United States v. Agrawal
Justia.com Opinion Summary: Defendant was convicted under the Economic Espionage Act (EEA), 18 U.S.C. 1832, and the National Stolen Property Act (NSPA), 18 U.S.C. 2314, after he replicated his former employer's (the Bank) confidential computer code to give to a competitor in exchange for money. On appeal, defendant challenged the legal sufficiency of the charges in light of United States v. Aleynikov. The court concluded that, on plain-error review of defendant's defaulted legal sufficiency challenge to his EEA conviction, defendant failed to show that purported error in the pleading of the law's jurisdictional element affected his substantial rights or the fairness, integrity, or public reputation of judicial proceedings; on plain-error review of defendant's defaulted legal insufficiency challenge to his NSPA conviction, defendant failed to show that the theft of the computer code did not satisfy the law's goods, wares, or merchandise requirement; and defendant's remaining claims failed. Accordingly, the court affirmed the conviction.
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11-1074-cr United States v. Agrawal UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: June 21, 2012 Decided: August 1, 2013) Docket No. 11-1074-cr UNITED STATES OF AMERICA, Appellee, v. SAMARTH AGRAWAL, Defendant-Appellant. Before: POOLER, RAGGI, and LYNCH, Circuit Judges. On appeal from a judgment of conviction entered after a jury trial in the United States District Court for the Southern District of New York (Rakoff, J.), defendant challenges the legal sufficiency of charges that he violated the Economic Espionage Act, see 18 U.S.C. Â§ 1832, and the National Stolen Property Act, see id. Â§ 2314, particularly in light of our recent decision in United States v. Aleynikov, 676 F.3d 71 (2d Cir. 2012). He further challenges the sufficiency of the evidence to prove the Â§ 2314 charge, complains of errors in the jury charge, and argues constructive amendment of the indictment and prejudicial variance in proof. AFFIRMED. Judge Pooler concurs in part and dissents in part in a separate opinion. MARSHALL A. MINTZ, Mintz & Oppenheim LLP, New York, New York, for Defendant-Appellant. DANIEL W. LEVY (Thomas G. A. Brown, Justin S. Weddle, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellee. REENA RAGGI, Circuit Judge: Defendant Samarth Agrawal was entrusted by his former employer, the French bank SociÃ©tÃ© GÃ©nÃ©rale (âÄúSocGenâÄĚ), with access to confidential computer code that the bank used to conduct high frequency securities trades. Agrawal abused this trust by printing the code onto thousands of sheets of paper, which he then physically removed from the bankâÄôs New York office to his New Jersey home, where he could use them to replicate SocGenâÄôs trading systems for a competitor who promised to pay him hundreds of thousands of dollars. The question on this appeal is thus not whether Agrawal is a thief. He is. The question is whether Agrawal properly stands convicted for his thievery in the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) under specific federal laws, namely, the Economic Espionage Act (âÄúEEAâÄĚ), see 18 U.S.C. Â§ 1832, and the National Stolen Property Act (âÄúNSPAâÄĚ), see id. Â§ 2314. Agrawal argues that the charges against him are legally insufficient to state offenses under these statutes, particularly in light of this courtâÄôs recent decision in United States v. Aleynikov, 676 F.3d 71 (2d Cir. 2012) (reversing EEA and NSPA convictions on grounds of legal insufficiency). He further challenges the factual sufficiency of the evidence to support his NSPA conviction, complains of errors in the jury charge, and argues constructive amendment of the indictment and prejudicial variance in the proof. We reject these arguments and affirm the challenged conviction. I. Background A. AgrawalâÄôs Employment with SociÃ©tÃ© GÃ©nÃ©rale The crimes at issue derive from AgrawalâÄôs employment between early 2007 and November 2009 at SocGenâÄôs New York offices. Agrawal began his career as a âÄúquantitative analystâÄĚ in SocGenâÄôs High Frequency Trading (âÄúHFTâÄĚ) Group. The HFT Group engaged in âÄúindex arbitrage,âÄĚ a process that seeks to profit by quickly exploiting fleeting differences in the prices of securities. Toward this end, the HFT Group used two computer trading systems, âÄúADPâÄĚ and âÄúDQS,âÄĚ to determine when to purchase and sell securities. Each system was made up of highly complicated computer code developed over the course of some years at a cost of several million dollars to SocGen. Using the ADP and DQS systems, the HFT Group executed trades that generated more than $10 million in annual revenue for SocGen during 2007, 2008, and 2009. As a quantitative analyst, Agrawal had no access to the code underlying the DQS or ADP systems. Rather, he developed âÄúindicatorsâÄĚ for others to use in refining the DQS system. Like other SocGen employees, however, Agrawal was required periodically to commit that neither during nor after his employment would he âÄúdisclose or furnish to any entity . . . any confidential or proprietary information of [SocGen],âÄĚ and that, upon termination, he would return all documents, papers, files, or other materials in his possession connected to SocGen. GX 3. In April 2009, Agrawal was promoted to âÄútraderâÄĚ for DQS, a position that put him in charge of that systemâÄôs day-to-day operations. In this capacity, Agrawal spent several hours each week working with two SocGen computer programmers: Dominic ThuillierâÄĒwho had written the underlying computer code for DQSâÄĒand Richad Idris. On June 12, 2009, Idris, following instructions from AgrawalâÄôs supervisor, copied the DQS code into an electronic folder from which Agrawal could retrieve the data as necessary. In the process, Idris mistakenly also copied the code for three other systems, including ADP, into the folder, even though Agrawal was not authorized to have access to this additional code. B. Agrawal Steals SocGenâÄôs HFT Code and Offers To Duplicate Its Trading Systems for a Competitor Unbeknownst to SocGen, Agrawal was then actively pursuing outside job opportunities. Toward that end, on June 8, 2009, he met with representatives of a New YorkâÄďbased hedge fund, Tower Research Capital (âÄúTowerâÄĚ). Agrawal told Tower that he was running one of SocGenâÄôs two index arbitrage strategies, had a âÄúcomplete understandingâÄĚ of that strategy, and could help build a âÄúvery similarâÄĚ system for Tower. Tr. 79.1 On Saturday, June 13âÄĒfive days after his meeting with Tower and the day after he acquired access to SocGenâÄôs DQS codeâÄĒAgrawal came into SocGenâÄôs New York office, 1 Less than a week before this meeting, a recruiter providing feedback by email on an interview Agrawal had had with another SocGen competitor, advised Agrawal to make clear to prospective employers that he possessed proprietary information. See GX 706. 4 printed out more than a thousand pages of the DQS code,2 put the printed pages into a backpack, and physically transported the papers to his apartment in New Jersey. Three days later, on June 16, Agrawal again met with Tower partners to discuss replicating SocGenâÄôs HFT strategies for Tower. On July 10, Tower proposed to hire Agrawal for this purpose, offering him salary and bonuses exceeding $500,000, plus 20% of profits generated by the anticipated DQS clone and 10% of profits from any ADP clone. Agrawal informally accepted TowerâÄôs offer in August 2009, but delayed disclosing this fact to SocGen for some months in order both to gain more experience with its HFT systems and to collect an anticipated bonus in October. Meanwhile, during August and September 2009, Agrawal copied and printed hundreds more pages of SocGenâÄôs HFT codeâÄĒthese pertaining primarily to the ADP code to which he had mistakenly been given accessâÄĒand brought them to his home. During these months, Agrawal also continued to meet with Tower partners, discussing the HFT systems he expected to develop for them and providing assurances that he could find out whatever information he needed about SocGenâÄôs systems to fill any gaps in his knowledge. At least one of those meetings was recorded by a Tower representative who was present. Agrawal formally resigned from SocGen on November 17, 2009. In the week before 2 SocGen had various methods in place preventing computers used to access HFT code from copying that information onto disks. Nevertheless, Agrawal was able to copy code onto paper by pasting parts into Microsoft Word documents to which he gave sequentially numbered names, such as âÄú0.doc,âÄĚ âÄú1.doc,âÄĚ and âÄú2.doc,âÄĚ and then printing out those documents. 5 he gave notice, Agrawal deleted from SocGenâÄôs computer system the Word documents into which he had pasted DQS and ADP code, as well as the ADP code files that Idris had mistakenly copied for him. AgrawalâÄôs resignation triggered a leave period of several months, during which he was paid by SocGen but did little work for it. Although Agrawal was prohibited from working for any SocGen competitor while on leave, he continued to meet with Tower personnel, including the computer programmers who were to write the code that would replicate SocGenâÄôs two HFT systems. Agrawal provided Tower personnel with detailed handwritten descriptions of the HFT system he wanted them to build, including mathematical information derived from SocGenâÄôs code that he identified as âÄúwhat is done in DQS.âÄĚ Tr. 621.3 C. AgrawalâÄôs Arrest and the Seizure of the Stolen Code On April 19, 2010, the day Agrawal was to begin work at Tower, FBI agents arrested him at his home in New Jersey. Searches of his apartment resulted in the seizure of thousands of pages of carefully indexed and filed computer code pertaining to SocGenâÄôs two HFT systems. Agrawal admitted to an arresting agent that he had printed out the code and taken it home without disclosing that fact to his SocGen supervisors or receiving authorization to do so. 3 SocGen programmer Thuillier, the author of the DQS code, described some of AgrawalâÄôs notes as âÄúpseudo codeâÄĚ in that it was a âÄúsimplified rewriting of the code in human language.âÄĚ Tr. 493, 623 (âÄúItâÄôs just written in plain English. But it explains the algorithm. And itâÄôs scanning down the real time calculation loop of the DQS satellite into details.âÄĚ). 6 D. AgrawalâÄôs Prosecution and Conviction On May 13, 2010, a grand jury sitting in the Southern District of New York charged Agrawal in a two-count indictment with violations of the EEA and the NSPA. After detailing pertinent facts in 18 numbered paragraphs, the indictment charged the two crimes both generally and specifically. With respect to the EEA, the indictment alleged as follows: From at least on or about June 12, 2009, up through and including in or about April 2010, in the Southern District of New York and elsewhere, SAMARTH AGRAWAL, the defendant, unlawfully, willfully, and knowingly, without authorization copied, duplicated, sketched, drew, photographed, downloaded, uploaded, altered, destroyed, photocopied, replicated, transmitted, delivered, sent, mailed, communicated, and conveyed a trade secret, as that term is defined in Title 18, United States Code, Section 1839(3), with intent to convert such trade secret, that was related to and included in a product that was produced for and placed in interstate and foreign commerce, to the economic benefit of someone other than the owner thereof, and intending and knowing that the offense would injure the owner of that trade secret, to wit, AGRAWAL, while in New York, New York, without authorization copied, printed and removed from the offices of the Financial Institution proprietary computer code for the Financial InstitutionâÄôs high frequency trading business, with the intent to use that code for the economic benefit of himself and others. Indictment Â¶ 19. With respect to the NSPA, the indictment alleged as follows: From at least on or about June 12, 2009, up through and including in or about April 2010, in the Southern District of New York and elsewhere, SAMARTH AGRAWAL, the defendant, unlawfully, willfully, and knowingly, transported, transmitted, and transferred in interstate and foreign commerce, goods, wares, merchandise, securities, and money, of the value of $5,000 and more, knowing the same to have been stolen, converted and taken by fraud, to wit, AGRAWAL, while in New York, New York, without authorization, removed from the offices of the Financial Institution proprietary computer code for the Financial InstitutionâÄôs high frequency trading business, the value of which exceeded $5,000, and brought that stolen code to his home in Jersey City, New Jersey. Indictment Â¶ 21. 7 At trial, Agrawal testified in his own defense. Judge Rakoff would subsequently characterize this testimony as effectively âÄúadmitt[ing] under oath all of the elements of the charges.âÄĚ Tr. 1211. Notably, Agrawal admitted that he had printed out SocGenâÄôs DQS and ADP code and had taken the printed paper copies to his New Jersey home. He acknowledged that such information was proprietary to SocGen and that, nevertheless, he had shared some of it with Tower in order to facilitate his getting a job with that entity. What he denied was that, at the exact time he transported each stack of copied code from New York to New Jersey, his intent was to steal or convert it. He maintained that at that time, he intended to use the code for SocGenâÄôs benefit by following through on a supervisorâÄôs request that he work from home on a project to combine elements of the DQS and ADP systems. Only later, in AgrawalâÄôs telling, did he decide to convert the code for his own benefit and TowerâÄôs.4 Even before Agrawal gave this testimony, Judge Rakoff had cautioned that there was no basis in either the indictment or the law for requiring the government to prove that Agrawal possessed culpable intent at the precise time he printed and removed the HFT code from SocGenâÄôs New York offices. Insofar as Agrawal purported to locate that requirement in the indictmentâÄôs âÄúto witâÄĚ clauses, Judge Rakoff observed that those clauses could not be read in isolation or divorced from the preceding 18 paragraphs of the indictment, which indicated that the charged conduct spanned the period from June 12, 2009, through April 4 AgrawalâÄôs testimony was refuted by the supervisor of SocGenâÄôs HFT Group, who stated that a combination of the two systems made no sense as they were âÄútotally distinct.âÄĚ Tr. 1037. On this appeal we review the evidence in the light most favorable to the prosecution and, therefore, assume that the jury rejected any claim that AgrawalâÄôs possession was authorized. See United States v. Broxmeyer, 616 F.3d 120, 125 (2d Cir. 2010). 8 2010. As to the law, Judge Rakoff concluded that the EEAâÄôs intent element could be satisfied by proof that Agrawal possessed the requisite intent to convert when he âÄúremoved the code or at any point thereafter when he was still in unauthorized possession of the computer code,âÄĚ and so charged the jury. Tr. 1006 (emphasis added). In so instructing the jury, Judge Rakoff explained that âÄúwithout authorizationâÄĚ meant that SocGen âÄúdid not approve the removal of the computer code by the defendant for his intended purpose. For example, an employer might approve an employee taking a trade secret home to work on it for the employerâÄôs benefit; but if the employee then starts using the trade secret for his own benefit or the benefit of another, at that point the removal becomes unauthorized.âÄĚ Id. at 1314. Agrawal did not challenge this interpretation of the EEA, but maintained that to charge it in light of the âÄúto witâÄĚ clause effected a constructive amendment of the indictment. Judge Rakoff had also proposed to charge the jury that to convict Agrawal of the EEA count, the government had to prove that, âÄúas a factual matter, the computer code was related to a product that was, at least in part, produced for, or placed in, interstate or foreign commerce.âÄĚ AppelleeâÄôs Addendum 13. The government remarked that it did not âÄúknow exactly what the defense is going to argue on this particular point, if anythingâÄĚ and, therefore, requested that the court charge this element by reference to both statutory options, i.e., that the computer code was âÄúrelated toâÄĚ or âÄúincluded inâÄĚ a product produced for or placed in interstate or foreign commerce. Tr. 885. The court agreed to do so, but observed that it did not foresee this jurisdictional element being âÄúa matter that is going to be materially disputed in any event.âÄĚ Id. at 885âÄď86. The defense never contended otherwise.5 5 Judge RakoffâÄôs prediction proved correct. In summation, the government argued this point only by reference to the computer code being âÄúrelated to,âÄĚ not âÄúincluded in,âÄĚ a product 9 Nor did the defense object to Judge RakoffâÄôs further instruction as to how the government could satisfy this EEA element: âÄú[I]t is sufficient if the government proves that the purpose of the computer code was to effectuate securities trades, at least some of which were in interstate or foreign commerce.âÄĚ Id. at 1315. Indeed, Agrawal never suggested to either the district court or the jury that the government had failed to plead or prove that SocGenâÄôs HFT computer code was related to or included in a product produced for or placed in interstate commerce. Rather, when, at the close of all the evidence, Agrawal moved to dismiss the indictment pursuant to Fed. R. Crim. P. 29, he argued only that the two counts âÄúas explicated by the CourtâÄôs charge and by the evidence presented by the government in this case constitute[d] a prejudicial variance and a constructive amendment of the charges of the grand jury indictmentâÄĚ as reflected in the âÄúto witâÄĚ clauses. Id. at 1214. The court denied the motion, and the jury found Agrawal guilty on both the EEA and NSPA crimes charged. Thereafter, Judge Rakoff calculated AgrawalâÄôs Sentencing Guidelines to recommend a prison sentence in the range of 63 to 78 months. Instead, on February 28, 2011, the court exercised its discretion to impose a non-Guidelines sentence of concurrent 36-month prison that was produced for or placed in interstate or foreign commerce: The code, you didnâÄôt hear a lot about this, but the code was related to a product that was produced for or placed in interstate or foreign commerce. It is one of the requirements that Judge Rakoff will tell you about. There is plenty of interstate commerce here. You remember that one of the things the [HFT] system is designed to do is trade stocks, the indexes associated with those stocks and futures. A couple witnesses talked about where futures were traded on the America[n] Stock Exchange and not shockingly Chicago. That is plenty of interstate [commerce]. That is satisfied. Tr. 1258 (emphasis added). The defense made no mention in summation of the EEAâÄôs jurisdictional element. 10 terms on the two counts of conviction. This timely appeal followed. II. Discussion A. Legal Sufficiency of the Charges 1. Standard of Review Agrawal challenges the legal sufficiency of both counts of the indictment. As to Count One, he argues that, insofar as the trade secret at issue, SocGenâÄôs computer code, was âÄúincluded inâÄĚ SocGenâÄôs HFT systems, those internal, confidential systems cannot qualify as âÄúproduct[s] . . . produced for or placed in interstate or foreign commerceâÄĚ as required by the EEA. 18 U.S.C. Â§ 1832(a)(2) (emphasis added). As to Count Two, Agrawal asserts that SocGenâÄôs computer code is intangible property and, as such, not âÄúgoods, wares, or merchandiseâÄĚ as required by the NSPA. Id. Â§ 2314. Neither argument was ever raised below. We generally review a challenge to the legal sufficiency of an indictment de novo. See United States v. Shellef, 507 F.3d 82, 104 (2d Cir. 2007). Where, as here, however, a defendant failed to raise a sufficiency objection in the district court and presents it for the first time on appeal, we review for plain error. See United States v. Cotton, 535 U.S. 625, 631 (2002) (applying plain-error review to defective indictment claim); United States v. Nkansah, 699 F.3d 743, 752 (2d Cir. 2012); United States v. Doe, 297 F.3d 76, 81 (2d Cir. 2002). Under that standard, an appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellantâÄôs substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. 11 United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (internal quotation marks omitted). In attempting to demonstrate plain error, Agrawal is entitled to the benefit of our recent decision in United States v. Aleynikov, 676 F.3d 71. See United States v. Garcia, 587 F.3d 509, 520 (2d Cir. 2009) (instructing that whether error is âÄúplainâÄĚ is determined by reference to law at time of appeal); see also Henderson v. United States, 133 S. Ct. 1121, 1126 (2013) (holding that court of appeals is bound by law as it exists at time of appeal); Johnson v. United States, 520 U.S. 461, 468 (1997) (âÄú[I]t is enough that an error be âÄėplainâÄô at the time of appellate consideration.âÄĚ). In Aleynikov, another dishonest employee, this one employed by Goldman Sachs, also stole proprietary trading code, in that case by uploading more than 500,000 lines of code to a third-party computer server in Germany, downloading the code from that server to his home computer, and then electronically copying some of the files to other computer devices that he owned. See 676 F.3d at 74. This court reversed defendantâÄôs EEA conviction, holding that to the extent such code was âÄúincluded inâÄĚ the employerâÄôs confidential trading system, that system was not âÄúa product that is produced for or placed in interstate or foreign commerce,âÄĚ as required by the EEA, 18 U.S.C. Â§ 1832(a)(2), because the employer never intended to sell or license the system but, rather, went to great lengths to maintain its secrecy, see United States v. Aleynikov, 676 F.3d at 82. The court further reversed defendantâÄôs NSPA conviction, holding that the code, stolen entirely in electronic form, was not tangible property, as necessary to qualify as âÄúgoods, wares, [or] merchandiseâÄĚ under 18 U.S.C. Â§ 2314. See id. at 76âÄď79. While AleynikovâÄôs construction of the EEA and NSPA controls on the matters it decides, AgrawalâÄôs case is distinguishable from Aleynikov in important respects that 12 preclude him from demonstrating plain error in the legal sufficiency of his indictment. We here briefly summarize what we explain further in this opinion.6 As to the EEA charge, in this case, neither the indictment nor the prosecutionâÄôs arguments or the courtâÄôs charge identified SocGenâÄôs confidential HFT systems as the âÄúproductâÄĚ relied on to satisfy the crimeâÄôs jurisdictional element. Rather, the record indicates that the relevant product was the publicly traded securities bought and sold by SocGen using its HFT systems. Because such securities satisfy the EEAâÄôs jurisdictional element without raising the concerns identified in Aleynikov, Agrawal cannot demonstrate that any pleading insufficiency with respect to SocGenâÄôs HFT systems affected his substantial rights, much less the fairness, integrity, or public reputation of judicial proceedings. Insofar as Agrawal invokes Yates v. United States, 354 U.S. 298 (1957), to urge otherwise, faulting the indictment and charge for failing to specify that only securities, and not SocGenâÄôs HFT systems, could satisfy the EEAâÄôs product requirement, we similarly review only for plain error because no such objection was ever raised in the district court. Agrawal cannot demonstrate Yates error because neither the prosecution nor the court ever presented SocGenâÄôs HFT systems to the jury as âÄúproductsâÄĚ satisfying the EEAâÄôs jurisdictional element. In any event, any such error would not be âÄúplain,âÄĚ because the only 6 The overall tenor of the dissenting opinion is that, in affirming AgrawalâÄôs conviction, we fail to respect the precedent set by the reversal in Aleynikov. That suggestion considerably over-reads the precedential force of Aleynikov. That case establishes that the jury instructions in Aleynikov permitted the jury to convict on a legally invalid theory. It does not, and cannot, establish that the kind of conduct in which Aleynikov and Agrawal engaged is intrinsically legal, and it does not address, let alone reject, the theory on which Agrawal was convicted. Neither the jury instructions nor the prosecutionâÄôs summation in this case proffered to the jury the theory on which AleynikovâÄôs conviction was based, and Agrawal did not seek any instruction specifically disavowing that theory. In short, nothing we say or do today is inconsistent with the reversal of AleynikovâÄôs conviction. 13 possible basis for treating confidential trading systems as products produced for or placed in interstate commerce was that such systems are used to buy and sell securities traded in interstate commerce. In short, no jury could find SocGenâÄôs HFT systems to qualify as EEA products (impermissibly, after Aleynikov), without first finding that the securities traded using those systems were such products. In these circumstances, any Yates error in failing to distinguish between the two possible products could not have affected either AgrawalâÄôs substantial rights or the fairness, integrity, or public reputation of judicial proceedings. As to the NSPA charge, AgrawalâÄôs legal-sufficiency challenge fails at the first step of plain-error analysis. Because AgrawalâÄĒunlike AleynikovâÄĒstole the computer code in a tangible rather than intangible form, i.e., printed onto thousands of sheets of paper, he cannot demonstrate any error, let alone plain error, in charging him with the theft of âÄúgoods, wares, [or] merchandise.âÄĚ 18 U.S.C. Â§ 2314. 2. Count One (EEA) a. The Alleged Securities Publicly Traded Using SocGenâÄôs Confidential Computer Code Were Legally Sufficient To Satisfy the Product and Nexus Requirements of the EEAâÄôs Jurisdictional Element The Electronic Espionage Act, as in effect at the time of AgrawalâÄôs indictment and conviction, stated in relevant part as follows: Whoever, with intent to convert a trade secret, that is related to or included in a product that is produced for or placed in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will injure any owner of that trade secret, knowinglyâÄĒ (1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains such information; 14 (2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates or conveys such information; [or] (3) receives, buys, or possesses such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization; ... [is guilty of a crime]. 18 U.S.C. Â§ 1832 (emphasis added). The highlighted statutory languageâÄĒthe jurisdictional element of the statuteâÄĒis the focus of AgrawalâÄôs sufficiency challenge. In United States v. Aleynikov, this court construed the phrase âÄúa product that is produced for or placed in interstate or foreign commerceâÄĚ as a âÄúlimitationâÄĚ on the scope of the EEA, 676 F.3d at 79, signaling that Congress did not intend to invoke its full Commerce Clause power to criminalize the theft of trade secrets, see id. at 81âÄď82 (citing Supreme Court cases distinguishing between legislation invoking CongressâÄôs full power over activity substantially âÄúaffecting commerceâÄĚ and legislation using more limiting language).7 7 AleynikovâÄôs identification of a congressional intent to limit the reach of the EEA has since been disavowed by Congress itself, which quickly amended the EEA to remove the purportedly limiting language and to clarify its intent to reach broadly in protecting against the theft of trade secrets. See Theft of Trade Secrets Clarification Act of 2012, Pub. L. No. 112-236, 126 Stat. 1627 (providing for EEA to be amended to strike phrase âÄúor included in a product that is produced for or placed inâÄĚ and to insert phrase âÄúa product or service used in or intended for use in,âÄĚ so that relevant language now reads: âÄúWhoever, with intent to convert a trade secret, that is related to a product or service used in or intended for use in interstate or foreign commerce . . . .âÄĚ); 158 Cong. Rec. S6978-03 (daily ed. Nov. 27, 2012) (statement of Sen. Leahy) (observing that Aleynikov decision âÄúcast doubt on the reachâÄĚ of EEA, and that âÄúclarifying legislation that the Senate will pass today corrects the courtâÄôs narrow reading to ensure that our federal criminal laws adequately address the theft of trade secretsâÄĚ (emphasis added)). On this appeal, we have no occasion to construe the revised EEA. Rather, we are obliged to apply the EEA as it existed at the time of AgrawalâÄôs conviction and as construed 15 Aleynikov explained that for a product to be âÄúplaced inâÄĚ commerce, it must have âÄúalready been introduced into the stream of commerce and have reached the marketplace.âÄĚ Id. at 80. Products âÄúbeing developed or readied for the marketplaceâÄĚ qualified âÄúas being âÄėproduced for,âÄô if not yet actually âÄėplaced in,âÄô commerce.âÄĚ Id. But a âÄúproductâÄĚ could not be deemed âÄúproduced forâÄĚ commerce simply because its âÄúpurpose is to facilitate or engage in such commerceâÄĚ; such a construction of the EEAâÄôs product requirement would deprive the statutory language of any limiting effect. Id. at 80âÄď81 & n.5 (noting that government had been âÄúunable to identify a single product that affects interstate commerce but that would nonetheless be excluded by virtue of the statuteâÄôs limiting languageâÄĚ). AleynikovâÄôs construction of the phrase âÄúa product that is produced for or placed in interstate commerceâÄĚ controls on this appeal. We note, however, that the reversal of AleynikovâÄôs EEA conviction was based on the application of that phrase to the particular âÄúproductâÄĚ that was the basis of the jurisdictional allegation in his case. As we explain below, the present case was submitted to the jury on a very different product theory than that relied on in Aleynikov. Thus, the same construction that prompted reversal in Aleynikov leads to affirmance here. In Aleynikov, the EEA charge was submitted to the jury on the theory that the trade secret converted by the defendant, i.e., the proprietary computer code, was âÄúincluded inâÄĚ a single product: Goldman SachsâÄôs confidential trading system. The jury instructions in in Aleynikov. See Collins v. Youngblood, 497 U.S. 37, 41 (1990). 16 Aleynikov unambiguously stated that âÄú[t]he indictment [in that case] charges that the Goldman Sachs high-frequency trading platform is a product,âÄĚ and that the juryâÄôs responsibility was to âÄúdetermin[e] whether the trading platform was produced for or placed in interstate or foreign commerce.âÄĚ United States v. Aleynikov, No. 10-cr-96 (DLC), Tr. 1546âÄď47 (emphasis added). This had been the courtâÄôs and the partiesâÄô understanding of the Aleynikov indictment from the start. In its opinion denying the defendantâÄôs motion to dismiss the indictment, the court noted the partiesâÄô agreement âÄúthat the trade secret at issue in [the EEA Count] is the source code, and that the relevant âÄėproductâÄô is the Trading System.âÄĚ United States v. Aleynikov, 737 F. Supp. 2d 173, 178 (S.D.N.Y. 2010). It was on this understanding that this court held the Aleynikov indictment legally insufficient. As Aleynikov construed the phrase âÄúa product that is produced for or placed in interstate or foreign commerce,âÄĚ Goldman SachsâÄôs trading system could not constitute such a product because Goldman Sachs âÄúhad no intention of selling its HFT system or licensing it to anyone.âÄĚ United States v. Aleynikov, 676 F.3d at 82. To the contrary, the value of the system depended entirely on preserving its secrecy. See id. Agrawal submits that Aleynikov mandates the same conclusion here because the computer code at issue, like the code in Aleynikov, was included in a confidential HFT system. But this case differs from Aleynikov in an important respect. Here, neither the prosecution nor the district court presented the case to the jury on the theory that SocGenâÄôs trading system was the âÄúproductâÄĚ placed in interstate commerce. Nor did they suggest that 17 the EEAâÄôs jurisdictional nexus was satisfied by computer code (the stolen trade secret) being âÄúincluded inâÄĚ that âÄúproduct.âÄĚ Rather, the record reveals that EEA jurisdiction was here put to the jury on a more obvious, convincingâÄĒand legally sufficientâÄĒtheory that was not pursued and, therefore, not addressed in Aleynikov: that the securities traded by SocGen using its HFT systems, rather than the systems themselves, were the âÄúproduct[s] . . . placed inâÄĚ interstate commerce. Under that theory, the jurisdictional nexus was satisfied because SocGenâÄôs stolen computer code âÄúrelated toâÄĚ the securities (the product) it identified for purchase and sale. While AgrawalâÄôs indictment did not state this theory in so many words, it did allege that SocGen engaged in âÄúhigh-frequency trading in securitiesâÄĚ on national markets âÄúsuch as the New York Stock Exchange and NASDAQ Stock Market.âÄĚ Indictment Â¶Â¶ 1, 4. This effectively identified securities as products traded in interstate commerce.8 At trial, the 8 Agrawal does not contend that securities are not âÄúproducts.âÄĚ See WebsterâÄôs 3d New IntâÄôl Dictionary 1810 (1986) (defining âÄúproductâÄĚ as âÄúsomething produced by physical labor or intellectual effort: the result of work or thoughtâÄĚ); Dow Jones Co. v. IntâÄôl Sec. Exch., 451 F.3d 295, 304 n.10 (2d Cir. 2006) (discussing âÄúintellectual-property rights in the securities designed according to the plaintiffâÄôs proprietary formulasâÄĚ). Indeed, securities are routinely discussed as products by the Securities and Exchange Commission, the administrative agency principally charged with enforcing federal securities laws, see Asset-Backed Securities, SEC Release Nos. 33-9117, 34-61858, 2010 WL 1389116 (Apr. 7, 2010) (âÄúThroughout this release, we refer to the securities sold through such vehicles as asset-based securities, ABS, or structured finance products.âÄĚ (emphasis added)); by Congress, see 15 U.S.C. Â§ 78c(a)(56) (defining âÄúsecurities futures productâÄĚ as âÄúsecurity future or any put, call, straddle, option, or privilege on any security futureâÄĚ); and by this and other courts, see Burns v. N.Y. Life Ins. Co., 202 F.3d 616, 618 (2d Cir. 2000) (referring to entity as âÄúregistered broker-dealer of securities productsâÄĚ); see also United States v. Laurienti, 611 F.3d 530, 542 (9th Cir. 2010) (discussing brokerâÄôs disclosure obligations âÄúon client purchases of particular securities productsâÄĚ); Gurfel v. SEC, 205 F.3d 400, 400 (D.C. Cir. 2000) (observing that petitioner 18 prosecution offered evidence proving the allegation. Moreover, in summation, it argued that although little had been said about the requirement that the stolen computer code âÄúrelate to a product that was produced for or placed in interstate or foreign commerce,âÄĚ the element was satisfied by evidence that SocGenâÄôs trading system was designed to buy and sell âÄústocks and futuresâÄĚ on national exchanges. Tr. 1258. To be sure, in Aleynikov, the prosecution made a virtually identical argument, see United States v. Aleynikov, No. 10-cr-96 (DLC), Tr. 1485âÄď86, but in that case, as we have already observed, the government and the court elsewhere specifically identified the trading system as the relevant product. Where, as here, no pleading, argument, or charge ever labeled SocGenâÄôs trading system a productâÄĒmuch less the product produced for or placed in interstate commerce on which the government relied to satisfy the EEAâÄôs jurisdictional elementâÄĒthe quoted government argument is more reasonably understood to identify the stocks and futures bought and sold on national exchanges as the products placed in interstate commerce. Indeed, the district court âÄúsold securities products to investorsâÄĚ). Nor is there any question that securities publicly traded on national exchangesâÄĒtheir marketplaceâÄĒhave been âÄúplaced inâÄĚ interstate commerce. See United States v. Aleynikov, 676 F.3d at 80 (stating that product is âÄúplaced in interstate or foreign commerceâÄĚ where it has âÄúbeen introduced into the stream of commerce and has reached the marketplaceâÄĚ). To the extent our dissenting colleague, Judge Pooler, submits that securities not produced by SocGen could not satisfy the âÄúproductâÄĚ element of the EEA count against Agrawal, see post at  n.6, we here reject that contention. Nothing in the statutory text, nor anything in AleynikovâÄôs construction of that text, requires that the âÄúproductâÄĚ at issue in an EEA prosecution be produced by the owner of the misappropriated trade secret. The statute requires only that the stolen trade secret be related to or included in a product produced for or placed in interstate commerce, a requirement which can be satisfied without regard to whether the owner of the trade secret and the producer of the product are one and the same. 19 effectively clarified this point by referencing only securities as the relevant product in charging the jury on the EEAâÄôs jurisdictional element: âÄú[I]t is sufficient if the government proves that the purpose of the computer code [i.e., the trade secret at issue] was to effectuate securities trades, at least some of which were in interstate or foreign commerce.âÄĚ Tr. 1315. In contrast to Aleynikov, the court here made no mention of the confidential HFT system. Of course, the EEA further requires a nexus between the converted trade secret and the product produced for or placed in interstate commerce. See 18 U.S.C. Â§ 1832(a) (requiring that trade secret âÄúrelate toâÄĚ or be âÄúincluded inâÄĚ product). In Aleynikov, where the employerâÄôs HFT system was the sole product at issue, the prosecution contended that the stolen computer code was included in that product. Where, as here, the relevant product is publicly traded securities, the statuteâÄôs âÄúrelated toâÄĚ provision comes into play: Was the stolen code related to traded securities? We answer that question âÄúyes.âÄĚ In so doing, we note that Aleynikov never had to construe the EEAâÄôs âÄúrelated toâÄĚ or âÄúincluded inâÄĚ provision because it determined that Goldman SachsâÄôs confidential HFT system was not a product produced for or placed in interstate commerce.9 Nevertheless, 9 As a result, any language in Aleynikov construing the nexus requirement is, of course, dictum. Our dissenting colleague nevertheless faults us for âÄúfail[ing] to meaningfully addressâÄĚ language from AleynikovâÄĒwhich she initially characterizes as a âÄúhint,âÄĚ post at , but later upgrades to a âÄúconclu[sion],âÄĚ post at âÄĒlimiting the EEA to trade secrets âÄúdesigned . . . to makeâÄĚ a product passing in commerce. United States v. Aleynikov, 676 F.3d at 82. This stray remark is dictum, and we decline to adopt it as holding. Indeed, to do so would preclude the EEA from reaching several types of trade secret that both the House and Senate Reports supplied as exemplary: to wit, âÄúbid estimates [and] production schedules,âÄĚ post at . Both of these are quintessentially protected by the EEA, but neither âÄúmake[s]âÄĚ a product or âÄúgive[s] detailed instructions on how to createâÄĚ a 20 Aleynikov is instructive for our own assessment of the nexus provision insofar as it cites the âÄúbasic interpretive canonâÄĚ that a statute should be construed to give effect to âÄúall its provisions, so that no part will be inoperative or superfluous.âÄĚ 676 F.3d at 81 (internal quotation marks omitted). Consistent with this canon, the term âÄúrelated toâÄĚ cannot be construed as coextensive with âÄúincluded in.âÄĚ Rather, the nexus provision must be read to indicate that a trade secret may relate to a product placed in or produced for interstate commerce, without being included in that product. As the Supreme Court has recognized, the ordinary meaning of âÄúrelated toâÄĚ is âÄúbroadâÄĚ: âÄúâÄėto stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.âÄôâÄĚ Morales v. Trans World Airlines, 504 U.S. 374, 383 (1992) (quoting BlackâÄôs Law Dictionary 1158 (5th ed. 1979)) (holding state airfareadvertisement rules preempted by federal statute as âÄúrelating to [air carriersâÄô] rates, routes, or servicesâÄĚ); see Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983) (observing that law âÄúâÄėrelates toâÄô an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan,âÄĚ and on this basis holding state statute preempted in part by ERISA). For this reason, the Supreme Court has cautioned that the term must be read in context. For example, where âÄúrelated toâÄĚ is used in legislation creating a discrete exception to a general rule, it may not be construed so expansively as to swallow the general rule. See, e.g., New York Conf. of Blue Cross v. Travelers Ins., 514 U.S. 645, product, the limitations Judge Pooler attempts to locate in or derive from Aleynikov. Post at . 21 655 (1995) (declining to accord usual expansive meaning to term âÄúrelated toâÄĚ in construing ERISA preemption provision where general presumption against preemption would thereby be âÄúread . . . out of the lawâÄĚ); Havana Club Holding, S.A. v. Galleon S.A., 203 F.3d 116, 123 (2d Cir. 2000) (declining to accord broad construction to term âÄúrelated toâÄĚ as used in statutory exception to prohibition because doing so would swallow much of prohibition). No such concern arises here, despite our colleagueâÄôs conclusory contention otherwise. See post at . The EEAâÄôs nexus provision creates no exception to an otherwise applicable general rule; rather, it signals CongressâÄôs intent to exercise its Commerce Clause authority to address the theft of trade secrets. See generally S. Rep. No. 104-359, at 13-14 (1996) (stating intent to âÄúpromote the development and lawful utilization of proprietary economic information by protecting it from theft, unauthorized misappropriation or conversionâÄĚ). To be sure, in Aleynikov, the court concluded that Congress did not exercise its full Commerce Clause authority in the EEA because it limited the products that could satisfy the statuteâÄôs jurisdictional requirement to those âÄúproduced for or placed inâÄĚ interstate commerce. The statutory text provides no similar basis for concluding that, once a product so produced or so placed is identified, Congress intended further to limit the EEAâÄôs reach through a restrictive nexus provision. The use of so deliberately expansive a term as âÄúrelated toâÄĚ hardly signals such intent. Nor can it be inferred from the EEAâÄôs legislative history. See generally H.R. Rep. No. 104-788 (indicating intent to protect not only trade secrets integral to âÄúproduct,âÄĚ such as âÄúproduction processesâÄĚ and âÄútechnology schematics,âÄĚ but also trade 22 secrets some levels removed therefrom, such as âÄúbid estimatesâÄĚ and âÄúproduction schedulesâÄĚ). Accordingly, we conclude that the term âÄúrelated to,âÄĚ as used in the EEAâÄôs nexus provision, is intended to reach broadly rather than narrowly, consistent with its usual meaning.10 On this appeal, we need not delineate the outer limits of that reach because we easily conclude that SocGenâÄôs HFT code related to publicly traded securities in such a way as to bring the theft of the HFT code within the EEA. The code existed for the sole purpose of trading in securities, and its considerable value derived entirely from the existence of a market for securities. In short, the confidential code was valuable only in relation to the securities whose interstate trades it facilitated. Because publicly traded securities thus satisfy the product and nexus requirements of the EEAâÄôs jurisdictional element, Agrawal cannot satisfy the final two prongs of plain-error review in complaining of legal insufficiency in the pleading or proof of this element. b. Agrawal Cannot Demonstrate Plain Yates Error Rather than dispute that securities are products placed in interstate and foreign commerce or that SocGenâÄôs HFT computer code related to such securities, Agrawal argues on this appeal that the government should not be permitted to rely on securities to defeat his legal sufficiency challenge to the EEA charge because securities were never specifically identified as the product relevant to EEA jurisdiction in the district court. Further, he asserts that to allow the government to argue that securities could support the EEAâÄôs jurisdictional 10 Nothing in CongressâÄôs recent amendment of the EEA, which establishes âÄúrelated toâÄĚ as the statuteâÄôs sole nexus requirement, see supra n.6, supports a different conclusion. 23 element even if SocGenâÄôs HFT system could not, would run afoul of Yates v. United States, 354 U.S. at 311 (identifying error in conviction if âÄúverdict is supportable on one ground but not on another, and it is impossible to tell which ground the jury selectedâÄĚ). The first part of AgrawalâÄôs argument rests on a mistaken factual premise. As we have discussed supra at [19âÄď21], the record shows that the district courtâÄôs jury instructions specifically cast the jurisdictional issue by reference only to âÄúsecurities, at least some of which were in interstate or foreign commerce,âÄĚ Tr. 1315, with no mention of the confidential trading system. To the extent Agrawal faults the indictment for failing to specify securities as the jurisdictionally relevant product, this argument is unconvincing because the indictment does not specifically identify anything as the product relied on to satisfy the jurisdictional element.11 If, as Agrawal now contends, SocGenâÄôs confidential HFT system could not, as a matter of law, be the product supporting jurisdiction, he can hardly claim, in the absence of any pleading, argument, or charge identifying it as such, that he or the jury would reasonably have understood that system to be the alleged basis for jurisdiction rather than the securities that were repeatedly identified at trial as items traded in interstate commerce.12 11 Judge Pooler asserts that the indictment âÄúclearly allege[s] . . . that SocGenâÄôs product was âÄėthe Financial InstitutionâÄôs high frequency trading business.âÄôâÄĚ Post at 5 (quoting Indictment Â¶ 19). In fact, the indictment never refers to the trading business as being SocGenâÄôs âÄúproductâÄĚ for EEA purposes. The quoted excerpt alleges only that Agrawal stole âÄúcomputer code for the Financial InstitutionâÄôs high frequency trading business,âÄĚ a context that explains why the code was a trade secret, not that the âÄúbusinessâÄĚ was a product. Nor can this excerpt be read âÄúclearly to allegeâÄĚ that the HFT system was the relevant EEA âÄúproduct.âÄĚ 12 In its initial brief on appeal, the government did argue that SocGenâÄôs HFT system satisfied the product requirement of the EEAâÄôs jurisdictional element. In a supplemental brief filed after Aleynikov, it submitted that the securities traded by the HFT system also 24 As for AgrawalâÄôs Yates argument, we note that, before the district court, he never faulted the indictment for failing to specify the product establishing jurisdiction, never sought particulars on this point, and never suggested to the district judge that allowing the case to go to the jury without clarifying the specific product at issue risked Yates error. The reason for the omission is obvious from the record. Agrawal made what the district court characterized as âÄúa calculated strategic call,âÄĚ Sent. Tr. 32, effectively to concede âÄúall elements of the [EEA] charge,âÄĚ id. at 30, including jurisdiction, see Tr. 885âÄď86 (recording Judge RakoffâÄôs prescient observation at charging conference discussion of EEA jurisdiction element that âÄú[t]his is, I have a feeling, not a matter that is going to be materially disputed in any eventâÄĚ). Instead, he pursued a narrowly focused defense, i.e., that âÄúnot under the law generally but under the terms of the indictment,âÄĚ he could not be found guilty because âÄúat the moment he took the codes home, he had not yet formed an intent to give them to Tower.âÄĚ Sent. Tr. 29 (recording Judge RakoffâÄôs characterization of defense theory). It is not surprising that, having failed to succeed on this theory, Agrawal belatedly attempts to identify other errors on appeal. But his unpreserved Yates challenge to securities as the products satisfying EEA jurisdiction, like his unpreserved challenge to SocGenâÄôs HFT system as the product satisfying jurisdiction, is reviewable only for plain error. See United States v. Skelly, 442 F.3d 94, 99 (2d Cir. 2006) (declining to reverse on basis of unpreserved satisfied the EEAâÄôs product requirement. Our dissenting colleague highlights these developments. See post at . The issue before us, however, is not what positions the government has taken after trial, but the legal sufficiency of the charge presented to the jury at trial, considered for plain error in light of AgrawalâÄôs failure to object. 25 Yates challenge in absence of plain error); United States v. Thomas, 54 F.3d 73, 79âÄď80 (2d Cir. 1995) (reviewing forfeited Yates challenge for plain error). Agrawal cannot satisfy any of the requirements of plain error. A Yates concern arises where disjunctive theories of culpability are submitted to a jury that returns a general verdict of guilty, and âÄú[one] of the theories was legally insufficient.âÄĚ United States v. Garcia, 992 F.2d 409, 416 (2d Cir. 1993). In such circumstances, âÄúit is impossible to tell which ground the jury selected,âÄĚ the legally sufficient ground or the insufficient one. Yates v. United States, 354 U.S. at 312. Agrawal cannot demonstrate Yates error here because his conviction presents no such ambiguity. The jury was not presented with both a legally sufficient and an insufficient theory of jurisdiction. Rather, it was presented with a single sufficient theory: that SocGenâÄôs stolen computer code was related to the securities it was used to trade, which securities were products âÄúproduced for or placed inâÄĚ interstate commerce. See supra at [19âÄď21]. To the extent Agrawal urges otherwise by arguing that the jury might nevertheless have relied on SocGenâÄôs trading system as the relevant product, he points to nothing in the record to raise the argument above the merely speculative. Indeed, such speculation is unwarranted in light of Judge RakoffâÄôs instruction specifically casting the jurisdictional issue by reference only to securities. See id. at . Thus, we identify no Yates error in this case. Further, even if it might have been helpful, in hindsight, explicitly to instruct the jury that SocGenâÄôs HFT system could not be the product supporting EEA jurisdictionâÄĒan 26 instruction Agrawal never soughtâÄĒAgrawal points to no authority requiring such specificity and, thus, cannot demonstrate error that was âÄúclear or obvious.âÄĚ United States v. Marcus, 130 S. Ct. at 2164 (stating that second criterion of plain-error standard requires that error be âÄúclear or obvious, rather than subject to reasonable disputeâÄĚ (internal quotation marks omitted)). Even Aleynikov, in holding that confidential trading systems cannot, as a matter of law, qualify as products supporting EEA jurisdiction, nowhere states that an indictment must specifically disavow jurisdictional reliance on such a confidential system or that the court must so instruct the jury in the absence of a request to charge. And certainly Agawal cites us to no case identifying Yates error based on insufficient theories of culpability that a jury might have conjured for itself even though they were not argued by the prosecution or charged by the court. In any event, even if Agrawal could demonstrate (1) Yates error that (2) was âÄúclear or obvious,âÄĚ he cannot show âÄúa reasonable probability that the error affected the outcome of [his] trial,âÄĚ as necessary to demonstrate the requisite adverse effect on his substantial rights. Id. Much less can he show that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. This is because it would be impossible for a jury to find that SocGenâÄôs HFT system was a product produced for interstate commerce without also finding that the securities traded through that system were products placed in interstate commerce. On this point, the government argued in summation that âÄúone of the things [SocGenâÄôs HFT] system is designed to do is trade stocks, the indexes associated with those 27 stocks and futures. A couple [of] witnesses talked about where futures were traded on the America[n] Stock Exchange and not shockingly Chicago. That is plenty of interstate [commerce].âÄĚ Tr. 1258. In Aleynikov, this court ruled that a connection between a confidential trading system and publicly traded securities was legally insufficient to make the system itself a product produced for or placed in interstate commerce. Nevertheless, any impermissible finding here that such a trading system satisfied the EEAâÄôs product requirement could only derive from a permissible finding that the securities traded by the system were themselves products placed in interstate commerce. Thus, there is no basis for concluding that any Yates error seriously affected the outcome of AgrawalâÄôs trial. For reasons already discussed, the conclusion that securities traded on national exchanges are products placed in interstate and foreign commerce is beyond dispute. So too the conclusion that computer code whose sole purpose is to identify the securities to be traded âÄúrelates toâÄĚ those securities. In these circumstances, and with Agrawal having admitted under oath that he copied SocGenâÄôs proprietary code, transported it interstate, and converted it without SocGenâÄôs authorization to benefit himself and a SocGen competitor, we conclude that the evidence of AgrawalâÄôs guilt is so âÄúoverwhelmingâÄĚ and âÄúuncontrovertedâÄĚ that âÄúthere is no basis for concluding that the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Indeed, it would be the reversal of a conviction such as this which would have that effect.âÄĚ Johnson v. United States, 520 U.S. at 470 28 (alteration and internal quotation marks omitted); see United States v. Marcus, 130 S. Ct. at 2166; United States v. Cotton, 535 U.S. at 633. We therefore reject AgrawalâÄôs legal sufficiency challenge to the EEA charge in this case. 3. NSPA The National Stolen Property Act states in relevant part as follows: Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud . . . [is guilty of a crime]. 18 U.S.C. Â§ 2314. In United States v. Aleynikov, this court carefully reviewed Supreme Court and circuit precedent construing the phrase âÄúgoods, wares, [or] merchandiseâÄĚ and concluded that âÄú[s]ome tangible property must be taken from the owner for there to be deemed a âÄėgoodâÄô that is âÄėstolenâÄô for purposes of the NSPA.âÄĚ 676 F.3d at 77. The theft of âÄúpurely intangible property embodied in a purely intangible format,âÄĚ such as the trading system at issue in that case, does not state an offense under the NSPA. Id. at 78. Relying on Aleynikov, Agrawal challenges the legal sufficiency of his NSPA charge, complaining that he too is accused of stealing computer code constituting only intangible property. The argument fails because it ignores AleynikovâÄôs emphasis on the format in which intellectual property is taken. In Aleynikov, the defendant stole computer code in an intangible form, electronically downloading the code to a server in Germany and then from that server to his own computer. See id. at 74. By contrast, Agrawal stole computer code 29 in the tangible form of thousands of sheets of paper, which paper he then transported to his home in New Jersey. This makes all the difference. See id. at 78 (citing approvingly to United States v. Martin, 228 F.3d 1, 14âÄď15 (1st Cir. 2000) (stating that, although NSPA does not criminalize theft of purely intangible information, statute âÄúdoes apply when there has been some tangible item taken, however insignificant or valueless it may be, absent the intangible componentâÄĚ (emphasis in original; internal quotation marks omitted))). As Aleynikov explained, a defendant who transfers code electronically never assumes âÄúphysical controlâÄĚ over anything tangible. Id. By contrast, a defendant such as Agrawal, who steals papers on which intangible intellectual property is reproduced, does assume physical control over something tangible as is necessary for the item âÄúto be a âÄėgoodâÄô . . . for purposes of the NSPA.âÄĚ Id. at 77.13 This construction of the NSPA comports with our discussion of the statute in United States v. Bottone, 365 F.2d 389 (2d Cir. 1966) (Friendly, J.). We there concluded âÄúthat papers describing manufacturing procedures are goods, wares, or merchandise.âÄĚ Id. at 393. 13 Agrawal submits that the indictment charged only that he transported âÄúcomputer code,âÄĚ with no mention of paper printouts. Indictment Â¶ 21; see United States v. Stafford, 136 F.3d 1109, 1114âÄď15 (7th Cir. 1998) (dismissing NSPA count under similar circumstances). Assuming without deciding that this omission was error that was plain, Agrawal cannot demonstrate that it affected either his substantial rights or the fairness, integrity, or public reputation of judicial proceedings, in light of overwhelming evidence that the computer code was stolen in a paper format and because Agrawal had ample notice of this fact before trial. Indeed, Agrawal could hardly claim otherwise in light of his post-arrest admissions to creating and transporting the paper copies of the code, his presence at the seizure of the papers from his home, and the governmentâÄôs discovery disclosure of those papers. 30 Further, we regarded it as settled that the unauthorized removal from a companyâÄôs office of such papers, âÄúmade in the companyâÄôs office, on its paper and with its equipment,âÄĚ sufficed to state an NSPA offense. Id. At issue in Bottone was whether an NSPA offense was stated where a defendant removed documents from a companyâÄôs files, made photocopies at another location, and then restored the purloined originals to the files. In concluding that it was, we observed that âÄúwhere no tangible objects were ever taken or transported, a court would be hard pressed to conclude that âÄėgoodsâÄô had been stolen and transported within the meaning of Â§ 2314,âÄĚ but that âÄúwhere tangible goods are stolen and transported and the only obstacle to condemnation is a clever intermediate transcription or use of a photocopy machine . . . the transformation of the information in the stolen papers into a tangible object never possessed by the original owner should be deemed immaterial.âÄĚ Id. at 393âÄď94. Here, Agrawal produced paper copies of SocGenâÄôs computer code âÄúin the companyâÄôs office, on its paper and with its equipment.âÄĚ Id. at 393. The fact that the code had been in an intangible form before Agrawal, a SocGen employee, himself reproduced it on company paper is irrelevant. The papers belonged to SocGen, not Agrawal. When Agrawal removed this tangible property from SocGenâÄôs offices without authorization, and transported it to his home in New Jersey, he was engaged in the theft or conversion of a âÄúgoodâÄĚ in violation of the NSPA. Had Agrawal stole