Sergey Aleynikov, former Goldman Sachs Group Inc. programmer, leaves Federal court in New York, U.S., on Dec. 9, 2010. Photo: Jin Lee/Bloomberg

A New York appeals court Tuesday upheld a former Goldman Sachs computer programmer's conviction for stealing the bank's high-frequency trading code, rejecting arguments that he had been tried twice for the same conduct.

The ruling, from a panel of the Appellate Division, First Department, came as the latest development in the winding, decade-long saga of Sergey Aleynikov, who was accused in 2009 of uploading a copy of Goldman's proprietary source code to a computer server in Germany and then bringing it on a flash drive to Chicago, where he met with a startup that had hired him to help develop its own high-frequency trading software.

Aleynikov was convicted in the U.S. District Court for the Southern District of New York for violating the National Stolen Property Act and spent a year in prison before the Second Circuit  Court of Appeals threw out the conviction on the grounds that the data was intangible property and thus did not fall under the statute's definition of what constitutes stolen wares.

After Aleynikov's victory at the federal appellate level, the Manhattan District Attorney's Office decided to pursue Aleynikov on a different tack, charging him with unlawful use of secret scientific material in state court.

A jury found Aleynikov guilty on one of three counts, but in 2015, Manhattan Supreme Court Justice Daniel Conviser overruled the jury, saying there wasn't enough evidence that Aleynikov made a tangible copy of the source code or that he intended to appropriate the source code.

The First Department, however, took issue with the lower court's ruling on the tangibility argument and reinstated Aleynikov's conviction of one count of unlawful use of secret scientific material, a class E felony, in 2017. Manhattan District Attorney Cyrus Vance Jr. did not seek additional jail time in the case, and Aleynikov was sentenced to time served.

Aleynikov's lawyer, Kevin Marino, argued that the conviction violated New York's double-jeopardy laws, which bars a defendant from being tried twice for the same crime.

As an exception to that general prohibition, though, New York law allows a subsequent prosecution when the government fails to prove an element in the first case that is not a part of a statute at issue in a later trial.

According to Marino, founding partner of Marino, Tortorella & Boyle in Chatham Township, New Jersey, both the federal and state statutes required the same elements of something "tangible" having been stolen.

A unanimous panel of the appeals court, however, found "no inconsistency" between its 2017 finding that Aleynikov had made a "tangible reproduction" of the files when he uploaded them to the German server, and the Second Circuit's ruling that the codes were "intangible" when he transported them.

"Accordingly, there was no double jeopardy bar to the state prosecution," the ruling said.

Marino said he planned to ask the state's highest court to review the ruling, though it would be under no obligation to take up an appeal.

"We plan to ask the Court of Appeals to review the First Department's decision, which we think misapprehends New York's double jeopardy statute," he said.

A spokesman for Vance declined to comment, and a representative from Goldman did not respond to an email seeking comment on the case.

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