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Sergey Aleynikov Update

The Aleynikov prosecution received more attention that DOJ was prepared for.  DOJ is in a tough position - "tough" if you put personal interests ahead of your ethical and legal obligations, that is.

If DOJ indicts Aleynikov, they won't obtain a conviction.  Aleynikov is not guilty of the crimes he was arrested for.  If DOJ dismisses the charges against Aleynikov, DOJ looks like Goldman Sachs' stooge.   

Perhaps arresting Aleynikov with 48 hours of Goldman's call to DOJ was a bit rushed?  Perhaps an investigation into a criminal matter should include something more than, "Goldman Sachs said this was important, and that we must make an arrest ASAP"?  Perhaps, indeed.

DOJ, through AUSA Joseph Facciponti, is in denial.  Like a person ignoring the bill collector's calls, as if the problem will just go away, Facciponti is delaying and ignoring.  

Thus, at today's Aleynikov hearing, which was itself the product of a 30-day delay, Facciponti wants another delay:

NEW YORK, Sept 16 (Reuters) - The government will have another month to seek an indictment against or reach a settlement with a former Goldman Sachs Group Inc (GS.N) programmer accused of stealing trade secrets.

U.S. Magistrate Judge James Francis has delayed further proceedings by 30 days until Oct. 16 to let the government and the former programmer, Sergey Aleynikov, continue talks, a spokeswoman for prosecutors in the case said.

Matthew Goldstein, who broke the story, has more details here.  My take: One of two things are occurring.  First, it's possible that prosecutors are demanding that Sergey cop a plea to a marginal offense - some misdemeanor or other.  Aleynikov has a smart lawyer, though, who no doubt realizes that DOJ has no case.  

Aleynikov's lawyer is likely telling Sergey to accept no plea short of deferred prosecution - which allows a person to have his case dismissed.  In crim law land, a deferred prosecution is a victory.  It's not an outright dismissal, though, and thus stings.  To a lawyer, it's a dismissal.  And, legally, it is a dismissal.  To a client, it feels like a guilty plea.  After all, you must still appear before a judge and cop a plea to a dismissal.

Second, it could be that DOJ and Goldman Sachs want a release-dismissal agreement from Aleynikov.  In exchange for dismissal of criminal charges, Sergey will agree not to sue anyone for false arrest.  I think Aleynikov has a great case for false arrest.  (If Aleynikov does file a Bivens lawsuit, I will seek to consult on the case - pro bono.)  Given that Facciponti was intimately involved in the slip-shod, sub-48-hour investigation, Facciponti would not be entitled to prosecutorial immunity.

It's unlikely that Sergey is willing to accept anything short of outright dismissal.  The "evidence" against Aleynikov will not lead to a conviction, as I explained in this post.  His lawyer, however, wants to shepherd Aleynikov out of the criminal system.  

As one lawyer told me, "Being in the criminal system is like being in a cage with a bear.  As long as you get out of the cage, you've won."  An innocent citizen like Aleynikov, wants to fight the bear.

We'll keep fighting for you in the blogosphere, Sergey.  Facciponti's misconduct, including his lies to a federal judge, have not gone unnoticed.  We're still following your case.  We know you are innocent.  Keep up the good fight.