Tom Lakin seeks two separate trials

Steve Gonzalez Jul. 10, 2007, 5:00am

Tom Lakin

Scott Rosenblum

Tom Lakin wants to sever one count from his seven-count indictment and have two separate trials.

Lakin's attorney, Scott Rosenblum, filed a motion to sever count six of the indictment on July 6 with United States District Judge Phil Gilbert in Benton, claiming it does not meet any of the requirements for joinder.

The indictment released April 20, includes the following charges:

Counts I and II: From about 1998 to August 2002, and from June 2005 through September 2005 in Madison County, Lowell Thomas Lakin knowingly used and maintained a place for the purpose of distributing a controlled substance, mainly cocaine.

Count III: In May 2002, Thomas Lakin distributed cocaine to a person under 21.

Count IV: Thomas Lakin distributed cocaine in August 2005.

Count V: In August 2005, Thomas Lakin distributed cocaine to a person under 21.

Count VI: On May 29, 2005, Thomas Lakin transported John Doe who was under 18 years old from Madison County to Malibu, Calif. with the intent to engage in sexual activity under circumstances that would constitute criminal offense by any person under California penal code. That is, oral copulation, by a person over age of 21 with another a person under 16 years of age at the time.

That charge carries a life sentence.

Count VII: As a result of his alleged offenses, the property located at 287 Oakley Place in East Alton, used or intended to be used in any manner or part to commit or facilitate the commission of these offenses, shall be forfeited.

In the motion, Rosenblum argues even if Gilbert finds that joinder is appropriate, he should still order separate trials because of the prejudicial effect to Lakin of trying the counts together.

"The Government cannot advance any conceivable basis to justify the joinder of Count 6," Rosenblum writes.

Rosenblum argues Rule 8 of the Federal Rules of Criminal Procedure establishes the requirements for the joinder of offenses in an indictment involving a single defendant.

Multiple offenses may be joined if the offenses charged are of the same or similar character, based on the same act or transaction, or are connected together or constituting common parts of a common scheme or plan.

"Count 6 clearly does not satisfy the "same act or transaction" standard because the facts underlying Count 6 are separate and unrelated from the facts underlying the other Counts," Rosenblum writes.

Rosenblum argues that count six is sex related while the other counts are drug related.

Citing case law from United States v. Davis, Rosenblum also argues even if Gilbert were to find that joinder is proper, he should still sever count six because of the "possibility that the jury might use evidence of one crime to infer guilt on the other or that the jury might cumulate evidence to find guilt on all crimes when it would not have found guilt if the crimes were considered separately."

"If Count 6 is tried with the other Counts, the jury will hear evidence of Defendant's alleged involvement in a sexual crime with a minor," Rosenblum writes.

He adds, "Such evidence would be highly prejudicial and would have absolutely no bearing on whether, in fact, Defendant distributed illicit drugs to various individuals or used his residence for those purposes."

Rosenblum is also asking Gilbert to order the Government to produce a Bill of Particulars with respect to Lakin's indictment.

On counts one and two Lakin seeks a bill of particulars identifying specific dates that Lakin's home was allegedly used to distribute cocaine.

On counts two through five, Lakin seeks a bill of particulars identifying the identity of the persons to whom Lakin allegedly distributed controlled substances, the specific dates of distribution to said persons, and the location of those distributions.

"Defendant requires the above information in order to avoid unfair surprise and prepare adequately for trial," Rosenblum writes. "Without the requested information, Defendant will be deprived of the basic facts underlying the alleged criminal acts, namely, the "who," "when," and "where" of the alleged offenses."

Rosenblum is also asking Gilbert to order the Government to disclose all written or recorded statements of Lakin, even those incorporated in the statements of a third-party or potential government witness.

He argues those statements even extends to any such statement made by the defendant to a third-party, which is later incorporated into the statement of that third-party witness when it is memorialized by a government agent.

Lakin trial is set for January 2008. He remains free on a $250,000 unsecured bond.

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