that the mere filing of a complaint does not start a Sixth Amendment

90 CASSELL ET AL. [Vol. 104 that the mere filing of a complaint does not start a Sixth Amendment prosecution also make clear that a later court hearing would start such a prosecution. For instance, in the Fourth Circuit case cited by OLC, United States v. Alvarado, the court reasons that “the main reason a law enforcement officer files [] a complaint is to establish probable cause for an arrest warrant. The criminal process is still in the investigative stage, and the adverse positions of government and defendant have yet to solidify.”!” Relying on that reasoning, the Fourth Circuit refused to find that the nght to counsel had attached merely because a police officer had filed a complaint to get an arrest warrant. But the Fourth Circuit distinguished that situation from “the initiation of adversary judicial proceedings against the defendant.”’”? An initial appearance would be such an adversary proceeding—1.e., it would be a “prosecution” under the Sixth Amendment. In light of this, OLC’s position that the CVRA’s venue provision’s “no- prosecution-underway” reference covers proceedings, such as an initial appearance, does not work. The only sensible way to construe the CVRA’s venue provision is to read it as conveniently dividing criminal cases into two phases: a prosecution phase and an earlier investigative phase when “no prosecution is under way.”'*° Senator Kyl, for instance, has noted that if there are any doubts about how to construe the CVRA, this venue provision “sweeps them away.”!8' Once again, the language that Congress used leads inexorably to the conclusion that the CVRA extends rights to victims before the filing of criminal charges. TV. WHEN PRE-CHARGING RIGHTS ATTACH UNDER THE CVRA The zeal with which OLC argues against applying CVRA rights before charging raises the question of why it protests so much. Although OLC never articulated this concern, perhaps OLC worried that pre-charging rights would be difficult to administer. Such concerns should evaporate with a workable construction of when pre-charging rights attach. In this Part, we propose such a construction, suggesting that CVRA rights should attach when substantial evidence exists that a specific person has been directly and proximately harmed as the result of a federal crime. This approach appears to already be the method that the Department is taking, as this document is used for multiple purposes.”); see also Felder v. McCotter, 765 F.2d 1245, 1248 (Sth Cir. 1985) (citing Texas law). 178 Alvarado, 440 F.3d at 200 (citations omitted) (internal quotation marks omitted). 179 Td. (quoting United States v. Gouveia, 467 U.S. 180, 187 (1984)). 180 18 U.S.C. § 3771(d)(3) (2012). 181 Kyl et al., supra note 19, at 594. HOUSE_OVERSIGHT_014069