Fresno’s former deputy Police Chief Keith Foster was working as an undercover investigator when he was recorded on a wiretap talking about buying marijuana, his attorney told jurors during opening statements Wednesday in Foster’s federal drug trafficking trial.
Prosecutors contend the wiretaps caught Foster talking with co-defendant Rafael Guzman about buying heroin and talking about selling oxycondone to his nephew, Randy Flowers.
But defense lawyer E. Marshall Hodgkins told jurors in U.S. District Court that police Chief Jerry Dyer directed Foster to find out whether heroin was causing problems in the city of Fresno. To satisfy Dyer’s order, Foster went undercover by talking with Guzman, a known drug dealer who Foster had befriended in order to turn him into a confidential informant, Hodgkins said.
Foster wasn’t selling oxycodone to Flowers, Hodgkins said, noting that both men had prescriptions for the narcotic. In fact, Dyer knew Foster was taking oxycodone to relieve pain from gout, he told the jury of eight women and four men. But a May 2015 FBI lab report says tests on Foster’s blood and urine revealed oxycodone was not detected in the samples.
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On the first day of the trial, Hodgkins was adamant that Foster, the former No. 2 man in the Fresno Police Department and Dyer’s apparent heir, was innocent of the charges that led to his resignation in April 2015. Hodgkins accused FBI and ATF agents of doing a poor investigation, saying they went after Foster solely because “he’s a big fish.”
During a break, Hodgkins said Foster was “deep undercover” since Dyer apparently didn’t know about Foster’s plan to make marijuana and heroin busts. But he said Foster had the expertise to do them since he had done hundreds of undercover operations in his nearly 30 years of stellar service on the Fresno police force.
Foster and Dyer, as well as other Fresno police officers, will testify on Foster’s behalf, he said.
“Keith Foster isn’t guilty of anything,” Hodgkins told the jury. “He’s not the kind of person who would do this.”
Assistant U.S. attorneys Melanie Alsworth and Duce Rice, however, told the jury that the evidence will prove that Foster was a key participant in three conspiracies to peddle heroin, oyxcodone and marijuana. They asked the jury to convict him of felony charges that could result in at least 25 years in prison and stiff fines.
The trial in Judge Anthony Ishii’s courtroom is high stakes because Foster, 53, rejected a plea agreement that would have resulted in 46 months, or nearly four years, in prison. Foster’s two nephews – Denny Foster and Flowers – and Jennifer Donabedian, Sarah Ybarra, Rafael Guzman Jr. and Ricky Reynolds have accepted plea deals. But only Denny Foster has agreed to testify against Keith Foster.
Foster’s arrest shocked the city because Dyer has claimed he knew nothing about his second-in-command’s alleged criminal activity, even though they were longtime friends and their offices at police headquarters were close to each other.
In front of a packed courtroom, the two sides gave their versions of the evidence. After Alsworth stood calmly by a lectern in the center of the courtroom to give the prosecution’s opening statement, Hodgkins paced back and forth in front of the jury box, pleading with them to listen to all of the evidence before judging Foster.
An indictment charges Foster with conspiring with Flowers to distribute oxycodone. He also is charged with four separate counts to distribute or possess with the intent to distribute oxycodone.
Foster also is charged with conspiring with Guzman to distribute heroin and conspiring with Ricky Reynolds, Jennifer Donabedian, Ybarra and Denny Foster to distribute marijuana. In addition, Foster is charged with using a cellphone in furtherance of drug trafficking.
In a key stipulation, Hodgkins and the prosecution have agreed to “the authenticity and admissibility” of the wiretaps on Keith and Denny Foster’s cell phones and Flower’s cell phones, as well as the text messages on them. Hodgkins said he agreed to the stipulation because the recordings will show that Foster was just doing his job as a police officer.
Alsworth, however, said it was clear from the evidence that Foster is guilty as charged.
She then gave this account of Foster’s arrest on March 26, 2015 after a four-month investigation:
After Foster picked up his prescription for 100 oxycodone pills, he arranged to go to Flowers’ home, which was under surveillance. The next day, Foster returned to Flowers’ home near Church and Hughes avenues in southwest Fresno with 100 oxycodone pills, Alsworth told the jury. As Foster drove away from the residence, a traffic stop was conducted. Foster was arrested, federal agents searched his car and found $1,300 in cash (all in $100 bills) and a prescription bottle with his name on it that contained two oxycodone pills.
At Foster’s home, agents found $9,000 in cash and empty oxycodone prescription bottles in a safe. Flowers also was arrested and his home was searched. Agents found 98 oxycodone pills, about $10,200 in cash (all in $100 bills) and guns. The pills found in Flowers’ home matched the pills found in Foster’s car, Alsworth told the jury. Combined, they totaled 100 pills.
Hodgkins agreed that Flowers is a drug dealer but noted that federal agents actually found 195 oxycodone pills in Flowers’ home. And just because the pills have the same markings that does not prove that the pills came from Keith Foster, Hodgkins said.
Though the prosecution implied that the money seized from Foster was from drug sales, Hodgkins said Foster was going through a messy divorce and was going to get a $1,300 cashier’s check to pay his ex-wife. Hodgkins also said Fresno police Sgt. John Jensen loaned Foster the money found in the safe to help Foster pay his bills from the divorce.
Hodgkins said Jensen, who is independently wealthy because his family owns mineral rights in North Dakota, will testify on Foster’s behalf.
But that’s not the only time Foster sold pills to Flowers, Alsworth told the jury. He did it in December 2014 and in January and February 2015. Each time, Foster would pick up 100 pills from the pharmacy, call Flowers or send him a text message and then go to Flowers’ home, Alsworth said. In one wiretap, Foster told Flowers: “Hey Bulldog you gave me $240 in $20s.” Foster then drove back to collect more money, Alsworth said.
But Hodgkins told the jury that Foster and Flowers weren’t talking about payment for drugs. Foster had earlier given Flowers about $300 to purchase clothing, but Flowers had only repaid $240 of what he owed Foster.
Both sides stipulated that Dr. Diego Allende and Dr. Patrick Golden had signed prescriptions so Foster could obtain 100 oxycodone pills on each of the following dates: Dec. 23, 2014; Jan. 27, 2015; Feb. 25, 2015; and March 25, 2015. Another stipulation said federal agents obtained blood and urine samples from Keith Foster to check for oxycodone.
In another wiretap, Alsworth said Foster talked to Denny Foster about buying marijuana for “his boy.” To hide his intentions, Alsworth said, Foster doesn’t say marijuana, but uses the word “units.”
Hodgkins said federal agents never found out who Foster was referring to when he said “his boy.” In court, Hodgkins revealed for the first time that Foster was referring to his friend, Fresno police narcotics Detective Brannon Kirkland. Hodgkins said Kirkland, who now works for a law enforcement agency in Southern California, will testify on Foster’s behalf.
According to Hodgkins, Denny Foster has been dealing drugs for more than 20 years, but he also worked on the side as a confidential informant, either to make money or to get out of trouble.
Hodgkins said federal agents began to investigate Denny Foster in April 2014 on weapons allegations. One day a man went to Denny Foster’s home and came out with marijuana. Federal agents talked to the man but did not arrest him because he had a medical marijuana card.
But the incident prompted federal agents to check Denny Foster’s finances. They learned he had $103,000 in one bank account and $75,000 in another, yet on government assistance forms he had said he was unemployed with zero income, Hodgkins told the jury. This prompted federal agents to wiretap Denny Foster’s cell phone, Hodgkins said.
The focus of the investigation changed when Keith Foster began calling his nephew. Foster, however, was calling his nephew to see if he could work as an informant to help Kirkland make a big drug bust, Hodgkins said. “He works for money,” Hodgkins said of Denny Foster. “He would turn in his mother to get out of a situation.”
But Hodgkins also said Denny Foster can’t be trusted to tell the truth on the witness stand because he holds a grudge against Keith Foster.
In August 2002, Denny Foster’s brother, Eric Foster, was killed by a Fresno police officer. While Eric Foster’s family protested and filed a federal civil rights lawsuit, Keith Foster, on orders from Dyer, declined to stand with his family, Hodgkins said. The lawsuit was later dismissed.
According to Hodgkins, Denny Foster told relatives that “as long as it takes, I will get Keith for not sticking up for the family.”
This would not be the first time Keith Foster and Kirkland worked undercover without Dyer’s knowledge.
After Foster’s resignation, The Bee learned that Foster and Kirkland testified before a state medical board in support of a local doctor known for writing medical marijuana prescriptions. That testimony occurred without Dyer’s knowledge. Both Foster and Kirkland testified they were patients of the doctor, Diego Allende.
Hodgkins said it was Dyer’s directive to Keith Foster that led him to investigate heroin in the city. Hodgkins said Foster first asked police detectives about whether the city had a drug problem, but they told him no. He then turned to Guzman, who had been arrested by the Clovis Police Department on drug charges.
Alsworth said a wiretap recorded Foster talking to Guzman in December 2014 about wanting to buy heroin.
When Guzman asked Foster what quality of heroin he wanted to purchase, Foster said, “the very best,” according to Alsworth. And when Guzman began to go into detail about what kind of heroin, Foster told him not to do it over the phone, Alsworth told the jury.
But Hodgkins said Foster was trying to get Guzman to become an informant and lead him to the dealers who sell the best heroin so police could make a bust. Foster never achieved his goal because of his arrest. But Foster’s intuition was realized in February when Fresno police made a big bust, taking 2 pounds of heroin off the streets, Hodgkins said.