NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v.

KEITH FOSTER, 

Defendant-Appellant.

No. 17-10496

D.C. No. 

1:15-cr-00104-AWI-SKO-1

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted June 10, 2019

San Francisco, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and RAYES,**

 District

Judge.

Defendant Keith Foster, a former Deputy Police Chief from the Fresno

Police Department, appeals his jury convictions for conspiring to possess with

intent to distribute marijuana and heroin in violation of 21 U.S.C. §§ 841(a)(1) and

846. He contends that the evidence was insufficient, that his counsel was

FILED

JUN 20 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
ineffective, that the jury should have been instructed on a buyer-seller relationship,

and that the court erred in denying his request to unseal juror information. For the

reasons below, we affirm.

There is sufficient evidence to support both convictions. Foster’s phone

calls and text messages with coconspirators Rafael Guzman and Lashon Jones

sufficiently demonstrated Foster’s role in the conspiracy to distribute heroin. Jones

relayed heroin orders from buyers to Foster and assured Foster that the deals would

benefit both of them. Foster discussed heroin types, prices, and meeting times with

a supplier, Guzman, and relayed those details back to Jones. On an agreed-upon

date, Foster attempted to meet Guzman to obtain the drugs, but the deal fell

through when Jones did not answer her phone. 

Foster’s phone calls with his nephew Denny sufficiently established Foster’s

role in a conspiracy to distribute marijuana. Denny and Foster discussed marijuana

quantities, meeting times, and prices, and Foster repeatedly pressed Denny for

money for Foster’s “boy.” After later learning that Denny had been arrested with

six pounds of marijuana in his car, Foster expressed frustration that Denny had not

asked for “cover,” and Foster said that he would see what his “narc guys” could do

for Denny. 

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Although counsel arguably performed deficiently by not moving for

acquittal after the government’s case in chief, Foster’s ineffective assistance of

counsel claim fails because there was no prejudice. The evidence was sufficient to

support both convictions, so a motion for acquittal would have been denied. See

United States v. Feldman, 853 F.2d 648, 665–66 (9th Cir. 1988) (failure to move

for acquittal cannot be the basis for a finding of ineffective assistance if the crimes

of conviction are supported by sufficient evidence). Counsel’s decision not to

request a buyer-seller instruction appears to be the product of strategy, not

incompetence. See Strickland v. Washington, 466 U.S. 668, 689–90 (1984). The

theory of the defense was that Foster was investigating the activities of others in

his capacity as deputy police chief. A buyer-seller instruction would have clashed

with this defense. For similar reasons, the district court did not err in failing to sua

sponte instruct the jury on a buyer-seller relationship. United States v.

Montgomery, 150 F.3d 983, 996 (9th Cir. 1998).

Finally, the district court did not err in denying Foster’s motion to unseal

juror information. Although Foster may have suspected that jurors had read

prejudicial news articles, the record contains no basis for that supposition. 

Speculation alone cannot overcome the presumption of juror impartiality. See

United States v. Clardy, 540 F.2d 439, 447 (9th Cir. 1976) (finding similar request

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frivolous where defendant had not shown “that any of the jurors had seen such

material”).

AFFIRMED.

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