Reaffirmation of Due Diligence in Newly Discovered Evidence and Venue Principles under Rule 33 (United States v. Kaufman)

Introduction

United States v. Kaufman (2d Cir. Apr. 8, 2025) arose 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). After a jury trial in March 2021, Kaufman was sentenced to 46 months’ imprisonment, restitution, forfeiture, and fines. He appealed his conviction and, after the Second Circuit affirmed, moved under Federal Rule of Criminal Procedure 33 for a new trial based on allegedly newly discovered evidence concerning the venue of a real‐estate closing. The district court denied his motion and also refused bail pending appeal. Kaufman then appealed both orders.

The central issues on appeal were (1) whether Kaufman’s evidence of a Long Island closing location qualified as “newly discovered” under Rule 33 given his personal participation in the transaction, and (2) whether venue for Count Two could properly lie in the Southern District of New York. This summary order rejected Kaufman’s arguments, affirmed the denial of the Rule 33 motion, and dismissed the bail‐pending‐appeal challenge as moot.

Summary of the Judgment

The court reviewed the denial of a Rule 33 motion for abuse of discretion. To obtain a new trial based on newly discovered evidence, a movant must show:
- the evidence was discovered after trial;
- due diligence could not have uncovered it earlier;
- it is material and non-cumulative;
- it would probably lead to acquittal.
Kaufman claimed newly discovered emails showing the Jericho closing was on Long Island, not Manhattan, and thus venue was improper. The court held he personally attended the closing, knew its location, and failed to exercise due diligence before trial. The emails thus were not “newly discovered.”
In the alternative, the court found multiple independent bases for venue in the Southern District of New York, including Kaufman’s use of a Manhattan title agent and electronic communications from Manhattan related to the purchase.
Kaufman’s additional argument—that Snyder v. United States (2024) undermines the gratuities statute—was not raised below and thus forfeited.
The denial of bail pending appeal was dismissed as moot after affirmance of the Rule 33 decision.

Analysis

Precedents Cited

United States v. James, 712 F.3d 79 (2d Cir. 2013): Sets the five-part test for newly discovered evidence under Rule 33 and establishes the “due diligence” requirement.
United States v. Jones, 965 F.3d 149 (2d Cir. 2020): Affirms that newly discovered evidence must be so material and non-cumulative that it would likely produce acquittal.
United States v. Forbes, 790 F.3d 403 (2d Cir. 2015): Clarifies that mere awareness of evidence during trial does not automatically bar a new-trial motion, but emphasizes the continuing due diligence requirement.
Bain v. MJJ Prods., Inc., 751 F.3d 642 (D.C. Cir. 2014): Provides the D.C. Circuit’s approach to awareness versus new discovery, quoted in Forbes.
Snyder v. United States, 603 U.S. 1 (2024): Interprets 18 U.S.C. § 666, not § 215; cited by Kaufman but not addressed on appeal due to forfeiture.

Legal Reasoning

The court applied the abuse-of-discretion standard to the district court’s Rule 33 ruling. It began by restating the five prerequisites for newly discovered evidence under James. The critical threshold was due diligence: because Kaufman personally attended the closing and had access to contemporaneous communications, he could have discovered its Long Island location before or during trial. His belated email exchange—initiated on the day the direct‐appeal mandate issued—demonstrated that the evidence was readily obtainable. Thus, there was no basis to treat it as newly discovered.

The court further held that, even if due diligence were excused, the evidence would not likely produce an acquittal, because independent venue facts supported the Southern District of New York: Manhattan‐based title agency retention and electronic transmissions from Manhattan in aid of the transaction.

Finally, the court declined to entertain Kaufman’s statutory challenge under Snyder, as it was not raised below, preserving the last-invoked principle that arguments not presented in the district court are forfeited on appeal.

Impact

United States v. Kaufman reaffirms several important principles for criminal practitioners and courts:

Due Diligence Is a Hard Floor: A defendant’s personal knowledge or access to evidence precludes later reliance on it as “newly discovered.” Trial strategy must include timely investigation of all facts within a defendant’s personal involvement.
Broader Venue Analysis for Gratuities Offenses: Acts preparatory to or integrally linked with the gratuity scheme—such as attending closings and using local professional services—can establish venue, even if parts of the transaction occur elsewhere.
Rule 33 Practice: Courts will enforce the five-element test strictly. Movants must anticipate potential weaknesses in proof and investigate vigorously before trial.
Forfeiture of New Legal Theories: Challenges based on new Supreme Court decisions must be raised in the district court or will be deemed waived on appeal.

Complex Concepts Simplified

Newly Discovered Evidence (Rule 33): Evidence discovered after trial that the defendant could not have found earlier even with reasonable effort. It must be material, non-cumulative, and likely to change the outcome.
Due Diligence: A legal standard requiring proactive, timely investigation. If a defendant or counsel could have obtained the evidence before or during trial through reasonable steps, it cannot be “newly discovered.”
Venue in Criminal Cases: The constitutional guarantee that trials occur where offenses were “committed.” Venue can be established by any significant act in furtherance of the charged crime, not only the ultimate act.
Forfeiture Doctrine: Legal issues not raised at the trial court level are typically barred from being introduced for the first time on appeal.

Conclusion

United States v. Kaufman is significant for reaffirming that the due diligence requirement under Rule 33 is not met by waiting for appellate pipeline developments. A defendant’s personal participation in critical events—such as attending a real-estate closing—renders related facts discoverable pre-trial. The case also underscores that venue for gratuity offenses may be grounded in professional services and preparatory acts within the district. Finally, it serves as a reminder that new legal arguments must be preserved at trial or risk forfeiture on appeal. Together, these holdings guide practitioners in criminal defense strategy and district courts in adjudicating new-trial motions.