By Joseph Ax
NEW YORK, Jan 18 (Reuters) - The state prosecution of former
Goldman Sachs computer programmer Sergey Aleynikov is an inhuman
attempt to circumvent double jeopardy prohibitions after his
federal conviction was overturned, his lawyer told a Manhattan
state judge on Friday.
Attorney Kevin Marino urged Manhattan Supreme Court Justice
Ronald Zweibel to dismiss the charges, saying Aleynikov should
not have to defend himself again for the same conduct that led
to the federal case.
Manhattan Assistant District Attorney Joanne Li said that
Aleynikov had clearly violated state laws prohibiting the
improper taking of computer material.
The federal prosecution, based on accusations that the New
Jersey programmer copied proprietary Goldman code in 2009 and
took it with him to a high-frequency trading start-up, was among
the most high-profile cases that U.S. authorities have brought
in recent years as they have sharpened their focus on computer
crime and corporate espionage.
Aleynikov spent a year in prison after a guilty verdict in
December 2010, before the 2nd U.S. Circuit Court of Appeals
tossed his conviction last year and ordered him released.
"There is a word for this prosecution, and it is inhuman,"
Marino told the court on Friday.
He said that even if Aleynikov was convicted in state court,
he was unlikely to serve additional jail time. Prosecuting
Aleynikov further would not serve the interest of justice, he
"He's lost his home," Marino said. "He's lost his family.
He's lost every penny he's ever saved ... the reality is, Sergey
Aleynikov has suffered enough."
Li said that the 2nd Circuit's ruling was based on elements
in the federal statutes that are not part of the state laws,
which means the case falls under an exception to the double
"For many reasons, this is a legal and a valid prosecution,"
Zweibel said he would issue a ruling in court on Feb. 15.
'BOMBAST' VS 'EVIDENCE'
In addition to his arguments based on double jeopardy and
the interest of justice, Marino also said that the state
statutes don't apply because Aleynikov had the right to access
and copy the code.
Li, however, said the statutes were intended to prevent
individuals from copying material for their own personal gain,
an argument that Zweibel appeared to find more convincing.
"It's misappropriation," the judge said in challenging
Marino's interpretation of the statutes.
In a statement following the hearing, Chief Assistant
District Attorney Daniel Alonso said prosecutors had simply
followed Marino's own suggestion during the federal case that
Aleynikov's alleged actions would more properly be prosecuted in
"In every case, the prosecutors in this office rely not on
bombast but on evidence," he said. "The Second Circuit reversed
the defendant's conviction on federal jurisdictional grounds in
the face of insistent arguments by this same lawyer that the
case was a quintessential state crime."
Efforts by federal authorities to crack down on computer
crimes have increasingly come under fire from civil liberties
advocates who worry that prosecutors are interpreting
anti-hacking statutes too broadly.
Last week, Internet activist Aaron Swartz, 26, who was
facing prison time in a controversial computer fraud case,
committed suicide, adding fuel to the debate.
Swartz, an advocate for the free sharing of electronic data,
was indicted by a federal grand jury in 2011 after his alleged
illegal download of millions of academic articles and journals
from a digital archive at the Massachusetts Institute of
Technology. His family has accused the Justice Department of
overreach, a charge prosecutors have refuted.
The case is People v. Aleynikov, New York State Supreme
Court, New York County, No. 60353/2012.
For the prosecution: Assistant District Attorney Joanne Li.
For Aleynikov: Kevin Marino and John Tortorella of Marino,
Tortorella & Boyle.
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