Due Diligence Requirement in Rule 33 Motions and Venue Principles for Corrupt Gratuities under 18 U.S.C. § 215(a)(2)

1. Introduction

United States v. Kaufman (2d Cir. Apr. 8, 2025) arises from the conviction of Alan Kaufman, former CEO and treasurer of Melrose Credit Union, on two counts of corruptly accepting gratuities in violation of 18 U.S.C. § 215(a)(2). At trial, the government alleged that Kaufman enjoyed rent-free occupancy of a house in Jericho, New York, and later received an unsecured $240,000 loan from co-defendant Tony Georgiton in exchange for favorable refinancing of over $86 million in loans. Kaufman’s direct appeal to this Court (No. 21-2589) resulted in an affirmance, including rejection of his venue challenge for Count Two. After the mandate issued, Kaufman moved under Federal Rule of Criminal Procedure 33 for a new trial based on newly discovered evidence about the location of the 2010 closing (allegedly on Long Island, not Manhattan). He also sought bail pending appeal. The district court denied both motions, and Kaufman appealed, leading to this summary order.

2. Summary of the Judgment

The Second Circuit issued a non-precedential summary order that:

Affirmed the district court’s denial of Kaufman’s Rule 33 motion for a new trial.
Dismissed as moot the appeal of the order denying bail pending appeal.

The Court held that Kaufman could not show “due diligence” to uncover the closing-location evidence before or during his trial and, in any event, that even on the assumption of diligence, the newly discovered evidence would not probably produce an acquittal. On venue, the Court reiterated that the closing in Manhattan (in which Kaufman personally participated) was a substantive act establishing venue, and that independent Manhattan-based contacts (title agency communications, use of a Manhattan attorney) further supported venue in the Southern District of New York.

3. Analysis

3.1 Precedents Cited

United States v. James, 712 F.3d 79 (2d Cir. 2013): Standard for evaluating Rule 33 motions based on newly discovered evidence, requiring proof of (1) new discovery, (2) due diligence, (3) materiality, (4) non-cumulative or non-impeaching character, and (5) probable acquittal.
United States v. Forbes, 790 F.3d 403 (2d Cir. 2015): Clarified that mere awareness of evidence does not preclude its treatment as “newly discovered,” but reaffirmed the due diligence requirement.
Bain v. MJJ Prods., Inc., 751 F.3d 642 (D.C. Cir. 2014): Quoted in Forbes on the limits of the “awareness” exception.
United States v. Jones, 965 F.3d 149 (2d Cir. 2020): Confirmed that newly discovered evidence must be so material and non-cumulative that it would likely lead to acquittal.
United States v. Stillwell, 986 F.3d 196 (2d Cir. 2021): Emphasized that new arguments not raised below are generally forfeited on appeal.

3.2 Legal Reasoning

The Court’s decision rests on two pillars:

Due Diligence in Rule 33 Motions: Although Kaufman did not know the exact venue of the closing, he personally attended it, and documents (emails from 2010) and the owner’s counsel were available well before trial. His ability to inquire years earlier and produce contemporaneous emails negated any claim that the location could not have been discovered with reasonable diligence.
Alternative Venue Grounds: Even if the closing’s location were unknown, the jury could rely on multiple contacts with the Southern District of New York—including use of a Manhattan‐based title agency, electronic communications sent from Manhattan in furtherance of the transaction, and the involvement of a Manhattan attorney—to find venue proper under the “acts in furtherance” test.

3.3 Impact

This summary order, while non-precedential, underscores two practical lessons for future litigants:

Defendants seeking new trials on newly discovered evidence must show unwavering diligence; mere belated recollection or post-mandate confirmation of facts will not suffice.
Venue challenges in gratuity or bribery schemes may succeed only if literally no substantive acts bearing on the charged offense occur in the forum district; routine transactional steps (contracts, closings, communications) often anchor venue.

4. Complex Concepts Simplified

Rule 33 “Newly Discovered Evidence”: Relief is rare. The defense must prove (a) the evidence was unknown at trial, (b) it could not have been uncovered earlier with reasonable effort, (c) it is important, (d) it is not simply repetitive or intended to attack witness credibility, and (e) it likely would produce a not-guilty verdict.
Venue in Criminal Cases: The government must show that an “essential conduct element” of the crime occurred in the charging district. For gratuities, actively receiving or accepting the benefit in the district qualifies.
Summary Orders: This Court’s summary orders do not carry binding precedential effect but may be cited under Fed. R. App. P. 32.1.

5. Conclusion

United States v. Kaufman reinforces the high bar for Rule 33 motions based on “newly discovered” facts and confirms that defendants bear the full weight of showing they could not have uncovered the evidence at trial with reasonable effort. It also highlights that venue in gratuity prosecutions will turn on any substantive act of acceptance or agreement within the district. For practitioners, the lesson is clear: diligent pretrial investigation and a comprehensive venue analysis are indispensable in preparing and defending criminal cases.