"The Romanian Mumble"

Should Alex Michaels be held in criminal contempt for mumbling in Romanian, "futos gutos monte"?  The Third DCA in a 2-1 says yes per Judge Shepherd (with a powerful dissent by Judge Lagoa).  Here's the majority:

The Romanian Mumble

Mr. Michaels’ use of foul language, however, is another matter. On this
charge, Mr. Michaels admitted that while extending his hand toward Mr. Von
Zamft, he mumbled the words “futos gutos monte” at him. Tr. 97. The trial court
immediately knew or gleaned from Mr. Michaels’ scornfulness that the words
meant “F**k You.” Mr. Michaels confirmed the trial judge’s interpretation of the
words during colloquy at the contempt hearing held a few hours later:

THE COURT: You stated that you mumbled Romanian, what do
those words mean?
[Mr. Michaels]: I’m not going to say at this point. They are
obscene words. They are obscene words in Romanian. Again, if

that is somehow contemptuous, then I apologize to everybody [who]
could be insulted by words they do not understand.
I’m going to try in the future to stop even doing that, but I do
speak Romanian. I [have] been in trouble before. I learned it in order
not to offend anybody.
It happened before. Sometimes they realize they don’t
understand the words. They smile, they laugh, they say don’t do it
again.

Tr. 99-100. We are well aware this has happened before and we are not laughing.
Mr. Michaels also has proven “don’t do it again” means nothing to him.2 Neither
do prior sanction opinions from this court, nor prior discipline from the Florida
Bar. See Michaels v. State, 773 So. 2d 1230 (Fla. 3d DCA 2000 ) (affirming a
judgment of direct criminal contempt and a sentence of six months of probation for
violating an order to refrain from making speaking objections); Quinones v. State,
766 So. 2d 1165, 1167 (Fla. 3d DCA 2000) (reporting Mr. Michaels to the Florida
Bar for “unprecedented levels of attorney misconduct”).3
Mr. Michaels somehow is under the impression that cursing in his native
tongue is somehow less contemptuous than cursing in English. However, we defer
to the trial court’s finding, “I know what I saw.” Pursuant to Florida Rule of
Criminal Procedure 3.830, the trial court’s reliance on her sight—coupled with
record support from Mr. Michaels’ own mouth—is sufficient to uphold the finding
of contempt based on “the mumble.” Viewing, as the trial court here did, the
words mumbled in the context in which they were made, see Martinez v. State, 339
So. 2d 1133, 1135 (Fla. 2d DCA 1976), we conclude the trial court correctly
deemed them contemptuous.

Here's the dissent by Judge Lagoa:

 Applying the requisite objective standard, the record does not support a
finding that an isolated, inaudible utterance in Romanian that was not directed at
the trial court is sufficient to sustain a finding of direct criminal contempt. While
Michaels admits that he mouthed an obscenity in Romanian under his breath
during the hearing, it is undisputed that every witness testified that they did not
hear Michaels’s utterance. Moreover, the isolated utterance was done after
opposing counsel had interrupted Michaels’s questioning, walked up to the
podium, shook his fist at Michaels, and threatened to move to have Michaels
involuntarily committed under the “Baker Act.”

Additionally, there is nothing in the record to indicate that the utterance
was directed at the trial court, nor is there anything in the record to establish
how the trial court translated Michaels’s mumbled utterance from Romanian
to the English obscenity quoted in its orders. Indeed, the trial court’s two orders
make it clear that the trial court is not even sure whether Michaels muttered “F**k
you” or whether he said something in Romanian. The trial court’s uncertainty
confirms the failure to satisfy the “beyond a reasonable doubt standard” required
for finding an individual in direct criminal contempt. Because the power of
contempt must be exercised rarely and cautiously, “[t]he provocation must never
be slight, doubtful or of shifting interpretations. The occasion should be real and
necessary, not murky, and not ameliorated in some less formal manner.” McRoy,
31 So. 3d at 275; Davila, 100 So. 3d at 264.

The trial court’s order also warrants reversal as the record lacks the
necessary intent required to sustain a finding of direct criminal contempt.
“Criminal contempt requires some willful act or omission calculated to hinder the
orderly functions of the court.” Davila, 100 So. 3d at 264 (emphasis added). See
also Woods v. State, 987 So. 2d 669, 677 (Fla. 2d DCA 2007) (“[A]n intent
beyond mere rudeness was required before the court could adjudicate Mr. Woods
guilty of direct criminal contempt. The trial court had to establish that Mr. Woods'
statement, coupled with his actions, were intended to constitute an imminent threat

to the administration of justice.”); Woodie, 960 So. 2d at 878-79 (“Criminal
contempt requires some willful act or omission calculated to hinder the orderly
functions of the court.”). See generally Ex parte Earman, 95 So. at 762-63 (direct
criminal contempt cannot be sustained where record did not establish intent to
embarrass the court in the administration of justice).
Significantly, nothing in the record establishes beyond a reasonable doubt
that Michaels intended to disrupt or hinder the court proceeding by his inaudible
utterance in Romanian. There is no evidence that Michaels’s isolated utterance
was “calculated to cause harm” – a prerequisite for a finding that the conduct
charged is contemptuous; and the record is also devoid of any evidence of willful
or deliberate intent to disrupt. In fact, the record evidence is to the contrary.
Under oath, Michaels testified that he mouthed a profanity in Romanian, and not in
English, because he did not want to interrupt the proceedings or be offensive.
Moreover, Michaels was reacting to Von Zamft’s threat to Baker Act him, and
Von Zamft’s physical behavior that required his fellow assistant state attorney to
physically restrain him, not any statement or ruling by the trial court. See, e.g.,
Davila, 100 So. 3d at 264 (during contempt hearing, defendant explained that he
was frustrated by the system and his situation so that his statement “F*** the

court” was not calculated “to hinder the functions of the court, but merely spoke[n]
out of understandable frustration”); Woods, 987 So. 2d at 678 (defendant’s

expletive “is somewhat understandable given that he was charged with being a
felon in possession of a firearm though he had never been convicted of a felony”).
See also Ex parte Earman, 95 So. at 762 (unrebutted testimony under oath
established lack of intent and therefore could not sustain adjudication of direct
criminal contempt).

***

Here, the requisite proof required for direct criminal contempt is sorely
lacking. Because the record fails to support a finding of direct criminal contempt
on both charged offenses, I would grant the petition for writ of habeas corpus, and
remand with directions to the trial court to vacate the judgment and sentence for
direct criminal contempt.