We have previously written about Sergey Aleynikov, a former computer programmer for an investment bank who beat federal charges of trade secret theft under the Economic Espionage Act in 2012. Although Aleynikov was initially convicted of these charges, the Second Circuit Court of Appeals overturned his conviction, finding that the trade secrets relating to the source code Aleynikov had taken were not related to a product “produced for. . . interstate or foreign commerce,” and thus, were not entitled to protection under the Act. In response to this decision, Congress passed the Trade Secrets Clarification Act (see our prior post for additional coverage), which expands the original Economic Espionage Act to include a trade secret related to a product or service used in or intended for use in interstate or foreign commerce. The change was intended to prevent results like the Second Circuit’s decision in Aleynikov.
Although the federal case against Aleynikov has long since ended, Aleynikov is now facing a second prosecution in the New York state courts. In January 2013, Aleynikov and his attorney argued that these charges were similar to the original federal charges, and were being brought “only because federal prosecutors couldn’t get him.” Aleynikov’s lawyer, Kevin Marino, argued that the state prosecution amounted to double jeopardy, and violated his client’s Fifth Amendment rights. However, in a ruling last month, Judge Ronald Zweibel rejected this argument, finding successive prosecutions in federal and state court were not prohibited. Furthermore, the successive prosecutions were not barred because the federal and state cases had been filed under separate statutes: the federal charges were filed under the National Stolen Property Act and the Economic Espionage Act, while the state cases were filed under the New York Code. As a result, Judge Zweibel found that this was not a case of double jeopardy.
Additionally, Judge Zweibel rejected Aleynikov’s argument that the prosecution was “inhuman,” stating, “unfortunately for the defendant, his character does not warrant a dismissal in the furtherance of justice. Judge Zweibel also rejected Aleynikov’s claims that the state charges against him were barred by collateral estoppel. Aleynikov’s attorney, Kevin Marino, expressed disappointment in the ruling, but “remain[ed] confident Mr. Aleynikov is not guilty and will again be exonerated.”