Prosecutor charges two in 2010 sale of iPhone 4 prototype

But Calif. county's district attorney passes on Gizmodo, which paid $5K for the lost smartphone, and former editor Jason Chen

A California county district attorney's office has decided not to press charges against Gizmodo or former editor Jason Chen for the blog's part in a 2010 case involving a lost Apple iPhone 4 prototype.

Instead, two other men have been charged with misdemeanors, the San Mateo County District Attorney's office said today.

Brian Hogan, 22, of Redwood City, and Safe Wallower, 28, of Emeryville, have been accused of misappropriation of lost property, and in Wallower's case, also with possession of stolen property.

The property in question was an early version of the iPhone 4 that had been left at a Redwood City bar by an Apple engineer in late March 2010. Hogan was identified by his lawyer as the person who sold the iPhone to Gizmodo, which published photographs and analysis of the device several months before Apple officially unveiled the smartphone.

Most experts, including an experienced tear-down specialist interviewed by Computerworld, had judged the Gizmodo-pictured prototype as the "real deal."

Gizmodo admitted to paying Hogan $5,000 for the iPhone prototype. It later returned the smartphone to Apple after the Cupertino, Calif. company's lawyers asked for it back.

Gawker Media, which operates Gizmodo, applauded the prosecutors' decision today.

"We are pleased that the District Attorney of San Mateo County, Steven Wagstaffe, has decided, upon review of all of the evidence, that no crime was committed by the Gizmodo team in relation to its reporting on the iPhone 4 prototype last year," Gawker said in a statement posted to its site.

Although California police last year raided Chen's home and seized seven computers, an iPhone, an iPad and other hardware, he was never charged by prosecutors.

Chen, who now works as the managing editor for the Lifehacker website, declined to comment today.

Hogan's attorney, who was not available for additional comment, today issued a statement in reaction to the charge filed against his client.

"Although we do not believe that charges of any kind should have been filed, Brian [Hogan] fully accepts responsibility for his actions," said Jeffrey Bornstein. "We are working cooperatively with the District Attorney to resolve this misdemeanor charge promptly."

Wallower was identified by CNET News last year as a former cryptologic technician for the Navy and a graduate of the University of California, Berkeley. According to CNET, Wallower acted as a go-between for Hogan, and had contacted several technology sites about the iPhone.

The San Mateo County District Attorney's office did not immediately reply to questions, including the possible penalties or jail time that Hogan and Wallower face if convicted of their charges.

Hogan and Wallower are scheduled to be arraigned Aug. 25.

Gregg Keizer covers Microsoft, security issues, Apple, Web browsers and general technology breaking news for Computerworld. Follow Gregg on Twitter at @gkeizer, on Google+ or subscribe to Gregg's RSS feed. His e-mail address is gkeizer@computerworld.com.

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