It is going to be difficult to get a conviction regardless of the statute.
If it goes to jury, you can bet that the defense is going to make Apple the great big brute of a company that purposefully put a couple of little guys in harms way and they manipulated them into breaking the law even when they tried to do the right thing. Then the big company lied to law enforcement to cover up their evil scheme.
It may not be the truth but it will create doubt and the state has the responsibility to prove beyond reasonable degree of doubt.
LEO will trash the computers they got, force the two guys to waste some money on lawyers then the whole thing will get dropped.
When it is over, Gizmodo is going to be heroes in their little community. They guy that sold the phone will spend more than the $5000 bucks he got and Apple will sell millions of phones. The world goes on.
It is going to be difficult to get a conviction regardless of the statute.
Well, two things in regards to that...
One thing is that if someone is going by the law that is on the books, it's an open and shut case... in that it was lost property, it was sold and the law states that doing so is a crime. In that sense, it's absolutely clear on the face of it with the facts that no one has in dispute.
The second thing is whether a jury will follow the law in its decision. So, what you're saying is that there may be a situation of "jury nullification" in which the jury decides not to follow the law in convicting someone.
And that's true, there can always be "jury nullification" as that's definitely something that a jury can do -- refuse to follow the law. A jury can always refuse to convict a clearly guilty party. It's happened before and it will probably happen again.
But, just because "Jury Nullification" can happen doesn't mean that people are not to be prosecuted for crimes that they commit. And in this case, you'll see a prosecution. Whether a jury will refuse to convict a clearly guilty person is another matter.