January 27, 2007
Federal Charges Knock Out State Prosecution in H-P Pretexting Case
The guilty plea of private investigator Bryan Wagner to federal identity theft charges has led to the dismissal of the state charges filed against him in 2005 because of California's double jeopardy statute. Wagner was involved in pretexting on behalf of Hewlett-Packard to obtain private telephone records of reporters and company employees to track down leaks, and he was one of the five defendants charged by the California Attorney General's Office for various offenses related to that conduct. Wagner entered a guilty plea to charges filed by the U.S. Attorney's Office for the Northern District of California and agreed to cooperate in that office's ongoing investigation, signaling that the federal case that had appeared to be dormant was in fact moving forward. One consequence of the federal conviction is that it triggers the protection of California Penal Code Sec. 656, which provides: "Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of the United States, or of another state or territory of the United States based upon the act or omission in respect to which he or she is on trial, he or she has been acquitted or convicted, it is a sufficient defense."
The constitutional double jeopardy protection does not prevent one state, or the federal government, from prosecuting a person for the same crime already prosecuted by another state under the "dual sovereignty" doctrine. For example, that doctrine permitted the federal prosecution of the police officers who beat Rodney King after their acquittal on state charges. While the federal Constitution does not bar a second prosecution, California law does, so state prosecutors have acknowledged that the charges against Wagner must be dropped (see AP story here).
I assume the federal prosecutors know the California rule, and simply decided to proceed regardless of the effect on the pending state charges. Wagner is the low man on the pretexting totem pole, and could still be called as a witness in the state case to testify against the remaining four defendants if his plea agreement with the U.S. Attorney's office requires him to do so. The federal charges seem to show a lack of cooperation, or at least coordination, between the federal and state prosecutors because it is uncommon for one office to file charges that effectively knock out a case being pursued by another office. If the federal prosecutors bring charges against additional defendants in California's case, it may undermine that prosecution because of the double jeopardy protection afforded by state law. In this instance, there is not a two-way street between the federal and state governments. (ph)
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