Bryan Wagner, who wasand conspiracy on Wednesday, plans to plead guilty and has agreed to testify for the prosecution in exchange for a lighter sentence, according to two sources with knowledge of Wagner's plans. Wagner could not be reached Thursday.
Wagner is one of five people, including Patricia Dunn, the former chairman of HP,, including conspiracy and identity theft. In an attempt to discover which member of HP's board of directors was leaking information to the media last year, the company's investigators employees into handing over private records of accounts belonging to journalists, HP employees and board members. The practice is called pretexting.
All five have pleaded not guilty and are awaiting trial.
Just how many of the other four defendants Wagner can testify against, or whether he could implicate others, is unclear. Most of those close to the case say Wagner is likely the bottom of the investigation's chain of command.
"This is how the feds like to work," said David Cohen, a San Francisco-based criminal attorney. "They like to start at the bottom and get that guy to (testify against) the next guy and then they work up the ladder."
Federal prosecutors surprised many involved in the California case by filing against Wagner while his case is still pending in that state. Moreover, the federal charge could complicate the state's case against Wagner.
California Penal Code 656 states that a person already tried in another state or by the federal government can't be tried of the same crime in California.
Cohen said he doubts whether the federal charges could impede California's prosecution. The argument of double jeopardy, or trying someone for the same crime twice, doesn't apply for state and federal crimes, he said.
The best example of this, Cohen said, came in 1992, when the city of Los Angeles failed to win a conviction against four police officers accused of beating motorist Rodney King. Their acquittal didn't stop the federal government from successfully prosecuting the four officers soon after on civil rights violations.
But why wouldn't the feds just wait until California was done trying its case?
Cohen says he doesn't know, but noted that Kevin Ryan, the U.S. Attorney for the Northern District of California, has been very aggressive in going after white-collar crimes. Ryan has spearheaded the government's investigation into dozens of companies accused of backdating stock options.
The HP case, which saw its zenith during a two-day congressional hearing in September that drew enormous media coverage, is probably prized by attorneys working for California and the U.S. government, Cohen said.
"Prosecutors like being in the newspaper just like everybody else," Cohen said. "And this case is a big deal."