Eleventh Circuit Demands Offence-Specific § 3292 Tolling: A Deep Dive into United States v. Mark Gyetvay

1. Introduction

The Eleventh Circuit’s published opinion in United States v. Mark Gyetvay, Nos. 23-13254 & 23-13383 (11th Cir. Aug. 7, 2025) tackles a procedural labyrinth featuring Swiss bank accounts, late-filed tax returns, and the government’s strategic use of 18 U.S.C. § 3292 to toll statutes of limitation while it sought foreign evidence. The Court ultimately affirmed some convictions, reversed others, vacated a $4 million restitution order, and—most importantly—announced a clear, offence-specific rule for § 3292 tolling.

Below is a comprehensive commentary that situates the decision in context, analyses its reasoning, and forecasts its effects on white-collar and cross-border criminal litigation.

2. Summary of the Judgment

Counts Reversed: The Court reversed Mark Gyetvay’s convictions for willful failure to file 2013 and 2014 tax returns (26 U.S.C. § 7203). It held that the district court improperly tolled the six-year limitation period because the government’s ex parte § 3292 application never mentioned § 7203, and the investigating judge never made findings related to that offence.
Counts Affirmed: Convictions were affirmed for (i) making false statements in an IRS Streamlined Offshore Procedures certification (18 U.S.C. § 1001) and (ii) failing to file a compliant 2014 FBAR (31 U.S.C. §§ 5314, 5322).
Search-and-Seizure Challenge: A motion to suppress e-mail evidence was untimely under Fed. R. Crim. P. 12, and—applying plain-error review—the warrant was sufficiently particular.
Indictment Issues: The Court rejected claims of constructive amendment and material variance respecting the FBAR count.
Sentencing: The guideline range (base level 30 under § 2S1.3) was upheld, including the use of earlier FBAR violations as “relevant conduct,” but the restitution order of $4,021,074 was vacated for want of factual findings.
Disposition: Affirmed in part, reversed in part, vacated in part, and remanded for resentencing and restitution findings.

3. Analysis

3.1 Precedents Cited and Their Influence

Precedent	Key Take-Away & Use in Opinion
United States v. Trainor, 376 F.3d 1325 (11th Cir. 2004)	First Eleventh Circuit case interpreting § 3292. Trainor sets the evidentiary-value requirement (“something with indicia of reliability”). The panel built on it, but went further: § 3292 tolling is offence-specific; the government must produce evidence for each offence for which it seeks suspension.
Toussie v. United States, 397 U.S. 112 (1970)	Cited for the policy that statutes of limitation must be narrowly construed and only explicitly extended.
Bittner v. United States, 598 U.S. 85 (2023)	Quoted for the purpose of FBAR filings and for explaining that § 5314 violations focus on filing a “compliant report.” This underpinned the Court’s rejection of constructive-amendment arguments.
Niz-Chavez v. Garland, 593 U.S. 155 (2021)	Relied on grammatical analysis of the definite article “the” to clarify that § 3292 speaks of a single, definite offence.
United States v. McCall, 84 F.4th 1317 (11th Cir. 2023)	Provided current framework for digital-search particularity. The Court analogised the Yahoo warrant here and found compliance via subject-matter + temporal limits.

3.2 The Court’s Legal Reasoning

a. § 3292 Tolling Must Be Offence-Specific

Textualism drove the analysis: “an indictment,” “the offence,” and use of the definite article signal Congress intended a one-to-one relationship between tolling requests and offences.
Government’s broad description (“potential failure to report all income”) could not retroactively sweep in § 7203 counts. Likewise, the magistrate judge’s order contained no factual findings linked to § 7203.
Because statutes of limitation protect reliability and repose, any doubt is construed contra proferentem—against the government.

b. Fourth-Amendment Claims Procedurally Defaulted

Rule 12(c)(3) requires a showing of good cause for late suppression motions. None was offered.
Applying plain-error review, the warrant—with a 14-year date range—was still particular: 10 specific categories + temporal fenceposts.

c. No Constructive Amendment / No Material Variance

An inaccurate FBAR equals “failure” under § 5314, so proof that Gyetvay filed a form omitting the Opotiki account matched the indictment.
Jury instructions mirrored statutory elements; therefore, no broadening of the indictment occurred.

d. Sentencing—Relevant Conduct & Valuation

Prior FBAR omissions (2005-2013) formed the “same course of conduct” with the 2014 violation—common victim (IRS), common purpose (asset concealment).
The panel accepted the PSI’s $93.4 million figure as a reasonable estimate supported by testimony and records—even though the Felicis account held stock rather than cash.
However, restitution must be justified with explicit findings under the MVRA. The district court provided none, requiring vacatur.

3.3 Likely Impact of the Decision

Narrowing of § 3292: Prosecutors must now draft tolling applications with pinpoint specificity—listing each statutory violation and supplying separate evidence that material is abroad. Investigating judges must make offence-by-offence findings. Expect more cautious, multi-count applications (and perhaps fewer late-filed indictments).
Defense Strategy: Defense counsel gain a new arrow when indictments arrive near or after limitation deadlines. A quick audit of the § 3292 record is essential.
Digital Search Warrants: McCall + Gyetvay collectively signal that the Eleventh Circuit will uphold cloud-account warrants if they combine temporal limits with subject-matter categories—even if many years are covered.
FBAR Prosecutions: The Court confirms that an inaccurate FBAR can support a § 5314 failure-to-file charge. Prosecutors may rely on omission theories where a form is filed but incomplete.
Restitution Scrutiny: District courts must articulate how false statements “target property” before imposing restitution under the MVRA; otherwise, orders risk reversal.

4. Complex Concepts Simplified

18 U.S.C. § 3292: A procedural statute letting courts pause (toll) limitation periods while the government waits for evidence from abroad. The pause starts when a judge finds (1) an official request has been made and (2) evidence of the specified offence is likely located overseas.
Statute of Limitations (Criminal): The time window within which prosecutors must file charges. It prevents stale claims and incentivises prompt investigation. For willful failure to file tax returns (§ 7203) the limit is six years.
Constructive Amendment vs. Variance: A constructive amendment substitutes or broadens elements of the crime charged—automatic reversal. A variance merely proves different facts; reversal only if it prejudices the defense.
Relevant Conduct (§ 1B1.3): Sentencing principle that looks beyond the count of conviction to related acts forming the same course of conduct or common plan; can include uncharged or acquitted conduct proven by a preponderance.
MVRA Restitution: A mandatory repayment order for certain crimes “against property.” Courts must tie the loss directly to the convicted offence and make fact-based findings.

5. Conclusion

United States v. Gyetvay will become the leading Eleventh Circuit authority on § 3292. Its core lesson—tolling is offence-specific and evidence-specific—fortifies defendants’ statute-of-limitations protections and compels prosecutorial precision when seeking foreign evidence. The opinion also reinforces procedural rigor in suppression practice, indictment integrity, sentencing calculations, and restitution awards. Cross-border white-collar investigations will feel its ripple effects immediately, while district courts receive a clear blueprint for § 3292 orders and MVRA findings. In sum, the decision tightens procedural bolts at several stages of federal criminal litigation, ensuring that expansive investigative tools do not erode the delicate safeguards of time, specificity, and due process.