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On April 5, 2013, Aleynikov lost his motion to dismiss based on double jeopardy. In rendering the decision, New York State Supreme Court Justice Ronald Zweibel

On April 5, 2013, Aleynikov lost his motion to dismiss based on double jeopardy. In rendering the decision, New York State Supreme Court Justice Ronald Zweibel stated that Aleynikov's acquittal in federal court only precluded the federal government from retrying Aleynikov. The state of New York, as a separate sovereign, could continue pursuing charges against Aleynikov.

dm2 13y ago
Ah, I had read that but didn't understand it at first. That seems wrong (unfair) that the state can go after someone for a crime after the federal government has already acquitted that person of the same crime.
- HeyLaughingBoy 13y ago
  It's not exactly the same crime. The appeals court basically said he didn't violate any Federal statutes. However it's very likely that he violated New York statutes (taking the property of a New York corporation). IOW: don't try to take the code your employer paid you to write/modify and use it at another job.
  - niels_olson 13y ago
    > don't try to take the code your employer paid you to write/modify and use it at another job. What to do about the open source licensing? Presumably some of the stuff was GPL'd.
    - PeterisP 13y ago
      What about open source licencing? If Goldman Sachs takes GPL software, modifies it and uses it internally without distribution, then they are perfectly compliant with the licence. It doesn't grant the programmer any ownership of the code, nor any rights to take a copy of what he wrote with him.
      - jwatte 13y ago
        But the corporation allegedly removed the GPL license and put /only/ their own license on it. How is this not a Federal copyright offense?
        djcapelis 13y ago
        It's only an offense if they distribute it because that is the thing that necessitates having a license to distribute the work.
    - mutagen 13y ago
      I think one would leave the source alone and encourage the copyright holder on the GPL'd code to bring a civil suit for violating the terms of the license rather than trying to enforce personally enforce the GPL.
      - HeyLaughingBoy 13y ago
        But GS didn't violate the terms of the GPL since they modified code was for internal use and not distributed elsewhere.
- DannyBee 13y ago
  This is actually exactly how it is meant to be. Double jeopardy prevents you from being tried twice by the same sovereign entity. As the state and federal government are separate sovereigns, you aren't being tried twice by the same sovereign. It would be like being acquitted in russia and then charged in argentina. See http://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Dual_sovereignty_doctrine http://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Dual_sov...
  - deleted 13y ago
    [deleted]
  - CamperBob2 13y ago
    Yeah, if Argentina were a Russian state, it would be exactly like being acquitted in Russia and then charged in Argentina.
    - gaius 13y ago
      Give it time...
  - judk 13y ago
    If your are going to downvote a lawyer quoting the law, please provide a refutation. Also, doenvoters, if you believe that Federal govt tramples your rights and power should be returned to local authorities, consider the consistency of your internal logic.
    - dfc 13y ago
      I consider this philosophy to be quintessentially jeffersonian. A rejection of federalism is not a rejection of state power or an argument for anarchy.
  - EGreg 13y ago
    IANAL but I think the double jeopardy vlause f the fifth amendment had been INCORPORATED against the states in the 80s man http://en.m.wikipedia.org/wiki/Benton_v._Maryland http://en.m.wikipedia.org/wiki/Benton_v._Maryland
- dfc 13y ago
  Federalism is a bitch, consider state versus federal interests: The “dual sovereignty” doctrine is not only tied into the existence of two sets of laws often serving different federal-state purposes and the now overruled principle that the Double Jeopardy Clause restricts only the national government and not the states,[55] but it also reflects practical considerations that undesirable consequences could follow an overruling of the doctrine. Thus, a state might preempt federal authority by first prosecuting and providing for a lenient sentence (as compared to the possible federal sentence) or acquitting defendants who had the sympathy of state authorities as against federal law enforcement.[56] 55 Benton v. Maryland, 395 U.S. 784 (1969), extended the clause to the states. 56 Reaffirmation of the doctrine against double jeopardy claims as to the Federal Government and against due process claims as to the states occurred in Abbate v. United States, 359 U.S. 187 (1959), and Bartkus v. Illinois, 359 U.S. 121 (1959), both cases containing extensive discussion and policy analyses. The Justice Department follows a policy of generally not duplicating a state prosecution brought and carried out in good faith, see Petite v. United States, 361 U.S. 529, 531 (1960); Rinaldi v. United States, 434 U.S. 22 (1977), and several provisions of federal law forbid a federal prosecution following a state prosecution. E.g., 18 U.S.C. §§ 659, 660, 1992, 2117. The Brown Commission recommended a general statute to this effect, preserving discretion in federal authorities to proceed upon certification by the Attorney General that a United States interest would be unduly harmed if there were no federal prosecution. NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, FINAL REPORT 707 (1971). [^1]: Constitution: Analysis and Interpretation page 1490 - http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2013/content-detail.html http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2013/content-detail.h...
- fsk 13y ago
  That's a common legal loophole. Many acts are illegal under BOTH state and Federal law. That gives prosecutors two chances to send you to jail, if they decide they really want to get you. To stay out of jail, you have to get acquitted TWICE (and pay for your own lawyers both times).
EGreg 13y ago
What about incorporation of the amendment against the states?

dm2 13y ago

Ah, I had read that but didn't understand it at first. That seems wrong (unfair) that the state can go after someone for a crime after the federal government has already acquitted that person of the same crime.

HeyLaughingBoy 13y ago
It's not exactly the same crime. The appeals court basically said he didn't violate any Federal statutes. However it's very likely that he violated New York statutes (taking the property of a New York corporation). IOW: don't try to take the code your employer paid you to write/modify and use it at another job.
- niels_olson 13y ago
  > don't try to take the code your employer paid you to write/modify and use it at another job. What to do about the open source licensing? Presumably some of the stuff was GPL'd.
  - PeterisP 13y ago
    What about open source licencing? If Goldman Sachs takes GPL software, modifies it and uses it internally without distribution, then they are perfectly compliant with the licence. It doesn't grant the programmer any ownership of the code, nor any rights to take a copy of what he wrote with him.
    - jwatte 13y ago
      But the corporation allegedly removed the GPL license and put /only/ their own license on it. How is this not a Federal copyright offense?
      - djcapelis 13y ago
        It's only an offense if they distribute it because that is the thing that necessitates having a license to distribute the work.
  - mutagen 13y ago
    I think one would leave the source alone and encourage the copyright holder on the GPL'd code to bring a civil suit for violating the terms of the license rather than trying to enforce personally enforce the GPL.
    - HeyLaughingBoy 13y ago
      But GS didn't violate the terms of the GPL since they modified code was for internal use and not distributed elsewhere.
DannyBee 13y ago
This is actually exactly how it is meant to be. Double jeopardy prevents you from being tried twice by the same sovereign entity. As the state and federal government are separate sovereigns, you aren't being tried twice by the same sovereign. It would be like being acquitted in russia and then charged in argentina. See http://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Dual_sovereignty_doctrine http://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Dual_sov...
- deleted 13y ago
  [deleted]
- CamperBob2 13y ago
  Yeah, if Argentina were a Russian state, it would be exactly like being acquitted in Russia and then charged in Argentina.
  - gaius 13y ago
    Give it time...
- judk 13y ago
  If your are going to downvote a lawyer quoting the law, please provide a refutation. Also, doenvoters, if you believe that Federal govt tramples your rights and power should be returned to local authorities, consider the consistency of your internal logic.
  - dfc 13y ago
    I consider this philosophy to be quintessentially jeffersonian. A rejection of federalism is not a rejection of state power or an argument for anarchy.
- EGreg 13y ago
  IANAL but I think the double jeopardy vlause f the fifth amendment had been INCORPORATED against the states in the 80s man http://en.m.wikipedia.org/wiki/Benton_v._Maryland http://en.m.wikipedia.org/wiki/Benton_v._Maryland
dfc 13y ago
Federalism is a bitch, consider state versus federal interests: The “dual sovereignty” doctrine is not only tied into the existence of two sets of laws often serving different federal-state purposes and the now overruled principle that the Double Jeopardy Clause restricts only the national government and not the states,[55] but it also reflects practical considerations that undesirable consequences could follow an overruling of the doctrine. Thus, a state might preempt federal authority by first prosecuting and providing for a lenient sentence (as compared to the possible federal sentence) or acquitting defendants who had the sympathy of state authorities as against federal law enforcement.[56] 55 Benton v. Maryland, 395 U.S. 784 (1969), extended the clause to the states. 56 Reaffirmation of the doctrine against double jeopardy claims as to the Federal Government and against due process claims as to the states occurred in Abbate v. United States, 359 U.S. 187 (1959), and Bartkus v. Illinois, 359 U.S. 121 (1959), both cases containing extensive discussion and policy analyses. The Justice Department follows a policy of generally not duplicating a state prosecution brought and carried out in good faith, see Petite v. United States, 361 U.S. 529, 531 (1960); Rinaldi v. United States, 434 U.S. 22 (1977), and several provisions of federal law forbid a federal prosecution following a state prosecution. E.g., 18 U.S.C. §§ 659, 660, 1992, 2117. The Brown Commission recommended a general statute to this effect, preserving discretion in federal authorities to proceed upon certification by the Attorney General that a United States interest would be unduly harmed if there were no federal prosecution. NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, FINAL REPORT 707 (1971). [^1]: Constitution: Analysis and Interpretation page 1490 - http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2013/content-detail.html http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2013/content-detail.h...
fsk 13y ago
That's a common legal loophole. Many acts are illegal under BOTH state and Federal law. That gives prosecutors two chances to send you to jail, if they decide they really want to get you. To stay out of jail, you have to get acquitted TWICE (and pay for your own lawyers both times).

EGreg 13y ago

What about incorporation of the amendment against the states?