Reaffirming the Due Diligence Standard for Newly Discovered Evidence in Rule 33 Motions

Introduction

In United States v. Kaufman, No. 23-6807-cr (2d Cir. Apr. 8, 2025), the Second Circuit addressed a criminal defendant’s motion for a new trial under Federal Rule of Criminal Procedure 33 based on “newly discovered” evidence. Alan Kaufman, former CEO and treasurer of Melrose Credit Union, had been convicted of corruptly accepting gratuities in violation of 18 U.S.C. § 215(a)(2). On appeal from the district court’s denial of his Rule 33 motion—and a related request for bail pending appeal—the Second Circuit considered (1) whether Kaufman satisfied Rule 33’s stringent “due diligence” requirement and (2) whether, even if he did, the new evidence would likely lead to acquittal.

Summary of the Judgment

The Second Circuit affirmed the district court’s denial of Kaufman’s Rule 33 motion and dismissed as moot his appeal of the bail order. The court held that Kaufman failed to show that the location-of-closing evidence was “newly discovered” because he had direct knowledge of—and access to—emails and documents reflecting the closing location well before trial. In any event, the court concluded that even proof the closing occurred on Long Island (rather than in Manhattan) would not likely change the venue analysis, given multiple independent facts linking the gratuity transaction to the Southern District of New York.

Analysis

1. Precedents Cited

United States v. James, 712 F.3d 79 (2d Cir. 2013): Established the five-part test for granting a new trial based on newly discovered evidence under Rule 33.
United States v. Forbes, 790 F.3d 403 (2d Cir. 2015): Clarified that awareness of evidence at trial does not per se defeat a Rule 33 motion, but reaffirmed that a movant must demonstrate the evidence could not have been discovered with due diligence before or during trial.
Bain v. MJJ Prods., Inc., 751 F.3d 642 (D.C. Cir. 2014): Provided persuasive authority on treating a document believed to be lost as “newly discovered” once recovered.
United States v. Jones, 965 F.3d 149 (2d Cir. 2020): Confirmed that newly discovered evidence must be so material and noncumulative that its admission would probably lead to an acquittal.
Snyder v. United States, 603 U.S. 1 (2024): Addressed the scope of “gratuities” under 18 U.S.C. § 666; mentioned in dissent but not resolved as to § 215.

2. Legal Reasoning

The court’s reasoning rests on two principal holdings:

Due Diligence Requirement: Under Rule 33, a defendant seeking a new trial based on newly discovered evidence must show (among other things) that the evidence could not have been discovered with due diligence before or during trial. Kaufman attended the closing personally and therefore knew—or could have easily learned—the location at trial. His post-mandate email exchange (March 21 2023) confirming a Long Island venue did not satisfy the due diligence element. Both his own recollection and contemporaneous emails from the Melrose attorney demonstrated that the location was accessible well before the 2021 jury trial.
Alternative Venue Findings: Even assuming arguendo that the venue evidence was “newly discovered,” the court held that the showing was not critical to acquittal. Multiple other acts tied venue to Southern District of New York: Kaufman’s engagement of a Manhattan title agency, the sending of electronic communications from Manhattan, and his physical presence at a Manhattan law firm for related transactions. Those factors independently established venue under 18 U.S.C. § 3237(a).

3. Impact

This decision underscores the rigorous application of Rule 33’s due diligence standard in the Second Circuit. Defendants must proactively collect and present evidence at trial rather than await appellate remand. The ruling also illustrates how venue may be proven through ancillary acts—such as the use of a title agency or electronic communications—beyond the primary criminal act. Future litigants will likely face heightened evidentiary burdens when seeking new trials based on purportedly “new” evidence that was, in fact, readily obtainable.

Complex Concepts Simplified

Rule 33 Motion: A request for a new trial in a criminal case, permissible when, among other grounds, new evidence emerges that was unavailable at trial.
Due Diligence: The obligation of a party to take reasonable steps, before or during trial, to discover evidence. If evidence was accessible through ordinary efforts, it is not “newly discovered.”
Venue: The proper geographic location for a trial. Under federal law, criminal venue may be laid where “an act in furtherance” of the conspiracy or scheme occurred.
Gratuities vs. Bribes: Section 215(a)(2) punishes “corruptly accepting gratuities” by a financial institution officer. A gratuity is a gift or favor for past or future official action, distinct from a quid-pro-quo bribe but still punishable when made corruptly.

Conclusion

United States v. Kaufman reaffirms that Rule 33’s “newly discovered evidence” exception is limited by a stringent due diligence requirement. A defendant cannot lie fallow in trial preparation and then seek a post-conviction rematch upon rediscovery of readily available documents. The case also exemplifies how venue can be established through secondary acts—such as employing a local title agency or engaging in communications from the district. Taken together, this decision sharpens procedural norms for criminal new-trial motions and clarifies venue analysis in gratuities prosecutions.