Due Diligence Requirement for Newly Discovered Evidence under Rule 33 Affirmed in United States v. Kaufman

Introduction

United States v. Kaufman, 23-6807-cr (2d Cir. Apr. 8, 2025), presents an important reaffirmation of the strict due diligence requirement for newly discovered evidence in criminal cases under Federal Rule of Criminal Procedure 33. The defendant, Alan Kaufman, appealed the denial of a new‐trial motion and the denial of bail pending that appeal. Kaufman had been convicted of corruptly accepting gratuities as a financial‐institution officer (18 U.S.C. § 215(a)(2)) after a jury trial in March 2021 and subsequently sentenced to 46 months’ imprisonment. The central issue on appeal was whether Kaufman’s purported “newly discovered” evidence regarding venue at a real estate closing met the Rule 33 standard. The Second Circuit affirmed the district court’s denial, emphasizing that evidence known, or easily obtainable, before trial cannot be deemed “newly discovered” in the absence of diligent effort.

Summary of the Judgment

The district court denied Kaufman’s Rule 33 motion for a new trial based on alleged newly discovered evidence that the closing of a property transaction occurred in Long Island, not Manhattan.
The district court also denied bail pending appeal from that denial.
On appeal, the Second Circuit reviewed the Rule 33 denial for abuse of discretion and dismissed the bail appeal as moot.
The Court held that Kaufman failed to demonstrate due diligence: he personally attended the closing and could have discovered or verified the location before or during trial.
Alternatively, the Court ruled that even if due diligence were satisfied, the new evidence would not probably lead to acquittal because other venue‐establishing acts (e.g., Manhattan‐based title agency communications) were in the record.
Accordingly, the order denying the Rule 33 motion was affirmed.

Analysis

Precedents Cited

United States v. James, 712 F.3d 79 (2d Cir. 2013): Established the five‐factor test for newly discovered evidence under Rule 33.
United States v. Forbes, 790 F.3d 403 (2d Cir. 2015): Clarified that awareness of evidence does not automatically preclude Rule 33 relief, but reaffirmed the due diligence requirement.
Bain v. MJJ Prods., 751 F.3d 642 (D.C. Cir. 2014): Recognized that lost documents later found may be “newly discovered” but still subject to due diligence analysis.
United States v. Jones, 965 F.3d 149 (2d Cir. 2020): Reiterated that newly discovered evidence must probably lead to acquittal to warrant a new trial.

Legal Reasoning

Under Rule 33, a defendant must show:

The evidence is newly discovered after trial.
Due diligence was exercised before and during trial to obtain it.
The evidence is material and not merely cumulative or impeaching.
It would likely result in acquittal.

In Kaufman, the critical hurdle was due diligence. The record showed that Kaufman attended the closing and thus had actual knowledge of its location. The “new” evidence consisted of:

An email exchange on March 21, 2023—after the direct‐appeal mandate—wherein Kaufman asked the seller’s attorney for location details.
A 2010 email from a Melrose Credit Union attorney referencing the closing’s scheduling on Long Island.

The district court correctly concluded these documents were readily accessible to Kaufman well before trial; his failure to seek them reflected lack of diligence. The Second Circuit emphasized that mere belated documentation does not transform known facts into “new” evidence absent a credible explanation for prior inability to discover them.

As for the alternative basis, the Court held that venue could be established by other acts within the Southern District of New York—specifically, Manhattan-based title‐agency communications and the selection of a Manhattan law firm—so the new evidence would not probably change the outcome.

Impact

United States v. Kaufman confirms that federal courts will enforce a rigorous due diligence standard for Rule 33 motions:

Defendants must proactively seek exculpatory or venue-related materials before and during trial.
Courts will view attendance at key events (e.g., closings) as charging the defendant with constructive knowledge of facts revealed there.
The decision deters strategic withholding of evidence until after an adverse verdict, reinforcing fairness and finality.

Future litigants will need to document their investigative efforts meticulously and explain any delays in unearthing allegedly new evidence to satisfy Rule 33’s due diligence component.

Complex Concepts Simplified

Rule 33 Motion for New Trial: A request made after conviction, asking the court to set aside the verdict and grant a new trial, typically based on newly discovered evidence.
Due Diligence Requirement: An obligation on defendants to show they tried reasonably—and without undue delay—to find evidence before or during their trial.
Venue: The geographic location where a trial may properly be held. For criminal cases, venue must be proven by the government beyond a reasonable doubt.
Abuse of Discretion: A standard of review in appeals where an appellate court defers to the trial court unless its decision was arbitrary, irrational, or legally flawed.

Conclusion

United States v. Kaufman stands as a clear articulation of the Rule 33 due diligence test: evidence that is known or easily attainable prior to trial cannot be recast as “newly discovered” simply because formal documentation emerges later. By affirming the district court’s denial of a new‐trial motion and dismissing the bail appeal as moot, the Second Circuit underscored the fairness and efficiency interests served by imposing a strict diligence requirement. This decision will guide future criminal defendants and courts in evaluating requests for retrials based on evidence purportedly unearthed post‐verdict.