Keith Foster upends defense, denying his lawyer’s claim he was undercover when busted for drugs

In a case that has begun to resemble a real-life TV crime drama, Fresno’s former Deputy Police Chief Keith Foster took the stand in his federal drug trafficking trial Tuesday and promptly undercut his own defense lawyer by declaring he never claimed he was “deep undercover” when he was arrested on drug charges.

The testimony appeared to startle his lawyer, E. Marshall Hodgkins, who had repeatedly told jurors in U.S. District Court that Foster was “undercover” when he was arrested in March 2015. Hodgkins later told reporters he never meant to tell the jury Foster was working undercover. He said Foster would explain what he was doing on the witness stand.

Foster’s declaration came after federal prosecutors put on the witness stand two Fresno Police Department bosses – current Deputy Chief Pat Farmer and Lt. Mike Brogdon – to refute Hodgkins’ assertion that Foster was working undercover as a narcotics investigator at the time of his arrest.

But the star of the fourth day of testimony was Foster, who after raising his hand and promising to tell the truth, blurted out: “I have been waiting two years to tell the public the truth about this case.”

Foster then talked about growing up in southwest Fresno and his drive to become a Fresno police officer. He said he started his career in late 1986 and praised Police Chief Jerry Dyer for mentoring him. He told the jury that Dyer often told him that “his thumbprint was on me.”

Foster, 53, said he has done more than 600 undercover investigations as a police officer, including 300 of them when he purchased drugs directly from the dealer. He also said he has supervised an additional 400 undercover drug cases. Foster was in charge of patrol when he was arrested in March 2015.

He said it was his goal to be police chief once Dyer retired. He also told the jury that he was a finalist for police chief in the city of Oxnard in 2010.

‘Talking the talk’

The case against Foster is built on wiretaps and surveillance of him by agents with the FBI and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. In the wiretaps Foster can be heard talking about buying drugs. The prosecution contends Foster was trafficking in marijuana, oxycodone and heroin. Six other defendants who were arrested with Foster – including two of his nephews – have all taken plea deals.

Foster admitted to “talking the talk” but said he was not working undercover. He said he did it to get information about crime in the city.

Because of his extensive contacts, he told the jury that people – drug dealers, gang members and law-abiding citizens – would often call him with tips. If the tip about crime was good, he would pass it along to the appropriate people in the police department.

Foster’s change in his defense came after Brogdon and Farmer, who were in charge of investigations, both testified it was highly unlikely that a deputy chief would be involved in undercover investigations.

But they both said it’s not unusual for a friend, relative or anyone to give them tips about crimes. If a tip was good, they told the jury, they would pass it along to the appropriate people.

Foster testified that “policies are a guide. If there are extenuating circumstances,” it could justify violating them, he told the jury.

Foster is accused of participating in three conspiracies to sell heroin, marijuana and oxycodone. If convicted, Foster, who was second in command and Dyer’s apparent heir, faces at least 20 years in prison and stiff fines.

Brogdon, currently the commander of the northeast policing unit, was head of the Fresno Police Department’s special investigative bureau, which includes the major narcotics unit, when the federal government investigated Foster in 2014 and 2015.

In his 30 years as a Fresno police officer, Brogdon testified, he had never seen or heard of a deputy chief working undercover.

‘He was not undercover’

“He was not undercover,” Brogdon told the jury “because I would have to know since I’m responsible for the unit and the actions of the unit.”

Foster is accused of conspiring with Rafael Guzman Jr to buy heroin in order to distribute it. Foster also is accused of conspiring with his nephew Denny Foster to purchase marijuana. In addition Foster is accused of selling oxycodone pills to his nephew Randy Flowers.

On the witness stand Tuesday, Foster adamantly denied the allegations.

Testimony has revealed that Foster had picked up 100 oxycodone pills from a pharmacy on March 25, 2015. Federal agents arrested Foster the next morning on March 26, 2015, a few minutes after he left Flowers’ home on Church Avenue near Hughes Avenue in southwest Fresno.

Federal agents found two oxycodone pills and $1,300 in cash – all in $100 bills – in Foster’s black BMW 7 series. At Flowers’ home federal agents found 98 oxycodone pills in an unlabeled pill bottle and more than $10,000 in cash – all in $100 bills.

Prosecutors contend the pills found in Foster’s car and in the pill bottle in Flowers’s home add up to 100 and have the same markings.

Hodgkins has told the jury that Flowers has his own prescription for oxycodone and federal agents found more than the 98 pills in Flowers home.

Foster testified Tuesday he never sold any oxycodone pills to Flowers. He said he was taking oxycodone pills to alleviate the pain from gout. He told the jury it made no sense to carry the entire 100 pills with him so he took only two with him in case his gout flared up.

Both sides have stipulated that Foster gave the FBI blood and urine samples after his arrest. Earlier Tuesday FBI toxicologist Cynthia Morris-Kukoski testified that the blood and urine samples contained no evidence of oxycodone. But she said evidence of oxycodone would be gone in a few days if the person taking it drank a lot of water.

Foster testified that he worked out often, had a personal trainer and drank lots of water. He also testified that he would not take oxycodone every day; he only took the pills when his gout flared up.

Citizen informants

Prosecutors contend the wiretaps prove Foster was engaged in drug dealing. But on Tuesday afternoon jurors got to hear other wiretap recordings from Foster’s personal cell phone in which unidentified callers tell Foster about gang violence and shootings, including the killing of 9-year-old Janessa Ramirez.

Foster called the callers citizen informants – a vital component of law enforcement.

Foster told the jury of eight women and four men he was never engaged in undercover operations. Instead, he was collecting information from citizen informants, including Guzman and Denny Foster. Once he got the information, Foster testified, he turned it over to Detective Brannon Kirkland and Sgt. George Wilson of the major narcotics unit.

Foster testified that he has known Guzman since 2011. He said Guzman was a friend of Denny Foster. They became so friendly that Foster said he called Guzman “Ralph” and Guzman called him “uncle.”

Foster testified that Dyer gave him an order around May 2014 to find out whether heroin was causing problems in the city. He said he first asked captains and narcotics detectives. When they said it was not a problem he turned to Guzman, telling the jurors Guzman had direct knowledge of what’s happening on the streets.

Guzman had motive to become an informant because Clovis police had arrested him on drug-dealing charges. He was facing seven years in prison, Foster said.

To bolster Foster’s case, Hodgkins showed jurors text messages between Foster and Guzman talking about their “project” about whether heroin was causing problems. Hodgkins also showed jurors text messages between Foster and Guzman’s lawyer, Richard Cenci, that talk about Guzman working with police.

“I was not working in an undercover capacity,” Foster told the jury. “I was having conversations and passing along the information.”

Foster testimony will resume Wednesday.

This story was originally published May 16, 2017 at 11:25 AM with the headline "Keith Foster upends defense, denying his lawyer’s claim he was undercover when busted for drugs."