# United States v. Mark Gyetvay

> Court of Appeals for the Eleventh Circuit · August 7, 2025

URL: https://www.frixlaw.com/law-library/cases/11116355

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 7, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** CON
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- holding that the district court did not abuse its discretion in denying motion to suppress as untimely because the defendant’s “decision to not timely ﬁle a motion to suppress . . . based on his belief that he would be subject to man- datory life imprisonment” did not constitu…

## Opinion text

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[PUBLISH]

In the

United States Court of Appeals
For the Eleventh Circuit

____________________

Nos. 23-13254, 23-13383
____________________

UNITED STATES OF AMERICA,
Plaintiﬀ-Appellee,
versus
MARK GYETVAY,
Defendant-Appellant.

____________________

Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:21-cr-00083-JNE-NPM-1
____________________
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2 Opinion of the Court 23-13254

Before ROSENBAUM, LAGOA, and WILSON, Circuit Judges.
LAGOA, Circuit Judge:
Mark Gyetvay, an American accountant and ﬁnancial execu-
tive who worked for many years in Russia, was indicted on a variety
of tax-related charges, following an investigation into his alleged
tardy ﬁlings and concealment of funds in Swiss bank accounts.
Gyetvay was convicted at trial of four counts: failure to ﬁle income
tax returns for 2013 and 2014 in violation of 26 U.S.C. § 7203, mak-
ing false statements on his Streamlined Foreign Oﬀshore Proce-
dures certiﬁcation in violation of 18 U.S.C. § 1001, and failure to
ﬁle a 2014 Foreign Bank Account Report in violation of 31 U.S.C.
§§ 5314 and 5322(a).
On appeal, Gyetvay raises four arguments. First, he argues
that the district court erred in tolling the statute of limitations for
Counts 10 and 11, which charged failure to ﬁle tax returns in viola-
tion of 26 U.S.C. § 7203. Second, he argues that the district court
erred in denying his motion to suppress a search warrant authoriz-
ing seizure of his email account because both the warrant and sei-
zure violated the Fourth Amendment. Third, he argues that the
government constructively amended or materially varied from
Count 13 of the indictment, which charged failure to ﬁle a 2014
Foreign Bank Account Report, violating the Fifth Amendment. Fi-
nally, he argues that the district court made a variety of errors at
sentencing, including in calculating his guideline range and order-
ing him to pay $4,021,074 in restitution to the IRS. After careful
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23-13254 Opinion of the Court 3

review, and with the beneﬁt of oral argument, we aﬃrm in part,
reverse in part, vacate in part, and remand for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
Every American citizen making a gross income above a min-
imum exemption amount must ﬁle annual tax returns. 26 U.S.C.
§§ 6011(a), 6012(a). Under 26 U.S.C. § 7203, willfully failing to
timely ﬁle income tax returns is a misdemeanor.1 Additionally, un-
der the Bank Secrecy Act and its implementing regulations, every
American citizen with interests in or authority over a foreign bank
account with a balance exceeding $10,000 must ﬁle an annual

1 26 U.S.C. § 7203 provides as follows:

Any person required under this title to pay any estimated tax
or tax, or required by this title or by regulations made under
authority thereof to make a return, keep any records, or sup-
ply any information, who willfully fails to pay such estimated
tax or tax, make such return, keep such records, or supply such
information, at the time or times required by law or regula-
tions, shall, in addition to other penalties provided by law, be
guilty of a misdemeanor and, upon conviction thereof, shall
be ﬁned not more than $25,000 ($100,000 in the case of a cor-
poration), or imprisoned not more than 1 year, or both, to-
gether with the costs of prosecution. In the case of any person
with respect to whom there is a failure to pay any estimated
tax, this section shall not apply to such person with respect to
such failure if there is no addition to tax under section 6654 or
6655 with respect to such failure. In the case of a willful viola-
tion of any provision of section 6050I, the ﬁrst sentence of this
section shall be applied by substituting “felony” for “misde-
meanor” and “5 years” for “1 year”.
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4 Opinion of the Court 23-13254

Report of Foreign Bank and Financial Accounts form (known as an
“FBAR”) with the IRS, identifying and describing that account. See
31 C.F.R. §§ 1010.306(c), 1010.350(a). “These reports are designed
to help the government ‘trace funds’ that may be used for ‘illicit
purposes’ and identify ‘unreported income’ that may be subject to
taxation separately under the terms of the Internal Revenue Code.”
Bittner v. United States, 598 U.S. 85, 89–90 (2023) (quoting IRS Pub.
5569, Report of Foreign Bank & Financial Accounts (FBAR) Refer-
ence Guide, p.1 (Rev. 3–2022)). Willful failure to ﬁle an FBAR is a
felony under 31 U.S.C. § 5322(a).
Gyetvay, an American citizen, is an accountant and ﬁnancial
executive. In the 1990s and early 2000s, Gyetvay worked in the
Moscow oﬃce of PriceWaterhouseCoopers, eventually achieving
the rank of partner. In 2003, he left PriceWaterhouseCoopers to
become the Chief Financial Oﬃcer of Novatek, Russia’s largest pri-
vate natural gas company. In 2005, Gyetvay was the “point man”
for Novatek’s initial public oﬀering (“IPO”). Over the next several
years, in exchange for his work on the IPO, Gyetvay received $9.35
million in the form of a call option and 7,287,134 shares of Novatek
stock, on top of millions of dollars in annual income. In 2007, he
deposited the $9.35 million in a Swiss bank account held in the
name of Opotiki Marketing Ltd. (the “Opotiki account”). In 2009,
he deposited the Novatek stock in a Swiss securities account held
in the name of Felicis Commercial Corp. (the “Felicis account”).
Both accounts were opened at Coutts Bank.
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23-13254 Opinion of the Court 5

In mid-2010, Coutts Bank informed Gyetvay that his Opotiki
and Felicis accounts needed to be closed or declared tax compliant
by the end of June 2010. Gyetvay then closed the Opotiki and Fe-
licis accounts at Coutts and transferred them to another Swiss
bank, Hyposwiss, this time listing his then-wife, Nadezda Gav-
rilova, as the “beneﬁcial owner” of both accounts. Coutts recorded
Gyetvay’s “reason for departure” from the bank as “U.S. client not
tax compliant.”
Around September 2010, Gyetvay hired an accountant
named Alex Knight to prepare his U.S. income tax returns for 2006–
2009. By that point, Gyetvay’s tax returns for 2006, 2007, and 2008
were already late. To aid in the preparations, Knight asked Gyetvay
whether he had any foreign bank accounts, and Gyetvay indicated
that he had only “[o]ne account” in Russia with a balance over
$10,000. Knight also informed Gyetvay of his obligation to ﬁle
FBAR forms for the preceding years, but, according to Knight,
Gyetvay dismissed the recommendation and did not ﬁle FBARs for
the years prior to 2010. Gyetvay concedes that he “did not ﬁle
timely tax returns or FBARs from 2008 to 2013,” and he admits that
the “Felicis account went undisclosed” throughout that entire pe-
riod.
In 2014, Coutts Bank notiﬁed Gyetvay that it was participat-
ing in a program, established by the U.S. and Swiss governments,
that would require it to provide U.S. tax authorities with infor-
mation about Gyetvay’s past accounts at Coutts. Coutts advised
Gyetvay of the IRS’ “Streamlined Foreign Oﬀshore Procedures,”
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6 Opinion of the Court 23-13254

which allowed taxpayers to ﬁle any delinquent tax returns for the
most recent three years and any delinquent FBARs for the most re-
cent six years. To participate in the Streamlined Procedures, tax-
payers had to certify that any prior failures to ﬁle tax returns, report
foreign accounts, and pay taxes were “non-willful,” i.e., “due to
negligence, inadvertence, or mistake” or “a good-faith misunder-
standing of the requirements of the law.” In 2014, Gyetvay retained
the ﬁrm Anaford to help him with the Streamlined Procedures, and
in 2015, he submitted his Streamlined ﬁling to the U.S. government,
along with his long-tardy tax returns for 2011–2013 and FBARs for
2008–2013. Gyetvay reported in his late-ﬁled 2013 FBAR that the
Felicis account had grown to contain $84,264,354, while the
Opotiki account held $9,148,420. In his Streamlined ﬁling, Gyetvay
certiﬁed that his “delay in ﬁling U.S. tax returns [was] not due to
any willfulness, but rather the result of [his] reasonable attempts to
comply with increasingly diﬃcult administrative requirements.” In
June 2015, Gyetvay ﬁled a late FBAR for 2014, in which he repre-
sented that he had signature authority over—but no ﬁnancial inter-
est in—a single Swiss bank account containing an “amount un-
known.” It is undisputed that Gyetvay intentionally “omitted the
Opotiki account” from his 2014 FBAR (although Gyetvay insists
that it was because he “[ran] out of blank ﬁelds” on the form).
Eventually, a grand jury began investigating the veracity of
Gyetvay’s statements on his Streamlined certiﬁcation, as well as his
history of tax evasion, failure to report income, “use of secret Swiss
bank accounts,” and “failure to disclose the existence of those ac-
counts to the government as required.” Before an indictment was
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23-13254 Opinion of the Court 7

returned, the government ﬁled an ex parte application under 18
U.S.C. § 3292(a)(1) to suspend the running of the statute of limita-
tions for certain “Target Oﬀenses” that the grand jury was investi-
gating. On April 3, 2020, the district court overseeing the grand
jury investigation granted that application and tolled the statute of
limitations “for the oﬀenses set forth in the government’s ex parte
application.”
The grand jury returned an initial indictment on September
22, 2021, and a second superseding indictment on May 4, 2022
(which we’ll refer to as the “superseding indictment”). In the su-
perseding indictment, the grand jury charged Gyetvay with three
counts of assisting in the preparation of false tax returns, in viola-
tion of 26 U.S.C. § 7206(2) (Counts 1–3), three counts of tax eva-
sion, in violation of 26 U.S.C. § 7201 (Counts 4–6), and ﬁve counts
of willfully failing to ﬁle income tax returns between 2010–2014
(Counts 7–11). Count 12 charged Gyetvay with willfully making
false statements on his IRS Streamlined Procedures certiﬁcation, in
violation of 18 U.S.C. § 1001. Count 13 charged Gyetvay with will-
fully failing to ﬁle an FBAR disclosing that he had a ﬁnancial inter-
est in, and signature and authority over, a foreign bank account, “to
wit, the Opotiki account.” Counts 14 and 15 charged Gyetvay with
wire fraud.
Gyetvay went to trial in March 2023. The jury returned a
guilty verdict on four of the ﬁfteen counts: Counts 10 and 11 (fail-
ure to ﬁle income tax returns for 2013 and 2014), Count 12 (making
false statements on his Streamlined certiﬁcation), and Count 13
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8 Opinion of the Court 23-13254

(failure to ﬁle a compliant 2014 FBAR). The jury acquitted Gyetvay
on one of the counts of wire fraud and hung on all other charges.
The district court sentenced Gyetvay to 86 months’ imprisonment
and ordered him to pay $4,021,074 in restitution to the IRS.
II. ANALYSIS
A. Tolling the Statute of Limitations
The ﬁrst issue in this case poses a question of ﬁrst impres-
sion for this Court: under 18 U.S.C. § 3292(a)(1), can a district court
toll the statute of limitations for an oﬀense that was not identiﬁed
in the government’s ex parte tolling application? Under a plain read-
ing of the statute, we conclude that the answer is no.
Gyetvay was convicted of Counts 10 and 11 of the supersed-
ing indictment, which charged him with willful failure to ﬁle fed-
eral income tax returns for the years 2013 and 2014, in violation of
26 U.S.C. § 7203. The statute of limitations for § 7203 is six years.
26 U.S.C. § 6531(4). Gyetvay’s 2013 tax return was due on October
15, 2014, and his 2014 tax return was due on April 15, 2015. The
initial indictment was ﬁled on September 22, 2021. The parties thus
agree that, absent tolling of the statute of limitations, Counts 10
and 11 are time-barred, since the indictment was returned more
than six years after the deadlines for Gyetvay’s 2013 and 2014 tax
returns.
In a criminal case, upon application of the government, 18
U.S.C. § 3292 allows for the tolling or “suspension” of the statute
of limitations if several conditions are met. The statute provides:
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23-13254 Opinion of the Court 9

Upon application of the United States, ﬁled before re-
turn of an indictment, indicating that evidence of an
oﬀense is in a foreign country, the district court before
which a grand jury is impaneled to investigate the of-
fense shall suspend the running of the statute of lim-
itations for the oﬀense if the court ﬁnds by a prepon-
derance of the evidence that an oﬃcial request has
been made for such evidence and that it reasonably
appears, or reasonably appeared at the time the re-
quest was made, that such evidence is, or was, in such
foreign country.
Id. § 3292(a)(1). In interpreting this statute, this Court has held that,
due to the “ex parte nature of § 3292 proceedings,” and because
“statutes of limitations are themselves mechanisms for ensuring
the reliability of evidence submitted in court proceedings,”
§ 3292(a)(1) requires the government to “provide something with
evidentiary value—that is, testimony, documents, proﬀers, and
other submissions bearing some indicia of reliability—tending to
prove it is reasonably likely that evidence of the charged oﬀenses is
in a foreign country.” United States v. Trainor, 376 F.3d 1325, 1332
(11th Cir. 2004). The district court must make ﬁndings by a pre-
ponderance of the evidence, while the government bears its own
burden of presenting the court with enough evidence to satisfy that
standard, which “requires the trier of fact to believe that the exist-
ence of a fact is more probable than its nonexistence[.]” Id. at 1331
(quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension
Tr. for S. Cal., 508 U.S. 602, 622 (1993)).
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10 Opinion of the Court 23-13254

On April 3, 2020, during the investigatory stage of this case,
the government ﬁled an ex parte application under § 3292(a)(1) to
suspend the running of the statute of limitations for certain “Tar-
get Oﬀenses.” In support of its application, the government repre-
sented that:
A grand jury duly empaneled in this district has been
investigating Mark Gyetvay with respect to false state-
ments he made on a voluntary disclosure he ﬁled with
the IRS, his use of secret Swiss bank accounts, his fail-
ure to disclose the existence of those accounts to the
government as required, and his potential failure to
report all income earned through the accounts. Pos-
sible criminal charges against Gyetvay include: (i) tax
evasion, in violation of 26 U.S.C. § 7201; (ii) ﬁling false
tax returns and documents with the IRS, in violation
of 26 U.S.C. § 7206(1); (iii) aiding and assisting in the
preparation and presentation of false documents with
the IRS, in violation of 26 U.S.C. § 7206(2); (iv) imped-
ing the due administration of the Internal Revenue
laws, in violation of 26 U.S.C. § 7212(a); (v) conspiracy
to defraud the United States, in violation of 18 U.S.C.
§ 371; (vi) false statements to the United States, in vi-
olation of 18 U.S.C. § 1001; (vii) failure to ﬁle FBARs,
in violation of 31 U.S.C. §§ 5314 and 5322; and wire
fraud and conspiracy to commit wire fraud, in viola-
tion of 18 U.S.C. § 1343 and § 1349; (“the Target Of-
fenses”).
The government averred that “evidence of [these] Target Oﬀenses,
to wit, bank account, business records, and foreign tax records, are
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23-13254 Opinion of the Court 11

[sic] located in Switzerland, Russia, and Cyprus.” The district judge
for the grand jury investigation granted the application to suspend
the “running of the statute of limitations for the oﬀenses set forth
in the government’s ex parte application,” based on its ﬁnding that
“it reasonably appears that evidence of the Target Oﬀenses is lo-
cated in Switzerland, Russia, and Cyprus.” Neither the application
nor the tolling order identiﬁed a violation of § 7203 as one of the
“Target Oﬀenses.”
On May 4, 2022, the grand jury returned the second super-
seding indictment, which indicted Gyetvay for violations of § 7203,
including for willfully failing to make income tax returns for calen-
dar years 2013 and 2014 in Counts 10 and 11. The § 7203 violations
were not charged in the initial indictment, and Gyetvay moved to
dismiss the superseding indictment, including Counts 10 and 11, on
grounds of untimeliness. The government argued, in response,
that the tolling order applied to those charges, despite the fact that
the government’s application did not identify the statute under
which those oﬀenses were charged, and the tolling order contained
no evidentiary ﬁndings for those charges. The district court denied
Gyetvay’s motion to dismiss without prejudice. The government
then ﬁled a motion in limine requesting that the court “ﬁnd that the
tolling order properly tolled the statute of limitations on April 3,
2020,” for “all charges in the Indictment.” Without much explana-
tion, the district court granted that motion, ﬁnding that “the
United States’ application under Section 3292 . . . [was] valid and
properly applicable to all charges in the [superseding] indictment,”
including Counts 10 and 11.
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12 Opinion of the Court 23-13254

On appeal, Gyetvay contends that the district court erred in
tolling the statute of limitations for Counts 10 and 11 of the indict-
ment. Gyetvay’s argument is straightforward: On his reading of
the statute, the phrase “the oﬀense” within § 3292(a)(1) refers to
the oﬀense that the government seeks to be tolled—here, the of-
fense of failure to ﬁle tax returns in violation of § 7203. Because
the government never applied for tolling of the oﬀense of failure
to ﬁle tax returns in violation of § 7203, Gyetvay reasons, the stat-
ute of limitations for those oﬀenses should not have been tolled,
and the charges were time-barred. Gyetvay further argues that,
even if the government had included § 7203 in its application, the
district court itself erred because it failed to make its required fac-
tual ﬁndings under § 3292(a)(1).
The government acknowledges that it did not “cite 26 U.S.C.
§ 7203 (willful failure to ﬁle a tax return)” in its tolling application,
but it asserts that it did not need to. According to the government,
its “description of the oﬀenses” was suﬃciently speciﬁc to “cover[ ]
the failure-to-ﬁle oﬀenses ultimately charged in Counts 10 and 11.”
The government adds that a Special Agent’s declaration ﬁled in
support of the tolling application did mention Gyetvay’s failure to
ﬁle timely income tax returns, so (in the government’s view) the
district court was correct to later ﬁnd that the application and toll-
ing order tolled the limitations period for Counts 10 and 11.
To sum up, the government’s ex parte application sought
tolling for eight “Target Oﬀenses,” none of which charged a viola-
tion of § 7203. The tolling order issued during the investigatory
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23-13254 Opinion of the Court 13

period of the case suspended the running of the statute of limita-
tions “for the oﬀenses set forth” in the application. Nonetheless,
the district court later read the government’s tolling application
and the investigating judge’s tolling order to have suspended the
statute of limitations for both counts alleging violations of § 7203.
The application of a statute of limitations is a question of
law reviewed de novo, while a district court’s ﬁndings of fact are re-
viewed for clear error. Trainor, 376 F.3d at 1329–30. When it comes
to questions of statutory interpretation, we begin, as always, “by
examining the text of the statute to determine whether its meaning
is clear.” Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002) (en
banc). Indeed, “[i]n construing a statute,” we “often should end as
well, with the language of the statute itself.” United States v. Steele,
147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). “We give the words
of a statute their ‘ordinary, contemporary, common meaning,’ ab-
sent an indication Congress intended them to bear some diﬀerent
import.” Williams v. Taylor, 529 U.S. 420, 431 (2000) (quoting Wal-
ters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 207 (1997)).
As quoted above, § 3292 permits the United States to ﬁle an
“application . . . indicating that evidence of an oﬀense is in a foreign
country.” 18 U.S.C. § 3292(a)(1). Then, the district court “before
which a grand jury is impaneled to investigate the oﬀense shall sus-
pend the running of the statute of limitations for the oﬀense if ” it
“ﬁnds by a preponderance of the evidence that an oﬃcial request
has been made for such evidence and that it reasonably appears”
that “such evidence” is abroad. Id. (emphasis added). “Words are
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14 Opinion of the Court 23-13254

to be given the meaning that proper grammar and usage would
assign them.” A. SCALIA & B. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 140 (2012). In this case, “gram-
mar and usage establish that ‘the’ is ‘a function word . . . indicat[ing]
that a following noun or noun equivalent is deﬁnite or has been
previously speciﬁed by context.’” Nielsen v. Preap, 586 U.S. 392, 408
(2019) (quoting MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
1294 (11th ed. 2005)). Where a law uses a “deﬁnite article with a
singular noun,” the law refers to a “discrete thing.” Niz-Chavez v.
Garland, 593 U.S. 155, 166 (2021). On a plain reading of our statute,
therefore, a district court can only toll the statute of limitations for
“an oﬀense” if the United States ﬁles an application indicating that
evidence of “the oﬀense”—i.e., that deﬁnite or previously speciﬁed
oﬀense—is in a foreign country. Likewise, the district court must
ﬁnd by a preponderance of the evidence that evidence of that def-
inite or previously speciﬁed oﬀense is or was reasonably likely to be
in a foreign country.
Based on this plain-text reading of the statute, which is un-
ambiguously oﬀense-speciﬁc, we conclude that the district court
erred in suspending the limitations period for Counts 10 and 11,
because the government’s tolling application did not indicate that
evidence of those oﬀenses was located in a foreign country, and the
district court never found by a preponderance of the evidence that
such evidence was abroad.
While the government does not appear to contest this plain-
text reading, it argues that its application was suﬃcient because the
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23-13254 Opinion of the Court 15

government, when applying for tolling, need not identify oﬀenses
by statutory citation, and, instead, “need only provide a reasonably
speciﬁc description of the oﬀenses under investigation” to meet the
requirements of § 3292(a)(1). The government claims that its de-
scription of the oﬀenses was speciﬁc enough to encompass the fail-
ure-to-ﬁle oﬀenses later charged in Counts 10 and 11, because the
application “described the grand jury’s investigation of multiple of-
fenses, including defendant’s ‘potential failure to report all income
earned.’”
We agree that the text of § 3292(a)(1) does not require the
government to list by citation the oﬀenses that may have been com-
mitted. But we are hesitant to create a rule so broad that it would
allow the government to paint with a wide brush and later be able
to sweep in (and prolong the statute of limitations for) all sorts of
oﬀenses not mentioned in its application. 2 On the government’s
view of the suﬃciency of an application, the government can
seemingly “[meet] the standard” for tolling as long as it “de-
scribe[s]” an oﬀense with reasonable speciﬁcity. As the government

2 In one out-of-circuit case cited by the United States, for example, a district

court held that an application was suﬃciently “speciﬁc” to toll the statute of
limitations on a tax-fraud count not mentioned in the application or tolling
order, because “tax fraud is intimately related to the wire fraud, money launder-
ing, and conspiracy to commit money laundering oﬀenses that were under
investigation and listed in the application and tolling [o]rder.” United States v.
Swartzendruber, 2009 WL 485144, at *5 (D.N.D. Feb. 25, 2009) (emphasis
added).
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16 Opinion of the Court 23-13254

argued below, “even though the government’s application paper-
work did not cite to 26 U.S.C. § 7203, there can be no dispute that
the application described the oﬀense of failing to ﬁle a tax return,”
and “[t]hat is all the statute requires.”
But that is not all the statute requires. As both the statutory
language and our case law make plain, § 3292(a)(1) requires the
government and the district court to satisfy a preponderance-of-the
evidence standard. The government must meet that standard by
providing reliable evidence that evidence of each oﬀense at issue is
reasonably likely to be located abroad. See Trainor, 376 F.3d at 1336
(the government must provide evidence “that it reasonably appears
the requested evidence is in a foreign country” (emphasis added)); id.
at 1332 (the government must provide something with evidentiary
value “tending to prove it is reasonably likely that evidence of the
charged oﬀenses is in a foreign country” (emphasis added)). For its
part, the court “to whom the application is presented” must ﬁnd,
again by a preponderance, that “(1) the Government has made an
oﬃcial request for evidence located in a foreign country, and (2) ‘it
reasonably appears, or reasonably appeared at the time the request
was made, that such evidence is, or was, in such foreign country.’”
Id. at 1328 (quoting § 3292(a)(1)). So, while the text of § 3292(a)(1)
does not require the government to enumerate oﬀenses by citation,
we reject the argument that the government’s description of an of-
fense—which, in this case, did not even describe the oﬀense of fail-
ing to ﬁle income tax returns—is “all the statute requires.”
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23-13254 Opinion of the Court 17

At a high level, “Congress has declared a policy that the stat-
ute of limitations should not be extended ‘(e)xcept as otherwise ex-
pressly provided by law.’” Toussie v. United States, 397 U.S. 112, 15
(1970) (quoting 18 U.S.C. § 3282). When any doubt exists about the
statute of limitations in a criminal case, the limitations period is
construed narrowly against the government and in favor of the de-
fendant. BP Am. Prod. Co. v. Burton, 549 U.S. 84, 95 (2006); United
States v. Gilbert, 136 F.3d 1451, 1454 (11th Cir. 1998). This rule is
“designed to protect individuals from having to defend themselves
against charges when the basic facts may have become obscured by
the passage of time and to minimize the danger of oﬃcial punish-
ment because of acts in the far-distant past. Such a time limit may
also have the salutary eﬀect of encouraging law enforcement oﬃ-
cials promptly to investigate suspected criminal activity.” Toussie,
397 U.S. at 114–15. Whenever statutory terms “extend[ ] the stat-
ute of limitations,” those terms should be construed “narrowly.”
United States v. Maher, 955 F.3d 880, 885 (11th Cir. 2020) (citing Tous-
sie, 397 U.S. at 115).
With all this in mind, we think the best way to construe
§ 3292(a)(1) is to require the government to identify the oﬀense or
oﬀenses at issue with enough speciﬁcity to 1.) make clear to the
judge to whom the application is presented which charges the gov-
ernment seeks to be tolled, and 2.) “elicit evidence of the alleged
violations under investigation by the grand jury.” United States v.
Wilson, 249 F.3d 366, 374 (5th Cir. 2001) (quoting United States v.
Neill, 952 F. Supp. 831, 833 (D.D.C. 1996)), abrogated on other grounds
by Whitﬁeld v. United States, 543 U.S. 209 (2005). For example, in
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18 Opinion of the Court 23-13254

Wilson, the Fifth Circuit aﬃrmed a district court’s § 3292 tolling or-
der and rejected the appellant’s argument that the government’s
“request was not suﬃcient to toll the statute of limitations with
regard to 18 U.S.C. § 1957, because that statute was not speciﬁcally
enumerated in the letter.” 249 F.3d at 374. Wilson relied on the fact
that the government used the phrase “money laundering” in its
tolling application, and a violation of 18 U.S.C. § 1957 is commonly
referred to as “money laundering.” See id. (“This circuit has re-
ferred to a violation of 18 U.S.C. § 1957 as ‘money laundering.’”).
As such, it was “clear” to the court that the “[g]overnment’s use of
the phrase ‘money laundering’ in its request for assistance was ‘rea-
sonably speciﬁc’ [to elicit evidence of the alleged violations under
investigation] and adequate to toll limitations for this oﬀense.” Id.
Having come to this conclusion, we return to the analysis in
this case. As an initial matter, we ﬁnd it irrelevant that one of the
“Target Oﬀenses” in the tolling application was tax evasion in vio-
lation of 26 U.S.C. § 7201. The parties agree that (at least under the
Schmuck test) § 7203 is not a lesser-included oﬀense of § 7201, be-
cause the former oﬀense “requires an element not required for the
greater oﬀense.” Schmuck v. United States, 489 U.S. 705, 716 (1989).
Next, the government did not meet the requirements of
§ 3292(a)(1) to toll Counts 10 and 11, and the reference to Gyetvay’s
failure to ﬁle taxes in a declaration was inadequate. The govern-
ment’s application did not identify § 7203 as an oﬀense under inves-
tigation. And the application’s broad language—referencing Gyet-
vay’s “potential failure to report all income earned through the
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23-13254 Opinion of the Court 19

accounts”—is insuﬃcient to cover or encompass “the oﬀense” of
failure to ﬁle timely income tax returns. Because the speciﬁc of-
fense of willful failure to ﬁle income tax returns was not mentioned
in the government’s application, the government did not satisfy the
requirements of § 3292(a)(1) to suspend the running of the statute
of limitations for Counts 10 and 11.
Gyetvay also argues that the district court independently
failed to make ﬁndings as required by the tolling statute. We agree.
Recall, under § 3292(a)(1), the district court must “ﬁnd[ ] by a pre-
ponderance of the evidence that an oﬃcial request has been made
for [evidence of an oﬀense in a foreign country] and that it reason-
ably appears, or reasonably appeared at the time the request was
made, that such evidence is, or was, in such foreign country.” A
district court “can do this only if it is given something with eviden-
tiary value, that is, something bearing indicia of reliability, to eval-
uate.” Trainor, 376 F.3d at 1332. But the court must itself make
ﬁndings supported by a preponderance of the evidence before sus-
pending the running of the statute of limitations for the oﬀense
under investigation. After all, due to the ex parte nature of § 3292
proceedings, “the district court is responsible for ensuring that [a
defendant’s] interests are protected.” Id.
Here, the district court made no ﬁndings whatsoever on ev-
idence of a violation of § 7203 in its order granting the ex parte ap-
plication, instead making ﬁndings on the “Target Oﬀenses” alone.
The court found, based on a preponderance of the evidence, that
“it reasonably appears that evidence of the Target Oﬀenses is located
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20 Opinion of the Court 23-13254

in Switzerland, Russia, and Cyprus,” but it made no such ﬁnding
regarding evidence of Gyetvay’s failure to ﬁle income tax returns.
Thus, even if the government’s application somehow encompassed
the violations alleged in Counts 10 and 11, those charges were not
properly tolled, because the order issued by the district court did
not contain the requisite ﬁndings for any oﬀenses outside of the
“Target Oﬀenses.” The district court, therefore, erred in retroac-
tively applying the tolling order to Counts 10 and 11, because it
never found by a preponderance of the evidence that evidence of
Gyetvay’s failure to ﬁle in 2013 and 2014, in violation of § 7203, was
located in a foreign country.
For these reasons, we conclude that Counts 10 and 11 are
time-barred. We reverse Gyetvay’s convictions on those counts,
vacate his sentence, and remand for resentencing.
B. Fourth Amendment Challenge
Next, Gyetvay argues that the district court erred in denying
his motion to suppress evidence obtained from a search warrant
for his email account because the warrant and seizure violated the
Fourth Amendment.
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and eﬀects, against
unreasonable searches and seizures.” U.S. CONST. amend. IV. The
Warrant Clause of the Fourth Amendment “categorically prohibits
the issuance of any warrant except one ‘particularly describing the
place to be searched and the persons or things to be seized.’” Mar-
yland v. Garrison, 480 U.S. 79, 84 (1987) (quoting U.S. CONST. amend.
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23-13254 Opinion of the Court 21

IV). As the Supreme Court has explained, the “manifest purpose”
of the particularity requirement is to “prevent general searches.”
Id. “By limiting the authorization to search to the speciﬁc areas and
things for which there is probable cause to search, the requirement
ensures that the search will be carefully tailored to its justiﬁcations,
and will not take on the character of the wide-ranging exploratory
searches the Framers intended to prohibit.” Id.
On February 21, 2020, a magistrate judge signed a search
and seizure warrant authorizing a search of “[t]he content of all
emails associated with” Gyetvay’s Yahoo.com email account “for
the period January 1, 2005 to November 11, 2019.” Under the sec-
tion titled “Information to be seized by the government,” the war-
rant authorized law enforcement personnel to “review the records
produced by the Provider in order to locate any evidence, fruits,
and instrumentalities of a scheme to hide assets in oﬀshore entities
and accounts and evade taxation on income derived from such as-
sets, speciﬁcally the crimes of: (i) evading taxes, in violation of 26
U.S.C. § 7201; (ii) making and subscribing to a false tax return, in
violation of 26 U.S.C. § 7206(1); (iii) aiding and assisting in the prep-
aration of a false tax return, in violation of 26 U.S.C. § 7206(2); (iv)
willfully failing to make a tax return, in violation of 26 U.S.C. §
7203; (v) willfully failing to ﬁle, or willfully ﬁling a false, report of
foreign bank account, in violation of 31 U.S.C. §§ 5314, 5322; and
(vi) wire fraud and conspiracy to commit wire fraud, in violation
of 18 U.S.C. § 1343 and § 1349.” The warrant further speciﬁed the
types of evidence it sought to uncover, including “[e]vidence con-
cerning any domestic or foreign properties, assets, ﬁnancial
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22 Opinion of the Court 23-13254

interests, personal expenditures, and/or bank accounts held in
Gyetvay’s name or nominally held by other individuals or entities,”
“[e]vidence reﬂecting communications or correspondence be-
tween Gyetvay and his accountants and advisors about structuring
ﬁnancial transactions and/or Gyetvay’s assets in a manner to con-
ceal Gyetvay’s ownership of the assets,” and “[e]vidence reﬂecting
communications or correspondence involving Gyetvay and any
business partner, associate, friend or relative demonstrating Gyet-
vay’s decision to allocate time, resources, and eﬀort on aﬀairs and
matters other than complying with his tax and other ﬁling obliga-
tions.”
Gyetvay takes issue with this last clause, arguing that “[a]
search warrant that demands all emails relating to the identiﬁed tax
activities, and emails not relating to those activities, simply de-
mands all emails.” He also argues that the categories relating to his
ﬁnancial activities were not drawn with particularity. Gyetvay
moved to suppress the warrant on September 2, 2022, on similar
grounds. On December 19, 2022, the district court denied Gyet-
vay’s motion to suppress. The court held, ﬁrst, that the motion was
untimely, because it was “ﬁled eleven months after Defendant re-
ceived the search materials in discovery, [ ] long after the [c]ourt’s
deadline for pretrial motions,” and “eleven months after receiving
a copy of the warrant and aﬃdavit.” The district court then held
that, “even if the motion were timely ﬁled, the [c]ourt would still
deny relief,” since the warrant “appears to be suﬃciently particular
in light of the complex nature and sizeable time duration of the tax
fraud scheme Defendant is accused of committing.”
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23-13254 Opinion of the Court 23

In reviewing a district court’s denial of a motion to suppress
evidence, we ordinarily review the court’s ﬁndings of fact for clear
error and the court’s application of the law to those facts de novo.
United States v. Noriega, 676 F.3d 1252, 1259 (11th Cir. 2012). How-
ever, when a district court denies a motion to suppress on the basis
of untimeliness, we review for an abuse of discretion. United States
v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990); see also United States v.
Taylor, 792 F.2d 1019, 1025 (11th Cir. 1986), cert. denied, 481 U.S.
1030 (1987) (holding that the district court did not abuse its discre-
tion where the defendant challenged the denial of his motion to
suppress on timeliness grounds); United States v. Andres, 960 F.3d
1310, 1315 (11th Cir. 2020) (“We review for abuse of discretion the
denial of [a] motion to suppress on the grounds of timeliness.” (cit-
ing Smith, 918 F.2d at 1509)). 3 When a party fails to establish good
cause for an untimely motion to suppress, the issue raised in the
motion is not preserved, so we review the merits of the motion for
plain error. Andres, 960 F.3d at 1315–16; United States v. Milian-

3 Smith and Taylor interpreted the prior version of Rule 12 of the Federal Rules

of Criminal Procedure, which has since been amended. The amended version
went into effect on December 1, 2014. This Court has continued to apply the
abuse-of-discretion standard to denials of untimely pretrial motions under the
amended version of Rule 12. See, e.g., Andres, 960 F.3d at 1315; United States v.
Bowers, 811 F.3d 412, 421 (11th Cir. 2016) (“Bowers moved to sever the in-
dicted counts after the district court’s pre-trial-motion deadline, but before his
trial, and with no attempt to establish good cause for his delay. His motion
was, therefore, untimely under pre-amendment Rule 12(e) and would likewise
be untimely under amended Rule 12(c)(3).”).
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24 Opinion of the Court 23-13254

Rodriguez, 828 F.2d 679, 683–84 (11th Cir. 1987); United States v. Bow-
ers, 811 F.3d 412, 421 (11th Cir. 2016).
Under Rule 12 of the Federal Rules of Criminal Procedure,
any motion for the suppression of evidence must be made before
trial. FED. R. CRIM. P. 12(b)(3)(C). The district court may “set a
deadline for the parties to make pretrial motions and may also
schedule a motion hearing. If the court does not set one, the dead-
line is the start of trial.” FED. R. CRIM. P. 12(c)(1). “If a party does
not meet the deadline for making a Rule 12(b)(3) motion, the mo-
tion is untimely. But a court may consider the defense, objection,
or request if the party shows good cause.” FED. R. CRIM. P. 12(c)(3).
The district court did not abuse its discretion in denying
Gyetvay’s motion to suppress on timeliness grounds here. The
deadline to ﬁle pretrial motions was October 7, 2021. Gyetvay ﬁled
his motion to suppress on September 2, 2022—nearly eleven
months later. We recognize that Gyetvay did not receive a copy of
the warrant until around October 7, 2021, the same time as the mo-
tions deadline. But Gyetvay never moved for an extension of time,
nor did he even acknowledge the motion’s untimeliness or attempt
to show good cause when he eventually ﬁled his motion to sup-
press.
Again, Rule 12 provides that a district court may consider an
untimely motion to suppress only if the moving party “shows good
cause.” FED. R. CRIM. P. 12(c)(3). Gyetvay did not do so in his un-
timely motion to suppress or in a motion for extension of time, so
we cannot conclude that the district court abused its discretion in
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23-13254 Opinion of the Court 25

denying the motion as untimely. See, e.g., Milian-Rodriguez, 828 F.2d
at 682–83 (aﬃrming district court’s denial of motion to suppress as
untimely on abuse-of-discretion standard where the appellant
moved for reconsideration of the court’s suppression decision
forty-nine days after the ﬁling deadline, and the appellant’s justiﬁ-
cation that he only recently learned of intervening case law did not
suﬃce); Andres, 960 F.3d at 1316 (holding that the district court did
not abuse its discretion in denying motion to suppress as untimely
because the defendant’s “decision to not timely ﬁle a motion to
suppress . . . based on his belief that he would be subject to man-
datory life imprisonment” did not constitute good cause).
In his reply brief, Gyetvay argues that the district court’s de-
nial of his suppression motion was an abuse of discretion because
he received the warrant at the same time as the deadline, he ﬁled
his suppression motion six months before trial, and the “govern-
ment nowhere identiﬁes an earlier deadline that Gyetvay should
have met.” But we have held that claims made in pretrial motions
were untimely and, therefore, forfeited 4 where the defendant
“moved to sever the indicted counts after the district court’s pre-
trial-motion deadline, but before his trial, and with no attempt to
establish good cause for his delay.” Bowers, 811 F.3d at 421

4 Prior to the 2014 amendments, Rule 12 used the term “waived” to refer to a

motion not timely filed. Under the new version of the rule, which omits the
word “waived,” untimely motions are considered “forfeited rather than
waived.” Bowers, 811 F.3d at 421.
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26 Opinion of the Court 23-13254

(emphasis added). So too here, Gyetvay ﬁled his motion to sup-
press before trial but oﬀered no good cause for his eleven-month
delay.
Moreover, the question before us is whether the district
court abused its discretion in denying the motion as untimely—not
whether the government should have identiﬁed an earlier deadline,
nor whether the district court could (or even should) have handled
the motion diﬀerently. See Blasland, Bouck & Lee, Inc. v. City of North
Miami, 283 F.3d 1286, 1298 (11th Cir. 2002) (“When a district court
has discretion, there are usually a range of choices it may make and
still be aﬃrmed; there is not only one right choice for the court to
make.”); In re Rasbury, 24 F.3d 159, 168 (11th Cir. 1994) (“By deﬁni-
tion[,] under the abuse of discretion standard of review there will
be occasions in which we aﬃrm the district court even though we
would have gone the other way had it been our call. That is how
an abuse of discretion standard diﬀers from a de novo standard of
review.”). In this case, the court simply enforced its own deadline
after Gyetvay failed to show good cause to excuse his eleven-month
delay in ﬁling a motion to suppress. A district court’s “scheduling
order is not a frivolous piece of paper, idly entered, which can be
cavalierly disregarded by counsel without peril.” Cruz v. Bristol-My-
ers Squibb Co., PR, Inc., 699 F.3d 563, 570 (1st Cir. 2012) (quoting
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.
1992)). Rule 12 is clear that the onus is on the untimely party to
show good cause, and Gyetvay did not do so here.
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23-13254 Opinion of the Court 27

Additionally, Gyetvay argues that a denial of a motion to
suppress on timeliness grounds is an abuse of discretion where the
court also reaches the merits of the motion. But our case law belies
this assertion. In Milian-Rodriguez, for example, we held that the
district court did not abuse its discretion in ﬁnding that a motion to
reconsider a suppression order was untimely, then proceeded to
hold that the district court’s failure to suppress the evidence was
not plain error. 828 F.2d at 683–84. We rejected the appellant’s
proposition that a party’s forfeiture through untimeliness “is ex-
cused if the district court proceeds to entertain the merits of the
party’s untimely motion.” Id. at 683. For all these reasons, then,
we conclude that the district court did not abuse its discretion in
denying Gyetvay’s motion to suppress as untimely, because the mo-
tion was ﬁled eleven months after the deadline set by the court, and
Gyetvay did not show good cause for the delay, as required by Rule
12(c)(3).
Because the district court did not abuse its discretion in
denying Gyetvay’s motion to suppress as untimely, we review the
underlying merits of the motion for plain error. Andres, 960 F.3d at
1315–16; Bowers, 811 F.3d at 421. Under plain-error review, we will
reverse a district court’s decision only if (1) an error occurred; (2)
the error was plain; (3) it aﬀected the appellant’s substantial rights;
and (4) it seriously aﬀected the fairness, integrity, or public reputa-
tion of judicial proceedings. United States v. Doyle, 857 F.3d 1115,
1118 (11th Cir. 2017). We conclude that the district court did not
plainly err in declining to suppress the evidence obtained through
the search warrant.
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28 Opinion of the Court 23-13254

In United States v. McCall, we recently held that “there are
generally two types of limitations that can particularize [ ] a war-
rant” authorizing a search of someone’s digital account. 84 F.4th
1317, 1327 (11th Cir. 2023). The ﬁrst type of limitation that can
satisfy the particularity requirement is “narrowing the search based
on the subject matter of the data. For example, a warrant may limit
investigators’ search of communications data to only communica-
tions with known or suspected co-conspirators.” Id. The second
and “preferred method of limiting the scope of a search warrant
for a cloud account” is a “temporal limitation.” Id. at 1327–28. As
we explained in McCall: “By narrowing a search to the data created
or uploaded during a relevant time connected to the crime being
investigated, oﬃcers can particularize their searches to avoid gen-
eral rummaging. Cloud or data-based warrants with a suﬃciently
tailored time-based limitation can undermine any claim that they
are the internet-era version of a ‘general warrant.’” Id. at 1328 (in-
ternal quotations omitted).
Here, the district court determined that the warrant was suf-
ﬁciently particularized because it laid out discrete categories of ev-
idence to be searched. Speciﬁcally, the warrant laid out ten catego-
ries of evidence that oﬃcers were allowed to search and that were
tailored to the crimes under investigation. Some of these catego-
ries used narrow language, such as “[e]vidence concerning any do-
mestic or foreign bank accounts held by Gyetvay, including in his
name, in the name of a nominee entity, and in the name of a nom-
inee individual.” Nonetheless, Gyetvay argues that other catego-
ries were overbroad because they sought “communications about
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23-13254 Opinion of the Court 29

taxes and not about taxes” and “thus included ‘every email’ he sent
over 14 years.”
We are not convinced by this interpretation of the warrant.
The warrant does authorize law enforcement personnel to locate
evidence of communications between Gyetvay and his accountants
about any issues related to “taxes [and] the avoidance of taxes,” as
well as evidence “involving Gyetvay and any [associate] demon-
strating Gyetvay’s decision to allocate time, resources, and eﬀort
on aﬀairs . . . other than complying with his tax and other ﬁling ob-
ligations” (emphasis added). Gyetvay takes this language to mean
that the warrant authorizes a search for every email he ever sent
over 14 years. While the “other than” language is admittedly im-
precise, we interpret the phrase, “decision to allocate time and re-
sources on aﬀairs other than complying with his tax and other ﬁling
obligations” to mean, “decision to allocate time and resources away
from complying with his tax obligations.” This interpretation is bol-
stered by the language of the indictment, which alleged that, be-
tween 2005 and 2015, Gyetvay transferred funds in and out of Swiss
bank accounts “to make personal investments and to pay for vari-
ous personal expenses, including the purchase of art, motor vehi-
cles, and real estate.” Additionally, the warrant was expressly tar-
geted at uncovering evidence of a scheme to “evade taxation” and
“conceal Gyetvay’s ownership of [ ] assets.” We are thus disin-
clined to interpret the warrant’s “other than” language as “simply
demand[ing] all emails.”
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30 Opinion of the Court 23-13254

In any event, as the district court also noted, even if a war-
rant is overbroad, “we do not suppress evidence on overbreadth
grounds if the warrant ‘adequately conveys its parameters.’”
McCall, 84 F.4th at 1328 (quoting United States v. Delgado, 981 F.3d
889, 899 (11th Cir. 2020)). Here, investigating oﬃcers “reasonably
could have believed” that the ten categories of account information
requested “fell within the practical margin of ﬂexibility for [the]
broad investigative task.” Id.; see also United States v. Schandl, 947
F.2d 462, 465–66 (11th Cir. 1991) (upholding denial of motion to
suppress where “[i]t was inevitable that some irrelevant materials
would be seized as agents searched through numerous documents
for evidence of tax evasion and failure to ﬁle, crimes that are gen-
erally only detected through the careful analysis and synthesis of a
large number of documents”).
The warrant also contained a temporal limitation—the “pre-
ferred method” of particularization for the scope of a search war-
rant. McCall, 84 F.4th at 1328. The warrant speciﬁed a time period
for the information to be produced ( January 1, 2005, to November
11, 2019), which corresponded exactly to the time period the gov-
ernment was investigating: The indictment states that Gyetvay
opened the “Opotiki” Swiss bank account “[i]n or about September
and October of 2005,” and the government averred in its aﬃdavit
ﬁled in support of the warrant that the “Subject Account was being
accessed, or logged into, up until on or about November 11, 2019.”
Time-based limitations on the search of an email account, espe-
cially when combined with subject-matter limitations, prevent the
sort of “general, exploratory rummaging . . . abhorred by the
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23-13254 Opinion of the Court 31

colonists.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). That
is, “[b]y narrowing a search to the data created or uploaded during
a relevant time connected to the crime being investigated, oﬃcers
can particularize their searches to avoid general rummaging.”
McCall, 84 F.4th at 1328.
We have upheld similar warrants as suﬃciently particular
even where those warrants did not set out a temporal limitation.
In United States v. Blake, for instance, we found suﬃciently particu-
lar a warrant that “was limited to certain categories of emails,” 868
F.3d 960, 966 (11th Cir. 2017), even though the warrant “did not
limit the emails sought to emails sent or received within the time
period of [the defendant’s] suspected participation in the conspir-
acy,” id. at 973 n.7. Despite the “lack of a time limitation,” we rea-
soned, “the warrant was appropriately limited in scope because it
sought only discrete categories of emails that were connected to
the alleged crimes.” Id. at 973 n.7. This subject-matter limitation
alone “prevented a general, exploratory rummaging through [the
defendant’s] email correspondence.” Id. at 973 (internal quotations
omitted).
Here, by contrast, the warrant was circumscribed to ten cat-
egories of emails corresponding to Gyetvay’s alleged crimes and
the time period being investigated by the government. As a result,
although the warrant authorized an extensive search over a lengthy
period of time, we conclude that the district court did not plainly
err in ﬁnding that the search and seizure warrant at issue in the
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32 Opinion of the Court 23-13254

motion to suppress was suﬃciently particularized so as not to be
considered an unconstitutional general warrant.
C. Constructive Amendment and Material Variance
Next, Gyetvay argues that the government sought (and
achieved) conviction under Count 13 for conduct not charged in
the indictment. Speciﬁcally, Gyetvay argues that, although Count
13 charged him with “Failure to File [an] FBAR” for the calendar
year 2014, the government never proved failure to ﬁle for that year,
instead proving to the jury that Gyetvay ﬁled a false 2014 FBAR—
“a crime for which [he] was not indicted.” In Gyetvay’s view, the
government’s argument that he ﬁled an FBAR that failed to disclose
one of his Swiss accounts went beyond what was charged in the
indictment, violating the Fifth Amendment’s dictate that “[n]o per-
son shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury.”
U.S. CONST. amend. V. This clause, known as the Grand Jury
Clause, “does not ‘permit a defendant to be tried on charges that
are not made in the indictment against him’ or convicted on theo-
ries that the indictment ‘cannot fairly be read as charging.’” United
States v. Feldman, 931 F.3d 1245, 1259–60 (11th Cir. 2019) (quoting
Stirone v. United States, 361 U.S. 212, 217 (1960)).
Two distinct errors can arise when the evidence at trial or
the court’s jury instructions deviate from what was charged in the
indictment. United States v. Flynt, 15 F.3d 1002, 1005 (11th Cir. 1994).
The ﬁrst category of error is a constructive amendment, which oc-
curs when the “essential elements of the oﬀense contained in the
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23-13254 Opinion of the Court 33

indictment are altered—for instance, by a faulty jury instruction—
to broaden the possible bases for conviction beyond what [was]
contained in the indictment.” Feldman, 931 F.3d at 1260 (internal
quotations omitted). A constructive amendment of the indictment
is “per se reversible because it violates the defendant’s constitutional
right to be tried solely on the charges returned by the grand jury.”
United States v. Johnson, 713 F.2d 633, 643 (11th Cir. 1983). The sec-
ond type of error is a material variance, which occurs “when the
charging terms of the indictment are left unaltered, but the evi-
dence oﬀered at trial proves facts materially diﬀerent from those
alleged in the indictment.” Id. at 643 n.9. Unlike with a construc-
tive amendment, a variance requires reversal only when the defend-
ant “suﬀered substantial prejudice as a result.” United States v. Gold-
stein, 989 F.3d 1178, 1198 (11th Cir. 2021). For example, we con-
sider a variance to be prejudicial when “the proof at trial diﬀered
so greatly from the charges that [the defendant] was unfairly sur-
prised and was unable to prepare an adequate defense.” United
States v. Lander, 668 F.3d 1289, 1295 (11th Cir. 2012).
Here, Gyetvay argues that the government constructively
amended or “at least” materially varied from the allegations con-
tained in Count 13 of the superseding indictment, which charged
Gyetvay with failing to ﬁle an FBAR for the calendar year 2014. We
disagree as to both contentions.
First, there was no constructive amendment of Count 13 be-
cause Gyetvay was convicted of the same oﬀense that was alleged
in the indictment. As we’ve said, constructive amendment can
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34 Opinion of the Court 23-13254

occur when the evidence presented at trial or the instructions given
to the jury so alter the essential elements of the oﬀense alleged in
the indictment that the defendant is ultimately convicted on a
ground not charged. Feldman, 931 F.3d at 1260; United States v. Gon-
zalez, 661 F.2d 488, 492 (5th Cir. Unit B 1981). 5 Constructive
amendment does not occur when a jury instruction “did not exactly
match the form of the indictment”—so long as “the substance of
the indictment remained intact.” United States v. Vernon, 723 F.3d
1234, 1264 (11th Cir. 2013). In this case, the superseding indictment
charged Gyetvay with “willfully fail[ing] to ﬁle . . . an FBAR[ ] dis-
closing that he had a ﬁnancial interest in, and signature and other
authority over, a bank[ ] account in a foreign country, which had an
aggregate value in excess of $10,000 during the 2014 calendar year,
to wit, the Opotiki account—Acct xxx4056—at Falcon,” 6 in viola-
tion of 31 U.S.C. §§ 5314 and 5322(a). In turn, the district court
instructed the jury that “Count 13 charges that the defendant will-
fully failed to ﬁle a report with the Department of the Treasury
that disclosed his ownership and signatory or other authority over
a foreign ﬁnancial account that contained more than $10,000.”

5 Decisions issued by Unit B of the former Fifth Circuit are binding precedent

in the Eleventh Circuit. Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir.
1982).
6 In 2013, Falcon Private Bank AG, another Swiss bank, acquired the assets of

Hyposwiss and became the custodian of Gyetvay’s Opotiki and Felicis ac-
counts.
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23-13254 Opinion of the Court 35

We ﬁnd no meaningful diﬀerence between the oﬀense
charged in the indictment and the instructions given to the jury.
While the district court’s instruction on Count 13 may not have
parroted the language of the indictment, the substance of the
charge remained intact. Vernon, 723 F.3d at 1264. Moreover, the
district court speciﬁcally explained to the jury that “[i]t is a Federal
crime for a U.S. citizen or resident to willfully fail to report to the
United States Treasury his or her ownership, signatory, authority,
or control over each foreign ﬁnancial account that contains more
than $10,000 at any point during the year” (emphasis added). And
the court instructed the jury that, under Count 13, the burden was
on the government to prove that Gyetvay failed to ﬁle an FBAR
“that reports all of the defendant’s foreign ﬁnancial accounts.” All
of these instructions mirror what Count 13 charged: that Gyetvay
violated 31 U.S.C. §§ 5314 and 5322(a) by failing to ﬁle an FBAR
disclosing one of his foreign bank accounts.
Furthermore, both the text of the indictment and the jury
instructions reflect that § 5314 is violated when one fails to file a
compliant FBAR. As the Supreme Court has explained:
When it comes to the duty to file reports, . . . [§ 5314]
says that reports “shall contain” information about
“the identity and address of participants in a transac-
tion or relationship,” “the legal capacity in which a
participant is acting,” and “the identity of real parties
in interest,” along with a “description of the transac-
tion.” §§ 5314(a)(1)–(4). The law also directs the Sec-
retary to prescribe “the way and . . . the extent” to
which reports must be filed. § 5314(a).
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36 Opinion of the Court 23-13254

....
[T]he relevant legal duty is the duty to file reports. Of
course, those reports must include various kinds of
information about an individual’s foreign “transac-
tion[s] or relationship[s].” But whether a report is
filed late, whether a timely report contains one mis-
take about the “address of [the] participants in a trans-
action,” or whether a report includes multiple willful
errors in its “description of . . . transaction[s],” the
duty to supply a compliant report is violated. Put an-
other way, the statutory obligation is binary. Either
one files a report “in the way and to the extent the
Secretary prescribes,” or one does not. Multiple will-
ful errors about specific accounts in a single report
may confirm a violation of § 5314, but even a single
nonwillful mistake is enough to pose a problem. One
way or another, § 5314 is violated.
Bittner, 598 U.S. at 93. In other words, one commits the oﬀense of
failure to ﬁle under § 5314 when one ﬁles an inaccurate or non-
compliant FBAR. Both the indictment and the jury instructions re-
ﬂect the Supreme Court’s interpretation of the statute.
Nor did the government’s evidence at trial constructively
amend Count 13 by modifying the essential elements of the oﬀense
charged. The government argued to the jury and presented evi-
dence that Gyetvay ﬁled a 2014 FBAR in which “he only disclose[d]
one of his Swiss accounts” but “left oﬀ” a second Swiss account,
the Opotiki account, containing over eight million dollars. This
evidence did not broaden the possible bases for conviction or
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23-13254 Opinion of the Court 37

modify the elements of the crime charged in the indictment, which
(again) alleged that Gyetvay ﬁled a 2014 FBAR that failed to disclose
one foreign ﬁnancial account. In sum, the indictment, the jury in-
structions, and the evidence presented at trial all referred to Count
13 in the same way—as charging Gyetvay with failure to ﬁle a 2014
FBAR that disclosed the Opotiki account. Therefore, we conclude
that there was no constructive amendment here.
For similar reasons, we conclude that the government did
not materially vary from the allegations laid out in the indictment.
A material variance diﬀers from a constructive amendment in that
a variance “occurs when the charging terms of the indictment are
left unaltered, but the evidence oﬀered at trial proves facts materi-
ally diﬀerent from those alleged in the indictment.” United States v.
Salinas, 654 F.2d 319, 324 (5th Cir. Unit A 1981), overruled in part on
other grounds by United States v. Adamson, 700 F.2d 953 (5th Cir. 1983).
This Court has explained that “[a] fatal variance exists only ‘where
the evidence at trial proves facts diﬀerent from those alleged in the
indictment, as opposed to facts which, although not speciﬁcally
mentioned in the indictment, are entirely consistent with its allega-
tions.’” Goldstein, 989 F.3d at 1198–99 (quoting United States v.
Champion, 813 F.2d 1154, 1168 (11th Cir. 1987)). A variance in the
proof justiﬁes reversal only where the defendant has been “substan-
tially prejudiced thereby,” Flynt, 15 F.3d at 1005; that is, when the
evidence presented at trial “aﬀect[ed] a substantial right of the ac-
cused,” Gonzalez, 661 F.2d at 492.
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38 Opinion of the Court 23-13254

Gyetvay argues that the government “prejudicially varied
Count 13” because the evidence at trial “show[ed] that Gyetvay
timely ﬁled his 2014 FBAR,” whereas the indictment charged “Fail-
ure to File.” But the timeliness of Gyetvay’s 2014 FBAR is imma-
terial, as the indictment charged Gyetvay, in Count 13, with failure
to ﬁle an FBAR “disclosing that he had a ﬁnancial interest in, and sig-
nature and other authority over, a bank, securities, and ﬁnancial account
in a foreign country . . . to wit, the Opotiki account” (emphasis
added). As Gyetvay himself tells us, the government argued at trial
that Gyetvay ﬁled a deﬁcient FBAR that disclosed only one of his
Swiss bank accounts, while leaving oﬀ the Opotiki account. In-
deed, Gyetvay concedes that, when ﬁlling out his 2014 FBAR, he
intentionally “omitted the Opotiki account” because he “[ran] out
of blank ﬁelds” on the form. We thus reject that the evidence of-
fered at trial proved facts materially diﬀerent from those alleged in
the indictment. See Goldstein, 989 F.3d at 1198–99. Therefore, we
need not reach whether Gyetvay was substantially prejudiced, be-
cause there was no material variance here. See United States v. Seher,
562 F.3d 1344, 1366 (11th Cir. 2009) (“Only after making the ﬁnding
of material variance do we need to examine whether the variance
substantially prejudiced the defendant.”).
In sum, we conclude that the government neither construc-
tively amended nor materially varied from the allegations con-
tained in Count 13 of the superseding indictment.
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23-13254 Opinion of the Court 39

D. Sentencing Errors
Lastly, Gyetvay argues that the district court committed a
variety of errors at sentencing, including in calculating his guide-
line range and ordering him to pay $4,021,074 in restitution.
1. Relevant Conduct
We begin with the guideline range. As background, Gyet-
vay’s guideline range was calculated using U.S.S.G. § 2S1.3, which
corresponds to Count 13 as the oﬀense of conviction (failure to ﬁle
a 2014 FBAR in violation of 31 U.S.C. §§ 5314 and 5322(a)). 7 Section
2S1.3 of the Sentencing Guidelines directs the sentencing court to
assign to the defendant a base level of “6 plus the number of oﬀense
levels from the table in § 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to the value of the funds” in the defendant’s
unreported foreign accounts. § 2S1.3(a)(2). Here, the PSI

7 Gyetvay’s four counts of conviction were grouped together under U.S.S.G.

§ 3D1.2, which provides that “[a]ll counts involving substantially the same
harm shall be grouped together into a single Group.” “Counts involve sub-
stantially the same harm within the meaning of this rule . . . . [w]hen the of-
fense level is determined largely on the basis of the total amount of harm or
loss, the quantity of a substance involved, or some other measure of aggregate
harm, or if the offense behavior is ongoing or continuous in nature and the
offense guideline is written to cover such behavior.” Id. § 3D1.2(d). “In the
case of counts grouped together pursuant to § 3D1.2(d), the offense level ap-
plicable to a Group is the offense level corresponding to the aggregated quan-
tity, determined in accordance with Chapter Two and Parts A, B and C of
Chapter Three.” Id. § 3D1.3(b). “When the counts involve offenses of the
same general type to which different guidelines apply,” the sentencing court
applies the offense guideline that produces the highest offense level. Id.
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40 Opinion of the Court 23-13254

determined that Gyetvay “did not ﬁle FBAR’s [sic] for 2005 through
2007 and ﬁled untimely FBAR’s [sic] for 2008 through 2013, [so]
those funds are also being considered.” The PSI calculated the
“value of the funds” as the sum of (1) the “high balance” of the
unreported Opotiki account in 2014 ($8.7 million), and (2) the com-
bined value of the unreported Opotiki and Felicis accounts in 2013,
when their combined value was the highest ($93.4 million). The
total value of the funds attributable to FBAR violations was thus
$102,112,774, increasing Gyetvay’s base oﬀense level to 30. 8 The
district court found that the PSI correctly calculated the guidelines,
though it imposed a below-guidelines sentence of 86 months.
On appeal, Gyetvay argues that the PSI and the district court
erred in including the larger $93.4 million sum—the combined
value of the unreported Opotiki and Felicis accounts in 2013—in
his sentencing-range calculation. Gyetvay argues that he was only
“convicted of not disclosing the Opotiki account in his 2014
FBAR,” so the district court should not have considered the value
of his unreported accounts in 2013, including “the allegedly much
larger value of the Felicis account,” when calculating the total
“value of the funds” under § 2S1.3(a)(2).

8 Gyetvay’s base offense level was then increased by two levels because he “(A)

was convicted of an offense under subchapter II of chapter 53 of title 31, United
States Code; and (B) committed the offense while violating another law of the
United States or as part of a pattern of unlawful activity involving more than
$100,000 in a 12-month period.” U.S.S.G. § 2S1.3(b)(2)(B).
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23-13254 Opinion of the Court 41

We review the procedural reasonableness of a sentence,
which includes whether the guideline range was properly calcu-
lated, under an abuse-of-discretion standard. United States v. Regis-
ter, 678 F.3d 1262, 1266 (11th Cir. 2012). “A district court abuses its
discretion if it applies an incorrect legal standard, follows improper
procedures in making the determination, or makes ﬁndings of fact
that are clearly erroneous.” Id. (internal quotations omitted). Sen-
tencing objections not raised before the district court are reviewed
on appeal for plain error. United States v. Siegelman, 786 F.3d 1322,
1330 (11th Cir. 2015). With respect to sentencing-guideline issues,
this Court reviews a district court’s factual ﬁndings for clear error,
and, in most cases, a district court’s application of the guidelines to
the facts with due deference. United States v. Rodriguez-Lopez, 363
F.3d 1134, 1136–37 (11th Cir. 2004). Whether an act qualiﬁes as rel-
evant conduct under U.S.S.G. § 1B1.3 is a question of fact reviewed
for clear error. Siegelman, 786 F.3d at 1332.
Under § 1B1.3 of the Guidelines, a district court must “con-
sider all relevant conduct when determining the defendant’s total
oﬀense level.” United States v. Bradley, 644 F.3d 1213, 1296 (11th Cir.
2011). “[R]elevant conduct is broadly deﬁned to include both un-
charged and acquitted conduct that is proven at sentencing by a
preponderance of the evidence.” Siegelman, 786 F.3d at 1332. Un-
der § 1B1.3, relevant conduct includes “all acts and omissions com-
mitted, aided, abetted, counseled, commanded, induced, procured,
or willfully caused by the defendant,” as well as “all reasonably fore-
seeable acts and omissions of others in furtherance of ” jointly un-
dertaken criminal activity, “that were part of the same course of
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42 Opinion of the Court 23-13254

conduct or common scheme or plan as the oﬀense of conviction.”
§ 1B1.3(a)(1)–(2). “Because § 1B1.3 calls for a factual ﬁnding that
certain conduct is ‘relevant’ to the oﬀense of conviction, . . . a sen-
tencing court should make explicit relevant-conduct ﬁndings in or-
der to facilitate appellate review.” Siegelman, 786 F.3d at 1331.
“[H]owever, a district court’s failure to make such explicit ﬁndings
does not preclude appellate review—and therefore does not war-
rant reversal—‘where the court’s decisions are based on clearly
identiﬁable evidence.’” Id. (quoting Bradley, 644 F.3d at 1293).
In challenging the district court’s inclusion of Felicis funds
in its § 2S1.3(a)(2) calculation, Gyetvay raises two separate but re-
lated arguments on relevant conduct. One, Gyetvay argues that
the district court failed to make “explicit relevant-conduct ﬁnd-
ings.” That is, according to Gyetvay, the district court erred by not
explicitly explaining why Gyetvay’s reporting failures from 2005 to
2013 were “relevant conduct” under § 1B1.3. Two, Gyetvay argues
that his past late ﬁlings and non-ﬁlings were not, in fact, relevant
conduct. Because his “past FBAR non-ﬁlings were not relevant to
calculating the guidelines range on Count 13,” he reasons, the dis-
trict court erred in “permit[ting] the addition of [$93.4] million to
the purported loss amount,” which increased his guideline range
by four to ﬁve years.
We begin with Gyetvay’s contention that the district court
erred in not explicitly ﬁnding that his non-disclosure of the Felicis
account up until 2014 qualiﬁed as relevant conduct. This issue is
reviewed for plain error because Gyetvay “did not object to the
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23-13254 Opinion of the Court 43

district court’s failure to explain why [his prior reporting failures]
qualiﬁed as relevant conduct” below.9 Siegelman, 786 F.3d at 1330.
We conclude that the district court did not plainly err. While
the district court did not expressly articulate why it felt Gyetvay’s
prior reporting failures counted as “relevant conduct” under
§ 1B1.3, we know exactly from what evidence the district court
reached its conclusion. During the sentencing hearing, the court
referenced the “foreign bank account report table” at paragraph 25
of the PSI, which laid out the high balances in the Opotiki and Fe-
licis accounts from 2005 to 2014. This table corresponded to IRS
Agent Colleen Ranahan’s graph of the annual high balances in
those accounts over the same period, which was published at trial
and discussed extensively on direct examination. The court also
asked the government to explain paragraph 45 of the PSI, which
discussed the “total value of funds attributable to FBAR viola-
tions.” The government walked through its calculations, which
were again supported by the evidence introduced at trial. After
considering Gyetvay’s arguments at sentencing, the district court

9 Gyetvay insists that he did object to the PSI’s use of the Felicis balance to

calculate the aggregate sum of the funds and the guideline range. Gyetvay
also stated in his notice of unresolved objections to the PSI that “[t]he funds
involved in the reporting conduct for which Mr. Gyetvay was convicted can
only involve the funds in the Opotiki account which was not timely reported.”
But these objections were directed toward the district court’s ultimate inclu-
sion of Felicis funds in its § 2S1.3 calculation, not the district court’s failure to
make factual findings. Where a party did not object to the district court’s “fail-
ure to explain why” certain conduct qualified as relevant conduct, our review
of that issue is for plain error only. Siegelman, 786 F.3d at 1330.
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44 Opinion of the Court 23-13254

stated that it had “heard the evidence at trial,” and it found that the
evidence supported the “factual assertions” in the PSI “by the pre-
ponderance of the evidence at a minimum.”
Because it is clear to us what evidence the district court re-
lied upon in calculating its sentence, the district court did not
plainly err by failing to provide an explicit relevant-conduct expla-
nation. See Siegelman, 786 F.3d at 1331; Bradley, 644 F.3d at 1293
(ﬁnding “no error, much less plain error, in the district court’s fail-
ure to make speciﬁc factual ﬁndings” because we could “easily de-
termine on which evidence the court relied, and we require noth-
ing more”). Therefore, reversal is not warranted on this basis.
The next question is whether Gyetvay’s reporting failures
between 2005 and 2013 were, in fact, relevant conduct such that
$93.4 million should have been added to the value of the funds,
increasing Gyetvay’s base oﬀense level to 30. Gyetvay argues that
the PSI and the district court were wrong to consider his earlier
untimely ﬁlings and his failure to disclose the Felicis account from
2008 to 2013 as relevant conduct for purposes of Count 13, which
charged Gyetvay with failure to ﬁle an accurate 2014 FBAR. Gyet-
vay’s 2014 FBAR did disclose the Felicis account. Upon review, we
do not think the district court clearly erred in adopting the PSI’s
“relevant conduct” determination.
As deﬁned by the Sentencing Guidelines, relevant conduct
includes, “with respect to oﬀenses of a character for which
§ 3D1.2(d) would require grouping of multiple counts,” “all acts
and omissions . . . that were part of the same course of conduct or
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23-13254 Opinion of the Court 45

common scheme or plan as the oﬀense of conviction.”10
§ 1B1.3(a)(2). The PSI includes a section explaining why Gyetvay’s
“untimely 2008–2013 FBARs are relevant conduct for the [c]ourt’s
consideration.” The PSI determined that Gyetvay’s “earlier willful
failures to ﬁle FBARs [were] appropriate relevant conduct” under
both theories mentioned in the Sentencing Guidelines. On the one
hand, the PSI determined that “[t]he count of conviction and the
earlier failures to disclose were part of a common scheme or plan
given the common victim (the Department of Treasury) and the
common purpose of the oﬀense (concealing foreign bank ac-
counts).” On the other, the conduct proven in Count 13 and Gyet-
vay’s prior reporting failures “were also part of the same course of
conduct,” since Gyetvay “consistently failed to disclose his Swiss

10 The commentary notes to the Guidelines state that offenses form the same

course of conduct “if they are sufficiently connected or related to each other
as to warrant the conclusion that they are part of a single episode, spree, or
ongoing series of offenses.” § 1B1.3(a)(2) cmt. n.5(B)(ii). The commentary
notes add that offenses can also form the same scheme or plan if they are “sub-
stantially connected to each other by at least one common factor, such as com-
mon victims, common accomplices, common purpose, or similar modus op-
erandi.” Id. at cmt. n.5(B)(i). Further, “[t]he nature of the offenses may [ ] be
a relevant consideration,” such that “a defendant’s failure to file tax returns in
three consecutive years appropriately would be considered as part of the same
course of conduct because such returns are only required at yearly intervals.”
Id. at cmt. n.5(B)(ii). But we do not “defer” to the commentary or application
notes here because we do not find the text of § 1B1.3(a)(2) to be “genuinely
ambiguous.” See United States v. Dupree, 57 F.4th 1269, 1274 (11th Cir. 2023)
(en banc).
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46 Opinion of the Court 23-13254

bank accounts,” and “[h]is actions are best seen as one continuing
attempt to hide these accounts.”
We cannot say the district court clearly erred in adopting this
determination. The government introduced evidence that Gyet-
vay never ﬁled FBARs for calendar years 2005–2007 and failed to
timely ﬁle FBARs for calendar years 2008–2013. The government
also presented evidence that Gyetvay did not timely ﬁle income tax
returns between 2005 and 2014. Gyetvay’s counsel accepted, in
closing, that Gyetvay’s “returns were late-ﬁled,” and Gyetvay now
admits that he “did not ﬁle timely tax returns or FBARs from 2008
to 2013.” Additionally, the jury heard from Alex Knight, one of
Gyetvay’s accountants, who attested that his ﬁrm advised Gyetvay
in 2010 “of his obligation to ﬁle [FBAR] forms for past years, but
[Gyetvay] dismissed our recommendation and did not ﬁle such
forms for years prior to 2010.” Knight also testiﬁed that Gyetvay
told Knight’s ﬁrm that he had only one foreign bank account with
a balance over $10,000, which Gyetvay now acknowledges was
false, as his “Felicis account went undisclosed until the 2014 FBAR.”
This evidence indicates that Gyetvay concealed millions of dollars
from the IRS for years at a time. The evidence presented at trial
thus supports—at least by a preponderance—that Gyetvay’s re-
porting failures from 2005 to 2013 were substantially connected to
his reporting failure in 2014 through a common victim (the U.S.
Department of Treasury) and a common course of conduct.
The evidence also supports the ﬁnding that Gyetvay’s re-
porting failures from before 2014 had a common purpose with his
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23-13254 Opinion of the Court 47

failure to report the Opotiki account on his 2014 FBAR: to conceal
taxable money in Swiss bank accounts. The government showed,
for instance, that after Gyetvay closed his accounts at Coutts (which
were deemed by Coutts to be “not tax compliant”), he opened new
accounts at Hyposwiss, this time listing his then-wife, Nadezda
Gavrilova—a Russian citizen—as the beneﬁcial owner of the
Opotiki and Felicis accounts. Gavrilova testiﬁed at trial that she
played no role in the ﬁnances of the household, and that she had
no “dealings with any foreign bank accounts at all.” She further
testiﬁed that she “didn’t know” that she was listed as an owner of
foreign bank accounts. Douglas Miller, who worked with Gyetvay
at PriceWaterhouseCoopers, testiﬁed that, in Russia, the process by
which investors “own their shares through complicated struc-
tures,” including by assigning “beneﬁcial ownership” to others, is
carried out in part to “disguise” assets. Based on our review of this
evidence and other evidence in the record, we do not think the
court clearly erred in ﬁnding that the PSI’s relevant-conduct deter-
mination was adequately shown by a preponderance of the evi-
dence.
Gyetvay insists that his “prior failures to ﬁle FBARs” are not
relevant conduct because his 2014 FBAR, “unlike prior non-ﬁlings,
[ ] disclosed the Felicis account.” But the question is whether Gyet-
vay’s prior non-disclosure of foreign accounts, particularly in 2013,
is relevant to his non-disclosure of the Opotiki account in 2014—
and the evidence supports that ﬁnding by a preponderance. We
will not ﬁnd clear error unless we are left with the deﬁnite and ﬁrm
conviction that a mistake has been made. United States v. White, 335
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48 Opinion of the Court 23-13254

F.3d 1314, 1319 (11th Cir. 2003). We thus conclude that the district
court did not clearly err in treating Gyetvay’s pre-2014 reporting
failures as relevant conduct because it “is plausible in light of the
record viewed in its entirety” that Gyetvay’s failure to report for-
eign accounts between 2005 and 2013 and his failure to report the
Opotiki account on his 2014 FBAR were part of the same common
scheme, plan, or course of conduct. See Siegelman, 786 F.3d at 1333
(citing Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)).
2. Valuation of the Unreported Accounts
Gyetvay argues that, “apart from whether the Felicis ac-
count’s value should have been considered at all, the district court
failed to consider the account’s proper valuation.” Gyetvay’s the-
ory is that the district court overvalued the funds in the Felicis ac-
count because the Felicis account contained Novatek stock, and,
according to Gyetvay, Novatek stock is “not very liquid.” Gyetvay,
therefore, urges us to vacate his sentence because the district court
failed to calculate the stock’s fair market value.
The district court did not clearly err in adopting the PSI’s
valuation of the Felicis account because the government supported
its calculation with “reliable and speciﬁc evidence.” United States v.
Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997). Under § 2B1.1(b)(1),
“[t]he district court is permitted to base its loss determination on
factual ﬁndings derived from, ‘among other things, evidence heard
during trial, undisputed statements in the PSI, or evidence pre-
sented during the sentencing hearing.’” Bradley, 644 F.3d at 1290
(quoting United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004)).
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“The district court needs only to make a reasonable estimate of the
loss amount.” United States v. Medina, 485 F.3d 1291, 1304 (11th Cir.
2007).
Here, the PSI derived its calculation of the combined values
of the Opotiki and Felicis accounts using IRS Agent Ranahan’s cal-
culations. Agent Ranahan testiﬁed and explained that she con-
ducted her analysis by reviewing Gyetvay’s bank statements and
adding up all the assets. Agent Ranahan walked through her
“graph of the annual high balance in the Opotiki and Felicis ac-
counts” with the jury. She further testiﬁed that the highest ﬁgure—
for 2013—was $93,412,774. Gyetvay himself came up with the
same ﬁgure in his late-ﬁled 2013 FBAR. In light of this evidence
and testimony, we cannot say that the district court clearly erred in
adopting the PSI’s valuation of the Felicis account, because “the
numbers and the calculations themselves were suﬃciently spe-
ciﬁc,” and “there is no indication that it was unreliable.” Bradley,
644 F.3d at 1292. Gyetvay has not submitted proof that the govern-
ment’s “averages, estimates, or results are so wildly inaccurate as
to be unreasonable.” Id. And “neither this [C]ourt nor the Guide-
lines insist that district courts calculate the amount of loss with ut-
most precision; the Guidelines merely require the district court to
reach a reasonable estimate of the loss amount.” Id. at 1290. The
evidence at trial and the PSI’s arithmetic were suﬃciently reasona-
ble in this case.
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50 Opinion of the Court 23-13254

3. Restitution
Finally, Gyetvay argues that the district court clearly erred in
ordering him to pay $4,021,074 in restitution to the IRS. We review
de novo the legality of a restitution order, while we review a factual
ﬁnding regarding the speciﬁc amount of restitution for clear error.
United States v. Huﬀ, 609 F.3d 1240, 1247 (11th Cir. 2010).
The Mandatory Victims Restitution Act (the “MVRA”) re-
quires restitution for an “oﬀense against property.” 18 U.S.C.
§ 3663A(c)(1)(A)(ii). For an oﬀense to qualify under this provision,
“[p]roperty . . . must serve as the object of the oﬀense, not simply
a collateral component.” United States v. Collins, 854 F.3d 1324, 1331
(11th Cir. 2017). This includes situations where a defendant “in-
tends to damage another’s property” or “seeks to derive an unlaw-
ful beneﬁt from another’s property or otherwise deprive a person
of his property.” Id. Criminal conduct does not automatically qual-
ify as an oﬀense against property “solely because it results in prop-
erty damage or because someone suﬀers a loss at some point dur-
ing its execution.” Id. at 1331–32. When a district court orders
restitution, it “must explain its ﬁndings with suﬃcient clarity to en-
able this court to adequately perform its function on appellate re-
view.” Huﬀ, 609 F.3d at 1248; see also 18 U.S.C. § 3664(e) (“Any dis-
pute as to the proper amount or type of restitution shall be resolved
by the court by the preponderance of the evidence.”).
Gyetvay was convicted of Count 12 of the superseding in-
dictment, which charged him with willfully making false state-
ments on his IRS Streamlined Procedures certiﬁcation, in violation
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23-13254 Opinion of the Court 51

of 18 U.S.C. §§ 1001 and 2. According to the PSI, this conviction
required mandatory restitution “because Gyetvay’s false state-
ments resulted in him avoiding other penalties, totaling $2,813,382,
excluding interest.” Adding interest in the sum of $1,207,692 to the
underlying loss amount, the PSI provided a total restitution ﬁgure
of $4,021,074. Gyetvay objected to both the legal basis for restitu-
tion and the amount imposed, arguing that the MVRA “does not
apply . . . because the conviction in Count Twelve is not an ‘oﬀense
against property.’” Without explanation, the district court adopted
the PSI’s ﬁgure and ordered Gyetvay to pay $4,021,074 in restitu-
tion to the IRS.
On appeal, Gyetvay again argues that his conviction under
Count 12 “cannot support restitution” because the district court
never found that that conviction was an oﬀense against property.
He adds that the district court never made ﬁndings that he “ha[d]
the goal of causing property loss” to the government, or that the
property loss was anything other than collateral or incidental.
We agree with Gyetvay on this point: The district court pro-
vided no explanation for the restitution amount being $4,021,074.
This Court has held that a district court must make restitution ﬁnd-
ings with enough clarity to substantiate appellate review. Huﬀ, 609
F.3d at 1248; see also United States v. Singleton, 649 F.3d 1212, 1222
(11th Cir. 2011) (“To enable meaningful appellate review, a district
court’s calculation of restitution must be supported by speciﬁc fac-
tual ﬁndings.”). Here, the district court did not provide a single
factual ﬁnding to support its restitution ﬁgure, much less address
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52 Opinion of the Court 23-13254

Gyetvay’s objection and explain why Count 12 counts as an oﬀense
against property, as opposed to an oﬀense “with only incidental
property loss.” Collins, 854 F.3d at 1332.
It may well be true that the object of Gyetvay’s oﬀense of
making false statements on his Streamlined Procedures certiﬁca-
tion, in violation of § 1001, was to intentionally deprive the IRS of
property in the form of tax dollars, as the government posits. But
the district court did not make that ﬁnding, nor does the govern-
ment say it did. Because the district court gave us no factual ﬁnd-
ings to consider on the question of whether property served as the
“object of the oﬀense” in Count 12, see id. at 1331, “[t]he only
course open to us . . . is to vacate the [restitution] order and remand
the case for the district court to correct its oversight,” United States
v. Maurya, 25 F.4th 829, 837 (11th Cir. 2022); see also Huﬀ, 609 F.3d
at 1248–49 (vacating the restitution order and remanding for a lim-
ited resentencing on the sole issue of the amount of restitution be-
cause the district court “did not make speciﬁc factual ﬁndings of
the victims’ actual losses, as required by § 3664”). 11 Accordingly, we
vacate the restitution award and remand on this issue.

11 In a notice of supplemental authority, Gyetvay argues that United States v.

Schwarzbaum, 114 F.4th 1319 (11th Cir. 2024) shows that the restitution im-
posed in this case was improperly punitive rather than properly remedial. In
Schwarzbaum, we held that “the FBAR penalty is a fine subject to the Eighth
Amendment’s Excessive Fines Clause.” 114 F.4th at 1334. However, the civil
FBAR penalty is not at issue in this case, so we decline to extend Schwarzbaum’s
holding here.
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23-13254 Opinion of the Court 53

III. CONCLUSION
For the foregoing reasons, we aﬃrm Gyetvay’s convictions
on Counts 12 and 13, reverse Gyetvay’s convictions on Counts 10
and 11, vacate his sentence, and remand to the district court for
resentencing. Additionally, we vacate the restitution order and di-
rect the district court to reconsider the issue of restitution in ac-
cordance with this opinion.
AFFIRMED IN PART; REVERSED IN PART; VACATED
AND REMANDED IN PART.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11116355. Public record. Not legal advice.