No Points for the Assist? A Closer Look at the Role of Special Assistant United States Attorneys in the Cooperative Model of Federal Prosecutions
Volume 82, No. 3, Fall 2009
By Victoria L. Killion

In United States v. Bernhardt, the State of Hawaii charged two defendants with conspiracy and misapplication of bank funds. Just before the defendants won a dismissal from the state court on statute of limitations grounds, the State Deputy Attorney General who prosecuted the case contacted the U.S. Attorney for the District of Hawaii. The federal office agreed to adopt the case if the state prosecutor would serve as uncompensated lead counsel. Accordingly, the state’s attorney received a cross-designation as a Special Assistant U.S. Attorney and successfully indicted the defendants before a federal grand jury.

The district court dismissed the indictment on double jeopardy grounds, but the court of appeals reversed, finding that the dual sovereignty doctrine, which allows “the federal and state governments [to] both prosecute a person for a crime . . . if the person’s act violated both jurisdictions’ laws,” prevented the defendant from prevailing on his double jeopardy claim. The court reasoned that the federal government can always exert its “‘right to decide that a state prosecution has not vindicated a violation’ of federal law.” However, the court expressed its concern that the U.S. Attorney only took the case at the behest of the Deputy Attorney General, who carried out both prosecutions with a paycheck from the State of Hawaii.

This case illustrates how state-level attorneys can effectuate their personal agendas under the guise of Special Assistant U.S. Attorneys. This designation, among other consequences, can result in the successive prosecution of defendants. The court of appeals in Bernhardt suggested that it would not have harbored reservations about the legitimacy of the second prosecution if the federal government actually demonstrated an interest in the outcome of the case. How much greater, then, is the danger of successive prosecutions where the federal government and the state team up to pursue a national agenda?

Federal law authorizes the appointment of Special Assistant U.S. Attorneys (“SAUSAs”) to assist U.S. Attorneys in the preparation and prosecution of special cases. SAUSAs run the gamut of legal professions, from prosecutors and military lawyers to agency counsel. Once an attorney receives the transformative designation of SAUSA, she has the same power and authority as an Assistant U.S. Attorney. The U.S. Attorney’s Office may then appoint her to serve in a specific department, to assist with complex or technical litigation, or to coordinate one of the office’s projects or initiatives.

Additionally, state prosecutors may be “cross-designated” as SAUSAs, allowing them to retain their positions while trying cases in federal court. These SAUSAs often work closely with the criminal divisions of the U.S. Attorney’s Offices in their respective judicial districts pursuant to cooperative initiatives such as Project Safe Neighborhoods, a federal anti–gun crime initiative. This Comment focuses on SAUSAs who serve in this special capacity as liaisons between their localities and federal prosecutors. It refers to this dynamic throughout as the “cooperative model.” This model carries benefits and risks, which are explored at length in the Discussion.

Part II of this Comment provides the legislative and judicial authorization for the appointment of SAUSAs. Specifically, it focuses on the language and interpretive case law of 28 U.S.C. § 543 (2006), which authorizes the Attorney General to appoint SAUSAs. Second, it provides an overview of the various roles and responsibilities of SAUSAs by discussing how U.S. Attorney’s Offices across the country hire, place, and utilize these attorneys. Third, Part II summarizes the scholarship and jurisprudence on the benefits and risks that flow from the involvement of SAUSAs in federal prosecutions. The work product, expertise, and unique insight of SAUSAs are all benefits that accrue to the participating offices and result in higher conviction rates. However, federal prosecutions led by SAUSAs have generated defenses of vindictive prosecution, selective prosecution, and double jeopardy.

Part III discusses which of these benefits and risks are associated with the cooperative model. First, it argues that the cooperative model facilitates the successes of federal initiatives such as Project Safe Neighborhoods by providing the resources to dramatically increase federal prosecutions, a powerful deterrence mechanism. Second, it argues that successive prosecutions from state to federal court by the same attorney acting as a SAUSA complicate the elements needed to demonstrate vindictive prosecution. Moreover, the cooperative model contains procedural and structural defects that may lead to selective prosecution. Third, Part III discusses how the cooperative model quietly opens the door to dual or successive prosecutions. Specifically, it argues that the cooperative model undermines the rationale behind the dual sovereignty doctrine when the same attorney prosecutes a defendant in both state and federal courts. Finally, it argues that the cooperative model renews concerns about maintaining the separation of powers between the federal government and the states. Moreover, the strategy threatens to place significant burdens on state and local governments as well as the federal judiciary if it continues in force.

The Discussion proposes solutions to mitigate the negative effects of the cooperative model. Specifically, it encourages Congress and the Justice Department to create uniform requirements for the designation of local prosecutors as SAUSAs. Additionally, it proposes that the courts reinstate the failed Bartkus exception and apply it to cases in which a SAUSA who initially prosecuted a defendant in state court attempts a subsequent prosecution in federal court.

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