Reaffirmation of Strict Due Diligence Requirement for Newly Discovered Evidence under Federal Rule of Criminal Procedure 33

Introduction

United States v. Kaufman (2d Cir. Apr. 8, 2025) is a summary‐order decision in which the Second Circuit affirmed the district court’s denial of a Rule 33 motion for a new trial and dismissed as moot the appeal from denial of bail pending appeal. Parties: Appellant Alan Kaufman, former CEO and treasurer of Melrose Credit Union, and co‐defendant Tony Georgiton; Appellee: United States of America. Key Issues: (1) Whether Kaufman’s newly discovered evidence about the location of the 2010 closing satisfies Rule 33’s due-diligence and materiality requirements; (2) whether, even if newly discovered, the evidence would probably lead to acquittal on the venue issue in Count Two.

Summary of the Judgment

After Kaufman’s jury conviction in March 2021 for accepting gratuities in violation of 18 U.S.C. § 215(a)(2), he exhausted his direct appeal, including a venue challenge resolved by this Court in February 2023. Following the mandate, Kaufman moved under Rule 33 for a new trial based on emails showing the Jericho‐Residence closing occurred on Long Island rather than Manhattan. The district court denied the motion for lack of due diligence and, alternatively, because other evidence independently supported venue. The Second Circuit found no abuse of discretion, affirmed the Rule 33‐denial order, and dismissed as moot the bail appeal.

Analysis

Precedents Cited

United States v. James, 712 F.3d 79 (2d Cir. 2013) – Sets out the five‐part test for newly discovered evidence: (1) evidence discovered after trial; (2) due diligence; (3) materiality; (4) non-cumulative/impeaching; (5) probable acquittal.
United States v. Forbes, 790 F.3d 403 (2d Cir. 2015) – Clarifies that awareness of evidence at trial does not alone preclude its later use as “newly discovered” but reaffirms that due diligence remains essential.
United States v. Jones, 965 F.3d 149 (2d Cir. 2020) – Emphasizes that newly discovered evidence must probably lead to acquittal to warrant a new trial.
United States v. Stillwell, 986 F.3d 196 (2d Cir. 2021) – Holds that new arguments not raised below are generally forfeited on appeal absent exceptional circumstances.
Bain v. MJJ Prods., Inc., 751 F.3d 642 (D.C. Cir. 2014) – Adopted by Forbes for its “lost‐and‐found” document example, illustrating the boundaries of “newly discovered evidence.”
Snyder v. United States, 603 U.S. 1 (2024) – Supreme Court’s recent interpretation of 18 U.S.C. § 666; cited by Kaufman but deemed inapplicable to § 215 and not raised below, thus forfeited.

Legal Reasoning

The Court applied an abuse‐of‐discretion standard to the district court’s denial of the Rule 33 motion. It reviewed two independent grounds:

Lack of Due Diligence: – Rule 33 requires proof that newly discovered evidence “could not with due diligence have been discovered before or during the trial.” – Kaufman had personally attended the 2010 closing, yet only sought confirmation of its location after the direct‐appeal mandate. – The very emails he offered demonstrated that confirming the closing location was trivial and available pre-trial; hence, no due diligence.
Materiality and Probable Acquittal: – Even if due diligence were excused, the district court found multiple independent venue‐supporting acts: • Engagement of a Manhattan‐based title agency; • Electronic communications sent from Manhattan in furtherance of the purchase. – The new evidence (Long Island closing) would not, by a preponderance, have led to acquittal on Count Two.

Finally, Kaufman’s invitation to extend Snyder v. United States to § 215 was rejected as forfeited (not raised in the Rule 33 motion) and procedurally improper to consider first time on appeal.

Impact

This decision reinforces several critical principles:

Rule 33’s due-diligence requirement is strictly enforced—even if evidence is known to exist only in broad outline, a defendant must pursue it before or during trial.
Summary orders remain non-precedential but clarify district court practices regarding collateral motions for new trials and bail pending appeal.
Venue challenges must consider all corroborating evidence; proof of alternative location for one act does not necessarily undermine venue when other acts occurred in the proper district.
Appellate courts will not entertain new legal theories on collateral appeal that were not presented to the district court (Stillwell rule).

Complex Concepts Simplified

Federal Rule of Criminal Procedure 33: Allows a defendant to seek a new trial based on “newly discovered evidence,” but only if strict criteria—including due diligence—are met.
Due Diligence: The effort a reasonably prudent person would take to uncover evidence before or during trial. Mere neglect or strategic delay is insufficient.
Venue: The geographic location where a crime is alleged to have occurred. For gratuity/ bribery counts, the acceptance of the benefit and related acts can fix venue.
Summary Order: A decision that disposes of an appeal without full published opinion; it does not create binding precedent but is citable under Federal Rule 32.1.

Conclusion

United States v. Kaufman reaffirmed the Second Circuit’s unwavering commitment to enforcing the due-diligence requirement of Rule 33. A defendant’s mere awareness of evidence—especially one personally experienced, as a trial participant—is fatal to a motion for a new trial when no effort was made to acquire and present that evidence pre-trial. Additionally, the Court underscored that alternative venue‐establishing acts preclude a retrial on venue grounds, and that new legal arguments not timely raised below will be forfeited.

This ruling serves as a clear guidepost for practitioners: diligently investigate all potential evidence before trial, timely raise all legal arguments, and recognize that collateral motions will be scrutinized for both procedure and substance.