Jurors will soon decide whether Keith Foster was a drug-dealing deputy chief for the Fresno Police Department or working undercover to make big drug busts.
Both sides in Foster’s federal criminal trial rested their case Thursday morning. They spent the rest of Thursday in closing arguments, trying to frame the evidence in a way that will persuade jurors to either convict Foster of drug trafficking, or set him free. The jury is expected to begin deliberations Friday on a case that could send Foster to prison for more than 25 years.
Foster, 53, faces eight felony charges involving three alleged conspiracies to peddle heroin, marijuana and oxycodone.
The trial in Judge Anthony Ishii’s courtroom is high stakes because Foster turned down a plea agreement that would have resulted in four years in prison. All six co-defendants – including two of his nephews – have accepted plea deals, leaving Foster to stand trial alone in U.S. District Court in Fresno.
The case against Foster, who was arrested in March 2015, is built on wiretaps and surveillance 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.
Prosecutors Melanie Alsworth and Duce Rice contend Foster was trafficking in marijuana with his nephew Denny Foster, selling oxycodone to his other nephew, Randy Flowers, and trafficking heroin with Rafael Guzman Jr.
Foster and his attorney, E. Marshall Hodgkins, have stipulated that Foster was talking about buying drugs on the wiretaps. But Foster testified in his trial that he was just collecting information from the co-defendants to turn over to narcotics detectives.
In the prosecution’s closing arguments, Alsworth said two sides of Foster emerged in the trial: the respected deputy chief who has done good things for the Fresno community, and the drug dealer who was caught on wiretaps engaging in heroin, marijuana and oxycondone sales.
Alsworth implored the jury: “You can’t let sympathy interfere with the facts of this case.”
The prosecutor said Foster’s defense of collecting information for detectives isn’t true. She also said “the Fresno Police Department is not in the business of selling drugs for profit.”
In the wiretaps, Alsworth said, Foster is clearly talking about purchasing heroin from Guzman for Foster’s former girlfriend, Lashon Jones. “The black. I know someone who wants to get one,” Foster tells Guzman on the wiretap that was played to the jury. “The black” means heroin, Alsworth told the jury of eight women and four men.
In other wiretaps, Guzman tells Foster he could get “China White” heroin. Foster is heard saying, “Yes.”
The Fresno Police Department is not in the business of selling drugs for profit.
Prosecutor Melanie Alsworth, during her closing statement in former Fresno Deputy Police Chief Keith Foster’s federal drug trafficking trial.
Alsworth also said the wiretaps capture Foster talking to Denny Foster about purchasing marijuana for “my boy.” Foster uses code words such as “units” and identified “my boy” as narcotics detective Brannon Kirkland. But Alsworth pointed out that Kirkland testified that he was not working with Foster to purchase marijuana from Denny Foster.
Regarding the oxycodone charges, Alsworth said Foster developed a pattern of picking up a prescription for 100 pills and immediately calling Flowers to arrange a meeting. Foster then takes the pills to Flowers’ southwest Fresno home, spends a few minutes with him and leaves.
Foster did this on Dec. 23, 2014, Jan. 27, 2015, and Feb. 26, 2015, Alsworth said. Then on March 26, 2015, a few minutes after leaving Flowers home, Foster was arrested.
Federal agents found two oxycodone pills and $1,300 – all in $100 bills – next to each other in Foster’s car, Alsworth said. Agents found 98 oxycodone pills in an unlabeled pill bottle in Flowers’ home and more than $10,000 in cash – all in $100 bills. Alsworth said the pills have the same markings. Prosecutors contend Foster sold oxycodone pills to Flowers.
Foster testified that he always carries two oxycodone pills with him in case his painful gout flares up. But Alsworth said Foster gave the FBI blood and urine samples after his arrest, and he had none of the narcotic in his system.
Alsworth said Foster testified that the other 98 pills from his prescription were actually in his home but federal agents failed to find them. Foster testified he flushed the pills down the toilet because possession of them would have violated terms of his pretrial release.
But Alsworth said if Foster is telling the truth, he destroyed evidence. She also said Foster was getting 100 pills every months from the pharmacy, and Foster testified he didn’t take them regularly, yet federal agents only found two in his car.
Alsworth said Foster’s actions prove he is guilty. She noted an incident in which the California Highway Patrol arrested Denny Foster in Merced for having six pounds of marijuana in the trunk of his car. Desiree Carbajal, a passenger in the car who was not arrested, called Keith Foster and told him his nephew was arrested.
In wiretaps, Foster curses and tells Carbajal that he could have provided “cover” for Denny Foster. In the recording, Foster says he would call his “narc guys” to help get his nephew out of trouble.
In essence, Alsworth said, Foster was saying “if I had known I would have covered it up.”
Seeking ‘benefit of the doubt’
But Hodgkins, in his closing arguments Thursday afternoon, said the case against Foster is built on flimsy circumstantial evidence since no one witnessed Foster selling drugs.
He said federal agents didn’t check for Foster’s fingerprints on the oxycodone pill bottle in Flowers’ home. Agents also didn’t find Flowers’ fingerprints on the $100 bills in Foster’s car. Hodgkins said federal agents even went through Flowers’ home trash and found no evidence to link Foster to selling oxycodone.
There was nothing in Foster’s home to indicate he’s a drug dealer, such as scales, illegal drugs or an indoor marijuana grow, the attorney said.
“And if he is a drug dealer of heroin and pounds of marijuana, why did he have to borrow $15,000 from Sgt. John Jensen,” Hodgkins said. Jensen testified that he loaned Foster $15,000 in November 2014 to help him pay bills from a messy divorce.
To convict Foster, Hodgkins told the jury they would have to conclude that Foster “went from Dr. Jekyll to Mr. Hyde” and threw away nearly 30 years of stellar police work and his chance to be Fresno’s next police chief.
Hodgkins implored the jury to give Foster “the benefit of the doubt.” He also asked the jury not to convict him just because he was talking with Guzman and Denny Foster.
Keith Foster has been punished – he will never again be a police officer, Hodgkins said. Even if he is found innocent, Foster will have to live with the stigma of being arrested on drug trafficking charges “for the rest of his life.”