Keith Foster lacks remorse and has not accepted responsibility for conspiring to peddle heroin and marijuana while employed as deputy chief of the Fresno Police Department, a judge said Monday in U.S. District Court.
Foster, 53, also committed perjury on the witness stand during his trial in May, Judge Anthony Ishii said.
In addition, Ishii ruled that Foster obstructed justice and violated his position of trust.
Yet, the judge sentenced Foster to 48 months in prison, when the prosecution sought a sentence of 78 months.
God is good. Justice will prevail.
Convicted drug dealer Keith Foster
In announcing the punishment, Ishii said there’s a perception in society that “people with money or in high positions get a break.” But the judge said he had balance Foster’s positive contributions to the community, which include nearly 30 year of police work.
Ishii also noted Foster’s strong family ties and his lack of a criminal record before his conviction.
Foster stood quietly next to his attorney, Michael McKneely, when his sentence was announced. He has to surrender to federal authorities by Jan. 13. Outside court, Foster, surrounded by family and friends, appeared more upbeat, vowing to appeal his conviction and sentence.
“God is good,” he said. “Justice will prevail.”
The 48-month sentence is similar to the punishment offered in a plea deal that Foster rejected prior to going to trial.
On May 23, a U.S. District Court jury found Foster guilty of conspiring to distribute heroin and marijuana. The jury was unable to reach a verdict on six other charges, including distribution of oxycodone.
The verdict put a dark cloud on the Fresno Police Department, where Foster rose through the ranks to become Chief Jerry Dyer’s likely successor, and put a damper on Foster’s image as a role model to the city’s west side community.
On Monday, Dyer acknowledged the impact on his department: “This has been a very painful chapter in the history of the Fresno Police Department, and for me personally. It is my hope that we are able to put this behind us, learn from it, and never to be repeated again.”
In court on Monday, Foster told the judge that humans make mistakes and jurors in his case made a mistake. He also said his conduct did not rise to the level of criminal misconduct.
McKneely sought a sentence of five months in prison and five more months in a halfway house or home detention for Foster. Ishii, however, said that sentence would not be appropriate, ruling that Foster played “a significant role” in three conspiracies to sell heroin, marijuana and oxycodone.
This has been a very painful chapter in the history of the Fresno Police Department.
Chief Jerry Dyer
Wiretaps and surveillance
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 using street slang to talk about buying drugs.
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.
A key issue in the trial was whether Foster was acting undercover or “deep undercover,” since Dyer and other high-ranking police officials were unaware of his conversations on the wiretaps.
During his trial, Foster testified he was not working undercover, but merely collecting information about drug trafficking for narcotic officers and trying to encourage Denny Foster and Guzman to become police informants.
In court Monday, McKneely said there was no evidence to show Foster was conspiring with others to sell heroin or marijuana since authorities found neither drug in his possession or at his home when Foster was arrested in March 2015. He also argued that just because Foster talked to people involved in illegal conduct doesn’t make him a conspirator.
Prosecutors Melanie Alsworth and Duce Rice, however, said there was overwhelming evidence to convict Foster.
Foster will keep his $93,000 annual pension despite being a convicted felon
During the trial, the prosecution 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.
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.
Managing undercover operations
In defending Foster, trial lawyer E. Marshall Hodgkins said Foster was knowledgeable about drug trafficking because as a narcotics officer he had conducted about 600 undercover operations in which he sold the drugs directly to a dealer. Foster also supervised another 400 undercover drug operations, Hodgkins said.
But on the witness stand, Foster testified that he was neither undercover nor “deep undercover.”
Ishii ruled on Monday that Foster violated his position of trust, obstructed justice and lied on the witness stand on several occasions. The judge pointed out a wiretap on Jan. 4, 2015, in which Keith Foster curses into his cell phone when he finds out that Denny Foster was arrested by the California Highway Patrol on Highway 99 in Merced with six pounds of marijuana in the trunk of his car.
In the telephone call, Keith Foster tells a woman who was with Denny Foster that he “could have provided cover” for Denny Foster if he had known about the trip ahead of time. “OK, let me call some of my narc guys and see what they can do,” Foster says.
Foster called the Fresno police narcotics unit to investigate Denny Foster’s arrest, which Ishii ruled was not a legitimate law enforcement purpose.
In another example of corruption, Foster testified that a subordinate gave him a loan to help him pay his debts. But Ishii said when law enforcement arrested Foster he only had cash in $100 bills in his car and in his safe at home, the profits from drug dealing.
Under federal rules, Foster will do 85 percent of his four-year prison sentence.
In addition, when federal agents asked him about 98 missing oxycodone pills, Foster testified that he flushed the pills down the toilet. Ishii said he found Foster’s testimony unbelievable because “as a trained law enforcement officer, you never get rid of evidence.”
Ishii also didn’t believe Foster was collecting information for narcotics officers or trying to encourage Guzman and Denny Foster to become informants. In his ruling, Ishii said Foster “gave false testimony that was material to the heart of the charges” and that it was with “willful intent.”
Foster will keep his $93,000 annual pension despite being a convicted felon. State law requires public employees who commit a felony related to their official duties have their pension reduced. But Fresno is not bound by the law because the city has its own retirement system and is a charter city, and never took action to put its rules in line with the state law.
Under federal rules, Foster will serve only 85 percent percent of his four-year prison sentence. He will then be on three years of supervised probation, Ishii said. During probation, he have to register as a drug dealer and will be unable to have a cell phone unless he has permission from his probation officer, Ishii said. He will also have to do community service each week until he gets a job.
To accommodate family visits, Ishii said he will recommend that Foster be housed in a prison in Dublin or Lompoc.