, Your Honor, that only a person of subnormal childish mentality would have made the confessions that this man had made to Grider [a fellow prisoner] and others .
FN 5. At the time he announced his decision, the trial judge stated: "Fortunately, due to the frailties of this Court, the finality of its judgment by law rests with the Supreme Court and the Governor of this State, after careful review."


Once you solo, you are well on your way to getting an "A" badge. Receiving the "A" badge is not automatic. All Skyline Soaring Club Instructors are certified Soaring Society of America Instructors (SSAI), and can issue you your first "A" badge after solo.
If the student pilot certificate is paper, then the instructor's signature must be placed on the student pilot certificate. An endorsement must be made for each aircraft to be soloed.
If the student pilot certificate is plastic, no endorsement is necessary on the certificate.
Pre-solo aeronautical knowledge: section §61.87(b).
I certify that [First name, MI, Last name] has satisfactorily completed the pre-solo knowledge test of section §61.87(b) for the [make and model (M/M) aircraft].
Pre-solo flight training: section §61.87(c).
I certify that [First name, MI, Last name] has received the required pre-solo flight training in a [M/M aircraft]. I have determined [he or she] has demonstrated satisfactory proficiency and safety on the maneuvers and procedures required by §61.87 in this or similar make and model of aircraft to be flown.
Launch procedures for operating a glider: section §61.31(j).
I certify that [First name, MI, Last name], [grade of pilot certificate], [certificate number], has received the required training in a [glider M/M] for [launch procedure]. I have determined that [he or she] is proficient in [list the launch procedure].
To act as pilot in command of an aircraft in solo operations when the pilot does not hold an appropriate category/class rating: §61.31(d)(3).


text:
Welcome to my website. I hope you find it informative and helpful.
I practice in all areas of Ohio, with my primary base in Northwest Ohio. I am licensed to practice in any court in Ohio, and am admitted to practice in the United States District Courts for the Northern District of Ohio and the Eastern District of Michigan, and in the United States Court of Appeals for the Sixth Circuit (Michigan, Ohio, Kentucky and Tennessee). I have clients from all across the country who have come to me in time of need. I concentrate my practice in the fields of criminal law, family law, juvenile law (delinquency), and appeals of all matters. If you are going through a divorce and your spouse is an alien whom you sponsored to immigrate to this country and you signed an INS I-864 Affidavit of Support (also known as an I-864 Affidavit of Support) in order for him or her to enter the United States, and enforcement of the Affidavit of Support is an issue, I can assist you.
I strive to keep my client base small, so that I can give each client my utmost attention. I take great pride in what I do, and provide the type of legal representation that I would want for myself if I ever had the need.
My greatest asset is my ability to think “outside the box.” And I never hesitate to enlist the help of other lawyers and experts when needed. I have assembled many great teams, drawing upon America’s leading experts in the areas of forensics, excessive-use-of-force, psychology, accounting, and other areas of expertise.
I am often referred cases from other lawyers when they learn of the complexity of a given matter well after they have undertaken representation of the client. I relish a challenge, and through innovation and hard work, can often take a case that looks like a “sure loser” and deliver outstanding results.
Here you can watch three videos of me arguing before the Ohio Supreme Court. The first is the case of Nickel v. Carter (2004), 104 Ohio St. 3d 542, found at http://www.ohiochannel.org/video/carter-v-nickel-case-no-2004-0122?15. (I argue after my opponent, Mr. Sandwisch.) The second is Disciplinary Counsel v. Schuman, 2017-Ohio-8800, found at http://www.ohiochannel.org/video/case-no-2016-1834-disciplinary-counsel-v-schuman?23. The third is the recently argued case of A.S. v. J.W., found at http://www.ohiochannel.org/video/supreme-court-of-ohio-1-30-2019-case-no-2018-0602-as-v-jw.
Please feel free to contact me* with questions about your legal issue. Provide as much information as possible so that I may understand your problem. While this contact does not establish an attorney/client relationship, all information is protected by the rules governing confidentiality and will not be shared with others except to the extent it may be necessary to fully evaluate your case, and for no other purpose. Anyone with whom I consult about your case is likewise duty-bound to maintain confidentiality.
Let me put my over 25 years of experience to work for you.
I require a retainer to undertake your representation. A retainer is a sum of money that you pay to me to retain my services. Retainers are refundable to the extent that they are not earned. The retainer is deposited into a trust account where client funds are maintained. I don’t touch the money until I have earned the money. I generate monthly invoices for all of my clients. The invoices are detailed; they show the date that work was performed, a detailed description of the work performed, and the amount of time spent doing the work, in 1/10-hour increments. The invoices show how much money has been moved out of the trust account from your retainer and into my business account to pay myself and my operating expenses. The invoices will show how much of your money is left to work with, if any, or if there is a balance due. The invoices are payable upon receipt.
I generally charge $200.00 per hour for my services. I bill against your retainer.
I also accept all major credit cards. Payments by credit cards can be made directly from this website (“Payment” page).
“One of the most expensive things in this world is an inexpensive lawyer.” -Anonymous.
United States v. Price, 841 F.3d 703 (6th Cir. 2016).
United States v. Payton, 754 F.3d 375 (6th Cir. 2014).
United States v. Mack, 729 F.3d. 594 (6th Cir. 2013).
United States v. Sanford, 707 F.3d 594 (6th Cir. 2012).
United States v. Coles, 695 F.3d 559 (6th Cir. 2012).
United States v. Quinney, 583 F.3d 891 (6th Cir. 2009).
Davis v. United States, 499 F.3d 590 (6th. Cir. 2007).
United States v. Shakir, No. 17-6049 (6th Cir. 2018).
United States v. Austin, Nos. 16-6588 & 17-5592 (6th Cir. 2018).
United States. v. Martin, No. 17-5442 (6th Cir. 2018).
United States v. Taylor, No. 17-1587 (6th Cir. 2018).
United States v. Guevara, No. 16-4032 (6th Cir. 2017).
United States v. Andrews, No. 16-3271 (6th Cir. 2017).
United States v. Clisby , No. 14-3754 (6th Cir. 2016).
United States v. McCaskill, No. 15-1113 (6th Cir. 2016).
United States v. Barry, No. 14-1653 (6th Cir. 2016).
United States v. Sutton, No. 15-2355 (6th Cir. 2016).
United States v. Leach, No. 15-3283 (6th Cir. 2015).
United States v. Sidikov, No. 14-3534 (6th Cir. 2015).
United States v. Edwards, No. 14-3170 (6th Cir. 2015).
United States v. Greer, No. 14-2076 (6th Cir. 2015).
United States v. Thomas, No. 14-3114 (6th Cir. 2015).
United States v. Thomas, No. 14-3115 (6th Cir. 2015).
United States v. Musick, No. 14-5704 (6th Cir. 2015).
United States v. Miller, No. 14-5080 (6th Cir. 2015).
United States v. Wooten, No. 13-1566 (6th Cir. 2015).
United States v. Noble, No. 12-6557 (6th Cir. 2015).
United States v. Rodriguez-Gonzales, No. 12-3735 (6th Cir. 2013).
United States v. Ayers, No. 13-3161 (6th Cir. 2013).
United States v. Conner, No. 12-4072 (6th Cir. 2013).
United States v. Grady, No. 12-1788 (6th Cir. 2013).
United States v. Conner, No. 12-3210 (6th Cir. 2013).
United States v. Grindles, No. 12-5920 (6th Cir. 2013).
United States v. Sims, No. 12-3111 (6th Cir. 2013).
United States v. Bloomfield, No. 11-3347 (6th Cir. 2012).
United States v. Heard, No. 08-1426 (6th Cir. 2012).
United States v. Thomas, No. 09-3827 (6th Cir. 2012).
United States v. Gaines, No. 10-5149 (6th Cir. 2012).
United States v. Sonier, No. 10-4134 (6th Cir. 2011).
United States v. Mendoza-Almendarez, No. 09-4179 (6th Cir. 2011).
United States v. Quinney, No. 07-3190 (6th Cir. 2007).
United States v. Wright, No. 04-1685 (6th Cir. 2005).
United States v. Davis, Nos. 18-3031 & 18-3145 (6th Cir.) (Oral Arguments March 14, 2019).
United States v. Mobasseri, No. 18-3341 (6th Cir.).
United States v. Hawkins, No. 18-3497 (6th Cir.).
United States v. Bennett, No. 18-3779 (6th Cir.).
United States v. Dysart, No. 18-2075 (6th Cir.).
United States v. Schafer, No. 18-4165 (6th Cir.).
Disciplinary Counsel v. Schuman, 152 Ohio St. 3d 47, 2018-Ohio-8800.
State v. Belton, 149 Ohio St. 3d 165, 2016-Ohio-1581.
Nickel v. Carter (2004), 104 Ohio St. 3d 542.
State v. Lamb (2004), 156 Ohio App. 3d 128.
State v. Perry (2002), 147 Ohio App. 3d 164.
State ex rel. Wayne County CSEA v. Tanner (2001), 146 Ohio App. 3d 765.
State v. Lyons (2000), 138 Ohio App. 3d 614.
State v. Davis (1999), 133 Ohio App. 3d 114.
State v. Tyren (Ohio Com. Pl. 1998), 91 Ohio Misc. 2d 67.
In re: Carlos O. (1994), 96 Ohio App. 3d 252.
State v. Williams (1991), 57 Ohio St. 3d 24.
Marine Max of Ohio, Inc. v. Moore, 2016-Ohio-3202.
Ruggles v. Ruggles Family Ltd. Partnership, 2014-Ohio-3852.
Jean-Paul L. v. Michelle M., 2007-Ohio-1042.
In re: Aasiyah T., 2005-Ohio-667.
Hudson v. Ohio Dept. Rehab and Corr., 2004-Ohio-7203.
Haven House Manor, Ltd. v. Gabel, 2003-Ohio-6750.
State v. Schroeder (Oct. 6, 2001), Wood App. No. WD-00-076.
State v. Ramirez (Jul. 20, 2001), Wood App. Nos. WD-00-050/062.
Descamps v. Kripke (Sep. 29, 2000), Lucas App. No. L-99- 1411.
State v. Schneider (Aug. 20, 1999), Wood App. No. WD-99-002.
State v. Lutman (Jun. 30, 1999), Lucas App. No. L-97-1447.
State v. Bahnsen (May 15, 1998), Wood App. No. WD-97-044.
Warner v. Warner (Feb. 27, 1998), Wood App. No. WD-07-095.
Bauer v. Bauer (Feb. 14, 1997), Wood App. No. WD-96-025.
State v. Young (Jun. 22, 1995), Hancock App. No. 5-95-4.
State v. Bryant (Jun. 3, 1994), Wood App. No. WD-93-112.
Hall v. Hall (Feb. 11, 1994), Wood App. No. WD-93-04.
A.S. v. J.W., Ohio Supreme Court (Oral Arguments held Jan. 30, 2019).
State v. Jones, Sixth District Court of Appeals, Wood App. No. WD-18-063.
Oostmeyer v. Dettling, Third District Court of Appeals, Hancock App. No. 5-18-29.

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A claim for priority to an earlier filing date in a foreign country under 35 U.S.C. 119(a) -(d) must be made in a reissue application, even though such a claim was previously made in the application for the original patent to be reissued. However, no additional certified copy of the foreign application is necessary. See MPEP § 215. For reissue applications filed on or after September 16, 2012, the foreign priority information for the priority claim must be presented in an application data sheet (ADS) under 37 CFR 1.76. For applications filed prior to September 16, 2012, unless provided in an application data sheet, pre-AIA 37 CFR 1.63 requires that the oath or declaration must identify the foreign application for patent or inventor’s certificate for which priority is claimed under 37 CFR 1.55, and any foreign applications having a filing date before that of the application on which priority is claimed, by specifying the application number, country, day, month, and year of its filing. See MPEP § 214.01.
The examiner should note that foreign priority information on the front page of the patent will not be carried forward to the reissue from the original patent. Therefore, it is important that the PALM bibliographic data (bib-data) sheet accurately list the application number, country (or intellectual property authority), day, month, and year of each foreign application to which the U.S. application is claiming priority. If there is a discrepancy between the PALM bib-data sheet and the front page of the original patent, the examiner should notify the applicant in the next Office action of such discrepancy and advise the applicant to take appropriate corrective action (e.g., request a corrected filing receipt, file application data sheet in accordance with 37 CFR 1.76(c) ). The examiner must also indicate in the Office action and on the PALM bib-data sheet whether the conditions of 35 U.S.C. 119(a)-(d) or (f) have been met.
A reissue was granted in Brenner v. State of Israel, 400 F.2d 789, 158 USPQ 584 (D.C. Cir. 1968), where the only ground urged was failure to file a certified copy of the original foreign application to obtain the right of foreign priority under 35 U.S.C. 119(a)-(d) before the patent was granted. In Brenner, the claim for priority had been made in the prosecution of the original patent, and it was only necessary to submit a certified copy of the priority document in the reissue application to perfect priority (the claim for priority must be repeated in the reissue application). Reissue is also available to correct the "error" in failing to take any steps to obtain the right of foreign priority under 35 U.S.C. 119(a) -(d) before the original patent was granted. See Fontijn v. Okamoto, 518 F.2d 610, 622, 186 USPQ 97, 106 (CCPA 1975) ("a patent may be reissued for the purpose of establishing a claim to priority which was not asserted, or which was not perfected during the prosecution of the original application"). In a situation where it is necessary to make a priority claim in a reissue application that was not made in the original patent, the reissue applicant will have to file a petition for an unintentionally delayed priority claim under 37 CFR 1.55(e) in addition to filing a reissue application. See MPEP § 214.02. See MPEP § 1481.03 for correction of a benefit claim via a certificate of correction.


text:
SEAFOOD ROYALE for frozen seafood likely to cause confusion with SHRIMP ROYALE for packaged cooked meal containing shrimp.
In re L.C. Licensing Inc.
LIZSPORT for fragrances and toiletries likely to cause confusion with LIZ for fragrances, toiletries, and cosmetics.
TARIFF CONTROL for computer programs and hardware and manuals to control wide area network usage merely descriptive.
In re Patent and Trademark Services Inc.
PATENT & TRADEMARK SERVICES, INC. For legal representation in area of intellectual property merely descriptive.
In re Dos Padres Inc.
QUESO QUESADILLA SUPREME for cheese merely descriptive.
In re Boston Beer Co. L.P.
THE BEST BEER IN AMERICA for beer was laudatory term and therefore merely descriptive.
In re Central Sprinkler Co.
ATTIC for automatic sprinklers was generic adjective.
WEB COMMUNICATIONS for consulting services for establishing web sites was generic term.
CAROLINA APPAREL for retail clothing store services was primarily geographically descriptive.
In re U.S. Cargo, Inc.
U.S. CARGO for towable trailers for carrying cargo was primarily geographically descriptive.
In re Barcardi & Co. Ltd.
Marks containing HAVANA or HABANA for rum, distilled spirits, and rum drinks were primarily geographically deceptively misdescriptive.
NEW YORK WAYS GALLERY for backpacks, duffle bags, etc. not made in New York was primarily geographically deceptively misdescriptive.
In re Benetton Group S.p.A.
Green rectangle used as background for word mark for clothing and footwear not shown to be distinctive.
Tubular lights running length of bowling alleys for entertainment services in nature of bowling alley not distinctive.
In re Edward Ski Products Inc.
In re Brass-Craft Manufacturing Co.
Directions for use of plumbing supplies did not function as trademark.
Internet domain name on lawyer's letterhead did not function as service mark.
In re International Flavors & Fragrances Inc.
Applications for Phantom marks, with X's showing where names of herbs, fruits, plants, or vegetables would be in complete designations, for essential oils and fragrances for use in manufacturing refused on ground specimens did not show exact marks of drawings.
DIAMOND T & Design for trucks, parts, and accessories did not falsely suggest connection with defunct company. DIAMOND T for t-shirts did not falsely suggest connection and was a trademark. DIAMOND T for magazines whose subject matter was old DIAMOND T trucks of defunct company was descriptive.
In re Live Earth Products Inc.
Failure to file an appeal brief resulted in dismissal of ex parte appeal. Brief due sixty (60) days from filing of notice of appeal.
Applicant's CRYSTAL CREEK for wine not likely to cause confusion with Opposer's CRISTAL and CRISTAL CHAMPAGNE & Design for champagne.
Opposition by manufacturer of statues of animals failed to state claim upon which relief could be granted in opposition against one of his statues as service mark for restaurant on ground registration would impede additional sales of statues.
Life Corp. v. Carefree Trading Corp.
Restaurant's LIFE for face masks for cardiac pulmonary resuscitation likely to cause confusion with cancellation petitioner's LIFE CORPORATION, LIFE CORPORATION OXYGEN PAC & Design, and LIFE-02 for emergency first aid resuscitators and inhalators.
Uncle Ben's Inc. v. Stubenberg International Inc.
Applicant's BEN'S BREAD for bread mixes likely to cause confusion with opposer's UNCLE BEN'S for food products.
Applicant's Design of Penguin for computer programs and manuals for maintenance management likely to cause confusion with opposer's marks PENGUIN and Design of Penguin for books. Applicant's petition to cancel unpleaded registration of opposer for PENGUIN for books dismissed.
Applicant's ULTRATAN for tanning-related products likely to cause confusion with opposer's ULTRATAN & Design for tanning salons.
Miguel Torres S.A. v. Casa Vincola Gerardo Cesari S.r.L.
Applicant's DUE TORRI & Design of Towers and Banner with designation 2 TORRI for wines likely to cause confusion with opposer's TORRES & Design of Three Towers for brandy and wine and TRES TORRES for brandy. Opposition, on inter parties record, reached different conclusion from ex parte appeal.
Applicant's FOSSILSCAPES THE FOSSIL GROUP STONESCAPES & Design for fossil-backed clocks likely to cause confusion with opposer's FOSSIL for watches. Applicant's mark for ornamental fossils and marble tabletops not likely to cause confusion with opposer's mark for different goods.
Brewski Beer Co. v. Brewski Brothers Inc.
Respondent's BREWSKI BROTHERS for clothing not likely to cause confusion with petitioner's BREWSKY'S service mark and trade name for bar services and respondent's mark not abandoned. Respondent's counterclaim for cancellation dismissed. Petitioner's mark not abandoned by invalid license.
Applicant's COUNTRY ROCK CAFE & Design for jewelry, beverage glassware, clothing, and restaurant and nightclub services not likely to cause confusion with opposer's HARD ROCK CAFE & Design for restaurant and prepared take-out food services.
Corporate Document Services Inc. v. I.C.E.D. Management Inc.
Applicant won summary judgment dismissing opposition on ground its use of COPY CLUB was earlier than opposer's use of THE COPY CLUB.
Pro-Football Inc. v. Nocona Leather Goods Co.
Applicant's motion to dismiss opposition on ground opposers failed to state claim because opposers could not prove priority of use denied. Allegations pleaded in notice of opposition were sufficient to assert opposers' priority.
Chatam International Inc. v. Abita Brewing Co.
Applicant's motion for judgment on the pleadings on ground opposer pleaded use of PURPLE HAZE to promote sale of alcoholic beverages consisting of sake and opposer's CHAMBORD liqueur denied. Opposer pleaded use of PURPLE HAZE in manner analogous to trademark use. Sufficient to plead a proprietary right.
Vaughn Russell Candy Co. v. Cookies in Bloom Inc.
Applicant entered into written agreement it would stop using part of its mark. Material amendment of drawing not permitted. Applicant could no longer make lawful use of opposed mark. Summary judgment for opposer.
Institut National Des Appellations v. Brown-Forman Corp.
Two separate opposers, agency of French government and private organization of wine and spirits growers, producers, and merchants from Cognac region of France opposed application to register CANADIAN MIST AND COGNAC for alcoholic beverage. Applicant's mark did not falsely suggest association because COGNAC did not point uniquely to one persona. COGNAC could be valid certification mark. Could be likelihood of confusion between trademark and certification mark. Prior judgment against mark MIST AND COGNAC was not res judicata in opposition against different mark.
Goodyear Tire & Rubber Co. v. Vogue Tyre & Rubber Co.
Applicant's Gold Annular Stripe on a black sidewall tire was merely ornamental feature, not a trademark.
Goodyear Tire and Rubber Co. v. Interco Tire Corp.
Applicant's tread design for a tire was not functional but applicant did not prove design had acquired distinctiveness as a trademark.
Opposition sustained on ground designation MASSFLO for flowmeters for measurement of flow of mass of fluids was generic term. Opposer's motion, filed with brief, to add mere descriptiveness as additional ground of opposition denied because applicant not on notice that issue was tried.
Extensive discussion of evidentiary issues on motion for summary judgment.
Extensive discussion of motion practice, discovery, and trial evidence. Natural person residing in foreign country cannot be compelled to come to United States for a discovery deposition. To obtain trial testimony of adverse witness residing in foreign country, party seeking testimony must resort to letters rogatory.
Material Supply International Inc. v. Sunmatch Industrial Co.
Party seeking in District Court review of TTAB decision, where jury issues also tried, entitled to jury determination of which party owned mark. District Court should have waited for jury determination and then should have decided review of TTAB decision on basis of jury's factual finding.
In re Atlantic Scientific Corp.
Change of Practice - Filing date will not be denied merely because goods or services are described in method of use clause.
Application filed under Section 44 must allege bona fide intention to use mark in commerce.
In re Moisture Jazz Inc.
Change of Practice - Petition to grant extension of time to file statement of use will not be dismissed as moot solely because applicant did not file further requests for extension while petition was pending. Three-year deadline cannot be waived.
In re Little Caesar Enterprises Inc.
Applicant was allowed to divide goods out of application outside of time period provided by Rule 2.87(c). Potential opposer consented.
Application abandoned for failure to respond to Office Action rejecting specimens filed with statement of use for one class of two class application. Specimens for second class were acceptable. Application revived for that class.
Change of Practice - Specimen for Section 8 D eclaration may be accepted after close of sixth year if it shows dominant feature of mark and was in use during sixth year.

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The Internet activist Aaron Swartz has died from an apparent suicide. Swartz was facing a criminal trial in April on charges arising from his effort to “liberate” the JSTOR database, and there has been a lot of commentary accusing the prosecutors in his case of having abused their role in ways that contributed to Swartz’s tragic death. Swartz’s friend Larry Lessig led the way by angrily condemning the prosecutors who charged Swartz as “bullies” who acted like they “had caught the 9/11 terrorists red-handed.” According to Lessig, the prosecutors acted in an “the most absurd or extreme way” and “don’t deserve to have the power of the United States government.” A lot of people seem to agree, and today’s media has picked up the story. The New York Times is running a headline, “A Data Crusader, a Defendant and Now, a Cause.” The Associated Press has a somewhat similar story, “Swartz’ Death Fuels Debate Over Computer Crime”.
The criticisms of the Swartz prosecution concern two different questions. The first question is the law. Were the charges against Swartz based on a fair reading of the laws? Or was the prosecution being overly aggressive or relying on strained theories in charging Swartz as it did? The second question is discretion and judgment. The DOJ has the discretion to charge cases or not, and prosecutors can agree to different plea deals or even agree to have charges dismissed. Were the prosecutors in this case unfair in how they exercised discretion, or did they act irresponsibly in the case in how they exercised the discretion that the law grants them?
I hope to answer these questions in two posts. In the first post, I’m going to try and answer the first question — the law — as informed by my background as a specialist in this particular area of law who has testified on these statutes before Congress, defended computer crime cases involving these statutes, and helped prosecute them, too. In a subsequent post, I’ll try to answer the second question, the exercise of prosecutorial discretion.
This is going to be a long post, so here’s the summary of my conclusion on the first question: I think the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged. This is different from what a lot of people are hearing on the Internets, so I realize this post isn’t going to be popular. But I’ll explain my position in some detail, starting with the facts and then turning to the law, and then I’ll open it up for comments. And in a subsequent post, I’ll take on the second question of whether prosecutors properly exercised their discretion in the decision to charge the case and during plea negotiations.
JSTOR is an organization that sells universities, libraries, and publishers access to a database of over 1,000 academic journals. For a large research unversity, JSTOR charges as much as $50,000 a year for an annual subscription fee, at least parts of which go to pay copyright fees to the owners of the articles in the databases. The JSTOR database is not freely available: Normally, a username and password are required to access it. But if you access the site from a computer network owned by a university that has purchased a subscription, you can access the site without a username and password from their network. Users of the service then have to agree to use JSTOR in a particular way when they log in to the site; they generally can download one article at a time, but the JSTOR software is configured to block efforts to download large groups of articles.
Aaron Swartz decided to “liberate” the entire JSTOR database. He wanted everyone to have access to all of the journals in the database, so he came up with a plan to gain access to the database and copy it so he could make it publicly available to everyone via filesharing networks. Swartz lived in the Boston area, and he had legitimate access to the JSTOR database using Harvard’s network, where he was a fellow. But Swartz decided not to use Harvard’s network for what he had planned. Instead, he used MIT’s network across town. Swartz did not have an account or formal relationship with MIT, but MIT is known for having relatively open account practices.
In Swartz’ first attempt, he purchased a laptop, went into a building at MIT, and used the MIT wireless network to create a guest account on MIT’s network. He then accessed JSTOR and executed a program called “keepgrabbing” that circumvented JSTOR’s limits on how many articles a person could download — thus enabling Swartz to start to download a massive number of articles. MIT and JSTOR eventually caught on to what was happening, and they blocked Swartz’s computer from being able to access the MIT network by banning the IP address that he had been assigned.
Swartz responded by changing his IP address, and it took a few hours before JSTOR noticed and blocked his new IP address. To try to stop Swartz from just changing IP addresses again, JSTOR then blocked a range of IP addresses from MIT and contacted MIT for more help. MIT responded by canceling the new account and blocking Swartz’ computer from accessing the MIT address by banning his MAC address, a unique identifier associated with his laptop.
Undeterred, Swartz tried again. This time he brought a new laptop and also spoofed the MAC address from his old one to circumvent the ban. Using the two latops and the program designed to circumvent JSTOR’s limits on downloading articles, he started to download a significant chunk of JSTOR’s database. A day or two later, JSTOR responded by blocking all of MIT’s access to JSTOR for a few days.
Again undeterred, Swartz came up with a different plan. Instead of trying to connect to the MIT network wirelessly, Swartz broke into a closet in the basement of a building at MIT and connected his computer directly to the network — hiding his computer under a box so no one would see it. Over a month or two period, he succeeded in downloading a major portion of JSTOR’s database.
Investigators were on to Swartz at this point, however. They installed a video camera in the closet to catch Swartz when he accessed the closet to swap out storage devices or retrieve his computer. Swartz was caught on camera, and he even seems to have realized that he was being filmed; at one point he was filmed entering the closet using his bicycle helmet as a mask to avoid being identified. (Here’s the picture.) Swartz was spotted on MIT’s campus soon after by the police and tried to run away, but he was then caught and arrested. Federal charges followed.
The indictment against Swartz alleged several different crimes. A bunch of the crimes overlap, but that doesn’t mean that they are really treated separately: At sentencing the general practice is to take the most serious of the crimes as the basis for the sentence and to mostly ignore the rest. But the ordinary practice is to charge all the possible offenses committed in the indictment, even if they overlap, and then let the jury sort them out at trial or else drop some of the charges in a plea deal. Here are the different offenses charged, with a legal analysis of each.
(a) Wire Fraud. The Wire Fraud statute, 18 U.S.C. 1343, prohibits a scheme to gain “property” by false pretenses. This strikes me as a pretty strong charge here. The false pretenses are provided by the false identification and spoofing of Swartz’ IP address and MAC address. Swartz was trying to trick JSTOR into giving him access to their database after they had specifically tried their best to ban him from doing so. And the “property” was the contents of the JSTOR database itself.
Even though software systems similar to OSI’s WYLBUR were in use at non-OSI facilities, the evidence that OSI invested substantial sums to modify the system to suit its peculiar needs, that OSI enjoyed a multi-million dollar competitive advantage because of WYLBUR, and that OSI took steps to prevent persons other than clients and employees from using the system permitted a finding that the pilfered data was the property of OSI and not, as the defendant contends, property in the public domain subject to appropriation by persons such as himself.
That reasoning seems to apply reasonably well to the JSTOR database, too. See also Carpenter v. United States, 484 U.S. 19 (1987) (recognizing a property right for purposes of federal fraud statutes for a business in confidentiality and use of information to appear in a forthcoming publication). It’s possible to argue that Seidlitz is distinguishable, but I think it’s an uphill battle.
(b) Computer Fraud. The next charges were brought under the Computer Fraud statute, 18 U.S.C. 1030(a)(4), which is a close cousin of the Wire Fraud statute. The two are usually charged together in computer crime cases, and there isn’t really all that much that separates them that we need to dwell on here. So let’s move on to the next crime.
(c) Unauthorized Access. The next charge was unauthorized access to a computer to obtain information valued more than $5,000, in violation of 18 U.S.C. 1030(a)(2)(C) and 18 U.S.C. 1030(c)(2)(B)(iii). I think this charge was a fair one. There are two notable legal issues here. First, was the information valued at more than $5,000? The answer is clearly yes under the leading case of United States v. Batti, 631 F.3d 371 (6th Cir. 2011). Batti dealt with the $5,000 requirement in the context of a video that was difficult to value. The Sixth Circuit concluded that the $5,000 refers to the value of the information obtained, not any loss or harm to the alleged victim in the case. Further, the court authorized the following methodology when “information obtained by a violation of § 1030(c)(2)(B)(iii) does not have a readily ascertainable market value.” In such cases, the court held, “it is reasonable to use the cost of production as a means to determine the value of the information obtained.” Creating thousands of journals over many years obviously costs more than $5,000, so that element is easily satisfied.
The second issue is whether Swartz exceeded authorized access to the JSTOR computer. As regular readers know, I have been fighting overly broad readings of “unauthorized access” for well over a decade as a scholar, defense attorney, and op-ed writer. But I think it’s pretty clear that Swartz exceeded his authorized access here. JSTOR has a password-protected database that Swartz was trying to copy by circumventing code-based barriers to large-scale acces, and Swartz was playing a cat-and-mouse game in which he kept trying to gain access to the database and JSTOR kept trying to block him. They blocked his IP address; he changed it. They blocked his MAC address; he spoofed it. They blocked access and he broke into a restricted closet and connected directly to MIT’s network. This is not merely a case of breaching a written policy. Rather, this is a case of circumventing code-based restrictions by circumventing identification restrictions. I don’t see how that is particularly different from using someone else’s password, which is the quintessential access without authorization. So I think unauthorized access is established here, too.
(d) Computer Damage. The final charge brought was exceeding authorized access and thereby impairing the availability or integrity of information in ways that cause more than $5,000 or loss or involve more than 10 computers, in violation of 18 U.S.C. 1030(a)(5)(B) and 1030(c)(4)(A)(i)(I) & (VI). This is a plausible charge, although we’d need to know more details about the case to know if it is fully merited. I’ve already covered the elements of authorized access, so we can adopt that analysis above here and move on to the other elements.
To get to $5,000 in a 1030(a)(5) case, the easiest and most widely-accepted methodology in the caselaw is to focus on the time spent responding to the unauthorized access. Courts would generally just consider the hours spent by MIT and JSTOR in responding to Swartz and multiply those hours to get to an overall dollar figure. See, e.g., United States v. Middleton, 231 F.3d 1207 (9th Cir. 2000); United States v. Millot, 433 F.3d 1057 (8th Cir. 2006). It sounds like MIT and JSTOR spent a lot of dealing with Swartz. If so, the time alone should pretty quickly get up to and over the $5,000 threshold. So while we don’t know the facts in detail, that was probably enough.
The impairment of availability or integrity element would probably be satisfied, as well, although again we don’t have much in the way of needed detail to know for sure. The leading case here is Pulte Homes, Inc. v. Laborers’ International Union of North America, 648 F.3d 295 (6th Cir. 2011), which adopted a broad view of this requirement, holding that this is satisfied by “a transmission that weakens a sound computer system — or, similarly, one that diminishes a plaintiff’s ability to use data or a system.” The indictment alleges that Swartz’s conduct impaired the working of the JSTOR database but doesn’t give us much detail, so it’s hard to be sure. Also, DOJ might be able to use JSTOR’s decision to cut off access to JSTOR on MIT’s network as an impairment of availability on the network. But I think this is a bit of a stretch, for two reasons. First, it’s hard to know exactly where to place the responsibility for the impairment. Did Swartz cause it, or did JSTOR? And more significantly, does access to a particular service from some users really constitute an impairment of availability of the JSTOR computer itself? I’m not sure, but I’m wary of that argument. So the 1030(a)(5) charges are plausible, but we would need to know more facts to know for sure if they were justified.
My conclusion, at least based on what we know so far, is that the legal charges against Swartz were pretty much legit. Three of them are pretty strong; one is plausible but we would need to know more facts to be sure. Of course, there may have been reasons not to charge Swartz even though he had violated these statutes or to offer him a lenient plea. I’ll take on those questions in my next post. But to the extent we’re focused on just what the law is, I think that what Swartz was alleged to have done fits pretty well with the charges that were brought.


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Rehearing and Rehearing En Banc Denied Sept. 8, 1988.
Stephen J. Butler (argued), Smith and Schnacke, Cincinnati, Ohio, J.L. Sallee, Jr., Scott B. Crooks, William J. Rudloff, Harlin, Parker and Rudloff, Bowling Green, Ky., for defendants-appellants.
Gregory Y. Dunn (argued), Robert Hensley, Horse Cave, Ky., for plaintiff-appellee.
Before MERRITT, KRUPANSKY and RYAN, Circuit Judges.
The sum of the member's attained age and the length of his credited service must be at least 55 years prior to his date of disablement.
On July 30, 1981, Edwards went on sick leave for 200 days until May 12, 1982. At the end of that time, he filed for disability benefits under the Plan. It was uncontroverted at trial that only if the 200 days sick leave was credited to his length of employment service would the length of service requirement of Section 4.1(B) be satisfied.
Time while on sick leave counts as service for plan membership and vesting and also counts as credited service used to determine your retirement income.
The provision appeared immediately above a section entitled "Disability Benefits". It is of significance to note at this juncture that Edwards had only been provided with a brief summary of State Farm's employee retirement plan (Summary) in lieu of a copy of the Plan in its entirety.
After Edwards had exhausted his paid sick leave, he was placed on unpaid sick leave from May 13, 1982 until February 28, 1983. During that time, he received annual reports styled "Annual statements--U.S. Employee Retirement Plan" which credited him for 365 "days on plan" during 1981 while he was on sick leave a substantial part of the year.
The words 'date of disablement' shall mean the first workday of any period of time during which the active or Canadian member does not report to work for the company because of total disability by reason of Section 1.36 of the Plan.
Ignoring the Summary furnished to Edwards and relying exclusively upon the above language of the Plan, the Committee concluded that Edwards was totally disabled on July 30, 1981 and, therefore, his length of service accrued to that date. Accordingly, the Committee denied the claim solely upon its interpretation of Sect. 4.1(b) of the Plan without addressing the remaining arguments that had been advanced by Edwards in support of his claim.
Edwards thereupon filed a complaint in district court and the court concluded that the Committee's decision was arbitrary and capricious, by applying the appropriate standard of review. E.g. Varhola v. Doe, 820 F.2d 809, 813 (6th Cir.1987). The district court also concluded that a committee decision which validates a misleading course of action must be considered inherently arbitrary and capricious. See Rhoton v. Central States, Southeast and Southwest Areas Pension Fund, 717 F.2d 988 (6th Cir.1983) (administrators of pension plan acted arbitrarily and capriciously in denying benefits where summary plan provision and letter from fund generated reliance on the part of claimant).
In the instant case, since appellee had elected to summarize its Plan in lieu of providing its employees, including Edwards, with the entire text of the Plan, this court is constrained to consider the impact of the Summary presentation upon Edwards and similarly situated lay beneficiaries. The explicit phraseology of the Summary circulated by State Farm was obviously misleading where it stated that "time while on sick leave counts as service for plan membership." The Committee should have realized that the explicit language of the Summary could or would have caused Edwards and similarly situated unsophisticated lay employees to rely upon State Farm's inadvertant misrepresentation to their detriment. In the instant case the material misrepresentations were aggravated by Hill's reassuring letters to Edwards verifying the summarized definition of "service time" as well as the assurances conveyed by the 1982-1983 reports of his credited service time in the "Annual Statements--U.S. Employee Retirement Plan" provided to him.
This Circuit has decided that statements in a summary plan are binding and if such statements conflict with those in the plan itself, the summary shall govern. See Rhoton v. Central States, Southeast & Southwest, 717 F.2d at 989-991. In that case the court relied upon a summary provision to demonstrate that the trustees' interpretation (founded upon the full plan) was "arbitrary and capricious." In Rhoton as in the case at bar, despite language in the text of the full plan which conflicted with the language of the summary plan, "the language of the summary mandate[d]" a decision in favor of the claimant. Id. at 991. In this case, the summary language is more compelling than that in Rhoton. "It is of no effect to publish and distribute a plan summary booklet designed to simplify and explain a voluminous and complex document and then proclaim that any inconsistencies will be governed by the plan. Unfairness will flow to the employee for reasonably relying on the summary booklet." McKnight v. Southern Life and Health Ins. Co., 758 F.2d 1566, 1570 (11th Cir.1985). See also Govoni v. Bricklayers, Masons & Plasterers, 732 F.2d 250, 252 (1st Cir.1984) (reliance or prejudice from faulty plan summary is ground for relief); Bower v. Bunker Hill Co., 725 F.2d 1221, 1224-25 (9th Cir.1984) (misleading summary plan description, combined with misleading management representations, preclude summary judgment in favor of employer); Hoefel v. Atlas Tack Corp., 581 F.2d 1, 3 (1st Cir.1978) (enforcing summary of retirement plan) cert. denied, 440 U.S. 913, 99 S.Ct. 1227, 59 L.Ed.2d 462 (1979); Genter v. Acme Scale and Supply Co., 776 F.2d 1180, 1185 (3d Cir.1985) (the summary plan description must not mislead, misinform or fail to inform participant and beneficiaries of the plan); Hurd v. Hutnik, 419 F.Supp. 630, 656-57 (D.N.J. 1976) (despite disclaimer, summary plan statement governs).
Even assuming, arguendo, the correctness of the Committee's interpretation of the Plan as "plausible and reasonable," the Committee, like the trustees in Rhoton, 717 F.2d at 992, failed to place Edwards "on notice at any time that the Plan should be so construed." Id. Thus, the reliance that Edwards placed upon State Farm's circulated text of the Summary was reasonable and in keeping with this Circuit's decision in Rhoton. The instant case is factually more convincing than Rhoton since Edwards relied not only on the Summary provisions but also upon Hill's reassuring letter to him and the 1982-1983 annual reports concerning his accrued, credited employment service.
Moreover, Edwards relied upon Hill's letter, the 1982-1982 report of his accrued credited employment service, and the Summary to his detriment and abandoned available alternative actions such as staying on the job for a longer period so as to qualify for benefits. It is undisputed that had Edwards returned to work for even a single day after the expiration of his sick leave time, all of the sick leave time before his return would have been counted for purposes of calculating his credited employment service. Minimally, had Edwards been apprised of the Committee's interpretation of the Plan, he could have made "alternative financial plans", to guard against the Plan's shortcomings. Hodgins v. Central States Southeast, 624 F.2d 760, 761 (6th Cir.1980).
Although in the instant case, the appellee relied to his detriment upon the language of the Summary, Hill's reassuring letter, and the 1982-1983 report of his accrued employment service, existing precedent does not dictate that a claimant who has been misled by summary descriptions must prove detrimental reliance. Congress has promulgated clear directives prohibiting misleading summary descriptions. This court elects not to undermine the legislative command by imposing technical requirements upon the employee.
Accordingly, the decision of the district court is AFFIRMED.
RYAN, Circuit Judge (dissenting). I must respectfully dissent.
Mr. Edwards' case is a classic example of the maxim that hard cases make bad law. The opinions by the district court and this court's majority convey a sense of understandable heartfelt solicitude for Mr. Edwards and his family. The record shows that Mr. Edwards is a much admired, appreciated, and longtime faithful employee of State Farm who was marked for advancement in the company when, at the age of 40, he became totally disabled following surgical removal of a benign brain tumor. He was never able to return to work thereafter and, at the time this lawsuit was filed, apparently was without visible means of support. These sad facts appear to have blurred the majority's focus on the controlling issue in this case.
Despite the suggestion in the majority opinion that Mr. Edwards should prevail on this appeal because of principles of equitable estoppel, "detrimental reliance," and "State Farm's indiscreet misrepresentation to its detriment," the only issue properly before us is whether the State Farm Retirement Committee's decision to deny Mr. Edwards' request for disability benefits was "arbitrary, capricious or in bad faith." Adcock v. Firestone Tire & Rubber Co., 822 F.2d 623, 626 (6th Cir.1987). The parties agree that this is the standard for our de novo review. The issue is not whether the equities are with Mr. Edwards, who presents a most sympathetic claim, or with the corporate employer, State Farm. It is whether the Committee's decision was arbitrary or capricious.
That being so, our first task is to determine when a decision to deny benefits is arbitrary or capricious.
[Where] the Board has offered a reasoned explanation of its decision made concerning the application of an ambiguous plan provision, and in accordance with the deference accorded plan administrators under ERISA, we must uphold that decision.
Judicial review of interpretation of a pension plan document by the Trustees charged with administering the Plan is limited to whether the Trustees' interpretation is arbitrary and capricious.
A plan interpretation should be upheld even if the court disagrees with it, so long as the interpretation is rationally related to a valid plan purpose and not contrary to the plain language of the plan.
Id. at 289 (citations omitted).
Where both the trustees of a pension fund and a rejected applicant offer rational, though conflicting, interpretations of plan provisions, the trustees' interpretation must be allowed to control.
Miles v. New York State Teamsters Conference Pension & Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 601 (2d Cir.), cert. denied, 464 U.S. 829, 104 S.Ct. 105, 78 L.Ed.2d 108 (1983) (citation omitted). Thus, it is well-settled that in ERISA actions, if plan administrators adopt one of two plausible and rational interpretations of the language of the plan in question, one that is rationally related to a valid plan purpose and not contradictory to the plan's plain language, its decision is not arbitrary or capricious. And, even if the plan language can be said to be ambiguous, as is claimed in this case, the rule is that the decision of the plan administrators controls.
(B) The sum of the members' attained age and the length of credited service must be at least 55 years prior to the date of disablement.
It is uncontested that Mr. Edwards began working for State Farm on June 22, 1966, became a member of the Plan on September 1, 1967, and that his date of disablement was July 30, 1981. It is indisputable that the period from September 1, 1967, to July 30, 1981, is 13 years and 332 days. It is also uncontested that Mr. Edwards was 40 years and 241 days old on the date of his disablement. Making the computation mandated by Sec. (B) of the Plan, the Committee concluded that the sum of Mr. Edwards' age, 40 years and 241 days, and the length of his "credited service," 13 years and 332 days, is 54 years and 208 days, leaving Mr. Edwards 157 days short of qualifying for disability benefits.
Mr. Edwards claims, on the other hand, that while the Committee's arithmetic is correct, it has incorrectly interpreted the meaning of "credited service" in Sec. (B), and that his credited service includes 200 days of sick leave time earned prior to his date of disablement but taken thereafter. If the 200 days are added to the period of credited service computed by the Committee, Mr. Edwards would qualify for the benefits he seeks. Thus, the only contested issue in this case is whether the Committee's interpretation of "length of credited service" in Sec. (B), as not including Mr. Edwards' 200 sick leave days taken after his date of disablement, is "arbitrary or capricious."
"Date of disablement" is defined as "the first work day of any period of time during which the active or Canadian member does not report to work for the Company because of total disability by reason of accidental bodily injury or sickness." Art. 1, Sec. 1.36. That date, in Mr. Edwards' case, was July 30, 1981. It is critical to note that under Sec. (B), the "length of credited service" which determines Mr. Edwards' eligibility for benefits under the Plan is "credited service ... prior to the date of disablement." The Committee determined that period to be 13 years and 332 days, the actual number of calendar service years and days between the date Mr. Edwards became a member of the Plan and the date of his disablement. That figure, when added to Mr. Edwards' "attained age" of 40 years and 241 days, leaves him 157 days short of the required 55 years.
To pick up those 157 days, Mr. Edwards argues that his "length of credited service" must be construed to include the 200 days of sick leave time he earned and accumulated but did not use prior to his date of disablement. Mr. Edwards makes that argument despite the fact that Sec. (B) specifically provides that disability eligibility requires "credited service ... prior to the date of disablement." Even if Mr. Edwards' 200 sick leave days could somehow be logically construed as "credited service," they clearly were not creditedservice "prior to disablement" since, indisputably, they were taken entirely after July 30, 1981, his date of disablement.
Putting the best possible light on it, Mr. Edwards' construction of the language of Sec. (B) is a strained and imaginative effort to find the 157 days of additional credited service he needs to qualify for the disability benefits to which he would have been entitled had he been able to work for another five and one-half months.
But even if the expression "length of credited service" in Sec. (B) is ambiguous or is susceptible to more than one construction, including that which Mr. Edwards puts upon the language, this court is bound to defer to the interpretation given the Plan language by its administrators if the construction chosen by the defendant's Committee is a plausible, reasonable, and rational interpretation of the Plan language. Cook, 801 F.2d at 869.
Here, the court could as easily decide that post-disability sick leave does not count as credited service as it could decide that it does count.
Any decision which fails to consider all the relevant issues is obviously arbitrary and capricious.
The Retirement Committee has carefully reviewed Mr. Edwards' retirement plan file and other relevant documents, and has carefully considered Mr. Lang's letter and the argument set forth therein.
Mr. Lang, who was Mr. Edwards' attorney, had written to State Farm several times prior to the Committee decision, arguing that Mr. Edwards' accumulated sick leave time should be included in the computation of "credited service." That was his consistent plea on Mr. Edwards' behalf, and there is every reason to conclude that his letter of March 3, 1983, to the Committee, which the Committee, "carefully considered," continued to advance Mr. Edwards' only claim throughout this litigation. Unfortunately, that letter has not been made part of the record below. However, State Farm's brief to this court asserts that "the undisputed facts establish that the Committee recognized the issue raised by [Mr.] Edwards" because it "carefully considered Mr. Lang's letter and the arguments set forth therein." Plaintiff has not contested that assertion by the defendant.
The plaintiff's arguments for a construction of the Plan, based upon the arguably conflicting language of the Plan's summary document, Mr. Hill's letter, the plaintiff's claimed reliance upon Mr. Hill's letter, and Mr. Edwards' interpretation of the term "credited service," although, to me, strained and logically unpersuasive, are not irrational or entirely unreasonable. Neither is the construction given the Plan by its administrators. Like the district court, the Plan administrators might have decided that Mr. Edwards' accumulated sick leave, which was not taken before the date of disablement, "does not count as credited service as it could decide that it does count." That being so, and given the uncontradicted evidence that the Committee "carefully considered" Mr. Edwards' arguments, the law is clear and settled that the Committee's decision was not arbitrary or capricious.

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