United States of America v. Schwarzbaum

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 18-CV-81147-BB

UNITED STATES OF AMERICA,

Plaintiff,

vs.

ISAC SCHWARZBAUM,

Defendant.

_______________________________________/

REPORT AND RECOMMENDATION ON MOTION TO SET ASIDE
JUDGMENT [ECF No. 241]

Isac Schwarzbaum moves to set aside a final judgment holding him liable for
approximately $19 million in federal tax penalties and interest. He also moves to
dismiss the case with prejudice. ECF No. 241. He says he is entitled to this relief
because he was entitled to — and did not receive — a jury trial before the IRS
finalized its penalty assessments. ECF No. 241.
Judge Bloom referred Mr. Schwarzbaum’s motion to me for a Report and
Recommendation. ECF No. 244. I have reviewed the motion, the Government’s
response, and Mr. Schwarzbaum’s Reply. ECF Nos. 241, 247, 248. At the parties’
request, I held oral argument on March 4, 2026. ECF No. 259. I am fully advised and
this matter is ripe for decision.
It therefore is RECOMMENDED that Mr. Schwarzbaum’s motion be DENIED.
The final judgment is not void under Federal Rule of Civil Procedure 60(b)(4) because
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the Due Process Clause of the Fifth Amendment does not guarantee a right to a jury
trial. Mr. Schwarzbaum has not shown extraordinary circumstances that warrant
discretionary equitable relief under Federal Rule of Civil Procedure 60(b)(6). There
has been no change in controlling law, Mr. Schwarzbaum has unclean hands, and he
has not otherwise shown that vacatur is necessary to accomplish justice.
I. BACKGROUND AND PROCEDURAL HISTORY
Between 2006 and 2009, Mr. Schwarzbaum failed to tell the IRS he had money
in foreign bank accounts — a so-called FBAR violation. He filed amended tax returns
in December 2011 that voluntarily disclosed that the foreign accounts existed. ECF
No. 1 ¶¶18(c), 19(c), 20(c), 21(c). The IRS began administrative proceedings to assess
statutory penalties for the FBAR violations (“FBAR penalties”). Mr. Schwarzbaum
and the Government had discussions, which included Mr. Schwarzbaum agreeing to
extend the statutes of limitations several times. Id. ¶¶27, 36, 45, 54. Eventually, the
Government made final assessments. Id. ¶¶28, 37, 46, 55. The IRS notified Mr.
Schwarzbaum of the assessment and demanded payment. Id. ¶¶29, 38, 47, 56. There
is no evidence in the record that Mr. Schwarzbaum objected to the assessments based
on a right to a jury trial.
Mr. Schwarzbaum did not pay the assessed penalties, so the Government filed
a four-count Complaint in August 2018 to reduce the assessments to judgment. ECF
No. 1. On October 9, 2018, Mr. Schwarzbaum answered the Complaint. ECF No. 8.
He admitted not timely disclosing the foreign bank accounts. Compare ECF No. 1
¶21, with ECF No. 8 ¶21. He asserted multiple affirmative defenses, including (1) the
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Complaint failed to state a claim upon which relief could be granted because his
conduct was not willful, (2) the IRS did not follow its own internal procedures and
guidelines in assessing the penalties, and (3) the assessments violated the Eighth
Amendment prohibition on excessive fines. ECF No. 8 ¶¶58-60. He “expressly
reserve[d] the right to amend and/or raise additional affirmative defenses as they
become available or apparent.” Id. ¶64. He did not demand a jury trial on the
allegations in the Complaint. Id. He did not assert any defenses based on being denied
a jury trial during the assessment process. Id.
In March 2020, after a five-day non-jury trial, the Court found that
Mr. Schwarzbaum’s failure to disclose his foreign bank accounts on his 2006 tax
returns was not willful, but that his non-disclosures for tax years 2007-2009 were
willful. ECF No. 92. The Court found that the IRS had not properly calculated the
FBAR penalties. Id. at 25. The Court deferred ruling on Mr. Schwarzbaum’s
argument that the assessed FBAR penalties violated the Eighth Amendment. Id. at
25-26. The Court directed the parties to submit supplemental briefs on the proper
amount of FBAR penalties. Id. at 26.
On April 24, 2020, Mr. Schwarzbaum filed a supplemental brief arguing that
the assessed FBAR penalties should be set aside because the IRS had used the wrong
account balances to compute the penalties. ECF No. 94 at 11. He said the correct
remedy was to remand the case to the IRS for new calculations which “require factual
development and case-specific analysis.” Id. at 13. He then argued that any new
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assessments would be time-barred. Id. at 13-16. He did not argue that he would be
entitled to a jury trial on remand.
The trial court did not remand the case to the IRS. Instead, it entered an Order
Assessing Penalties that recalculated the FBAR penalties based on the trial evidence.
ECF No. 98. Having done so, it then rejected Mr. Schwarzbaum’s Eighth Amendment
argument. Id. at 10-16. On May 19, 2020, the Court entered a final judgment for
$12,907,952 plus interest and penalties. ECF No. 99.
On June 3, 2020, Mr. Schwarzbaum filed a timely Notice of Appeal from the
final judgment. ECF No. 100. While that appeal was pending, the Government moved
to alter the judgment to reflect FBAR penalties of $12,555,813 plus late-payment
penalties and prejudgment interest. ECF No. 102. Mr. Schwarzbaum opposed the
motion to alter the judgment on multiple grounds. ECF No. 103. None of those
arguments related to him being denied a jury trial during the IRS assessment
process.
The Court granted the motion to alter judgment, ECF No. 104, and entered an
Amended Final Judgment on August 27, 2020. ECF No. 105 (“Amended Final
Judgment”). Mr. Schwarzbaum timely filed a Notice of Appeal. ECF No. 106. He did
not move to stay enforcement of the Amended Final Judgment.
On November 9, 2020, Mr. Schwarzbaum filed his initial brief in the Eleventh
Circuit. Initial Br. of Appellant, United States v. Schwarzbaum, 24 F.4th 1355 (11th
Cir. 2022) (No. 20-12061) (“Schwarzbaum I”), 2020 WL 6591234. The brief made three
substantive arguments. First, that the trial court should have remanded the case to
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the IRS for new assessments rather than the trial court calculating the FBAR
penalties itself. Id. at 21-31. Second, the trial court applied the wrong legal standard
for willfulness. Id. at 31-41. Third, the Amended Final Judgment amounts violated
the Eighth Amendment. Id. at 42-48. Mr. Schwarzbaum did not argue that the
Amended Final Judgment should be vacated because the penalties had been assessed
without a jury trial or that he would be entitled to a jury trial on remand.
While the appeal was pending, in June 2021, the Government moved for an
Order requiring Mr. Schwarzbaum to repatriate his assets. ECF No. 115. Over
Mr. Schwarzbaum’s objection, on November 5, 2021, the Court ordered him to
repatriate his assets to the United States. ECF No. 129 (“Repatriation Order”).
While the repatriation motion was pending, the Eleventh Circuit panel heard
oral argument on Mr. Schwarzbaum’s appeal. Oral Arg., United States v.
Schwarzbaum, No. 20-12061 (11th Cir. 2020), 11
th
Cir. ECF No. 57.
On December 1, 2021, Mr. Schwarzbaum moved to stay the Repatriation
Order. ECF No. 130. In support of the stay, he argued he was likely to succeed on the
merits of his appeal, citing multiple legal arguments that he had made on appeal;
none of these arguments related to having been denied a jury trial during the IRS
assessment process. On December 30, 2021, the trial court stayed the Repatriation
Order. ECF No. 133. Mr. Schwarzbaum had not repatriated any assets during the
two-month period between the November 5 Repatriation Order and the December 30
stay.
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On March 21, 2022, the Eleventh Circuit issued its mandate and opinion in
Schwarbaum I. ECF No. 139. It vacated the Amended Final Judgment and remanded
the case to the IRS to re-assess the FBAR penalties. 24 F.4th at 1367 (“We VACATE
the district court’s amended judgment and REMAND with instructions to remand to
the IRS for recalculation of Schwarzbaum’s FBAR penalties.”). It affirmed the trial
court’s finding that Mr. Schwarzbaum acted willfully. Id. at 1363. It declined to reach
the Eighth Amendment issue. Id. at 1358 n.1.
In light of the appellate decision, the trial court vacated the Repatriation
Order. ECF No. 143. On May 16, 2022, over Mr. Schwarzbaum’s objections, the trial
court retained jurisdiction while the matter was on remand to the IRS. ECF No. 146.
The IRS Examinations Division recalculated the FBAR penalties. ECF No.
152-1. The IRS administratively approved the new assessments on
September 1, 2022. ECF No. 152-3. The record does not reflect whether Mr.
Schwarzbaum appealed the new assessments to the IRS Appeals Division. There is
no evidence in the record that he asked the IRS for a jury trial.
On September 15, 2022, the Government moved for entry of a second amended
judgment. ECF No. 152. Attached as exhibits to the motion were the IRS’s updated
calculations. On October 6, 2022, Mr. Schwarzbaum objected to the entry of a new
judgment. ECF No. 155. He said the IRS had improperly estimated some of the FBAR
penalties despite not having the necessary bank records. Id. He also argued the new
assessments were time-barred. Id. And, he argued that prejudgment interest could
not have accrued. Id. He did not argue that the assessments were invalid because
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they had not been proven to a jury. The trial court overruled his objections and on
November 1, 2022, entered a Final Judgment After Remand. ECF No. 162.
Mr. Schwarzbaum again appealed. ECF No. 164. He filed his initial brief on
February 10, 2023. Initial Br. of Appellant, United States v. Schwarzbaum, 127 F.
4th 259 (11th Cir. 2025) (No. 22-14058) (“Schwarzbaum II”), 11
th
Cir. ECF No. 12. He
argued (1) the judgment violated the FBAR statute, (2) the statute of limitations
barred the new assessments, (3) the trial court erred by retaining jurisdiction, and
(4) the penalties violated the Eighth Amendment. He did not raise any Seventh
Amendment argument or otherwise claim to have been denied a right to a jury trial.
On January 6, 2023, the Government renewed its request for an order
requiring Mr. Schwarzbaum to repatriate his assets. ECF No. 169. Mr. Schwarzbaum
opposed the motion on multiple grounds, but he did not argue that the Amended
Judgment After Remand was unenforceable because he had been denied a jury trial.
ECF No. 170. On March 29, 2023, the Court ordered Mr. Schwarzbaum to repatriate
his assets. ECF No. 176 (“Second Repatriation Order”).
Mr. Schwarzbaum timely appealed from the Second Repatriation Order. ECF
No. 181. On April 27, 2023, Mr. Schwarzbaum moved to stay that order while he
appealed it. ECF No. 178. He again argued a likelihood of success on appeal, citing
the arguments in his appellate brief. Id. He did not argue that he had been improperly
denied a jury trial. On June 8, 2023, the trial court declined to stay the Second
Repatriation Order. ECF No. 186.
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On September 29, 2023, the Government moved for an Order to Show Cause
why Mr. Schwarzbaum should not be held in civil contempt for not complying with
the Second Repatriation Order. ECF No. 189. Mr. Schwarzbaum responded on
October 13, 2023. ECF No. 191. He argued that the Government had not satisfied a
procedural prerequisite to enforcing the Second Repatriation Order. Id. He also
argued that he was physically unable to attend a court hearing in the United States.
Id. He did not argue that the judgment was unenforceable because he had been
denied a jury trial.
On November 7, 2023, I recommended to the trial court that Mr. Schwarzbaum
be held in civil contempt and that she conduct an in-person hearing to determine the
proper sanction. ECF No. 196. Neither party objected to that recommendation.
ECF Nos. 197, 198. On December 6, 2023, Mr. Schwarzbaum voluntarily dismissed
his appeal of the Second Repatriation Order. ECF No. 200. The next day, the trial
court adopted my recommendation, found Mr. Schwarzbaum to be in civil contempt,
and set a hearing on March 1, 2024, to determine the proper sanction. ECF No. 199.
On February 27, 2024, the trial court cancelled the contempt hearing and held further
contempt litigation in abeyance until the Eleventh Circuit ruled on
Mr. Schwarzbaum’s merits appeal. ECF No. 204.
On March 17, 2025, the Eleventh Circuit issued its mandate and opinion in
Schwarzbaum II. ECF No. 206. It rejected all of Mr. Schwarzbaum’s arguments
except for the Eighth Amendment challenge. It noted, “The question of whether
FBAR penalties are ‘fines’ falling within the meaning of the Eighth Amendment’s
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Excessive Fines Clause is a matter of first impression in this Court.” Schwarzbaum
II, 127 F. 4th at 268. It also noted that one other Court of Appeals — the First Circuit
— had ruled on this issue in a 2022 decision, and had declined to apply the Eighth
Amendment. Id. at 274 (citing United States v. Toth, 33 F.4th 1 (1st Cir. 2022)). Based
on its finding that the Eighth Amendment applied to Mr. Schwarzbaum, the Eleventh
Circuit reduced the penalties by $300,000 and remanded for entry of a final judgment.
The decretal language was “We therefore AFFIRM in part and REVERSE in part,
and REMAND with instructions to enter a judgment in the amount of $12,255,813,
and to calculate the amount of late fees and interest. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.” ECF No. 206 at 58.
On April 9, 2025, the trial court entered the currently-operative final judgment
for $19,591,504.69. ECF No. 210 (“April 2025 Final Judgment”).
After that the trial court entered judgment, the Government asked the Court
to hold the contempt hearing that had been deferred pending the appellate decision.
ECF No. 212. The trial court referred that matter to me. ECF No. 213. On June 18,
2025, I set an in-person hearing to be held on August 28, 2025. ECF No. 218. At this
point, Mr. Schwarzbaum was representing himself pro se. ECF No. 222.
Mr. Schwarzbaum failed to appear on August 28. ECF No. 224. I therefore
recommended to the trial court that a bench warrant be issued as a civil contempt
sanction, ECF No. 227, and that Mr. Schwarzbaum be referred to the United States
Attorney’s Office for possible prosecution for criminal contempt. ECF No. 228.
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Mr. Schwarzbaum is now again represented by counsel. ECF Nos. 232, 233. On
December 24, 2025, new counsel filed the pending Motion to Set Aside Judgment and
Dismiss Case. ECF No. 241. They also filed objections to both contempt
recommendations. ECF Nos. 257, 258. The trial court has not yet ruled on those
objections. To this day, Mr. Schwarzbaum has not repatriated any of his assets.
II. RULE 60(b)
Rule 60(b) allows the Court, in extremely limited circumstances, to set aside a
final judgment “[o]n motion and just terms.” Rules 60(b)(1)-(5) list specific reasons
why a Court can set aside a final judgment. One of those reasons is that the judgment
is void. Fed. R. Civ. P. 60(b)(4). Another is Rule 60(b)(6)’s catch-all provision that
allows the Court to set aside a final judgment for “any other reason that justifies
relief.” A&F Bahamas, LLC v. World Venture Grp., Inc., No. 15-60019-CIV, 2019 WL
1979427, at *2 (S.D. Fla. May 3, 2019) (quoting Fed. R. Civ. P. 60(b)). The party
seeking to set aside the judgment bears the burden of proof. See Horton v. Hand, 785
F. App'x 704, 706 (11th Cir. 2019); Foley v. Orange Cnty., No. 24-14143, 2025 WL
3022821, at *2 (11th Cir. Oct. 29, 2025). Whether to grant relief under Rule 60 is “a
matter for the district court’s sound discretion.” Cano v. Baker, 435 F.3d 1337, 1342
(11th Cir. 2006).
Procedurally, a Rule 60(b) motion must be made within a “reasonable time.”
Fed. R. Civ. P. 60(c)(1); Coney Island Auto Parts Unlimited, Inc. v. Burton Tr. for
Vista-Pro Auto., LLC, No. 24-808, 2026 WL 135998, at *4 (U.S. Jan. 20, 2026). “[A]
determination of what constitutes a reasonable time depends on the facts in any given
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case, and in making the determination, courts should consider whether the movant
had a good reason for the delay in filing and whether the non-movant would be
prejudiced by the delay.” Kerruish v. Essex Holdings, Inc., 839 F. App'x 428, 432 (11th
Cir. 2021) (citations omitted). “This is a fact-intensive inquiry.” Id. at 432 n.6.
A. Rule 60(b)(4)
Rule 60(b)(4) lets a Court set aside a void final judgment. Fed. R. Civ. P.
60(b)(4). “Rule 60(b)(4) strikes a balance between the need for finality of judgments
and the importance of ensuring that litigants have a full and fair opportunity to
litigate a dispute.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 276
(2010). Whether a judgment is void under Rule 60(b)(4) is an issue of law subject to
de novo appellate review. Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001).
“Unlike most motions for relief from judgment under Rule 60(b), which are ‘addressed
to the discretion of the court,’ a motion under Rule 60(b)(4) does not present a
‘question of discretion.’” 11 Charles A. Wright et al., Fed. Prac. & Proc. Civ. §§ 2857,
2862 (3d ed. 2019). A district court's failure to vacate a void judgment under Rule
60(b)(4) constitutes ‘per se abuse of discretion.’” A & F Bahamas LLC v. World Venture
Grp., Inc., 796 F. App'x 657, 661 (11th Cir. 2020).
The kinds of judgments that are considered void is an “exceedingly short” list.
Espinosa, 559 U.S. at 270. A judgment is not void “simply because it is or may have
been erroneous.” Id. at 270 (citations omitted). “Similarly, a motion under Rule
60(b)(4) is not a substitute for a timely appeal.” Id. at 270-71 (citations omitted). “Rule
60(b)(4) does not provide a license for litigants to sleep on their rights.” Id. at 275.
“Rule 60(b)(4) applies only in the rare instance where a judgment is premised either
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on a certain type of jurisdictional error or on a violation of due process that deprives
a party of notice or the opportunity to be heard.” Id. at 271; accord Webster v. Sec'y,
Fla. Dep't of Corr., No. 21-11124-G, 2021 WL 8015837, at *1 (11th Cir. Dec. 20, 2021)
(Jordan J. order denying COA) (“Webster was afforded due process during his § 2254
proceedings because no court “deprive[d] [him] of notice or the opportunity to be
heard.”) (citing Espinosa, 559 U.S. at 271).
B. Rule 60(b)(6)
Rule 60(b)(6) is an “extraordinary remedy” that requires “extraordinary
circumstances.” BLOM Bank SAL v. Honickman, 605 U.S. 204, 210 (2025); Arthur v.
Thomas, 739 F.3d 611, 628 (11th Cir. 2014) (citations omitted). It can be invoked “only
when Rules 60(b)(1) through (b)(5) do not apply. Kemp v. United States, 596 U.S. 528,
533 (2022) (citation omitted). Rule 60(b)(6) does not “particularize the factors that
justify relief, but . . . it provides courts with authority ‘adequate to enable them to
vacate judgments [in those extraordinary circumstances when] such action is
appropriate to accomplish justice.’” Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 864 (1988) (quoting Klapprott v. United States, 335 U.S. 601, 614–15
(1949)). The movant must show “that absent such relief, an ‘extreme’ and ‘unexpected’
hardship will result.” Doe v. Drummond Co., 782 F.3d 576, 612 (11th Cir. 2015)
(citation omitted). “This very strict interpretation of Rule 60(b) is essential if the
finality of judgments is to be preserved.” Liljeberg, 486 U.S. at 873.
Rule 60(b)(6) does not apply when the situation is the movant’s fault. Id. at
212. “There must be an end to litigation someday, and free, calculated, deliberate
choices are not to be relieved from.” Ackermann v. United States, 340 U.S. 193, 198
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(1950) quoted in BLOM, 605 U.S. at 212. “In a vast majority of the cases finding that
extraordinary circumstances do exist ..., the movant is completely without fault for
his or her predicament.” 12 J. Moore, D. Coquillette, G. Joseph, G. Vairo, & C. Varner,
Moore's Federal Practice § 60.48[3][b], p. 60–188 (3d ed. 2024) cited in BLOM, 605
U.S. at 212 (brackets in original).
An intervening clear-cut change in law can sometimes be a basis for Rule
60(b)(6) relief. Ritter v. Smith, 811 F.2d 1398, 1401 (11th Cir. 1987) (Rule 60(b)(6)
could be invoked “where there has been a clear-cut change in the law [but] a change
in the law will not always provide the truly extraordinary circumstances necessary
to reopen a case.”) (emphasis in original). A “core tenet” of Rule 60(b) is that
“[i]ntervening developments in the law by themselves rarely constitute the
extraordinary circumstances required for relief under Rule 60(b)(6).” BLOM, 605 U.S.
at 216 (quoting Agostini v. Felton, 521 U.S. 203, 239 (1997)). There must be a “clear
and authoritative change in governing law.” Polites v. United States, 364 US 426, 433
(1960) (also referencing “controlling change in governing law”); see also Kemp v.
United States, 596 U.S. 528, 540 (2022) (Sotomayor, J. concurring) (Rule 60(b)(6)
remains available “to reopen a judgment in extraordinary circumstances, including a
change in controlling law.”).
A movant’s lack of diligence in pursuing a legal issue can preclude a finding of
extraordinary circumstances. Gonzalez v. Crosby, 545 U.S. 524, 537-38 (2005). And,
even where an intervening change in the law might justify Rule 60(b)(6) relief, the
decision whether to grant that relief is “a matter for the district court’s ‘sound
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discretion.’ Plaintiffs ‘must demonstrate a justification so compelling that the
[district] court was required to vacate its order.’” Aldana v. Del Monte Fresh Produce
N.A., Inc., 741 F.3d 1349, 1355 (11th Cir. 2014) (cleaned up) (emphasis added)
(bracket in original).
C. Right to a Jury Trial
The Seventh Amendment grants a right to a jury trial “[i]n suits at common
law, where the value in controversy shall exceed twenty dollars.” The right to a jury
trial can be forfeited if not timely asserted. Fed. R. Civ. P. 38(d).
1
That forfeiture can
be excused, however. See Fed. R. Civ. P. 39(b); see also United States v. Campbell,
26 F.4th 860, 872-73 (11th Cir. 2022) (excusing forfeiture of Fourth Amendment good-
faith exception).
D. Fugitive Disentitlement Doctrine
First applied in 1986, “[t]he United States Supreme Court has long recognized
an appellate court’s ability to exercise its discretion by refusing to hear or to decide
the appeal of a fugitive from justice.” United States v. Barnette, 129 F.3d 1179, 1183
(11th Cir. 1999) (citing Molinaro v. New Jersey, 396 U.S. 365 (1970)); Pesin v.
Rodriguez, 244 F.3d 1250, 1252 (11th Cir. 2001). “Although the doctrine has
traditionally been applied by the courts of appeal to dismiss the appeals of fugitives,
district courts ‘may sanction or enter judgment against parties on the basis of their

1
Waiver and forfeiture are related but distinct concepts. “[F]orfeiture is the failure to
make the timely assertion of a right; waiver is the intentional relinquishment or
abandonment of a known right.” United States v. Campbell, 26 F.4th 860, 872 (11th
Cir. 2022).

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fugitive status.’” Ener v. Martin, 379 F. Supp. 3d 1377, 1381 (S.D. Fla. 2019) (quoting
Magluta v. Samples, 162 F.3d 662, 664 (11th Cir. 1998)).
Invocation of the doctrine requires: “(1) the plaintiff is a fugitive; (2) his fugitive
status has a connection to his civil action; and (3) the sanction employed by the
district court, dismissal, is necessary to effectuate the concerns underlying the
fugitive disentitlement doctrine.” Magluta, 162 F.3d 662, 664 (11th Cir. 1998).
“A fugitive from justice has been defined as ‘[a] person who, having committed
a crime, flees from [the] jurisdiction of [the] court where [a] crime was committed or
departs from his usual place of abode and conceals himself within the district.’”
Barnette, 129 F.3d at 1183 (citation omitted). “Expanding this definition as it applies
to the fugitive disentitlement doctrine, it has been held that ‘a fugitive from justice
need not be a fugitive in a criminal matter.”’ Id. “[T]he doctrine has also been applied
where the fugitive was . . . a civil litigant who continued to ignore court orders and
evade arrest.” Pesin, 244 F.3d at 1253; see also Barnette, 129 F.3d at 1183 (“Under
certain circumstances the disentitlement doctrine may be even more applicable to
civil than criminal cases”).
“[T]he doctrine is an equitable one and rests upon the power of the courts to
administer the federal courts system.” Pesin, 244 F.3d at 1252-53. The “court's power
to dismiss a cause on fugitive-driven grounds is an inherent aspect of its authority to
enforce its orders and [e]nsure prompt disposition of lawsuits.” Ener, 379 F. Supp. 3d
at 1381. “The primary rationale underlying the fugitive disentitlement doctrine is to
avoid issuing what would, in essence, be an advisory opinion.” Ofer v. Millan, No. 24-
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CV-20888, 2024 WL 3373473, at *3 (S.D. Fla. July 11, 2024); see Pesin, 244 F.3d at
1253; see also Barnette, 129 F.3d at 1183. “Aside from the difficulty of enforcing a
judgment against a fugitive, other rationales underlying the doctrine include
promoting the efficient operation of the courts, discouraging flights from justice, and
avoiding prejudice to the other side caused by the [party]’s fugitive status.” Pesin, 244
F.3d at 1252; see also Barnette, 129 F.3d at 1183 (Rationales include “the difficulty of
enforcement against one not willing to subject himself to the court's authority, the
inequity of allowing that ‘fugitive’ to use the resources of the courts only if the
outcome is an aid to him, the need to avoid prejudice to the nonfugitive party, and
the discouragement of flights from justice.”).
III. THE PLEADINGS
A. Mr. Schwarzbaum’s Motion
Mr. Schwarzbaum makes three arguments. First, he says the failure to give
him a jury trial before making the FBAR assessments violated the Due Process
Clause of the Fifth Amendment, which makes the April 2025 Final Judgment void
and subject to dismissal under Federal Rule of Civil Procedure 60(b)(4). ECF No. 241.
In the alternative, he says recent Seventh Amendment cases represent a change of
law that is grounds to set aside the April 2025 Final Judgment under Federal Rule
of Civil Procedure 60(b)(6). Id. Finally, he says the proper remedy is to dismiss the
case with prejudice. Id.
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B. Government’s Response
The Government argues (1) the Fugitive Disentitlement Doctrine bars
Mr. Schwarzbaum from getting Rule 60(b) relief, (2) Mr. Schwarzbaum’s motion is
untimely, (3) Mr. Schwarzbaum forfeited his right to raise a Seventh Amendment
argument because he failed to make it earlier in the litigation, (4) the judgment is not
void, (5) the controlling law has not changed, and (6) the Seventh Amendment right
to jury trial does not apply to FBAR assessment process. ECF No. 247.
C. Mr. Schwarzbaum’s Reply
Mr. Schwarzbaum says the Government conceded in other litigation that the
Seventh Amendment applied to FBAR penalties. ECF No. 248 at 5-11. He next says
that the Fugitive Disentitlement Doctrine does not apply because he does not meet
the definition of a “fugitive.” Id. at 11-12. Finally, he says that there was not a
sufficient basis to make the Seventh Amendment argument until after the Supreme
Court decided SEC v. Jarkesy, 603 U.S. 109 (2024), the District Judge in Texas
decided United States v. Sagoo, No. 24-CV-01159, 2025 WL 2689912 (N.D. Tex. Sept.
19, 2025), and the Government filed a petition for writ of certiorari in AT&T, Inc. v.
FTC on October 2, 2025. ECF No. 248 at 13.
IV. DISCUSSION
A. Procedural Bars
The Government asserts three procedural bars: (1) the motion is untimely
under Rule 60(c)(1), (2) the Fugitive Disentitlement Doctrine applies, and (3) the
Seventh Amendment argument was forfeited because it was not raised sooner. ECF
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No. 247 at 10-14. Because I conclude that Mr. Schwarzbaum is not entitled to Rule
60(b) relief for other reasons, I do not resolve these procedural bar arguments.
B. Rule 60(b)(4)
The currently-operative judgment — and the only one that can be set aside
under Rule 60 — is the April 2025 Final Judgment.
2
It is not void.
Mr. Schwarzbaum says the April 2025 Final Judgment is void because the IRS
administrative procedures that led to the FBAR assessments violated his rights
under the Due Process Clause of the Fifth Amendment. ECF No. 241 at 11-15. He
reaches this conclusion through the following syllogism. First, he cites Burke v.
Smith, 252 F.3d at 1263 for the principle, “[a] judgment is ‘void’ under Rule 60(b)(4)
if the parties “acted in a manner inconsistent with due process of law.” Id. at 11. He
next asserts, “Due Process in this context refers to the Due Process Clause of the Fifth
Amendment to the U.S. Constitution.” Id. He then says, “The Seventh Amendment
right to a jury trial is an indispensable element of the right to due process.” Id. at 12.
He then concludes that because he was denied a jury trial before the IRS finalized
the assessments, the later April 2025 Final Judgment is void.

2
In Schwarzbaum I, the Eleventh Circuit vacated the Amended Final Judgment,
which means it is void and has no continuing legal effect. See United States v. Sigma
Int'l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002). In Schwarzbaum II, the Eleventh
Circuit affirmed the Amended Final Judgment After Remand in part, reversed it in
part, and remanded for entry of an amended judgment that modified the monetary
judgment. This Court then entered the April 2025 Final Judgment, which vacated
the Amended Judgment After Remand. See Suite 225, Inc., v. Lantan Ins. Ltd., 625
F. App’x. 502, 507 (11th Cir. 2015).

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Mr. Schwarzbaum takes an over-expansive view of when a judgment can be
voided because the movant was denied “due process.” First, he ties his arguments to
the Due Process Clause of the Fifth Amendment but ignores that the original
meaning of the Due Process Clause does not incorporate a right to a jury trial. Second,
he ignores that the Supreme Court in Espinosa limited Rule 60(b)(4) to situations
when a party was denied notice and/or the opportunity to be heard. Third, the cases
he cites do not support his argument and/or his arguments are forfeited because they
are not adequately developed.
1. Original Meaning of the Fifth Amendment
The Due Process Clause derives from the “law of the land” clause of the Magna
Carta. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 276 (1855).
That clause said:
No free man shall be seized or imprisoned, or stripped of his rights or
possessions, or outlawed or exiled, or deprived of his standing in any
way, nor will we proceed with force against him, or send others to do so,
except by the lawful judgment of his equals or by the law of the land.
Magna Carta, Ch. 39 (1215).
3
“Lord Coke, in his commentary on [the words “law of
the land”] says they mean due process of law.” Id. Many state constitutions that

3
A slightly different “law of the land” clause was included when the Magna Carta
was reissued in 1225. Chapter 29 of the reissued Magna Carta said:

No free man shall in future be arrested or imprisoned or disseised of his
freehold, liberties or free customs, or outlawed or exiled or victimised in
any other way, neither will we attack him or send anyone to attack him,
except by the lawful judgment of his peers or by the law of the land. To
no one will we sell, to no one will we refuse or delay right or justice.
Magna Carta, Ch. 29 (1225).
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predated the United States Constitution, as well as the Northwest Ordinance of 1789
that preceded the Bill of Rights, included similar clauses that prohibited taking life,
liberty, or property “but by the judgment of his peers or the law of the land.” Id. at
276; see Hon. Maurice Portley, The Due Process Clause of the Fifth Amendment, Ariz.
Att'y, December 1991, at 13 (discussing law of the land clauses in constitutions of
Massachusetts, New Hampshire, Maryland, North Carolina, South Carolina,
Virginia, and Delaware).
So, when the Fifth Amendment was ratified in 1791, it was understood that
“law of the land” clauses guaranteed a citizen two separate things: (1) “lawful
judgment of his peers,” that is, a jury trial, and (2) compliance with “the law of the
land,” that is, due process. See Fuld v. Palestine Liberation Org., 606 U.S. 1, 34, 145
S. Ct. 2090, 2115, 222 L. Ed. 2d 296 (2025) (Thomas, J. concurring) (Murray’s Lessee
acknowledged that the original meaning of the Fifth Amendment was “[t]he words,
‘due process of law,’ were undoubtedly intended to convey the same meaning as the
words, ‘by the law of the land,’ in Magna Charta,”). But, Article III, Section 2, of the
Constitution already guaranteed a right to a jury trial in criminal cases. Murray’s
Lessee at 276. And, the proposed Seventh Amendment separately provided for civil
jury trials.
As the Supreme Court explained in Murray’s Lessee, to have included a full
“law of the land” clause in the Fifth Amendment, “and declared that no person shall
be deprived of his life, liberty, or property but by the judgment of his peers or the law
of the land, would have been in part superfluous and inappropriate.” Id. In other
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words, because the constitution separately provided for jury trials, there was no need
to include a right to jury trial in the Fifth Amendment. But, to use the phrase “law of
the land” in the Fifth Amendment without reference to “the judgment of his peers”
“might possibly have given rise to doubts.” Id. Using the phrase “due process of law”
avoided that confusion. Id. And, as understood at the time, “‘due process of law’
generally implie[d] and include[d] judex [a judge], regular allegations, opportunity to
answer, and a trial according to some settled course of judicial proceedings.” Jarkesy,
603 U.S. at 150 (quoting Murray’s Lessee, 59 U.S. at 280) (brackets in original). It did
not include a right to trial by jury. Murray’s Lessee, 59 U.S. at 276.
1. Espinosa
Mr. Schwarzbaum tries to apply a broad interpretation of Rule 60(b)(4) by
citing Burke for the principle, “[a] judgment is ‘void’ under Rule 60(b)(4) if the parties
“acted in a manner inconsistent with due process of law.” ECF No. 241 at 11. This
argument ignores the clear language of the Supreme Court’s 2010 post-Burke decision
in Espinosa. That decision took a narrower view of Rule 60(b)(4); it said a judgment
is void for purposes of Rule 60(b)(4) if it resulted from “a violation of due process that
deprives a party of notice or the opportunity to be heard.” Espinosa, 559 U.S. at 270
(emphasis added).
Mr. Schwarzbaum does not, as he cannot, contend that he was denied notice or
an opportunity to be heard in either the IRS proceedings or at trial before this Court.
In particular, after the remand from the Eleventh Circuit in Schwarzbaum I, he had
notice of the IRS recalculation process and was given the chance to be heard and to
appeal the assessments before they became final.
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Mr. Schwarzbaum has cited no case where the movant had notice and an
opportunity to be heard but a judgment nevertheless was found to be void under Rule
60(b)(4) because it offended due process. The two cases he cites do not support his
argument. In Burke the court approved the settlement of a lawsuit that extinguished
a minor’s interests but did not hold a fairness hearing that was required by state law
— in other words, the minor had been denied an opportunity to be heard.
4
In
Bainbridge v. Governor of Fla., 75 F.4th 1326 (11th Cir. 2023) — cited on page 11 of
Mr. Schwarzbaum’s Motion — the movant did not assert a violation of due process.
Id. at 1335.
Espinosa did not tie Rule 60(b)(4) relief to the broader concept of due process
that Mr. Schwarzbaum asserts. Rather, it cabined it to identifiable acts that violate
the procedural component of the Fifth Amendment Due Process Clause – notice and
opportunity to be heard. Mr. Schwarzbaum does not argue that he was denied notice
or an opportunity to be heard. For that independent reason, the April 25 Final
Judgment is not void.
2. Jarkesy Concurrence
Mr. Schwarzbaum cites Justice Gorsuch’s concurrence in Jarkesy as support
for his Rule 60(b)(4) argument, but that case does not support his position.

4
Burke relied on In re Edwards, 962 F.2d 641 (7th Cir. 1992). In that case, Judge
Posner noted, “The standard formulas, such as, a judgment is void ‘if the court that
rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in
a manner inconsistent with due process of law,’ are not helpful.” Id. at 644 (internal
citations omitted). In contrast, Espinosa’s requirement that the movant show he was
denied notice or an opportunity to be heard is a bounded, enforceable limitation that
is consistent with the principle that Rule 60(b)(4) relief should rarely be granted.
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Mr. Schwarzbaum says Justice Gorsuch’s Jarkesy concurrence stands for the
proposition, “[t]he Seventh Amendment right to a jury trial is an indispensable
element of the right to due process.” Id. at 12. That is not what Justice Gorsuch said.
He said the constitution includes three separate components working together to
generate a fair system of adjudication: an independent judiciary (guaranteed by
Article III), trials by jury (guaranteed by the Seventh Amendment), and fair
procedures during the adjudicative process (guaranteed by the Due Process Clause of
the Fifth Amendment). Jarkesy, 603 U.S. at 148-150. The Jarkesy concurrence
accurately reflects the history and original meaning of the Fifth Amendment Due
Process Clause discussed above. The Fifth Amendment Due Process Clause and the
Seventh Amendment are independent constitutional guarantees. Only the former can
be the basis for Rule 60(b)(4) relief.
3. Other Cases Cited
Mr. Schwarzbaum cites Bowman v. Middleton, an 18th Century state common
pleas court decision from South Carolina, which says that, at common law, a person
could not be deprived of their real property without a jury trial:
It was against common right, as well as against Magna Charta, to take
away the freehold of one man, and vest it in another; and that too, to the
prejudice of third persons, without any compensation, or even a trial by
a jury of the country, to decide the right in question.
1 S.C.L. 252, 250 (1792), 1792 WL 207. This statement is simultaneously correct and
irrelevant. It is undisputed that the common law, through “law of the land” clauses,
guaranteed both due process and a right to a jury trial. But, as explained above, the
Fifth Amendment Due Process Clause did not incorporate the jury trial right.
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Mr. Schwarzbaum also cites Wynehamer v. People, 13 N.Y. 378 (1856). In that
case, two defendants were convicted after jury trials for illegally selling intoxicating
liquor in violation of a temperance statute that also authorized seizure and forfeiture
of liquor possessed in violation of the statute. The statute authorized non-jury trials
or trials by a jury of six men. Id. at 427. On appeal, the defendants challenged the
constitutionality of the statute. The judges of the New York Court of Appeals issued
seriatim opinions that gave differing reasons why the temperance statute was (or was
not) constitutional. Six held that the convictions must be overturned because the New
York constitution required 12 person juries.
Mr. Schwarzbaum cites one of those opinions (by A.S. Johnson, J.) which
discussed in dictum the relationship between the right to trial by jury and the right
to due process. Each of these rights was guaranteed under the 1846 New York
constitution. Article I, Section 2 said in relevant part, “The trial by jury, in all cases
in which it has heretofore been used, shall remain inviolate forever.” Article I, Section
6 said in relevant part, “No person shall . . . be deprived of life, liberty, or property,
without due process of law.” NY Constitution of 1846, https://history.nycourts.gov/wp-
content/uploads/2019/01/Publications 1846-NY-Constitution-compressed.pdf (last
visited March 5, 2026).
Contrary to what Mr. Schwarzbaum argues here, Judge A.S. Johnson
suggested — without formally deciding —that the right to a jury was not incorporated
into the New York constitution’s due process clause; just like the federal constitution,
the right to a jury trial arose from a separate, more specific, constitutional provision:
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I doubt much whether the clause of the [New York] bill of rights, that no
person shall be deprived of life, liberty or property without due process of
law, necessarily imports a jury trial as part of all due process. . . . The
right to jury trial is secured by other sections of the bill of rights. If this
portion gives it in all cases, then the others can hardly stand with it. For,
on looking at them, it is apparent that jury trials were intended to be
continued where they had existed, and that cases were contemplated in
which jury trials did not and would not exist. I incline to the construction
which Chancellor Kent gives in his Commentaries, that “the better and
larger definition of due process of law is, that it means law in its regular
administration through courts of justice.” (2 Kent, 13.) But it is not
necessary, in my opinion, to pronounce upon this question, because the
first part of art. 1, § 2 of the constitution, viz: “The trial by jury in all
cases in which it has heretofore been used shall remain inviolate
forever,” is broad enough and efficacious enough to secure it.
Wynehamer v. People, 13 N.Y. 378, 425–26 (1856) (emphasis added).
Mr. Schwarzbaum’s motion also cites Mathews v. Eldridge, 424 U.S. 319
(1976). In that case, Mr. Eldridge was receiving Social Security disability benefits.
After conducting a periodic review of whether Mr. Eldridge was still disabled, and
after giving Mr. Eldridge a chance to submit evidence and arguments, the Social
Security Administration concluded that the disability benefits should be terminated.
They notified Mr. Eldridge that the benefits were being terminated within 30 days,
but that he could seek reconsideration, including an evidentiary hearing before an
Administrative Law Judge.
The issue presented to the Supreme Court was whether the Fifth Amendment's
Due Process Clause prevented the Social Security Administration from terminating
Mr. Eldridge’s benefits before the evidentiary hearing. Id. at 323-33 (“The issue in
this case is whether the Due Process Clause of the Fifth Amendment requires that
prior to the termination of Social Security disability benefit payments the recipient
be afforded an opportunity for an evidentiary hearing.”). The answer was, “No.” Id.
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at 349. The Supreme Court held that the Due Process Clause was satisfied by a post-
deprivation hearing before an Administrative Law Judge, with the possibility of
further administrative appeals and ultimate judicial review.
Mr. Schwarzbaum cites the Supreme Court’s statement in Mathews, “This
Court consistently has held that [under the Fifth Amendment’s Due Process Clause]
some form of hearing is required before an individual is finally deprived of a property
interest.” ECF No. 241 at 12. The motion does not further develop this argument, but
at oral argument Mr. Schwarzbaum’s counsel asserted that Mathews requires a pre-
taking hearing before an impartial decisionmaker. That is not what Mathews held.
Mathews said due process was a flexible concept such that the amount of
constitutionally required procedural protections varied based on the situation
presented. Mathews, 424 U.S. at 335. It then said a court confronted with a due
process challenge to a property deprivation should consider three factors: “[f]irst, the
private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally, the
Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.” Id. at 334-35.
Mr. Schwarzbaum’s motion does not develop the Mathews argument beyond a
cursory citation and a parenthetical. It does not analyze the three factors that the
Supreme Court identified as relevant. Procedurally, the fact that the argument is not
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developed is an independent basis to reject it. “It is axiomatic that arguments not
supported and properly developed are deemed waived.” W. Sur. Co. v. Steuerwald,
No. 16-cv-61815, 2017 WL 5248499, at *3 (S.D. Fla. Jan. 17, 2017), aff’d, 760 F. App'x
810 (11th Cir. 2019) “When parties do not fully develop their arguments and support
them with citation to legal authority, the burden upon the Court is improperly
increased.” Id. (citing Hewlett-Packard Co. v. CP Transp. LLC, No. 12-cv-21258, 2012
WL 4795766, at *2 (S.D. Fla. Oct. 9, 2012)). “Thus, ‘[i]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived.’” Id. (quoting McPherson v. Kelsey, 125 F.3d 989, 995-996 (6th Cir.
1997)).
On the merits, because the motion does not address the Mathews factors, it
fails to meet Mr. Schwarzbaum’s burden of justifying Rule 60 relief. It ignores that
Mr. Schwarzbaum received a de novo trial before an Article III judge and further
appellate review after that trial. He got what Mathews said was enough in the Social
Security disability context. Mr. Schwarzbaum has not shown why the same amount
of process was not enough in the FBAR context.
Mr. Schwarzbaum also misleadingly cites the pre-Mathews decision in Fuentes
v. Shevin, 407 U.S. 67, 82 (1972) for the principle, “[T]he Court has traditionally
insisted that . . . opportunity for [a] hearing must be provided before the deprivation
at issue takes effect.” Id. at 82 (brackets and ellipses in original). The full statement
by the Supreme Court was that it “has traditionally insisted that, whatever its form,
opportunity for that hearing must be provided before the deprivation at issue takes
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effect.” Id. (emphasis added). Immediately before this statement, the Supreme Court
had acknowledged it “has held that due process tolerates variances in the form of a
hearing ‘appropriate to the nature of the case’ and ‘depending upon the importance
of the interests involved, and the nature of the subsequent proceedings [if any].’” Id.
(internal citations omitted and brackets in original).
Here again, Mr. Schwarzbaum does not develop his argument beyond a citation
and a parenthetical. In particular, he does not explain why the IRS FBAR procedures
are not “appropriate to the nature of the case,” does not discuss “the importance of
the interests involved,” nor why “the nature of the subsequent proceedings” before
the Article III courts were insufficient.
For all these reasons, I reject Mr. Schwarzbaum’s argument that being
deprived of a jury trial before the IRS finalized its FBAR assessments voids the April
2025 Final Judgment.
C. Rule 60(b)(6)
Mr. Schwarzbaum’s case does not present an extraordinary circumstance
where vacating the April 2025 Final Judgment is appropriate to accomplish justice.
Liljeberg, supra.
1. The Interests of Justice Do Not Warrant Relief
At bottom, Rule 60(b)(6) is an equitable remedy that should be granted only
when vacating a judgment is “appropriate to accomplish justice.” Klapprott, 335 U.S.
at 614–15; Cano v. Baker, 435 F.3d 1337, 1339 (11th Cir. 2006); see also Martin v.
Lens.com, Inc., No. 0:24-CV-60489, 2025 WL 1191212, at *4 (S.D. Fla. Jan. 23, 2025).
“He who comes into equity must come with clean hands.” Keystone Driller Co. v. Gen.
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Excavator Co., 290 U.S. 240, 241 (1933). A party has unclean hands when (1) he has
committed an “unconscionable act” that is (2) directly related to his claim for relief,
and (3) the opposing party has been injured by the wrongdoing. Id.; Bailey v. TitleMax
of Ga., Inc., 776 F.3d 797, 801 (11th Cir. 2015); see also Ramirez v. Collier, 595 U.S.
411, 434 (2022) (When a party seeking equitable relief “has violated conscience, or
good faith, or other equitable principle, in his prior conduct, then the doors of the
court will be shut against him.”) (cleaned up); Keystone Driller, 290 U.S. at 245
(unclean hands doctrine applies to “such violations of conscience as in some measure
affect the equitable relations between the parties in respect of something brought
before the court for adjudication.”).
“[C]ourts require the connection between the unclean-hands conduct and the
matter in litigation to be very close.” Bowe v. Pub. Storage, No. 1:14-CV-21559-UU,
2015 WL 11233137, at *3 (S.D. Fla. June 26, 2015).
This maxim [“he who comes in equity must come with clean hands”]
necessarily gives wide range to the equity court's use of discretion in
refusing to aid the unclean litigant. It is ‘not bound by formula or
restrained by any limitation that tends to trammel the free and just
exercise of discretion.’ Keystone Driller Co. v. General Excavator Co.,
supra, 290 U.S. 245, 246, 54 S.Ct. 147, 148, 78 L.Ed. 293. Accordingly
one's misconduct need not necessarily have been of such a nature as to
be punishable as a crime or as to justify legal proceedings of any
character. Any willful act concerning the cause of action which
rightfully can be said to transgress equitable standards of conduct is
sufficient cause for the invocation of the maxim by the chancellor.

Moreover, where a suit in equity concerns the public interest as well as
the private interests of the litigants this doctrine assumes even wider
and more significant proportions. For if an equity court properly uses
the maxim to withhold its assistance in such a case it not only prevents
a wrongdoer from enjoying the fruits of his transgression but averts an
injury to the public. The determination of when the maxim should be
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applied to bar this type of suit thus becomes of vital significance.
See Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 492-494, 788, 62
S.Ct. 402, 405, 406, 86 L.Ed. 363.
Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 815 (1945).
This Court’s decision in SEC v. Lauer, 445 F. Supp. 2d 1362, 1366–67 (S.D.
Fla. 2006), is instructive. In that case, the defendant moved in equity for relief from
a pretrial asset freeze order. Id. at 1363. This Court denied relief based on unclean
hands. Id. at 1366-67. It noted that the defendant was in contempt of court, had
“‘knowingly, wilfully, intentionally and repeatedly violated’ multiple Court Orders
[and had] failed to disclose numerous assets and diverted assets from the freeze in
violation of the very same order of which he now seeks an equitable modification for
his own benefit.” Id. at 1366. It said:
A cardinal rule of equity is ‘he who comes into equity must come with
clean hands [i]t is a self-imposed ordinance that closes the door ... to one
tainted with inequitableness or bad faith relative to the matter in which
he seeks relief.’ Under this cardinal rule of equity, Lauer's unclean
hands have closed the door on any attempt by Lauer to seek relief from
the Court's equitable asset freeze order, an order to which he agreed.
Id. at 1366-67 (bracket in original) (internal citation omitted).
Mr. Schwarzbaum has contemptuously refused to comply with the Second
Repatriation Order for three years. That Order was entered to further the execution
of the April 2025 Final Judgment. By refusing to comply, Mr. Schwarzbaum has
directly obstructed this Court’s enforcement of its own Order.
5

5
Because the trial court has not adopted my Report and Recommendation on criminal
contempt, I draw no adverse inference from the fact that Mr. Schwarzbaum did not
appear at the contempt hearing. And, because I do not reach the question whether
the Fugitive Disentitlement Doctrine applies, I also do not draw an adverse inference

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This conduct satisfies all the elements of unclean hands. Contemptuous non-
compliance with court orders is an unconscionable act. The Second Repatriation
Order is directly related to the judgment that Mr. Schwarzbaum is trying to set aside.
The Government has been harmed by Mr. Schwarzbaum’s lengthy disobedience. The
Government’s collection of statutory penalties is a matter of public interest. For these
reasons, the unclean hands doctrine precludes Mr. Schwarzbaum from receiving Rule
60(b)(6) equitable relief.
Another equitable factor strongly cut against granting relief. As discussed
next, nothing prevented Mr. Schwarzbaum from making his jury trial argument at
multiple stages of these proceedings. Having slept on his rights, he cannot now
complain or seek equitable relief.
2. Mr. Schwarzbaum’s Situation Is His Own Fault
As discussed below, no controlling case law prevented Mr. Schwarzbaum from
making a Seventh Amendment argument from the outset of this case. Yet, it is
undisputed that he did not make this argument before the judgment was entered.
The Government says his Rule 60 motion should be denied because he did not raise
this issue before.
6

from the fact that Mr. Schwarzbaum has remained outside the United States.
6
At oral argument, the Government said that the failure to timely raise the Seventh
Amendment issues forfeits that argument and creates a corresponding procedural
bar to setting aside the judgment on Seventh Amendment grounds. On direct appeal,
a party forfeits an argument that was not timely raised below, although that
forfeiture can be excused in some situations. Campbell, 26 F.4th at 872. The
Government does not cite a case where this kind of procedural bar was applied in the
Rule 60 context. I do not need to resolve this issue, however. Even if I assume without

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This argument overlaps with whether there has been an intervening change in
the law. If the law changed after judgment was entered, the litigant could not raise
the issue; the only question is whether they raised it soon enough after the law
changed. If the law has not changed, the issue could have been raised before, so the
movant is responsible for their own predicament, and there is no basis for Rule
60(b)(6) relief on the merits.
Mr. Schwarzbaum responds that the Government’s argument goes too far: “By
that logic, Rule 60 would be a dead letter because theoretically a party always could
have raised an argument earlier.” ECF No. 248 at 13. He is incorrect. There are
limited categories of cases that a party cannot raise earlier. For example, an
argument that is precluded by prior binding precedent (see Buck and Ritter, supra).
A party also could not make an argument that did not exist; for example, if Congress
created a new right or defense after a judgment was entered. Narrowly interpreting
Rule 60 in this way is consistent with the principle that post-judgment relief is for
extraordinary situations that are beyond a party’s control.
A striking contrast is Mr. Schwarzbaum’s handling of the Eighth Amendment
excessive fines argument. When this case was filed, no appellate court had held that
the Eighth Amendment applied to FBAR penalties, but Mr. Schwarzbaum made that
argument in his Answer and repeatedly throughout the litigation. While this case

deciding that there is no procedural bar, Mr. Schwarzbaum’s failure to raise this issue
sooner is an equitable factor that can be considered in the Rule 60(b)(6) analysis. And,
for the multiple reasons discussed in this Report and Recommendation, Mr.
Schwarzbaum is not entitled to equitable relief.
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was proceeding, the First Circuit held that the Eighth Amendment did not apply to
FBARs, but Mr. Schwarzbaum persisted in his argument. Ultimately, he won in
Schwarzbaum II.
He could have taken the same approach to his Seventh Amendment argument.
Perhaps he did not think of it soon enough. But, his failure to raise an available
argument cuts against setting aside the judgment.
3. There Was No Intervening Change in Controlling Law
Mr. Schwarzbaum says the Supreme Court’s decision in Jarkesy and the
Southern District of Texas decision in Sagoo are intervening changes in the law that
warrant Rule 60(b)(6) relief. They are not. They do not represent an authoritative
change in controlling authority.
First, to state the obvious, Sagoo, a single decision from a sister District Court
outside the Eleventh Circuit, is not controlling on this Court.
Second, Jarkesy is not a controlling or authoritative statement of the law as
applied to FBARs. Jarkesy held that the Seventh Amendment applied to SEC fraud
enforcement actions that sought monetary damages for fraud. The Jarkesy Court held
that the “public rights” exception to the Seventh Amendment did not apply to the
SEC proceedings. It noted, “The object of this SEC action is to regulate transactions
between private individuals interacting in a pre-existing market.” 603 U.S. at 135.
The Jarkesy Court explicitly recognized that the public rights exception had been
applied to revenue collection in Murray’s Lessee, as well as to immigration, tariffs,
relations with Native American tribes, public lands, public benefits, pensions, and
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patent rights. Id. at 128-30. It acknowledged continuing uncertainty about how the
exception would apply in other contexts:
Our opinions governing the public rights exception have not always
spoken in precise terms. This is an “area of frequently arcane
distinctions and confusing precedents.” The Court “has not ‘definitively
explained’ the distinction between public and private rights,” and we do
not claim to do so today.”
Id. at 130-31 (citations omitted). So, Jarkesy does not definitively resolve whether (as
the Government claims) the public rights exception applies to FBARs.
Third, even if Jarkesy were now a definitive statement of the controlling law,
it did not change prior precedent. Both sides argue that cases like Atlas Roofing Co.,
Inc. v. Occupational Safety & Health Rev. Comm'n, 430 U.S. 442 (1977), and Tull v.
United States, 481 U.S. 412 (1987) and their progeny can be extrapolated to decide
whether the Seventh Amendment applies to FBARs. Compare ECF No. 241 at 15,
with ECF No. 247 at 16-25.
7
None of these cases involved FBARs. It is undisputed
that before Jarkesy neither the Eleventh Circuit nor the Supreme Court had ever said
there was not a right to a jury trial in FBAR proceedings. Because the prior
controlling law never precluded Mr. Schwarzbaum’s jury trial argument, Jarkesy
does not represent a change in controlling law, even if it said (which it did not) that
there is a right to a jury trial in FBAR proceedings.

7
Even assuming these cases are precedent for deciding in future cases whether the
Seventh Amendment applied to FBARs, that forward-looking question is not what
matters in this post-judgment proceeding. What matters is whether Mr.
Schwarzbaum was prohibited in the past from making this argument. He was not. So
even if current law says he is entitled to a jury trial, the controlling law has not
changed. It has evolved.
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Fourth, Mr. Schwarzbaum has not shown that the so-called Ritter factors
justify relief. Ritter sets the paradigm for evaluating whether there has been a change
in controlling law. In that case, the Eleventh Circuit held that Alabama’s death
penalty statute was unconstitutional. Ritter v. Smith, 726 F.2d 1505, 1510 (11th Cir.
1984). The Supreme Court denied certiorari. Ritter, 811 F.2d at 1400. After the
mandate issued, the trial court entered a judgment that incorporated the mandate
and did not impose a death sentence. Id. Shortly thereafter, in a different case, the
Alabama Supreme Court held the death penalty statute constitutional. Ex parte
Baldwin, 456 So. 2d 129, 140 (Ala. 1974), aff’d, 472 U.S. 372 (1985). On certiorari, the
United States Supreme Court also held that the Alabama death penalty was
constitutional and overruled the Eleventh Circuit’s holding in Ritter. Baldwin, 472
U.S. at 374, 390.
The State of Alabama filed a Rule 60(b)(6) motion to set aside the judgment
against Mr. Ritter; the district court granted the motion. On appeal, the Eleventh
Circuit affirmed. The change in law could not have been more stark — before,
Mr. Ritter could not be executed; after, he could.
Mr. Schwarzbaum also cites Buck v. Davis, 580 U.S. 100 (2017) as an example
of Rule 60(b)(6) relief being granted based on an intervening change in law. In that
case, the criminal defendant’s lawyer called an expert witness who opined that Mr.
Buck was “statistically more likely to act violently because he is black.” Id. at 104. In
his state collateral attack, Mr. Buck’s lawyer did not argue that this testimony was
ineffective assistance of trial counsel. Mr. Buck later filed a federal habeas petition
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and tried to raise the ineffective assistance claim. Applying the then-governing law,
the federal District Court said the ineffective assistance claim was procedurally
defaulted because it had not been raised in the state habeas litigation. Id.
Mr. Buck filed a Rule 60(b)(6) motion to set aside his judgment of conviction.
By that point, the law had changed and his claim would not have been procedurally
defaulted.
8
As in Ritter, the change of controlling law was obvious. Before, Mr. Buck’s
ineffective assistance claim was procedurally barred; after, it was not.
Mr. Schwarzbaum does not present the same stark situation. From the outset
of this case through the April 2025 Final Judgment, nothing prevented him from
arguing that the Seventh Amendment applied to FBARs. Since the judgment, no
court has said definitively that the Seventh Amendment applies to FBARs. The
controlling law has not changed.
In Ritter, the Eleventh Circuit identified four factors that, “in addition to the
fact of the change in the law, persuade us that the circumstances are sufficiently
extraordinary to warrant relief under Rule 60(b)(6).” Ritter, 811 F.2d at 1401. These
factors were (1) whether the judgment has been executed, (2) the length of the delay
between the final judgment and the Rule 60(b)(6) motion, (3) the closeness of the
relationship between the two cases, and (4) considerations of comity. Id. at 1402-03.
Mr. Schwarzbaum’s motion does not discuss why the Ritter factors justify Rule
60(b)(6) relief, so he has forfeited that argument. Even if that argument is not

8
The Supreme Court held that the State of Texas had waived the argument that the
intervening cases did not apply retroactively to Mr. Buck. 580 U.S. at 127-28.
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forfeited and even if a change in law had occurred, the Ritter factors do not support
granting Mr. Schwarzbaum’s motion.
The first Ritter factor does not cut in Mr. Schwarzbaum’s favor even though
the judgment has not been executed. The only reason the judgment has not been
executed is because Mr. Schwarzbaum has not complied with the Court’s repatriation
order. As discussed below, Mr. Schwarzbaum should not benefit from this behavior.
The second Ritter factor is neutral. The Rule 60(b)(6) motion was filed
approximately eight months after the final judgment and more than a year after
Jarkesy was decided, but only three months after Sagoo.
The third Ritter factor cuts against Mr. Schwarzbaum. As discussed above,
there is little relationship between this case and Jarkesy, other than both arise from
internal agency adjudications. They involve different parties (unlike Ritter) and
different statutory schemes (unlike Buck and Ritter). For example, one case (FBAR
enforcement) arguably has a public purpose and allows for de novo review by an
Article III court. The other case (SEC fraud enforcement) has a private purpose and
involves an Article III appellate court applying deferential review to an agency
decision.
Finally, the fourth Ritter factor does not support Mr. Schwarzbaum. There are
no issues of comity that suggest a need to set aside the judgment. Both cases involve
the federal government.
4. Mr. Schwarzbaum Has Not Shown Extreme and Unexpected Hardship
Finally, Mr. Schwarzbaum has not met his burden of showing that extreme
and unexpected hardship will result if the judgment is not vacated. He received a full
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de novo trial before an Article III judge, where he was able to present evidence that
his conduct was not willful and that the assessment amounts were inaccurate. The
Eleventh Circuit held there was sufficient evidence to support the trial court’s
willfulness finding. Mr. Schwarzbaum does not point to other evidence he would have
presented to a jury that would have affected the sufficiency of the evidence, nor does
he point to evidence that would have affected the IRS’s calculation of his FBAR
penalties, which are based on bank balances on a fixed day. To date, the Government
has not taken any of Mr. Schwarzbaum’s property, so there is nothing to refund if the
judgment were set aside.
D. Seventh Amendment
Because Mr. Schwarzbaum’s Rule 60 motion fails for the multiple reasons
discussed above, it is unnecessary for me to address whether the Seventh Amendment
applies to IRS FBAR proceedings.
V. CONCLUSIOIN

Accordingly, this Court RECOMMENDS that the District Court DENY the
Motion to Set Aside Judgment.

NOTICE OF RIGHT TO OBJECT

A party shall serve and file written objections, if any, to this Report and
Recommendation with the Honorable Beth Bloom, United States District Court
Judge for the Southern District of Florida, within FOURTEEN (14) DAYS of being
served with a copy of this Report and Recommendation. Failure to timely file
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objections shall constitute a waiver of a party's “right to challenge on appeal the
district court’s order based on unobjected-to factual and legal conclusions.” 11th Cir.
R. 3-1 (2016).

DONE and SUBMITTED in Chambers at West Palm Beach, Palm Beach
County, in the Southern District of Florida, this 16th day of March 2026.

__________________________________
BRUCE E. REINHART
UNITED STATES MAGISTRATE JUDGE
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