Court of Appeals Reverses on Statute of Limitations Grounds for Failure Foreign Evidence Tolling Under 18 USC § 3292(a)(1) and For Resentencing (8/13/25)

In United States v. Gyetvay, 149 F.4th 1213 (11th Cir. 2025), 11th Cir. here amd GS here. the Court

• reversed Gyetvay’s convictions in Counts 11 and 12 for Willfully Failing to File Tax Returns for the years 2013 and 2014;
• otherwise sustained on the counts of conviction; and
• remanded for re-sentencing without the reversed Counts and for restitution.

I provide the following chart to show what the Court of Appeals did and the possibility of retrial on the Counts for which the jury hung. I then provide some commentary below the chart.

Counts	Charge	Sentence Max	Jury Verdict	Court of Appeals	Retrial
1-3	Aiding or Assisting § 7206(2) years 2006, 2007, 2008	9 years (3 years on each count)	Hung		Yes
4-6	Tax Evasion § 7201  Years 2007, 2008, 2009	15 years (5 years each count)	Hung		Yes
7-9	Willfully Failing to File § 7203 Years 2010, 2011, 2012,	3 years (1 year each count)	Hung		No - Foreclosed by reversal of convictions on Counts 10 & 11.
10 & 11	Willfully Failing to File § 7203 Years 2013, 2014	2 years (1 year each count)	Guilty	Reversed – Statute of Limitations was not tolled under 18 USC § 3292(a)(1)	No
12	Willfully Making False Statements on Streamlined Procedures Certification 18 USC § 1001 & 2	5 years	Guilty	Did Not Appeal, but vacates restitution order based on this Count	Re-sentencing
13	Willfully Failing to File FBAR - 31 USC. §§ 5314 & 5322(a); 31 C.F.R. §§ 1010.350, 1010.306(c)-(d) and 1010.840(b) Year 2014	5 years	Guilty	Affirmed	No
14	Wire Fraud Year 2014	20 years	Acquitted	Govt did not appeal	No
15	Wire Fraud No year	20 years	Hung		Yes

JAT Comments:

 1. The docket entries and many of the key documents at the trial level are on the CourtListener free access page here. The key documents for purposes of this discussion are:

• CourtListener Docket Entries, here.
• Jury Verdict (Not available through Courtlistener but available here).
• Order (Doc 281, dated 7/2/23 ), here, in relevant part granting extension of time to retry the hung counts after the appeal is concluded.
• Government Sentencing Memo (Doc. 290 dated 9/15/23), here.
• Gyetvay’s Sentencing Memo (Doc. 293, dated 9/17/23), here.
• Judgment (Doc. 300, dated 9/26/23), here.

Note: The transcript where the court discusses his reasons for the sentence imposed is not available on PACER and thus is not available on CourtListener.

2, The most immediate question is whether Gyetvay can get some reduction in originally imposed incarceration of 86 months from re-sentencing upon remand. That may depend upon whether the Government decides to re-try some or all of the hung counts (except the §7203 hung counts (Counts 7-9) which are likely foreclosed by the reversal of the §7203 counts of conviction (Counts 10 & 11)); I discuss retrial on the hung counts in paragraph 3 below. As for resentencing if there is no retrial of the hung counts, basically, as I understand the Court of Appeals opinion (F.4th at 1238-1244), resentencing is not likely to affect the sentencing factors because the district court did not rely for sentencing upon the §7203 hung or convicted counts. I think the district court relied upon the count for conviction for FBAR failure to file plus the “relevant conduct” for uncharged FBAR failures to file. I have not fully chased that down, so I qualify that the conclusion is my best guess without complete information. If that is right, though Gyetvay’s major goal on appeal for incarceration relief may not be realized even if the Government does not retry the hung counts.

3. An important issue is whether the Government will retry the hung jury counts (other than the §7203 failure to file hung counts). In granting speedy trial extension, the Court quoted the Government likely would not retry if Gyetvay’s “convictions and sentence are undisturbed on appeal,” (See Order Slip Op. 7.) As noted above, the convictions and sentence were “disturbed on appeal,” but likely not in a way that will materially affect Gyetvay’s bottom line sentence of incarceration. So, I have to think that the Government may not retry the hung jury counts unless the restitution that can be imposed is significantly less than originally imposed. Then, of course, the parties could negotiate some restitution that is mutually acceptable to avoid a retrial.

4. Although the Court cites the applicable Guidelines as permitting consideration of acquitted counts (F.4th at 1239), the Guidelines have since been changed to eliminate acquitted counts from the calculations. Sentencing Guidelines Amendment Eliminates Acquitted Conduct from Sentencing Calculations (Federal Tax Procedure Blog 6/6/24; 6/11/24), here.