Full opinion text
OPINION & ORDER DENISE COTE, District Judge. Table of Contents Background.....................................................................51 I. Procedural History....................................................55 Discussion......................................................................55 I. Sufficiency of the Evidence ............................................55 A. Intent to Steal Goldman Sachs’ Proprietary Code.......................56 B. Intent to Benefit Himself or Teza and Intent or Knowledge of Injury to Goldman Sachs..........................................58 C. Evidence of a Market for the Stolen Code.............................59 II. Motions for Reconsideration...........................................60 A. Goldman Sachs’ Trading System is a Product in Interstate Commerce.......................................................60 B. The Stolen Source Code is a “Good, Ware or Merchandise”..............61 C. Aleynikov’s Post-Arrest Statements..................................61 III. Evidentiary Rulings...................................................61 A. Exclusion of Bail Hearing Statements.................................61 B. Cross Examination of McSwain ......................................63 C. Cross Examination of Yanagisawa and Schlesinger .....................66 D. Refusal to Strike Government Exhibit 108.............................66 E. Wheel of Fortune Rule 404(b) Evidence...............................67 F. Government’s Expert Witnesses......................................68 G. Statements of David Viniar..........................................71 H. References to Civil Remedies........................................73 IV. Discovery of the Entire Goldman Sachs Trading System..................76 V. Government Summation...............................................79 VI. Closure of the Courtroom..............................................79 VII. Judicial Impropriety...................................................81 A. Objections.........................................................81 B. Sidebars ..........................................................82 C. Display of Stricken Question.........................................82 Conclusion Defendant Sergey Aleynikov (“Aleynikov”) was charged in a three-count Indictment filed against him on February 11, 2010. The Indictment charged that Aleynikov, a former computer programmer for Goldman Sachs, stole Goldman Sachs’ proprietary computer source code near the end of his employment with the firm, intending to use the stolen code at his new job with Chicago-based Teza Technologies, LLC (“Teza”). Trial on two of the counts began on November 29, 2010. The jury reached its verdict on December 10, finding Aleynikov guilty on both of the counts. Aleynikov has now moved pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure to set aside the verdict and to dismiss the Indictment or, in the alternative, for a new trial. For the following reasons, the motion is denied. BACKGROUND Viewed in the light most favorable to the Government, the evidence presented at trial established the following. Goldman Sachs is a New York-based investment firm that provides financial services worldwide. Goldman Sachs is one of the industry leaders in “high frequency” trading on securities and commodities markets, including the New York Stock Exchange (“NYSE”) and the NASDAQ Stock Market (“NASDAQ”). High frequency trading is distinguished by the fact that trading decisions are made by computer programs, which rely upon complex mathematical algorithms to process data on market developments and to execute trades rapidly. High frequency trading systems take data from the exchanges, translate it, apply a decision logic to make trading decisions, and through a messaging protocol route those decisions back to the exchanges for execution. Goldman Sachs goes to great lengths to protect and enhance the competitiveness of its high frequency trading system, which was acquired in large part when the firm purchased the Hull Trading Company in 1999 for the substantial sum of $500 million. The superiority of Goldman Sachs’ system rests at least in part on the speed and accuracy with which it is capable of executing trades. To maintain and enhance the performance of its high frequency trading system, Goldman Sachs employs a group of twenty-five computer programmers at an average salary of $275,000 per employee in 2008 and 2009. Firms in the high frequency trading business are extremely secretive about the various aspects of their trading systems. Goldman Sachs does not license, sell, or distribute components of its high frequency trading system. Indeed, Goldman Sachs has implemented many security measures to maintain the secrecy of its high frequency trading system. In order to protect the firm’s computer systems from intrusion, the firm maintains a firewall. It monitors its employees’ use of internet sites and also blocks access to certain websites. A banner that appears whenever employees log in to their computers advises them of prohibited uses of the internet and accepted behaviors. Access to Goldman Sachs’ buildings is restricted to employees with proper identification cards; access to firm computers is also restricted. Only those few employees with administrative access, including Aleynikov at the time of his employment with the firm, are permitted to use USB flash drives. A competitor of Goldman Sachs’ would have several advantages if it had access to the computer source code comprising Goldman Sachs’ high frequency trading system. That competitor would be able to avoid expending the substantial investments in time and resources necessary to develop the infrastructure of the trading system. It is estimated that it would cost a new entrant in the industry $10 million and two years to develop its own high frequency trading system from scratch. A computer programmer is expected to write between ten to twenty-five lines of code per day, and a high frequency trading system requires hundreds of thousands of line of code. Goldman Sachs believes that the proprietary components of its high frequency trading system are state-of-the-art and would enable a business entering the market to eliminate Goldman Sachs’ competitive advantage. Although there are commercially available substitutes for some of the components of Goldman Sachs’ high frequency trading system, Goldman Sachs’ components are superior. Goldman, Sachs does use publicly available computer source code, known as “open source” code, to assist with certain functions related to its high frequency trading system. Open source code is readily available to the public online at no cost. For example, much of Goldman Sachs’ high frequency trading system runs on the operating system Linux, which is composed completely of open source code. Every effort is made to ensure that the open source code used by Goldman Sachs computer programmers is segregated from Goldman Sachs’ proprietary code. Thus, the firm maintains a separate directory for the storage of open source code. From May 7, 2007 until June 5, 2009, Aleynikov was employed as a computer programmer for Goldman Sachs, engaged in supporting high frequency stock trading. Aleynikov’s employment contract provided that he would receive a base salary of $150,000, with the possibility of an annual bonus of $120,000. As a condition of his employment, Aleynikov was required to sign a global information security policy, which provided in relevant part that he would hold all confidential and proprietary information and materials in strict confidence and, except for the above authorized uses, will not, nor [will he] permit any agent to give, disclose, copy, reproduce, sell, assign, license, market or transfer confidential and proprietary information and materials to any person, firm, or corporation .... The security policy further provided that You irrevocably assign to Goldman Sachs, its successors and assigns, and Goldman Sachs shall have exclusive ownership rights, including, without limitation, all patents, copyright and trade secret rights, with respect to any work, including, but not limited to, any invention, discoveries, concepts, ideas or information, conceived by you in the course of your employment with Goldman Sachs, and all documents, data, and other information of any kind including, incorporating, based upon or derived from the foregoing, including reports and notes prepared by you. Such work will be the property of Goldman Sachs, shall be considered a work made for hire and may not be used for any purposes other than the benefit of Goldman Sachs. In 2008, Aleynikov received an offer of employment from UBS, another investment firm, and sought to resign his position at Goldman Sachs. Aleynikov was persuaded to remain on at Goldman Sachs in exchange for a raise in salary to $400,000. In late April 2009, Aleynikov again resigned his position, citing an offer of $1.2 million from a competitor in the high frequency trading field. This time, Goldman Sachs decided not to match the competing offer. Aleynikov did not disclose the identity of the competitor, Teza, to his colleagues at Goldman Sachs, but he did report to Goldman Sachs during his exit interview that his new employer was paying him $800,000 more than Goldman Sachs. Aleynikov was allowed to remain at the firm for five more weeks, to ensure a smooth transition. Teza is a Chicago-based firm founded in March 2009 to engage in the high frequency trading business. Teza’s founder, Mikhail Victorovich Malyshev (“Malyshev”), was the managing director of the high frequency trading group at the Chicago hedge fund Citadel Investment Group (“Citadel”) prior to starting Teza. Malyshev left Citadel in February 2009; in 2008, his team earned Citadel profits of approximately $1,145,000,000, for which Malyshev was compensated $75 million in cash. Malyshev testified that his goal in starting Teza was to “build the best high frequency company in the world.” Teza did not plan to trade options initially. Malyshev and his partners were looking to recruit experienced programmers such as Aleynikov who would be able to build Teza’s high frequency trading platform. Aleynikov drove a hard bargain in salary negotiations with Malyshev; in an email of April 12, 2009, Aleynikov rejected Malyshev’s offer of a total compensation package of $800,000, informing him that he expected his total compensation at Goldman Sachs “to be between 600 to $700,000.” Ultimately, Malyshev acceded to Aleynikov’s demand for a salary of $1.2 million. Malyshev initially proposed that Aleynikov would take the title of “Senior Platform Engineer,” but the title was changed to “Executive Vice President, Platform Engineering” at Aleynikov’s urging. Aleynikov was to serve as a developer of Teza’s high frequency trading platform. Having recruited Aleynikov and several other computer programmers to start work at Teza in the summer of 2009, Malyshev was eager to begin the process of building Teza’s high frequency trading platform. An email dated May 31, 2009 and sent by Malyshev to Teza’s three founding partners, three employees, and four prospective employees, including Aleynikov, with a subject line of “Let’s move fast,” implored Teza’s employees to work quickly so that the firm would be able to start trading on December 1, 2009. Malyshev’s email added, “We are up against experienced and very wealthy competitors that are currently way ahead of us and using their cash from last year to buy their way out of tougher times ahead. We are better and smarter, but we have to be moving full speed ahead to even catch up with them.” Within days of learning of a job opportunity at Teza, Aleynikov began to upload data from Goldman Sachs to a so-called “subversion” website, with an address of svn.xp-dev.com. These uploads began on March 30 and ran through April and May, 2009. And on April 7, Aleynikov created a document on his home computer called “Teza.doc” which was essentially a blueprint for designing a high frequency trading system. Aleynikov undertook large uploads of source code on June 1, June 4, and June 5, Aleynikov’s last day of work at Goldman Sachs. Aleynikov combined the source code, compressed it, encrypted it, and then uploaded it to the subversion website. On June 5 alone, Aleynikov transferred 3,639 unique files containing over 500,000 lines of source code. The website, which was registered to a German server, offered services to anyone who wanted to put code on the open source repository. Aleynikov also deleted his encryption key and attempted to erase his bash history, which is a list of commands executed by a particular user on a UNIX/Linux machine; the bash history was later recovered by the Goldman Sachs information security team. The source code that Aleynikov uploaded to the subversion website comprised large portions of Goldman Sachs’ high frequency trading infrastructure. The code stolen by Aleynikov contained components for the following: connecting to the various securities exchanges; reading the incoming price data; pricing algorithms; trading strategies; the infrastructure for routing the trading decisions back to the exchanges; and applications for monitoring the performance of all of these intricate parts of the trading system. In addition to proprietary source code, Aleynikov also took proprietary documents that were marked at the trial as Government Exhibit 108. This series of documents included schematics describing the connections between Goldman Sachs’ computer system and the various securities and commodities exchanges and evaluations of operating systems and products for high frequency trading systems. After uploading Goldman Sachs’ proprietary source code to the subversion website, Aleynikov downloaded the same code to his home desktop on June 10. Aleynikov modified some of the downloaded source code to remove the document header identifying the code as belonging to Goldman Sachs. Then, on June 25, Aleynikov transferred thirty-one files from his home desktop to Teza’s servers. The transferred files included portions of Order Book Builder (“OBB”), an application that processes price information from various securities exchanges-the files “AtomicIntTest” and “DenseMap.” Aleynikov’s uploads to the subversion website attracted the attention of Goldman Sachs’ security team on June 29, 2009; the firm promptly alerted authorities. On July 8, Aleynikov was arrested at Newark airport upon his return from a meeting at Teza’s offices in Chicago. Federal Bureau of Investigation (“FBI”) agents conducted a search incident to arrest and uncovered a thumb drive in Aleynikov’s pocket and a laptop, both of which contained Goldman Sachs’ proprietary source code. Agents also found the proprietary code on Aleynikov’s home desktop computer. In response to questioning by FBI agent Michael McSwain (“McSwain”), Aleynikov initially stated that the source code could only be found on his home desktop. He later admitted that the source code was also on his laptop and the thumb drive found on his person at the time of his arrest. In a written post-arrest statement, Aleynikov averred that he “created a tarball [a device used to compress computer source code] in a[n] effort to collect open source work on Goldman Sach’s server to which I had an account.” Aleynikov further told McSwain that he “wanted to take the open source information to review it like a person would in college, to go back and read a paper.” Although Aleynikov initially stated that he had taken only open source code from Goldman Sachs, he later recanted and admitted that he had intentionally collected both open source code and proprietary code, with the idea of separating out the open source code once he had downloaded it to his home computer. Evidence offered at trial also established that on December 22, 1997, the United States District Court for the Central District of California permanently enjoined Aleynikov and two other individuals from infringing on the trademark of the Wheel of Fortune game show. According to the complaint filed in the case, which was admitted into evidence at trial, the injunction stemmed from Aleynikov’s development of a website which imitated the look and feel of the Wheel of Fortune program. In a resume submitted to UBS in 2008, Aleynikov listed the development of the Wheel of Fortune website as one of his accomplishments. I. Procedural History The Indictment, filed on February 11, 2010, charged Aleynikov in three counts with theft of trade secrets in violation of the Economic Espionage Act of 1996 (the “EEA”), 18 U.S.C. §§ 1832(a)(2) and (a)(4); transportation of stolen property in interstate commerce, in violation of 18 U.S.C. § 2314; and unauthorized computer access and exceeding authorized computer access in violation of 18 U.S.C. §§ 1030(a)(2)(C) and 1030(c)(2)(B)(i)-(iii). On July 16, Aleynikov moved to dismiss each of these counts. In an Opinion of September 3, the Court granted Aleynikov’s motion to dismiss the Third Count and denied his motion with respect to Counts One and Two. United States v. Aleynikov, 737 F.Supp.2d 173, 194 (S.D.N.Y.2010) (hereinafter the “September 3 Opinion”). Trial on the remaining two counts began on November 29. The parties delivered their summations on December 9, and on December 10, the jury returned a verdict of guilty on both counts. Sentencing is set for March 18, 2011. On December 23, 2010, Aleynikov moved pursuant to Federal Rules of Criminal Procedure 29 and 33 to set aside the verdict and to dismiss the Indictment, or in the alternative, for a new trial. The motion was fully submitted on January 28, 2011. DISCUSSION Rule 29 permits a defendant to move for a judgment of acquittal on the basis of insufficiency of the evidence. Fed. R.Crim.P. 29(c). A judgment of acquittal should only be entered if the court concludes that “no rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” United States v. Cassese, 428 F.3d 92, 98 (2d Cir.2005) (citation omitted). Rule 33 authorizes a district court to grant a new trial “if the interest of justice so requires.” Fed.R.Crim.P. 33(a). A motion for a new trial may be granted only “sparingly and in the most extraordinary circumstances.” United States v. Triumph Capital Group, Inc., 544 F.3d 149, 159 (2d Cir.2008) (citation omitted). The motion should not be granted “unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” Id. (citation omitted). In his lengthy motion, Aleynikov has questioned the sufficiency of the evidence on three issues; sought reconsideration of three pre-trial rulings; challenged eight evidentiary rulings; raised one discovery issue; accused the Government of prosecutorial misconduct in its summation; complained about the closure of the courtroom; and found error in several of the Court’s trial management decisions. Each of these challenges will be addressed in turn. To be evaluated fairly, many of these issues require a description of the context in which they arose. I. Sufficiency of the Evidence Aleynikov principally argues that the evidence presented at trial was insufficient for a rational juror to find that he intended to steal Goldman Sachs’ proprietary computer source code. As at trial, he argues that he only intended to take open source code, and that he accidentally took Goldman Sachs’ proprietary code because the two types of source code were so intertwined in the Goldman Sachs system. Aleynikov further argues that the evidence at trial was insufficient to establish either that he intended to benefit himself or Teza by taking the computer source code or that he intended to injure Goldman. Finally, Aleynikov argues that the evidence failed to establish the existence of a market for the stolen computer code, as required for the crime of interstate transportation of stolen property. A defendant who challenges the sufficiency of the evidence to support his conviction bears a “heavy burden.” United States v. Bullock, 550 F.3d 247, 251 (2d Cir.2008). In deciding such a motion, the court must “view the evidence in the light most favorable to the government and draw all reasonable inferences in its favor.” United States v. Lee, 549 F.3d 84, 92 (2d Cir.2008) (citation omitted). The evidence is considered “in its totality, not in isolation, and the government need not negate every theory of innocence.” Id. (citation omitted). Under Rule 29, a district court must affirm the conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bullock, 550 F.3d at 251 (citation omitted). A. Intent to Steal Goldman Sachs’ Proprietary Code To establish a violation of the EEA, the Government was required to prove inter alia that Aleynikov acted with intent to convert proprietary source code to the economic benefit of himself or Teza and that he knew or intended that doing so would injure Goldman Sachs. 18 U.S.C. § 1832(a). Aleynikov first contends that the evidence offered at trial does not support the Government’s theory that Aleynikov stole Goldman Sachs’ proprietary computer source code to use it in building Teza’s high frequency trading platform. According to Aleynikov, because there was open source code embedded in the proprietary source code that he uploaded to the German server, the Government cannot prove beyond a reasonable doubt that he intended to steal proprietary code. Relying principally on some of the passages in his written post-arrest statement, Aleynikov argues that he was merely attempting to collect open source code, and as a consequence of this effort he mistakenly collected proprietary code intertwined with open source code. Further, Aleynikov argues that “Teza did not want or need Goldman’s code,” thereby undercutting the Government’s theory that Aleynikov stole the code to use at his new job with Teza. There was more than sufficient evidence presented at trial, however, for a rational juror to conclude that Aleynikov intended to steal Goldman Sachs’ proprietary source code. First, it was undisputed at trial that Aleynikov actually did take proprietary source code from Goldman Sachs. As Aleynikov concedes in his motion papers, the code he took from Goldman Sachs included a “purposefully designed” portion of the Goldman Sachs “proprietary, custom-built trading system.” Indeed, the evidence showed that Aleynikov took a significant percentage of the proprietary source code for that system. While Aleynikov attempted to show that there was open source code embedded within the proprietary code and to identify the files in which that might be true, his expert witness was only able to identify one file among those taken by Aleynikov that both bore a Goldman Sachs copyright banner and appeared to contain open source code. In addition to the scale of Aleynikov’s theft of proprietary source code, Aleynikov’s intent to take proprietary code was evident from the elaborate measures he took to evade Goldman Sachs’ security system. He chose a server in Germany that was not blocked by the firm’s firewall and attempted to erase his bash history to hide evidence of the source code uploads to the German server. Evidence of Aleynikov’s motive reinforced the evidence of his intention to take proprietary source code from Goldman Sachs. Aleynikov took source code that would directly and immediately benefit Teza. After uploading the code to the German server from the Goldman Sachs computer system, Aleynikov downloaded the code to a laptop and a thumb drive and took both items to a meeting at Teza’s Chicago office. Even more brazenly, he uploaded to Teza’s servers at least two files — “AtomicIntTest” and “DenseMap”— which were components of OBB, and did so after carefully stripping them of all identifying Goldman Sachs markers. And in an email to his Teza colleagues, Aleynikov implied that “AtomicIntTest” and “DenseMap” were the product of his own efforts, rather than files stolen from Goldman Sachs. As noted, there was ample evidence that Teza could have benefitted immensely from access to Goldman Sachs’ proprietary source code. Goldman Sachs is considered a leader in the high frequency trading business and thus would serve as a model for those attempting to enter the industry. Malyshev, Teza’s founder, testified that his goal in starting Teza was to “build the best high frequency company in the world.” There was evidence that it would take a new entrant in the high frequency trading business 2 years and $10 million to build the infrastructure for a high frequency trading system. Further adding to the pressure facing a new entrant in the business, Malyshev had imposed the ambitious deadline of December 1, 2009, less than a year after he founded Teza in March 2009, for the firm to begin trading. Thus, there was pressure on the firm and its employees to develop a trading system quickly, as evidenced by Malyshev’s exhortation in an email that his employees “move fast.” Malyshev agreed to compensate Aleynikov $1.2 million for his services as a computer programmer, which was $800,000 more than Aleynikov’s current salary at Goldman Sachs. Aleynikov’s salary and the culture Malyshev was creating at Teza put pressure on Aleynikov to succeed and succeed quickly. Aleynikov’s future at Teza depended on his ability to help the firm achieve its aggressive development goals. Given all this, a rational juror could easily have concluded that Malyshev lacked credibility when he asserted that he would not have used Goldman Sachs’ trading system even if it was offered to him and that he would have fired Aleynikov on the spot if Aleynikov had stolen code from Goldman Sachs. But, whatever the jury’s evaluation of Malyshev’s credibility, there was more than sufficient evidence to support a finding that it was Aleynikov’s intention to steal proprietary source code. The jury was also entitled to rely on Aleynikov’s prior infringement of the intellectual property of the Wheel of Fortune game show. This incident sheds further light on Aleynikov’s intent to infringe on Goldman Sachs’ intellectual property by stealing its proprietary source code because it reveals that Aleynikov had trampled on intellectual property rights in the past. Indeed, Aleynikov even mentioned his Wheel of Fortune website on a 2008 resume that he used to apply for a position at UBS, despite the fact that the project ended in the entry of a permanent injunction against him. The jury was also entitled to reject Aleynikov’s post-arrest statement (made after he finally admitted that he had taken proprietary code from Goldman Sachs) that he had taken that proprietary code inadvertently in the course of attempting to retrieve open source code. This argument had little persuasive force in light of the evidence outlined above. But, even more fundamentally, it made little sense. Given that open source code is available online at no cost, if Aleynikov had merely wanted to collect open source code, he could easily have done so online instead of copying Goldman Sachs code and undertaking the difficult and painstaking task of separating any open source code embedded in the proprietary code. Indeed, the only way to identify any open source code that might be embedded in the proprietary code would be to separately obtain open source code and compare it line-by-line to the proprietary code — a labor-intensive and completely unnecessary task if you simply want access to open source code. Finally, the jury was instructed on Aleynikov’s defense that he intended only to take and use open source code. The following instruction was given on Aleynikov’s theory of defense: The defendant has pleaded not guilty to both crimes. In particular, the defendant denies that he intended to convert Goldman Sachs’ computer source code to benefit himself or Teza, and denies knowing or intending that his actions would injure Goldman Sachs. Mr. Aleynikov’s defense is that he mistakenly took more files from Goldman Sachs than he had intended to take; that he had only intended to take open source code on which he had worked while at Goldman Sachs. He contends that he acted with no malicious intent and did not share and did not intend to share any computer source code owned by Goldman Sachs with Teza. For all of the reasons just described, the jury’s rejection of this defense is not surprising. B. Intent to Benefit Himself or Teza and Intent or Knowledge of Injury to Goldman Sachs Aleynikov also argues that there was insufficient evidence at trial to establish that he intended to benefit himself or Teza in taking the proprietary code, or that he intended to injure Goldman Sachs. Aleynikov again advances the argument that he merely intended to take open source code and points to his post-arrest statements for support. As described above, there was ample evidence for the jury to conclude that Teza would have benefitted enormously from access to Goldman Sachs’ proprietary code. There was also evidence that Aleynikov would have benefitted personally from access to the code during his employment with Teza. Aleynikov argues that there is no evidence that he intended to harm Goldman Sachs. He reasons that his theft would only have harmed Goldman Sachs if Teza adopted a trading strategy that was substantially similar to Goldman Sachs’ trading strategy. According to Aleynikov, this was particularly unlikely with respect to options trading since Malyshev testified that Teza was not currently trading options. There was abundant evidence that the theft of Goldman Sachs’ proprietary source code for its high frequency trading system was done with the intent to injure and knowledge of injury to Goldman Sachs, only one of which mental states the Government was required to establish for this element of the crime. It was undisputed that Teza was preparing to enter the high frequency trading business. Most of the components that Aleynikov stole from Goldman Sachs were critical to the design and operation of any high frequency trading system, whether the system traded stocks, options, or both. In any event, Malyshev had made scores of millions of dollars trading options for Citadel’s high frequency trading group before he joined Teza, and the jury was entitled to find that in founding Teza he planned to use that expertise and, after developing the necessary infrastructure and trading systems, resume competing directly with Goldman Sachs as well as with every other major player in the high frequency trading business. It is easy to conclude that if Teza had had access to Goldman Sachs’ code, this would have damaged the profitability of Goldman Sachs’ business. Knowledge of and intent to injure Goldman Sachs is also apparent from the extensive evidence at trial of the secretive nature of the high frequency trading business. Malyshev himself required Teza’s employees to sign non-compete agreements so that competitors would not have access to Teza’s strategies and trade secrets. Members of Goldman Sachs’ security information team described in detail the various measures that the firm takes to ensure that its proprietary code remains secure. Other evidence described the steps Aleynikov took to circumvent these measures in his effort to escape detection. Thus, there was sufficient evidence for the jury to find that Aleynikov was fully aware that his theft would harm Goldman Sachs, and that he intended to so harm Goldman Sachs when he stole its proprietary source code and attempted to use it for the benefit of a competitor in the industry. C. Evidence of a Market for the Stolen Code Aleynikov contends that the Government failed to present evidence of a market for the stolen source code, and thereby failed to prove that the stolen source code constituted goods, as required by 18 U.S.C. § 2814. According to Aleynikov, the Government may not rely on the existence of a market for an entire high frequency trading system or even for stand-alone components of such a system, but must offer evidence of a market for the particular components of the trading system taken by Aleynikov. The evidence presented at trial established that Aleynikov took a very substantial portion of the source code for the Goldman Sachs high frequency trading system, including the entirety of several critical components of the system. The evidence also established that the system’s source code, as well as specific components taken by Aleynikov, would be highly valuable to a competitor. The Government demonstrated that portions of the Goldman Sachs system were acquired when the firm purchased Hull Trading Company for the substantial sum of $500 million and that there were commercially available, expensive substitutes for several components of the Goldman Sachs trading system. Aleynikov’s argument that evidence of a market for stand-alone components or for an entire system is not relevant to establishing a market for integrated components of a proprietary system is unavailing. First, it is worth noting that portions of the source code stolen by Aleynikov were capable of operating without the rest of the Goldman Sachs system. Moreover, Aleynikov does not assert that the stolen code was worthless without the rest of the Goldman Sachs system or dispute that there is a well-established commercial market for computer source code for high frequency trading systems. Evidence of that lawful market was highly relevant to show the existence of demand for the battle-tested and highly successful proprietary code developed by Goldman Sachs, code that could only be obtained by a competitor through theft. Thus, there was sufficient evidence for the jury to conclude that there was a market for the stolen computer source code. Indeed, Aleynikov did not argue otherwise in his summation to the jury. II. Motions for Reconsideration Several of Aleynikov’s arguments, although presented under the umbrella of a Rule 29 or Rule 33 motion) are more appropriately characterized as motions for reconsideration. Although the federal and local rules of criminal procedure do not specifically provide for motions for reconsideration, courts in this district have applied Local Civil Rule 6.3 in criminal cases. United States v. Yannotti, 457 F.Supp.2d 385, 388-89 (S.D.N.Y.2006); United States v. Ramerez, No. 03 Cr. 834(SHS), 2004 WL 1252940, at *1 (S.D.N.Y. June 7, 2004). A motion for reconsideration will generally be denied unless “the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir.2003) (citation omitted); Yannotti, 457 F.Supp.2d at 389. “Local Rule 6.3 is narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court.” Yannotti, 457 F.Supp.2d at 389. A. Goldman Sachs’ Trading System is a Product in Interstate Commerce Aleynikov again advances the argument, first made in his July 16, 2010 motion to dismiss the Indictment, that Goldman Sachs’ trading system does not constitute a “product that was produced for or placed in interstate or foreign commerce” for purposes of the EEA. According to Aleynikov, the trading system does not move in interstate commerce because it “is a secret trading system that was developed for Goldman’s internal use and for its’[sic] sole benefit.” The September 3 Opinion rejected this argument, reasoning that the trading system is a product “produced for” interstate commerce because “the sole purpose for which Goldman purchased, developed, and modified the computer programs that comprise the Trading System was to engage in interstate and foreign commerce.” Aleynikov, 737 F.Supp.2d at 179. Aleynikov does not point to any “controlling cases or data that the court overlooked” in reaching this conclusion; indeed, he merely incorporates by reference the same arguments and case law presented in his motion to dismiss. Thus, Aleynikov fails to meet the strict standard for motions for reconsideration. Not surprisingly, the evidence presented at trial supported the conclusion that Goldman Sachs’ high frequency trading system was produced for interstate commerce. As described above, Goldman Sachs’ trading system allows it to trade on national and international securities and commodities exchanges. Among other functions, the trading system processes data from the various exchanges and uses this information to price options and execute trades. The evidence at trial demonstrated that the high frequency trading system is the driving engine behind a portion of Goldman Sachs’ profitable trading activity. Thus, Aleynikov’s motion must be denied. B. The Stolen Source Code is a “Good, Ware or Merchandise” Aleynikov moves to dismiss Count Two of the Indictment, which charges transportation of stolen property in interstate or foreign commerce in violation of the National Stolen Property Act, 18 U.S.C. § 2314. As in his motion to dismiss the Indictment, Aleynikov argues that the stolen source code is not a “good, ware or merchandise,” as required by the statute; he contends that the statute only covers theft of tangible property, and not intangible items such as computer source code. Again, Aleynikov offers no new arguments or case law to contradict the conclusion in the September 3 Opinion that the statute does not distinguish between tangible and intangible property. Aleynikov, 737 F.Supp.2d at 181-82. Further, as discussed above, the evidence at trial established the existence of a market for high frequency trading systems, lending support to the conclusion that the stolen source code constitutes a “good” for purposes of the statute. C. Aleynikov’s Post-Arrest Statements Aleynikov renews his argument, first made in his October 25, 2010 motion in limine, that statements he made to FBI agents following his arrest on July 3, 2009 should have been suppressed. Aleynikov argues that those statements were taken in violation of New York Rule of Professional Conduct 4.2(a), which prohibits lawyers from communicating with parties whom they know to be represented by counsel without prior consent of counsel. At a final pretrial conference held on November 19, the Court denied Aleynikov’s motion, finding that the motion was both untimely and without merit; the Court memorialized this ruling in a December 14 Opinion. United States v. Aleynikov, No. 10 Cr. 96(DLC), 2010 WL 5158125, at *4 (S.D.N.Y. Dec. 14, 2010). Aleynikov makes no new legal arguments in support of his motion for reconsideration. Accordingly, it is denied. III. Evidentiary Rulings A. Exclusion of Bail Hearing Statements Aleynikov argues that the Court erred in excluding evidence of certain statements made by Assistant United States Attorney (“AUSA”) Joseph Facciponti (“Facciponti”) at his bail hearing on July 4, 2009. During that lengthy and contentious bail argument, Facciponti stated twice that Aleynikov had stolen the “entire platform” for the Goldman Sachs high frequency trading system. The Indictment that was subsequently filed charged only that Aleynikov had misappropriated portions of the trading platform. Aleynikov has not shown that Facciponti’s statements during the bail argument were admissible at trial. At a November 19 pretrial conference, Aleynikov disclosed his plan to use the Government’s assertion that the “entire platform” had been stolen as a central part of his defense at trial: I certainly intend to open on the fact that the FBI and the government initially made the allegation in this court that the entire platform had been taken. It goes to a number of issues that are relevant to this case. The credibility of these witnesses, not the least important, that is the credibility both of the alleged victim being Goldman Sachs and the FBI agent who made those statements that caused the assistant United States attorney at the bail hearing to say that the entire platform had been taken and that it was the sort of thing that could be used to manipulate the market. Obviously, a very substantial part of our defense in this case goes to the utility of the things that were taken from Goldman Sachs in the waning days of Mr. Aleynikov’s employment there. And so I do very much intend to — very important to our defense to be able to let the jury know exactly how much investigation was done in this case before Mr. Aleynikov was arrested, and information went out around the world on the web that had him cast as the fellow who had stolen the goose that laid the golden eggs for Goldman Sachs. In further support of this argument, in his pre-trial motion of November 22 Aleynikov pressed the theory that Facciponti’s statements should be admitted at trial as admissions of a party opponent under Federal Rule of Evidence 801(d)(2). Aleynikov wished to include in his opening statement to the jury the fact that the Government had argued during a bail hearing that Aleynikov took the entire Goldman Sachs high frequency trading platform and then point out that the Government had only charged him in the Indictment with taking portions of the platform. Defense counsel explained that the Government’s change in position was relevant evidence of Aleynikov’s lack of intent to harm Goldman Sachs. At the final pretrial conference on November 24, the Court denied Aleynikov’s application to present Facciponti’s statements to the jury. In denying Aleynikov’s motion, the Court described the factual context for Facciponti’s statements at the bail hearing, and also pointed out that neither the arrest complaint, which Aleynikov possessed at the time of the bail argument, nor the Indictment accused Aleynikov of taking the entire trading platform. The Court then undertook a review of Second Circuit case law with respect to the application of Rule 801(d)(2) to statements by Government agents. The Court observed that there was no Second Circuit case holding that a statement during a bail hearing is properly admissible against the Government. Indeed, each of the Second Circuit cases dealing with this issue involved the admission of far more formal statements, such as statements in a bill of particulars, or statements made in summation at trial. See United States v. Yildiz, 355 F.3d 80, 82 (2d Cir.2004) (sworn statement to a judicial officer); United States v. Salerno, 937 F.2d 797, 810 (2d Cir.1991) (Government’s opening and summation arguments from previous prosecution); United States v. GAF Corp., 928 F.2d 1253, 1258 (2d Cir.1991) (bill of particulars). The Court then applied the three-part test outlined in United States v. McKeon, 738 F.2d 26, 33 (2d Cir.1984), finding inter alia that the statements at the bail hearing were neither testimonial nor equivalent to testimonial statements and that the inference Aleynikov sought to draw from the Government’s statements at the bail hearing would not be a fair one. In assessing whether the inference that the defendant sought to draw from Facciponti’s statements was fair, the Court noted that the Government had learned of the crime only hours before the bail hearing was held and that it did not yet have access to the code Aleynikov had uploaded to the German server, and therefore did not know the extent of Aleynikov’s theft. Moreover, there was little likelihood that the Magistrate Judge was confused or misled by Facciponti’s two references to the theft of the “entire platform” during his lengthy presentation. The arrest complaint, which the Magistrate Judge had before him, charged Aleynikov with stealing only 32 megabytes of computer source code; the Magistrate Judge was told that the trading platform consisted of at least 1,224 megabytes of code. Finally, the Court excluded reference to the bail argument because Facciponti’s statement during the bail argument did not make Aleynikov’s intent to harm Goldman Sachs either more or less likely, and because of Rule 403 considerations. Aleynikov presents no new arguments or case law in support of his motion here. And indeed, the trial evidence provides further support for the exclusion of the bail statements, as the Government consistently argued at trial that Aleynikov stole only portions of the high frequency trading platform, the same theory presented in the Indictment. It is worth noting that many of Aleynikov’s accusations about the unfairness of this prosecution invoke Faccipointi’s reference in the bail argument to Aleynikov’s theft of the “entire platform” for Goldman Sachs’ high frequency trading system. Instead of accepting Facciponti’s statement as a careless effort to convey to a skeptical Magistrate Judge that the scale of Aleynikov’s theft was unprecedented, audacious, damaging, and not yet fully known — points Facciponti made throughout the bail argument — Aleynikov has persisted in construing the inaccuracy as evidence that the Government was simply parroting misrepresentations fed to it by Goldman Sachs and would never have arrested or indeed prosecuted Aleynikov but for this false accusation. For the reasons already outlined, these two misstatements will not bear that weight. A precise figure for the stolen megabytes — to the extent it had been determined as of that date — and the magnitude of the entire trading platform were given to both Aleynikov and the Magistrate Judge at the bail hearing. Those figures and the history of the steps Aleynikov took to commit his theft of the Goldman Sachs trade secrets that were recounted in the arrest complaint fully supported a finding of probable cause for Aleynikov’s arrest and prosecution. There was no need to exaggerate. The undisputed facts establish that Aleynikov stole a massive amount of proprietary source code. B. Cross Examination of McSwain Aleynikov argues that the Court erred in precluding him from questioning FBI agent McSwain regarding the content of statements made by Goldman Sachs employees to the FBI prior to Aleynikov’s arrest. This argument is without merit. The subject of McSwain’s cross examination first arose at a pretrial conference on November 19. Aleynikov alerted the Government that he intended to cross examine McSwain regarding his conversations with Goldman Sachs employees during the course of the Government’s investigation. Aleynikov explained that it was his understanding that representatives of Goldman Sachs had told the FBI during its investigation that Aleynikov had stolen Goldman Sachs’ “entire” high frequency trading platform, and that McSwain included those representations in the arrest complaint. Aleynikov represented that he intended to cross examine McSwain about those statements when the Government called McSwain as a witness, and also planned to refer to those statements by Goldman Sachs representatives in his opening statement to the jury. Defense counsel further explained that even if this topic went beyond the scope of McSwain’s direct examination, this line of inquiry would be properly explored on McSwain’s cross examination as impeachment. By a motion in limine of November 23, the Government sought to preclude Aleynikov from examining McSwain about the substance of statements made by Goldman Sachs employees to Government agents. In his response to the Government’s motion, Aleynikov argued that since statements of Goldman Sachs representatives made to McSwain during the course of the Government’s investigation were “explicitly incorporated” into the arrest complaint, they should be admitted as non-hearsay adoptive admissions under Federal Rule of Evidence 801(d)(2)(B). Aleynikov identified several passages in the arrest complaint that he claimed incorporated the statements of Goldman Sachs employees and about which he intended to cross examine McSwain. These statements generally detailed Aleynikov’s uploads of source code to the German server during the last days of his employment. For example, McSwain averred in the complaint that “[according to representatives of the Financial Institution, ... on at least four occasions starting on or about June 1, 2009 and ending on or about June 5, 2009, [the defendant’s work desktop was used to] transfer a total of approximately 32 megabytes of information through https to a certain website ... outside of the Financial Institution’s computer network.” Notably, Aleynikov’s brief did not identify any passage in the arrest complaint asserting that Aleynikov had taken the “entire” trading platform. Nonetheless, in his brief Aleynikov argued that the Government’s change in its view of the scale of Aleynikov’s theft, having abandoned in the Indictment any claim that the defendant took the entire platform, bore directly on Aleynikov’s intent. The Court explored this issue at a November 24 pretrial conference. Aleynikov admitted at that time that he was not contending that there was a false statement in the complaint. On the basis of that assertion, the Court observed generally that the substance of the statements by Goldman Sachs employees to McSwain would not appear to be proper impeachment of McSwain but that any determination of what might constitute proper impeachment would be affected by the scope of the Government’s direct examination of McSwain. The Government did call McSwain as a witness at trial. McSwain principally testified about Aleynikov’s arrest and subsequent interview at FBI headquarters on the night of July 3, 2009. None of his direct testimony recited any of his conversations with Goldman Sachs witnesses. Aleynikov did not cross examine McSwain about his conversations with Goldman Sachs employees, or make any application to do so. Nor did Aleynikov call McSwain as a defense witness to impeach any other trial witness. In his post-trial motion, Aleynikov argues that McSwain’s credibility at trial could have been impeached by showing that McSwain lied in the arrest complaint and that he had conducted “no investigation” to verify the truth of the statements from Goldman Sachs employees recited in the arrest complaint. Aleynikov contends that such cross examination was particularly relevant since two Goldman Sachs witnesses, Joseph Yanagisawa (“Yanagisawa”) and Paul Walker (‘Walker”), “disclaimed any recollection of the statements” attributed to them by McSwain. This motion is without merit. First, Aleynikov admitted at trial that he could not point to any false statement made by McSwain in the complaint. The instant motion also fails to identify any such false statement, and in his reply brief Aleynikov abandons this assertion. Second, Aleynikov has failed to identify questions that he placed to McSwain about the quality of his investigation that he was denied an opportunity to pursue. Nor has Aleynikov explained how such a line of examination would have been appropriate. As a general matter, the quality and scope of the Government’s investigation are not appropriate lines of examination and Aleynikov has not shown how McSwain’s direct examination made them so. The issue for a jury is whether the evidence that the Government does manage to offer at trial is sufficient to prove a defendant guilty beyond a reasonable doubt. United States v. Saldarriaga, 204 F.3d 50, 52-53 (2d Cir.2000). Third, neither Yanagisawa, a vice president in information technology at Goldman Sachs, nor Walker, a managing director in the fixed income, currency, and commodities group at Goldman Sachs, both of whom testified before McSwain took the stand, “disclaimed” a recollection of their statements to McSwain. Yanagisawa testified that he was satisfied that the information that he provided to the FBI was accurate. Further, when confronted with the statements made in the arrest complaint, Yanagisawa verified their accuracy. For example, he confirmed that, as stated in the complaint, Goldman Sachs had begun monitoring uploads of large amounts of data from the firm’s servers at the end of June 2009. He also confirmed, again as stated in the complaint, that as a result of that review, Goldman Sachs was alerted to Aleynikov’s large uploads of approximately 32 megabytes of data in early June. Aleynikov also points to Walker’s testimony that he could not recall how many lines of computer source code in Goldman Sachs’ high frequency trading platform changed weekly. But the arrest complaint does not contain any assertion as to the number of lines of code comprising the platform that change weekly, so Walker’s testimony does not in any way contradict the veracity of the complaint. Thus, Aleynikov has not shown that he was denied the opportunity to conduct an appropriate cross examination of McSwain. It is noteworthy that Aleynikov did not call McSwain on the defense case in order to impeach Yanagisawa, Walker, or any other trial witness with statements they had made to McSwain that contradicted their trial testimony. C. Cross Examination of Yanagisawa and Schlesinger In the course of his motion concerning the scope of the cross examination of McSwain, Aleynikov mentions that he was also precluded from attacking the credibility of two witnesses from Goldman Sachs, Yanagisawa and Adam Schlesinger (“Schlesinger”), Aleynikov’s direct supervisor. Aleynikov cross examined both witnesses at length and did not point at trial — nor in this motion — to any line of cross examination that he was precluded from pursuing or any question to which an objection was improperly sustained. While several of the Government’s objections to questions he posed were sustained, where Aleynikov sought to determine the basis for those rulings, they were explained to him and he has not taken issue with those explanations. In the case of Yanagisawa, Aleynikov did not raise any issue about evidentiary rulings at the break that followed Yanagisawa’s testimony and indeed, at that time, withdrew an application he had made earlier concerning Yanagisawa and assented to him being excused. At the end of the trial day, however, Aleynikov did inquire about the grounds on which some of the objections had been sustained. The Court addressed each of the issues raised at that time and gave Aleynikov an opportunity to review the transcript overnight and ask for additional guidance in the morning if he thought it would be helpful. The following morning, Aleynikov indicated that he had no issues to raise. Aleynikov never sought any explanation for the evidentiary rulings made during Schlesinger’s testimony. D. Refusal to Strike Government Exhibit 108 Aleynikov argues that the Court erred in its refusal to strike from the trial evidence the eleven Government Exhibits numbered 108-A, B, and D through L. These exhibits include a series of diagrams of the hardware and operating systems employed by Goldman Sachs in its high frequency trading system; Aleynikov uploaded the schematics from the Goldman Sachs system over the same period of time in which he uploaded the proprietary computer source code. Aleynikov argues that since the exhibits were not mentioned in the Indictment, their admission constituted a violation of the Grand Jury Clause of the Fifth Amendment, and that they should have been excluded under Rule 403, Fed. R.Evid., because of the risk that the jury might convict Aleynikov of the uncharged crime of stealing the 108 Exhibits. Government Exhibits 108 were received without objection at trial on December 1. At the time of their admission, Aleynikov conducted a voir dire of the Goldman Sachs witness who identified the documents. Although the documents were discussed again on December 2, Aleynikov did not make an application to strike the exhibits at that time. On December 6, Aleynikov made a written and oral application to strike the 108 Exhibits. He explained that the testimony given about the exhibits on December 2 by the Government’s expert, in which the expert opined that the information in the documents was not generally known within the industry and would be useful to a competitor, prompted the motion. Aleynikov added that he had come to understand that the Government would argue that the exhibits contained additional Goldman Sachs trade secrets that he had stolen. The Court denied Aleynikov’s motion to exclude the 108 Exhibits on December 6. As the Court explained, the fact that Aleynikov took additional proprietary material belonging to Goldman Sachs at the same time at which he uploaded the computer source code, and specifically material that was integral to the efficient use of the stolen source code, was relevant evidence of Aleynikov’s intent to steal proprietary source code. Aleynikov’s constructive amendment claim is unavailing. “[Constructive amendment occurs when the presentation of evidence and jury instructions modify essential elements of the offense charged to the point that there is a substantial likelihood that the defendant may have been convicted of an offense other than the one charged by the grand jury.” United States v. Clemente, 22 F.3d 477, 482 (2d Cir.1994). That did not happen here. The jury was specifically instructed that Aleynikov was charged with theft of computer source code. The phrase “computer source code” was used repeatedly in the jury charge in connection with the description of the elements of both Counts One and Two. Aleynikov does not contend that the charge created any ambiguity on this score and he did not seek to include any special charge regarding the 108 Exhibits in the final charge to the jury. As significantly, evidence that Aleynikov stole additional proprietary material relevant to the design of a high frequency trading system at the same time that he stole the computer source code for such a system “was not constrained by Rule 404(b) because it was necessary to complete the story of the crime on trial.” United States v. Greer, 631 F.3d 608, 614 (2d Cir.2011). The evidence shed further light on Aleynikov’s intended use for the stolen source code, providing further corroboration that he took the code for the purpose of building Teza’s high frequency trading platform. Nor has Aleynikov identified any danger of unfair prejudice to the defendant under Rule 403, Fed.R.Evid. “Evidence is prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” Quattrone, 441 F.3d at 186 (citation omitted). For these reasons, Aleynikov’s motion to strike was properly denied. E. Wheel of Fortune Rule 404(b) Evidence Aleynikov challenges, as he did at trial, the admission of evidence relating to his operation of a website which imitated the Wheel of Fortune game. The Government gave notice of its intent to introduce such evidence in its motion in limine of October 25. The Government sought to admit the complaint in a trademark infringement action filed in the Central District of California against Aleynikov and others; Aleynikov’s stipulation for an entry of a permanent injunction; the 1997 permanent injunction against Aleynikov; and the resume that Aleynikov submitted to UBS in May of 2008. The resume listed the operation of the Wheel of Fortune website as one of Aleynikov’s accomplishments. Aleynikov argued in his November 6 opposition to the Government’s motion that the 1997 conduct was not sufficiently similar to the offenses for which he had been indicted to be relevant, and that the admission of the evidence would invite the jury to infer that Aleynikov had a propensity to infringe on intellectual property rights. The Court ruled on December 7 that the evidence was admissible under Rules 403 and 404(b), Fed.R.Evid. Although evidence of other crimes “is not admissible to prove the character of a person in order to show action in conformity therewith,” it can be used “for other purposes, such as proof of motive, opportunity, intent, preparati