Having transitioned out of federal custody in late November, the once powerful attorney Tom Lakin is now petitioning the court to modify conditions of his six year supervised release.

Lakin pleaded guilty in October 2008 to charges of maintaining a residence for distribution and use of a controlled substance, possession with intent to distribute cocaine and distribution of cocaine to a minor. He served five years of a six-year sentence that also included supervision upon release with the following conditions:

-Register as sex offender;

-Participate in a sexual offender treatment program;

-Not associate with persons under the age of 18 except in the presence of a responsible adult who is aware of the nature of the defendant’s background and current offense; and

-Allow probation office access to any computer or device capable of accessing the Internet.

On Dec. 18 he filed a motion to modify.

U.S. District Judge Phil Gilbert has set a hearing on the matter for 11 a.m. on Feb. 6 at the federal court in Benton.

Lakin’s legal troubles leading up to his indictment in 2007 began in 2006 when he was accused in a civil lawsuit of having sex with minors.

Federal prosecutors charged him with sex and drug distribution offenses, but the sex charges were dismissed after he pleaded guilty to the drug charges. Then, in 2011, he registered as a sex offender in criminal proceedings before the now retired Madison County Circuit Judge Charles Romani.

The civil suit remains an ongoing contentious battle in St. Clair County where Jane and John Doe plaintiffs are seeking summary judgment in the nearly eight year old case based upon the proceedings in Romani’s court.

Months ago, Lakin’s attorney in the St. Clair County proceeding, Clyde Kuehn of Belleville, introduced an argument that Lakin’s stipulation in criminal court is not binding in civil court. He continues to maintain that argument.

“…[S]ince the judgment of conviction was made upon a finding of the trial judge and not upon a plea accepted after hearing a factual basis there was no admission, judicial or evidentiary, in the proceedings that took place,” Kuehn wrote Jan. 10 in a supplemental memo seeking to deny Does’ motion for summary judgment.

He wrote that Does’ offensive collateral estoppels argument should fail and that Supreme Court precedent supports such a conclusion even where a guilty plea has been entered.

“Treatment of the stipulated bench trial as tantamount to a guilty plea and therefore a judicial admission for purposes of the Madison County criminal proceedings would not tether that admission to the civil proceedings as anything more than evidentiary admission,” Kuehn wrote.  “Well-settled case law supports this conclusion.”

Kuehn cites Western States Insurance Co. v. Kelly-Williamson Co. to bolster his argument.

“Hence, this court could actually consider the stipulated bench trial as being tantamount to a guilty plea and nevertheless, applying the standard for deciding a summary judgment motion, still correctly deny summary judgment as inappropriate,” the motion states.

He also cites a recent Fifth District opinion arising from a St. Clair County criminal proceeding, People v. Mueller, in Associate Judge Richard Aguirre’s court. In that decision, Justice Bruce Stewart held, “In a stipulated bench trial, the defendant stipulates to the State’s evidence, not to the legal conclusion to be drawn from that evidence,” Kuehn wrote.

A hearing on the summary judgment motion in Doe v. Lakin had been set for Jan. 14 before Associate Judge Heinz Rudolf, but it was once again continued.

Does’ attorney Edward Unsell of East Alton responded to Kuehn’s memorandum with a blistering memorandum supporting his motion for summary judgment.

Unsell calls Lakin’s position “ludicrous” and that he must be stopped from asserting it in the civil case.

“It is not the end result of the criminal court proceeding in Madison County which dictates this court to consider applying judicial estoppels,” Unsell wrote. “It is the sanctity of the proceedings and the facts which Defendant Lakin averred were true. Sadly, these facts are quietly omitted in Defendant’s memorandum. Accordingly, for clarity sake, we will revisit the reported proceedings which were transcribed on October 26, 2011 in which Defendant L. Thomas Lakin was present and duly represented by his (criminal defense) attorney Ben Allen.”

Referencing Lakin’s stipulation, Unsell wrote, “The defendant performed oral sex” on a 15 year old boy.

“Fast forward to present and Defendant L. Thomas Lakin asks the court to not believe he performed a sex act on a 15 year old boy,” he wrote. “If the doctrine of judicial estoppels should ever be applied, then it is in this exact situation.”

Unsell went on to write that the doctrine of judicial estoppels generally follows that two positions must be taken by the same party, that the positions must be taken in judicial proceedings, the positions must be given under oath or within the formal proceedings and the party must have successfully maintained the first position and received some benefit and the two positions must be totally inconsistent.

“When applied to this situation the court must acknowledge it is Lakin who attempts to take the two positions and they are diametrically opposed,” he wrote. “The benefit he received was he only obtained a sentence which ran to his concurrent prison time. In short, he did not have to do any more time. Certainly, he cannot argue the positions are not diametrically opposed. The first instance he admits to performing oral sex on a minor child and now he wants the court to believe it really didn’t happen.”

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