A Modesto man who is suspected of making racist threats -- including a promise to burn a cross on a black man's lawn -- may opt against testifying in his own defense when his case comes to trial in Fresno's federal court next week.
But the voluntary testimony Bradley Smith gave to a grand jury last year is fair game, a U.S. District Court judge said Friday, and a transcript of that testimony recently became part of the public record when Smith's public defender argued that it should be suppressed.
During more than one hour of grand jury testimony, Smith, who is white, acknowledged an antagonistic relationship with Alfred Henderson, adding that he sometimes adopted the aggressive persona of "Obie Won" when he talked on his citizens band radio.
He denied making any specific threats against Henderson, suggesting that other radio enthusiasts used the N-word when Henderson came on the air, with some threatening to throw a Molotov cocktail at Henderson's home.
And he insisted that a war of words, which escalated when Smith brought six friends to Henderson's home Oct. 28, 2005, after an angry exchange over the airwaves, has been taken out of context.
"It's a two-way road," Smith said, insisting that Henderson gave as good as he got. "And, you know, I seriously believe that he's playing that race card, and he's playing it good."
At the close of the hearing, one grand juror chastised Smith for letting his admitted "radio addiction" get out of hand. The panel said Smith should be held for trial on two felonies, interfering with Henderson's housing rights and making a false statement to an investigator.
Free on a $50,000 bond
Smith, 25, is free on $50,000 bond and goes to trial May 12. He is accused of engaging in acts aimed at driving Henderson and his wife, Ramona, from their home on Estep Drive from June 1, 2005, to May 24, 2007.
The Hendersons, who moved from Modesto to Keyes after Smith was arrested in August, have said Smith repeatedly hurled racial slurs at Alfred Henderson and threatened to sexually assault Ramona Hen-derson. They could not be reached for this story.
Smith told the grand jury Alfred Henderson egged him on by calling him white trash and joking that Smith's pregnant girlfriend would give birth to a black child. He could not be reached for comment for this story.
Recordings of their radio chatter are expected to play a role in the trial.
The Stanislaus County district attorney's office declined to prosecute after the Modesto police arrested Smith on suspicion of a hate crime in 2005. An FBI agent pursued the matter, prompting the U.S. attorney's office to file charges in August.
Smith faces as many as 15 years in prison if convicted of both charges, but likely would be sentenced to far less. Few offenders receive the maximum punishment. A Lassen County man who burned a cross on a church lawn as a warning to a black priest last year was sentenced to two years in prison.
During his grand jury testi-mony, Smith admitted moving into a home a block from the Hendersons because he wanted to drown out Alfred Henderson with his radio equipment, but he insisted that he was not trying to run the Hendersons out of town.
Smith did not make good on any alleged threat to burn a cross on Henderson's lawn, a fact he stressed to the grand jury.
"Did anything happen that night?" Smith said, referring to the night he brought his buddies to the Henderson home. "It did not."
"Was there any crosses in the back of my truck?" Smith said. "No, there was not."
Smith was evicted from a rental home on Peach Drive after neighbors complained that his voice could be heard in their homes at all hours. His high- powered equipment interfered with wireless electronic equipment as far as two blocks away.
Jury will hear about conviction
As the trial approaches, attorneys are sparring over the scope of the evidence they may present to the jury.
The prosecutor will tell the jury about several things the defense would like to exclude, including Smith's 2003 conviction for grand theft and racist comments Smith made in 2005, when Smith shouted "Get out of here, n-----" at a black man, then lied about the incident to police.
Smith acknowledged the incident and his lie to police during an unrelated court proceeding in Modesto in 2006, according to court records.
The defense attorney argued that Smith's testimony before the grand jury should be suppressed, saying Smith was not properly advised about his right to an attorney.
Assistant U.S. Attorney David Gappa declined to comment and Assistant Federal Defender Marc C. Ament could not be reached for comment.
Judge Lawrence J. O'Neill said Smith had no right to an attorney because he was not charged with a crime until the grand jury handed up the indictment months later. So Smith's prior testimony is admissible, whether or not Smith takes the witness stand at trial.
Wanted panel to hear his side
According to a transcript of the grand jury hearing, Smith addressed the panel because he heard several witnesses talking on their CB radios about subpoenas they received. Smith said he wanted to make sure the panel heard his side of the story.
Smith answered most of the prosecutors' questions, but invoked his Fifth Amendment right against self-incrimination twice, declining to answers questions about the Klu Klux Klan and his alleged desire to see Henderson hanging from a tree.
As the hearing drew to a close, one grand juror asked Smith why he didn't end his troubles by getting off the radio and concentrating on things that are really important in life. Smith said he couldn't help himself, adding he was no longer on the air.
"CB radio is an addiction," Smith said. "That was my addiction."
"So kick it," the grand juror replied.
Bee staff writer Susan Herendeen can be reached at firstname.lastname@example.org or 578-2338.