Sergey Aleynikov, wearing a baseball cap, leaves Manhattan federal court.
He took the code, but it wasn’t a crime.
That’s the stunning opinion of a federal appeals court that overturned the conviction of Sergey Aleynikov, a former Goldman Sachs programmer accused of stealing the bank’s computer code for its high-speed trading operations before he decamped to a rival outfit.
A three-judge panel, in revealing for the first time its reasons for ruling that Aleynikov was wrongly charged with theft and corporate espionage, said that while his actions were “dishonest” and wrong, they fell short of criminal conduct.
The judges cited two reasons in their opinion. First, the code didn’t qualify as a tangible good under a federal theft statute. And second, the code was not a product intended for sale.
The release of the opinion yesterday follows the court’s shocking decision in February to spring Aleynikov, who was convicted of stealing Goldman’s trade secrets and sentenced to eight years in a federal lockup.
The ruling is a major setback for the government’s ability to go after the theft of trade secrets under the Economic Espionage Act, experts said.
It could also affect past convictions, including fallen Société Générale programmer Samarth Agrawal, who was convicted of stealing that bank’s proprietary high-frequency trading algorithms.
Ivan Fisher, an attorney for Agrawal, told The Post that he doesn’t yet know how the ruling will affect his client, who’s serving three years in a Philipsburg, Pa., prison.
“That’s a very, very dense argument,” Fisher said of the court’s ruling that the Economic Espionage Act only applies to products intended for sale.
Prosecutors may request an “en banc” hearing where all the appellate judges will be present to re-hear the case, or they could take it to the Supreme Court. If all else fails, the Justice Department may ask Congress to rewrite the law, experts said.
The Manhattan US Attorney’s Office, which prosecuted Aleynikov, declined to comment.