Eleventh Circuit Demands Offence-Specific § 3292 Tolling Applications: A Commentary on United States v. Mark Gyetvay

Introduction

On 7 August 2025 the United States Court of Appeals for the Eleventh Circuit issued a wide-ranging opinion in United States v. Mark Gyetvay (Nos. 23-13254, 23-13383). Although the appeal touched on search-warrant practice, constructive-amendment doctrine, sentencing methodology and restitution, the headline development is a first-impression holding that 18 U.S.C. § 3292 tolls a criminal statute of limitations only for those offences expressly identified in the Government’s ex-parte tolling application. Failing to include an offence—or to secure separate judicial findings for that offence—leaves later-filed counts time-barred.

The decision invalidated two tax-misdemeanour convictions, trimmed an 86-month sentence, vacated a $4 million restitution order, and remanded the case for resentencing. More importantly, it recalibrates federal investigative practice in the Eleventh Circuit by signalling that expansive, catch-all tolling requests will not survive appellate scrutiny.

Summary of the Judgment

• Statute-of-Limitations Tolling (§ 3292) – Reversed. Counts 10 & 11 (§ 7203 failures to file 2013–2014 returns) were untimely because the Government’s tolling application never mentioned § 7203, and the original judge never made offence-specific findings.
• Fourth-Amendment Challenge – Affirmed. The motion to suppress an email-account warrant was untimely; even if reviewed, the warrant’s subject-matter and temporal limitations sufficed.
• Constructive Amendment / Variance – Affirmed. Count 13 (failure to file an accurate 2014 FBAR) was neither amended nor varied when the Government proved the filing of an inaccurate (rather than wholly absent) form.
• Sentencing – Vacated in part. Relevant-conduct findings were upheld, but restitution ($4,021,074) lacked explicit factual findings and was vacated; the overall sentence must be recalculated because two convictions were reversed.

Analysis

1. Precedents Cited and Their Bearing on the Decision

• United States v. Trainor, 376 F.3d 1325 (11th Cir. 2004) – Established evidentiary-value requirement for § 3292 applications. Gyetvay extends Trainor by declaring tolling strictly offence-specific.
• Toussie v. United States, 397 U.S. 112 (1970) – Reinforced narrow construction of criminal limitation extensions; the panel leaned on Toussie to read § 3292 restrictively.
• Niz-Chavez v. Garland, 593 U.S. 155 (2021) & Nielsen v. Preap, 586 U.S. 392 (2019) – Cited for the grammatical force of the definite article “the” in statutory text, supporting an offence-specific reading.
• United States v. McCall, 84 F.4th 1317 (11th Cir. 2023) – Guided the Fourth-Amendment analysis, emphasising temporal and subject-matter limits in digital warrants.
• Bittner v. United States, 598 U.S. 85 (2023) – Clarified FBAR obligations; used to explain that filing an inaccurate FBAR still violates 31 U.S.C. § 5314.
• Several Sentencing Authorities: Siegelman, Bradley, Dupree, etc., informed relevant-conduct and restitution reasoning.

2. The Court’s Legal Reasoning

a. Offence-Specific Tolling Under § 3292

Section 3292 uses the phrase “the offence” repeatedly. Applying modern textualism, the panel held that Congress’s definite article limits tolling to offences identified with reasonable specificity in the application. The Government’s filing listed eight “Target Offences” but omitted § 7203. Because the district judge’s tolling order correspondingly failed to make preponderance findings as to § 7203, the limitations period kept running. The later indictment therefore landed outside the six-year window and the convictions were reversed.

b. Fourth-Amendment Particularity for Cloud-Account Warrants

The warrant for Yahoo! e-mails was challenged as a “general warrant.” Citing McCall, the Court noted two ways to particularise digital warrants: (1) subject-matter categories and (2) temporal windows. Here, ten narrowly-drafted categories tied to tax-evasion evidence, combined with a 14-year date range matching the alleged scheme, met constitutional muster. The challenge was forfeited as untimely in any event, and no plain error appeared.

c. Constructive Amendment vs. Variance

Count 13 alleged failure to file an FBAR that disclosed the “Opotiki” Swiss account. The Government proved that Gyetvay filed an FBAR omitting that account. Relying on Bittner, the panel reasoned that filing a non-compliant form constitutes “failure to file” under § 5314; thus the proof matched the indictment, avoiding both constructive amendment and fatal variance.

d. Sentencing & Restitution

Relevant Conduct. The district court aggregated the 2013 peak balances of both Swiss accounts ($ 93.4 m) with the 2014 Opotiki balance ($ 8.7 m) when applying § 2S1.3(a)(2). Although the court did not articulate a separate “relevant-conduct” paragraph, the record (PSI ¶¶25, 45, trial testimony of IRS Agent Ranahan, et al.) made the logic transparent: years of concealed foreign assets formed a single course of conduct aimed at evading U.S. reporting obligations.

Restitution. Under the MVRA, restitution is permissible only for an “offence against property.” The district court adopted the PSI’s $ 4,021,074 figure without findings. The panel vacated the award and directed fact-findings on whether the § 1001 false-statement count had property deprivation as its object and how the loss amount was calculated.

3. Likely Impact of the Decision

• Federal Investigations. Prosecutors in the Eleventh Circuit must list every statute they hope to toll in a § 3292 application and supply offence-specific evidence. Sweeping, thematic descriptions (“tax offences” or “money laundering offences”) are no longer safe.
• Grand-Jury Practice. Investigating judges must make explicit findings for each offence. Expect more detailed ex-parte filings and judicial orders.
• Plea-Negotiation Dynamics. Defence counsel now have a potent statute-of-limitations weapon: scrutinise the § 3292 application for omissions.
• Digital-Warrant Drafting. McCall plus Gyetvay cement best practices: combine clear subject-matter descriptors with a relevant date range.
• Restitution Jurisprudence. District courts must articulate how each element of the loss figure relates to the offence of conviction; failure will trigger remand.

Complex Concepts Simplified

• § 3292 Tolling. A statutory pause button that prosecutors may press while awaiting foreign evidence. The Eleventh Circuit now says: “One button per offence.”
• Constructive Amendment. Changing the charging theory after the grand jury has spoken—akin to swapping ingredients in a recipe after the cake is in the oven. Per se reversible.
• Material Variance. The evidence and the charge diverge, but only harmless if the defendant is not prejudiced—think recipe tweaks that do not change the taste.
• Relevant Conduct. Conduct outside the conviction counts that shares a common scheme or course; it inflates the Guidelines range even if never charged.
• FBAR. Annual disclosure form for foreign accounts > $10,000 (31 U.S.C. § 5314). A report missing an account = no report at all.

Conclusion

United States v. Gyetvay delivers a cautionary trilogy:

1. Tolling under § 3292 is offence-specific: omit a statute and you lose the safety net.
2. Digital warrants survive when cabined by clear categories and time frames.
3. Restitution demands transparent, record-based findings.

Going forward, prosecutors must draft narrower tolling applications; district judges must enter offence-by-offence findings; and defence counsel have fresh grounds to challenge stale charges. Though two convictions fell, the larger legacy of Gyetvay is the Eleventh Circuit’s emphatic reaffirmation that statutes of limitation are a core structural protection—not a procedural nicety.