Saidi v. State

• Decision Date: 30 May 2003
• Docket Number: No. 5D02-2029.,5D02-2029.
• Parties: Ahmad SAIDI, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

845 So.2d 1022

Ahmad SAIDI, Appellant, v. STATE of Florida, Appellee.

No. 5D02-2029.

District Court of Appeal of Florida, Fifth District.

May 30, 2003.

James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, J.

Ahmad Saidi appeals his conviction of sending written threats of death or bodily injury in violation of section 836.10, Florida Statutes (2001). The charge arose after Saidi sent various letters and papers to William Roy, the attorney representing Saidi's former wife in a contentious post-judgment family law proceeding, and to the Circuit Court of Seminole County, Florida. While conceding that he authored and sent the letters and papers, Saidi argues that section 836.10 is unconstitutional as it is vague, overbroad, and infringes on his First Amendment rights. He also claims that the trial court erred in its instructions to the jury and by improperly prohibiting him from filing any pro se pleadings or papers in the future, as a condition of his probation. We affirm.

In 1998, attorney William Roy began representing Saidi's former wife in the Saidis' post-judgment dissolution dispute. Saidi proceeded pro se after at least five, and perhaps as many as ten attorneys, had withdrawn as his counsel. Saidi filed numerous pro se motions, bankruptcies and appeals during the course of the litigation. According to Roy, Saidi was very angry with him and the legal system, and referred to the courthouse as "the house of Satan," and Roy as "the devil." Saidi apparently became convinced that his former wife, Roy and the judges of Seminole County were conspiring against him. As the case progressed, Saidi's frustration or anger with the legal system escalated, and increased security was required whenever Saidi appeared at the courthouse. Restraining orders were issued against Saidi for the protection of Roy, his wife, and Saidi's former wife. Shortly after a confrontation with Roy in May, 2001, at the Seminole County Courthouse, Saidi filed with the court, and faxed to Roy, a document entitled "Notice of Filing Warning and Threats to Kill and Motion Requesting Scheduling of an Urgent Hearing." That document included the following language:

3-SAIDI ... is giving this notice threatening to kill both of the Former Wife and her Counsel. In order for him to execute this killing[,] he is using his ONLY weapon that he has of his own and the weapon supplied to him by the contents of the pleadings that are filed by the Former Wife and ROY.

4-SAIDI is calling upon the Honorable Judge Debra Nelson to allow the parties using her Courtroom as battle ground for the fight to execute the killing. Judge Nelson however has ordered SAIDI not to file any more motions in this case before she hears anything from the Appellate Court. Therefore, SAIDI, respectfully, moves the Honorable Judge Nelson to allow another Judge to preside over this legal and yet lethal fight.

5-SAIDI is, further, appealing to Judge Nelson to allow scheduling an urgent hearing for three (3) hours for an evidentiary hearing to test the first weapon that SAIDI is using and hear his MOTION TO REOPEN THE HEARING, dated April 27, 2001[,] as stated above....

6-SAIDI calls upon Judge Nelson, this Court and the legal system to respond to the call of the duty and implement the legal system's rules, procedure and proper powers to secure justice and protect the interest of all parties, the Former Wife, the Former Husband, their children, all citizens of the state and safe guard [sic] the legal system. This Court has the obligations and has the jurisdiction and the power to halt ROY'S unethical and criminal actions. SAIDI and the society can not [sic] afford for ROY to continue to be a loose cannon equipped with the pretence [sic] that he is an officer of the court and he does what ever [sic] he please[s]. USING THE WEAPON OF THE TRUTH WILL SET EVERY ONE FREE. PLEASE LET U.S. PROVIDE A FREE FORUOM [SIC] FOR THE TRUTH TO SURFACE.

(emphasis in original).

About the same time, Saidi sent Roy a letter that said:

Mr. Roy: You have succeeded in the past in prosecuting your unprofounded motion to show cause which led, temporary [sic], to strike my pre-judgment pleadings, because you were in a dark arena alone and Judge Nelson was ready, willing and able to stamp your proposed self-serving orders to execute a conspiracy plan that was spoon fed to her by Judge Eaton and you were the mover behind this action. At this time, things have changed, the arena is very well-lighted, Judge Eaton is gone and he will be prosecuted, Judge Nelson will be next and now you are in the frying pan.

As the most cheap shot, and the last attempt of desperation for your dying future as a counsel, you and you[r] client have brought my children into the ring. Your client knows how I tried so hard to keep the children out of this saga. You know what? I think you both have done me a favor and brought the weapon that will kill both of you. This time, I am still equipped with the truth and in order of reminding you of my deep conviction of the same; I am, enclosing with this letter the third page of my letter to you on February 23, 2001 to make you more familiar with my weapon. Please you and you[r] client, stay away from children and their LAKE SHEPHERD asset as your own. Back off? Otherwise you will be kicked in your behinds in your attempts to deprive my children of their secured future to live the American way that is provided to them by an Easterner, a Palestinian who cherishes his children as the most precious thing in life. Please consult the literature to know about this fact.

Mr. Roy: ... This is a racketeering income by a foxy and unethical individual. It is a curse for him to be called, an attorney, a counsel and I was fool when addressed him as a judge.

Since the case is [sic] no longer deal with divorce and did not consider the merits of the issues and its fought solely on deception, perjury, misrepresentation of the facts, changing the official and public records by a bias and misled Judge, over maneuvered by a crook advocate, I will gather all of the forces of good around me to stand beside me to fight the evil in you and your innocent client, I do mean she was the most innocent, decent, and just good person that I knew! Unfortunately[,] she has changed. You both do not forget that the most lethal weapon of them all is the TRTUTH [sic].

Roy testified that receiving these papers, in light of his prior difficult relationship with Saidi, caused him great alarm.

At trial, Saidi testified that although he had lived in the United States for thirty-nine years, English was not his native language and that in Palestine, his native land, the word "kill" was synonymous with "defeat." He testified that he never intended to harm Roy or his former wife, and only intended to "defeat" the trial court's order distributing the Saidis' marital assets. The jury found Saidi guilty as charged, and he was placed on probation, a special condition of which prohibited him from pro se representation in any civil or family law action.

While Saidi acknowledges that the Second District Court of Appeal concluded in Smith v. State, 532 So.2d 50 (Fla. 2d DCA 1988), that section 836.10, Florida Statutes, is constitutional, he argues that the court failed to consider that the statute lacks a specific intent element. Saidi contends that because the statute does not require the specific intent to cause harm, innocent written speech can be criminalized. He also argues that the State should have been required to prove that he had the ability to carry out the threat.

At the outset, we note our agreement with Smith, and conclude that section 836.10 is not vague. We also disagree with Saidi's contention that section 836.10 is constitutionally infirm because it is overbroad. Section 836.10 prohibits sending a written communication threatening to kill or injure the recipient, or any member of his/her family. Smith. Threats to kill or do bodily harm are not constitutionally protected and are legislatively proscribable. United States v. Hutson, 843 F.2d 1232 (9th Cir.1988); United States v. Quinn, 514 F.2d 1250, 1268 (5th Cir.1975). Because threats to injure or kill are not constitutionally protected, Saidi's First Amendment rights are not compromised by laws prohibiting such threats. See Reilly v. State, Dep't of Corrs., 847 F.Supp. 951, 958 (M.D.Fla.1994); see also State v. Brown, 50 Wash.App. 405, 748 P.2d 276 (1988) (threat to cause bodily injury or physical damage to the property of another is not protected speech); see also United States v. Viefhaus, 168 F.3d 392, 396 (10th Cir.1999) ("The fact that a specific threat accompanies pure political speech does not shield a defendant from culpability."); United States v. Bellrichard, 994 F.2d 1318, 1322 (8th Cir.1993) ("[A] person may not escape prosecution for uttering threatening language merely by combining the threatening language with issues of public concern.").¹ Next, Saidi asserts that the trial court gave jury instructions that were confusing and misleading. Specifically, Saidi argues that the jury was misled as to the State's burden of proof because the trial court refused to instruct the jury that it must find the specific intent to cause harm as a necessary element of the charged offense.

While conceding that the issue was not raised at trial, Saidi argues that a jury instruction that is confusing or misleading regarding an element of the crime charged is reviewable as fundamental error. See Hubbard v. State, 751 So.2d 771, 772 (Fla. 5th DCA 2000) (holding that the issuance of "`an incomplete and inaccurate instruction on the law is fundamental error where the error relates to the elements of the criminal offense'") (quoting Ward v. State, 655 So.2d 1290, 1292 (Fla. 5th...