January 17, 2007 5:45 PM PST

HP investigator argues California can't try him

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An investigator charged with felonies connected to the Hewlett-Packard spying scandal told a judge Wednesday that he's immune from prosecution in California because he's already pleaded guilty to the same crimes in federal court.

Bryan Wagner is charged in California with four felonies, including identity theft and conspiracy. Prosecutors allege that the 29-year-old data broker persuaded telephone company employees to hand over private records belonging to journalists and board members.

In addition to Wagner, former HP Chairman Patricia Dunn and three others connected to the case are charged with the same crimes.

Representatives for all five appeared in Superior Court in San Jose, Calif., and were ordered back to court on February 28 to set a preliminary hearing date, said Nathan Barankin, spokesman for the California state attorney general.

Prior to that, Wagner's attorney announced that he would file a motion to dismiss California's charges against Wagner, citing the state's double jeopardy laws, Barankin said.

Wagner's attorney is expected to argue that the state's penal code 656 states that a defendant can't be tried if he or she has already been tried for the same crime by another state or the federal government.

Should Wagner win his motion, which must be filed next week, it's unclear how it will affect California's case against the other four defendants.

"The state is proceeding with its case against the other four," Barankin said.

California's prosecutors declined to comment on the decision by the U.S. Department of Justice to cut a plea deal with Wagner. In that case, Wagner pleaded guilty to identity theft and conspiracy last week and agreed to testify against other defendants.

Before that, sources close to both state and federal prosecutors said that the U.S. Attorney's Office would likely be content to wait until California had finished with its case before moving ahead with its own.

A spokesman for the U.S. Attorney's Office declined to comment.

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