A federal judge on Monday upheld Keith Foster’s convictions for conspiring to peddle heroin and marijuana, ending chances that the former deputy chief of the Fresno Police Department will avoid prison.
But when Foster will learn of his punishment is up in the air.
In a hearing Monday, Foster’s new lawyer, Michael McKneely, argued that there was insufficient evidence to convict him. Foster was not caught with heroin or marijuana in his possession and there no evidence of money exchanging hands, McKneely argued.
He also argued that Foster deserved a new trial, accusing his trial lawyer, E. Marshall Hodgkins, of ineffective assistance of counsel.
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But Judge Anthony Ishii declined to vacate Foster’s two felony felony drug convictions in U.S. District Court. Ishii also said there was no evidence to support McNeely’s contention that Hodgkins was ineffective.
With Ishii’s ruling, Foster, 53, faces up to 25 years in prison and hefty fines when he is sentenced on Nov. 13. McKneely, however, wants to delay Foster’s sentencing because he told the judge there is an issue on whether Foster obstructed justice as a pre-sentencing probation report contends. McKneely told Ishii he won’t be able to address the issue immediately because he will be in trial in Fresno County Superior Court into December.
Ishii said he will rule on McKneely’s request on Nov. 6.
Until then, Foster will remain free on his own recognizance.
The May 23 verdict was a tragic end to nearly 30 years of service in the Fresno Police Department in which Foster became a role model to the city’s impoverished and largely minority west side community, and was Chief Jerry Dyer’s apparent heir.
A criminal complaint charged Foster with trafficking in marijuana with his nephew Denny Foster, selling oxycodone to his other nephew, Randy Flowers, and trafficking heroin with Rafael Guzman Jr. Six co-defendants – including his two nephews and Guzman – accepted plea deals, leaving Foster to stand trial alone.
The case against him was 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.
But McKneely said on Monday that there was no solid evidence to show Foster was conspiring with others to sell drugs.
In court papers, McKneely said he hoped to prove Foster’s innocence before he is sentenced because he contended the jury was confused by the evidence since it deadlocked on five counts involving the distribution of oxycodone and one count that Foster used a cellphone in furtherance of drug trafficking. (The jury voted 7-5 for not guilty on each deadlocked charge; prosecutors do not plan to retry him on the deadlocked charges.)
The deadlocked charges, McKneely said, are “indicative of flaws in the trial.”
A key issue in the trial was whether Foster was undercover, or deep undercover since Dyer and other high-ranking police officials were unaware of his conversations on the wiretaps. McKneely said Foster was not working undercover, but merely trying to encourage Denny Foster and Guzman to become police informants.
McKneely argued that just because Foster is talking to people involved in illegal conduct doesn’t make him a conspirator. He also said that Foster’s conviction was the result of “a perfect storm” that included a media frenzy linked to the prosecution of a high-ranking law enforcement official. He blamed Foster’s conviction of an insufficient federal investigation whose agents “were mesmerized by the possibility of taking down a high-profile law enforcement officer” and “the abbreviated presentation of evidence” by Hodgkins.
In court papers, McKneely said Hodgkins is a skilled trial lawyer, but he never challenged the grand jury indictment that led to Foster’s arrest in March 2015. He also said Hodgkins should not have stipulated to a key piece of evidence – that it was Foster’s voice on the wiretaps. Instead, Hodgkins should have challenged the wiretaps as hearsay evidence, McKneely said.
Prosecutors Melanie Alsworth and Duce Rice, however, said there was overwhelming evidence to convict Foster.
During the trial they told the jury that Foster dealt drugs because he needed money to pay bills from his expensive divorce. Deep in debt, Foster even had to borrow money from a subordinate, Rice told the jury.
Hodgkins, however, told the jury that Foster was acting as an undercover detective collecting information for narcotics detectives. But the undercover operations were so secretive that Chief Jerry Dyer and other top-level police officials testified in Foster’s trial that they weren’t aware of them.
Dyer and Deputy Police Chief Pat Farmer also said a deputy chief can’t conduct undercover operations due to the high-profile nature of the position.
On the witness stand, Foster testified that he was neither undercover nor “deep undercover.”
“That’s absurd,” Foster told the jury. Instead, he said the wiretaps show he was collecting information about drug dealing that he turned over to narcotics detectives.
After the trial, Foster switched lawyers, from Hodgkins to McKneely, who accused Hodgkins of shirking his duty by failing to file a motion based on insufficient evidence presented by the prosecution. If Hodgkins had done so, McKneely said, Ishii would have had grounds to acquit Foster.
But Ishii said on Monday that even if Hodgkins had filed the motion, the judge would not have acquitted Foster. Instead, he would have let the jury decide Foster’s fate.
As a Fresno deputy chief of police, Keith Foster wore expensive suits and drove a black BMW 7 Series. The father of six children also has been divorced three times, which cost him $5,100 monthly in spousal and child support, according to his divorce file in Fresno County Superior Court. As a deputy chief, he owed back taxes to the IRS and tens of thousands of dollars in credit card and loan debt, even though he made nearly $14,995 per month in gross income in 2014, the divorce file showed.
During the trial, Hodgkins said Foster was knowledgeable about drug trafficking because he testified that as a narcotics officer he had conducted about 600 undercover operations in which he sold the drugs directly to a dealer. He also testified that he supervised another 400 undercover drug operations.
In the wiretaps, Alsworth said, Foster is clearly talking about purchasing heroin from Guzman for Foster’s former girlfriend. “The black. I know someone who wants to get one,” Foster tells Guzman on the wiretap that was played repeatedly to the jury. “The black” means heroin, prosecutors told the jury.
In those wiretaps, Guzman tells Foster he could get “China White” heroin. Foster is heard saying, “Yes,” but he also admonishes Guzman for talking about heroin over the phone. “Hey, hey, you don’t need to go into detail,” Foster says.
In addition, Rice told the jury that during the call Foster talked about “using his position in law enforcement to get rid of Guzman’s rival in drug dealing.”
Alsworth said other 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.