Reaffirmation of Venue and Due Diligence Standards for Newly Discovered Evidence in Criminal Appeals

Introduction

United States v. Kaufman is an appeal decided by the United States Court of Appeals for the Second Circuit on April 8, 2025. The defendant, Alan Kaufman, challenged two district-court orders: one denying his motion for a new trial under Federal Rule of Criminal Procedure 33 based on purportedly newly discovered evidence regarding venue, and the other denying bail pending appeal of that decision. Kaufman had been convicted of accepting corrupt gratuities under 18 U.S.C. § 215(a)(2) in connection with his role as an officer of Melrose Credit Union. The key issues on appeal were (1) whether the district court abused its discretion by denying relief under Rule 33 for lack of due diligence in obtaining venue-related evidence, and (2) whether the bail-pending-appeal order presented a live controversy. The Government opposed relief, arguing that Kaufman failed to meet the stringent Rule 33 standards and that his appeal of the bail denial was moot.

Summary of the Judgment

The Second Circuit affirmed the district court's denial of the Rule 33 motion and dismissed as moot the appeal of the bail-pending-appeal order. Applying the abuse-of-discretion standard, the court held:

The evidence Kaufman claimed was “newly discovered”—emails confirming that a real-estate closing took place on Long Island rather than Manhattan—was available to him before trial. He failed to show due diligence in uncovering it.
Even if he could satisfy due diligence, Kaufman could not demonstrate a reasonable probability of acquittal, since independent venue-establishing acts occurred in Manhattan (e.g., retention of a Manhattan title agency and electronic communications sent from Manhattan).
The appeal from the denial of bail was moot because Kaufman was already in custody serving his sentence.

Analysis

Precedents Cited

The court relied primarily on three precedents:

United States v. James, 712 F.3d 79 (2d Cir. 2013): Established the five-factor test for newly discovered evidence under Rule 33, including the requirement of due diligence and likelihood of acquittal.
United States v. Forbes, 790 F.3d 403 (2d Cir. 2015): Clarified that awareness of evidence during trial does not automatically preclude its characterization as “newly discovered,” but reinforced the demand for due diligence to obtain it before or during trial.
United States v. Jones, 965 F.3d 149 (2d Cir. 2020): Emphasized that new evidence must be so material and noncumulative that its admission would likely lead to acquittal.

These cases shaped the court’s analysis by underscoring two thresholds: the movant’s obligation to seek evidence diligently and the requirement that the evidence be so compelling that it would probably change the outcome.

Legal Reasoning

The court’s reasoning proceeded in two steps:

Due Diligence Requirement: The court found it undisputed that Kaufman attended the 2010 closing and thus “had direct knowledge of the location” before trial. The emails he unearthed in 2023 merely confirmed what he already knew. Under Rule 33 and the precedents, a movant must show that the evidence could not have been discovered with reasonable diligence before or during trial. Kaufman’s March 2023 email exchange with the seller’s attorney illustrated that he could have obtained the information years earlier.
Probability of Acquittal: Even if due diligence were excused, the court held that alternative acts in Manhattan established venue independently of the closing location. Kaufman had used a Manhattan title agency and sent electronic communications from Manhattan to facilitate the purchase. A rational jury could find venue proper on those bases, so the new evidence would not likely produce an acquittal.

Impact

This decision reinforces two key principles in criminal appeals:

Stringent Application of Rule 33: Defendants arguing newly discovered evidence must not only identify truly unknown facts but also demonstrate that they could not have obtained them earlier through reasonable effort.
Flexible Venue Analysis: Venue may be established by multiple acts in a district. Even if one act (the closing) occurred elsewhere, other acts (retention of local counsel, electronic communications) suffice.

Lower courts will treat future Rule 33 motions with this decision in mind, scrutinizing the movant’s pretrial efforts and examining all venue-related acts, not just the focal event.

Complex Concepts Simplified

Federal Rule of Criminal Procedure 33 (Rule 33): Allows a district court to grant a new trial if evidence “newly discovered” after trial would probably lead to acquittal. Requires proof of diligence, materiality, noncumulativeness, and likelihood of different verdict.
Venue: The requirement that a criminal trial be held in a district where the crime was committed. Venue may be pegged to any “essential conduct” of the offense, not only the defendant’s presence but also acts by co-conspirators or agents in that district.
Due Diligence: The standard demanding that a party seeking relief must show that they tried in good faith and with reasonable effort to discover the evidence before or during trial.
Abuse of Discretion: A highly deferential appellate standard. A district court’s decision will be overturned only if it “rests on an error of law or a clearly erroneous factual finding, or renders a plainly unreasonable judgment.”

Conclusion

United States v. Kaufman reaffirms that relief under Rule 33 for newly discovered evidence is narrowly confined by the due-diligence requirement and that venue may be established by multiple acts within a district. The ruling underscores appellate deference to district courts in weighing new-trial motions and clarifies that defendants must pursue all known avenues to secure evidence before trial. Its practical significance extends to defense strategy, evidentiary timing, and venue challenges in future federal criminal cases.