Keith Foster found guilty of conspiracy to distribute heroin, marijuana

Keith Foster attorney calls drug conviction a tragedy

E. Marshall Hodgkins, Foster’s lawyer, called the result “a tragedy.” He said Foster was offered a plea deal of four years in prison during the trial, but turned it down.
Up Next
E. Marshall Hodgkins, Foster’s lawyer, called the result “a tragedy.” He said Foster was offered a plea deal of four years in prison during the trial, but turned it down.

Keith Foster, who swore to uphold the law as a deputy chief of the Fresno Police Department but ended up tarnishing his badge to commit crimes, was found guilty Tuesday of federal drug-trafficking charges.

Foster, 53, kept his lips shut tight while looking despondently at his supporters when the verdict was announced in U.S. District Court in Fresno. Family members openly cried in the court.

The jury found Foster guilty of conspiring to distribute heroin and marijuana, two charges against him. The jury hung on six other charges.

Judge Anthony Ishii allowed Foster to remain free on his own recognizance, saying Foster is not a flight risk because of his lifelong ties and police service to the community. Ishii also said Foster is not a danger to the public since the alleged crimes did not involve violence or weapons.

The jury deadlocked on six charges, including five counts involving the distribution of oxycodone. The sixth deadlock charge accused Foster of using a cellphone in furtherance of drug trafficking.

E. Marshall Hodgkins, Foster’s lawyer, said the jury was 7-5 for not guilty on each deadlocked charge. Because the jury deadlocked, prosecutors can retry Foster on the six charges.

“It’s unfortunate, but that’s our system,” Hodgkins said of the verdict. “We tried the case we wanted.”

By conspiring with others to traffic heroin and marijuana, Keith Foster not only disgraced the office he held, he put the community he was sworn to protect in danger.

U.S. Attorney Phillip A. Talbert

Ishii ordered both sides to return to court on July 10 for a hearing on whether to retry Foster. He is scheduled to be sentenced on the two guilty charges on Oct 10. Foster now faces up to 20 years in prison and a $1 million fine for the heroin conviction, and up to five years in prison and a $250,000 fine for the marijuana conviction.

In a statement issued late Tuesday, the U.S. Attorney’s Office thanked the jury for its work but did not say whether prosecutors would seek to retry Foster on the deadlocked charges.

U.S. Attorney Phillip A. Talbert added: “When a police officer misuses his official position to commit crimes for personal profit, it is the ultimate betrayal of public trust. The betrayal is only compounded when the officer involved is in a leadership position in the police department. By conspiring with others to traffic heroin and marijuana, Keith Foster not only disgraced the office he held, he put the community he was sworn to protect in danger.”

Police spokesman Lt. Mark Hudson said Chief Jerry Dyer was withholding comment on the verdict, but might have something to say Wednesday. “The chief has to digest it all,” Hudson said.

It’s unfortunate, but that’s our system. We tried the case we wanted.

E. Marshall Hodgkins, Keith Foster’s attorney

The verdict was a tragic ending to nearly 30 years of service in the Fresno Police Department in which Foster became a role model to the city’s west side community and was Dyer’s apparent heir.

Hodgkins called the result “a tragedy.” He said Foster was offered a plea deal of four years in prison during the trial, but turned it down. He hopes Foster’s “lifelong work in public service will have some impact on the sentencing.”

The case against Foster 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.

To convict Foster, defense lawyer lawyer Hodgkins said the jury would have to conclude that Foster “went from Dr. Jekyll to Mr. Hyde” and threw away nearly three decades of stellar police work.

Keith Foster drawing 1
Fresno’s former deputy Police Chief Keith Foster and his attorney, E. Marshall Hodgkins, in U.S. District Court in Fresno, Ca, on Thursday, May 11, 2017. Vicki Behringer Special to The Bee

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 – accepted plea deals, leaving Foster to stand trial alone.

During the two-week trial, prosecutors Melanie Alsworth and Duce Rice told a jury of eight women and four men that Foster dealt drugs because he needed money to pay bills from his expensive divorce. Deep in debt, Foster had to borrow money from a subordinate, Rice told the jury.

And when his nephew Denny Foster got caught with six pounds of marijuana, Keith Foster is heard on the wiretaps saying if he had known that his nephew was on the road, he could have provided cover for him. “That’s corruption,” Rice told the jury.

Foster and Hodgkins, however, contended Foster was collecting information about drug dealing so he could turn it over to narcotics detectives.

Initially, Hodgkins told the jury that Foster was conducting secretive undercover drug investigations. But when Deputy Police Chief Pat Farmer testified for the prosecution that a deputy chief can’t conduct undercover operations due to the high-profile nature of the position, Foster changed his defense, telling the jury “that’s absurd” to believe he was working undercover or “deep undercover.”

His statement apparently surprised his lawyer, Rice told the jury.

Dyer also testified that deputy chiefs don’t work undercover. The chief refuted Foster’s contention that he was working undercover with Guzman to satisfy Dyer’s directive to find out whether heroin was causing problems in the city.

Dyer said he told Foster to contact emergency personnel, the Coroner’s Office and other agencies and write a report. Dyer testified he never told Foster to work undercover. He also said Foster never turned in the report.

Fresno police chief Jerry Dyer, right, leaves the federal court Wednesday in Fresno after testifying in the drug trafficking trial of his former deputy chief, Keith Foster. ERIC PAUL ZAMORA

One of the saddest times of the trial, Rice said, was when Dyer heard for a the first time a wiretap in which Foster talks to Guzman about buying heroin. “That was devastating to the chief,” Rice told the jury.

The other sad part came when Foster wiped tears from his eyes when he heard Farmer testify about the hurt he felt when his former patrol partner was arrested.

As a Fresno deputy chief of police, Keith Foster wore expensive suits and drove a black BMW 7 Series.

But prior to arrest, the father of six children, who had been divorced three times, had hit hard times, paying $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 from the Fresno Police Department, the divorce file showed.

Because Foster was accustomed to an expensive lifestyle, prosecutors contend Foster turned to trafficking drugs to pay bills.

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 the 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 the 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.

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 took the pills to Flowers’ southwest Fresno home, spent a few minutes with him and left.

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, however, 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.

Foster testified the other 98 pills from his prescription were actually in his home but federal agents failed to find them. Foster told the jury he flushed the pills down the toilet because possession of them would have violated terms of his pretrial release.

But Alsworth said if Foster was telling the truth, he destroyed evidence. She also said Foster was getting 100 pills every months from the pharmacy, and testified he didn’t take them regularly, yet federal agents only found two in his car.

Fresno defense attorney E. Marshall Hodgkins
In this March 2015 photograph, Fresno defense attorney E. Marshall Hodgkins talks to the media outside the federal courthouse about the arrest of former deputy police chief Keith Foster after his arrest on drug trafficking charges. ERIC PAUL ZAMORA THE FRESNO BEE

In defending Foster, Hodgkins said the prosecution’s case was built on flimsy circumstantial evidence since no one witnessed Foster selling drugs.

He said Flowers had his own prescription for oxycodone and federal agents didn’t check for Foster’s fingerprints on the oxycodone pill bottle in Flowers’ home. Agents also conducted a test on the $1,300 in Foster’s car, but didn’t find Flowers’ fingerprints on the $100 bills. 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, Hodgkins 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 told the jury. Jensen testified that he loaned Foster $15,000 in November 2014 to help him pay bills from a messy divorce.

After his arrest, Foster blamed his family for “getting him into this.” But Rice told the jury that Foster “got himself into this” and tarnished his badge because law enforcement officials are suppose to fight crime, not profit from it.

In asking for a verdict of guilty, Rice said, “No one is above the law.”

Rory Appleton contributed. Pablo Lopez: 559-441-6434, @beecourts

Related stories from Fresno Bee