United States of America v. Schwarzbaum

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 18-cv-81147-BLOOM/REINHART

UNITED STATES OF AMERICA,

Plaintiff,

vs.

ISAC SCHWARZBAUM,

Defendant.

_______________________________________/
REPORT AND RECOMMENDATION ON CRIMINAL CONTEMPT
Following an order finding Mr. Schwarzbaum in civil contempt, I set a hearing
to determine the appropriate civil contempt sanctions. ECF No. 199. That hearing
was set for August 28, 2025. Mr. Schwarzbaum failed to appear. The United States
asks the Court to certify facts in support of holding Mr. Schwarzbaum in criminal
contempt for his failure to appear. For the reasons discussed below, I recommend that
the District Court find Mr. Schwarzbaum’s failure to appear could be a basis for
criminal contempt and refer the case to the Office of the United States Attorney for
the Southern District of Florida for a prosecution determination under 18 U.S.C. §
402.
I. PROCEDURAL HISTORY
At the United States’ request, I set a hearing to determine civil contempt
sanctions following the Court’s Order entering final judgment against Mr.
Schwarzbaum. Mr. Schwarzbaum’s counsel withdrew before the hearing. ECF Nos.
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211, 217, 221–22. Judge Bloom directed Mr. Schwarzbaum to either retain counsel or
notify the Court whether he will proceed pro se no later than August 19, 2025. ECF
No. 222. Judge Bloom required Mr. Schwarzbaum to attend the August 28, 2025,
hearing, with a warning that failure to do so would result in sanctions. Id. The United
States emailed and mailed a copy of the Court’s Order granting the Motion to
Withdraw and requiring in person attendance on August 15, 2025. ECF No. 223. Mr.
Schwarzbaum failed to appear at the August 28, 2025, hearing. The deadline to retain
counsel or notify the Court whether he will proceed pro se has since expired. By
separate Report and Recommendation, I addressed the civil contempt sanctions. I
turn now Mr. Schwarzbaum’s failure to appear at the August 28, 2025, hearing.
II. LEGAL PRINCIPLES
Civil contempt is remedial; the penalty serves to enforce compliance with a
court order or to compensate an injured party. In re Stewart, 571 F.2d 958 (5th Cir.
1978). Criminal contempt is punitive; the penalty serves to vindicate the authority of
the court and does not terminate upon compliance with a court order. U. S. v. Rizzo,
539 F.2d 458, 463 (5th Cir. 1976); Lewis v. S. S. Baune, 534 F.2d 1115, 1119 (5th Cir.
1976). Further, civil contempt is a facet of a principal suit, while criminal contempt
is a separate action brought in the name of the United States. Skinner v. White, 505
F.2d 685, 689 (5th Cir. 1974). Contempt proceedings have to comply with the
constitutional requirements of due process. In Re Oliver, 333 U.S. 257, 275, (1948),
following Cooke v. U. S., 267 U.S. 517, 537 (1925).
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Except for a narrowly limited category of contempt, due process of
law...requires that one charged with contempt of court be advised of the
charges against him, have a reasonable opportunity to meet them by
way of defense or explanation, have the right to be represented by
counsel, and have a chance to testify and call other witnesses in his
behalf, either by way of defense or explanation.

Id.
Contempt of court may be punished as a criminal offense. 18 U.S.C. § 402. The
three elements of criminal contempt are (1) a lawful and reasonably specific order
that (2) the defendant has violated (3) willfully. United States v. Bernardine, 237 F.3d
1279, 1282 (11th Cir.2001); see 18 U.S.C. § 401(3). Willfulness means a deliberate or
intended violation, as distinguished from an accidental, inadvertent, or negligent
violation of an order. United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989).
Doubt is resolved in favor of the respondent. In re Rice, 181 F. 217, 228 (C.C.M.D.
Ala. 1910). Criminal contemptuous conduct may be punished only after a court gives
notice of “the essential facts constituting the charged criminal contempt,”
“request[ing] that the contempt be prosecuted by an attorney for the government,”
and affording other procedural protections. Fed. R. Crim. P. 42; see also United States
v. Baldwin, 770 F.2d 1550, 1553–57 (11th Cir.1985). The defendant “is not only
entitled to be informed of the nature of the charge against him, but to know that it is
a charge, and not a [civil] suit.” Gompers v. Buck's Stove & Range Co., 221 U.S. 418,
446 (1911); see also Lamar Fin. Corp. v. Adams, 918 F.2d 564, 567 (5th Cir.1990)
(vacating contempt sanction when defendant not given specific notice that hearing
was criminal in nature). “[I]n proceedings for criminal contempt the defendant is
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presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt
and cannot be compelled to testify against himself.” Gompers, 221 U.S. at 444.
III. DISCUSSION
Judge Bloom’s order instructing Mr. Schwarzbaum to appear at the August 28,
2025, hearing was lawful and reasonably specific. Mr. Schwarzbaum was previously
found in civil contempt and his appearance was necessary for the Court to be fully
apprised before making its civil contempt sanctions determinations. In her order,
Judge Bloom instructed Mr. Schwarzbaum either retain counsel or notify the Court
whether he will proceed pro se no later than August 19, 2025. Judge Bloom also
ordered Mr. Schwarzbaum to appear at the August 28, 2025, hearing with a warning
that his failure to do so would result in sanctions. Mr. Schwarzbaum did neither and
his failure to do so violated Judge Bloom’s order.
I turn next to whether Mr. Schwarzbaum’s violation was willful. The United
States sent Mr. Schwarzbaum a copy of Judge Bloom’s order via electronic mail and
Federal Express international delivery. ECF No. 223. The August 28, 2025, hearing
was scheduled for 10:00 AM, Eastern Standard Time. The case was called at 10:06
am and the hearing concluded at 10:21 am. Mr. Schwarzbaum never appeared or
otherwise contacted Chambers regarding any inability to appear. Resolving all doubt
in favor of Mr. Schwarzbaum, I find his failure to show was neither accidental,
inadvertent, or negligent. Mr. Schwarzbaum was notified of the hearing, at the
method of communication he chose, and was instructed his presence was mandatory.
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Accordingly, Mr. Schwarzbaum’s failure to appear could be a basis for criminal
contempt.
Criminal contempt, however, is “a crime in the ordinary sense,” requiring the
procedural protections o
f notice and a hearing. Bloom v. Illinois, 391 U.S. 194, 201
(1968). Mr. Schwarzbaum should be afforded his due process rights. Rather than the
Court unilaterally initiating a prosecution through notice and appointment of a
prosecutor, it is more advisable to refer this matter to the Office of the United States
Attorney for the Southern District of Florida for consideration of prosecution f
or
criminal contempt. United States v. Squartino, 778 F.2d 734 (11th Cir. 1985) (upon
failure to comply with a court order, the district court may refer the matter to the
United States Attorney for prosecution).
R
EPORT AND RECOMMENDAT
ION
Accordingly, this Court RECOMMENDS that the District Court refer this
matter to the Office of the United States Attorney for the Southern District of Florida
for consideration of possible prosecution for criminal contempt.
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
objections shall constitute a waiver of a party's "right to challenge on appeal the
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district court’s order based on unobjected-to factual and legal conclusions." 11th Cir.
R. 3-1 (2016).
If counsel do not intend to file objections, they shall file a notice
advising the District Court within FIVE DAYS of this Report and
Recommendation.
D
ONE and SUBMITTED in Chambers at West Palm Beach, Palm
Beach County, in the Southern District of Florida, this 4th day of September 2025.
__________________________________
BRUCE E. REINHART
UNITED STATES MAGISTRATE JUDGE
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