That night, at 7:52 p.m., Marino got a message on his iPhone. In a highly unusual move, the Second Circuit reversed the conviction in a one-page order just hours after the oral argument. The panel–consisting of Chief Judge Dennis Jacobs and Judges Guido Calabresi and Rosemary Pooler–will issue a ruling later explaining its decision.
Aleynikov had been arrested in 2009, shortly after he left his job at Goldman Sachs to work for another trading firm. In 2010 a Manhattan federal jury convicted him of violating the Economic Espionage Act and the Interstate Transportation of Stolen Property Act in a trial presided over by Manhattan federal district court judge Denise Cote.
Marino, a partner at Chatham, N.J.’s Marino, Tortorella & Boyle, didn’t dispute that his client had taken this code, but argued in his appeal that Aleynikov had not violated these laws because this case didn’t involve interstate commerce. “We argued that the Goldman Sachs program was not a product placed in interstate commerce within the meaning of the two statutes,” he said. “The Goldman Sachs program was never to be offered for sale or licensed for interstate commerce. It was that simple,” said Marino, speaking from outside the Manhattan federal courthouse, where he was preparing to ask Judge Cote to enter a judgment of acquittal and order his client released from prison in Fort Dix, N.J.
You can read Aleynikov’s appellate brief here and his reply brief here. The government’s brief is here.
“This typically would be a civil trademark infringement suit. It’s not the stuff of a federal criminal prosecution,” said Marino, who defended Aleynikov at trial. He added that Goldman Sachs “was able to motivate” the U.S. Attorney office to bring these charges.
The U.S. Attorney’s office declined to comment. A spokesperson for Goldman Sachs also declined to comment.