The men who sold cocaine and heroin to former St. Clair County Circuit Judge Michael Cook have received sentence reductions that will leave one getting out of prison two days before Cook.
James K. Fogarty, the former St. Clair County probation officer who pleaded guilty to dealing cocaine, was sentenced to five years in federal prison in February 2014, but is scheduled for release on Feb. 18 — two days before Cook, who was sentenced to two years for misdemeanor heroin possession and a felony for being an addict in possession of a weapon.
Sean McGilvery, longtime friend and one-time legal client of Cook, was sentenced to 10 years in January for heroin distribution, but he will end up serving only about three and a half years before his release on Sept. 29, 2017.
Neither prosecutors nor defense attorneys will comment on the sentence reductions.
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“They are filed under seal and we are prohibited by court order from talking about them,” said Steve Wigginton, U.S. attorney for the southern district of Illinois.
Justin Kuehn, Fogarty’s attorney, agreed and declined to comment further. McGilvery’s attorney, Rodney Holmes, could not be reached for comment.
Just the existence of those sealed documents suggests the sentence reductions for Fogarty and McGilvery were the result of cooperation with investigators, according to experts and attorneys familiar with federal sentencing rules. A sentence reduction in exchange for information, known as a Rule 35 reduction, would likely be sealed, according to federal sentencing guideline expert and attorney Ronald Richards.
Belleville defense attorney John O’Gara, who did not represent any of the defendants connected to Cook but regularly represents defendants in federal court, said: “Cooperation would be the most common way for someone to reduce their sentence. It’s very typical. I would bet that’s what has happened here.”
Michael Santos, a federal sentencing guideline expert in Newport Beach, Calif., who served 26 years in prison on a drug charge, said it appears McGilvery not only received a Rule 35 reduction, but there must have been another motion by prosecutors to get him below the mandatory minimum.
“He must have really done a lot for their case because that’s a big consideration.”
In a federal search warrant, federal agents wrote that McGilvery told them he sold heroin to Cook “almost daily.” McGilvery was business partners with Deborah Perkins, 67, and Douglas Oliver, 49, who lived at 20 Kassing Drive in Fairview Heights, the site of the fatal overdoses of Jessica Williams and Jennifer Herling. McGilvery would pool his money with Perkins, who would travel to Chicago to buy heroin. McGilvery was one of Perkins’ principal subdealers.
Perkins was sentenced to a 27-year prison term. She is scheduled for release in 2036. Oliver, her son, received a 30-year prison sentence. He is scheduled for release in 2039. Assistant U.S. Attorney Robert Garrison has filed a sealed motion in both Oliver’s and Perkins’ cases. Those motions are pending.
Fogarty, who admitted to selling cocaine, will end up with a prison term comparable to that of Cook, who was never accused of selling drugs. Cook’s felony weapons charge stems from an answer on his application for a gun permit. Cook, in his application, checked that he was not addicted to drugs. When he was arrested, Cook had guns not in his car, but at his home. Fogarty, as a probation officer, carried a gun as part of his daily duties.
Fogarty told federal agents after Cook’s arrest on May 22, 2013, that he sold cocaine to Cook and newly appointed Associate Judge Joe Christ two days before Christ was found dead in the bathroom of Cook’s rural hunting cabin. Cocaine was a contributing cause for Christ’s death. Fogarty also told agents that he used cocaine with Christ and Cook.
Pike County Sheriff and Coroner Paul Petty first publicly said Christ’s death was natural, but he knew a vial of cocaine fell out of Christ’s clothes during the autopsy. When he received the results of Christ’s toxicology reports in early April 2013, Petty went to federal agents.
Petty said the level of reduction in Fogarty’s case “speaks to the level of his cooperation.”
“That’s not all too uncommon — that individuals involved in this level of drug activities are often out of prison before the ink is dry on the reports,” Petty said.
Federal prosecutors are the only ones who can ask the court to reduce a prison sentence in exchange for information, said Phillip J. Kavanaugh, federal public defender for the Southern District of Illinois. And they must do it within a year of the sentencing.
A petition for a reduction must spell out the amount of cooperation the defendant offered, from the time of arrest up until the sentencing, with the prosecutor’s opinion of how much the sentence should be reduced because of the cooperation.
“The standard is ‘substantial assistance to law enforcement,’” Kavanaugh said.
After the petition is filed, a defense attorney can argue before a judge that a defendant should get even more time shaved from the sentence, but a judge makes the final call, usually without a hearing.
Assistant U.S. Attorney James Porter, who prosecuted Cook, Fogarty and McGilvery, couldn’t comment, but he noted the U.S. Department of Justice recently amended the sentencing guidelines, reducing the level of felony drug offenses by two for all federal cases. Cooperation by either of the two men could account for a sentence reduction, Porter said, but he noted that “no active leads in the investigation are being pursued at this time.”
Filing to get a sentence reduced under the amendment would also likely involve sealed documents in the court file, said defense attorney O’Gara. But the amendment alone, O’Gara said, wouldn’t fully account for the amount of time shaved off the original sentences for McGilvery and Forgarty.
Cook and Fogarty are serving their sentences at a minimum-security federal prison camp in Pensacola, Fla. McGilvery is serving his sentence at medium-security prison in Marion.
There are no active leads being pursued in the investigation, Porter said.
Wigginton added: “Yes, but that doesn’t mean that it can’t be restarted if new information is developed with the (Drug Enforcement Agency) or (Metropolitan Enforcement Group of Southern Illinois), which we work with regularly.”