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88 CASSELL ET AL. [Vol. 104]

crime victims to assert CVRA rights “in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred.”165 The Department contends that this language refers quite narrowly to the “period of time between the filing of a complaint and the initiation of formal charges.”166 In support of its position, the Department cites a Fourth Circuit case interpreting the Sixth Amendment right to counsel, which held that a “prosecution” for purposes of that Amendment does not begin when a criminal complaint is filed.167 In OLC’s view, the venue provision’s direction that victims should assert rights when “no prosecution is underway” applies only to the limited time between when the Government files a complaint against a defendant and some later point when the “prosecution” actually begins. OLC notes that the filing of a complaint triggers an initial appearance, where crime victims can have important interests at stake, such as the right to be heard about a defendant’s release on bail. OLC believes it is only to such post-complaint, yet pre-indictment, proceedings (i.e., the initial appearance) that the venue provision’s “no-prosecution-underway” language covers.

As a preliminary matter, OLC’s interpretation of the word “prosecution” in the Department’s narrow construction of the venue provision is a twisted one, at odds with the way that term is conventionally used. The filing of a complaint is typically viewed as the start of a criminal prosecution. For example, the leading criminal procedure hornbook states that “[w]ith the filing of the complaint, the arrestee officially becomes a ‘defendant’ in a criminal prosecution.”168

Moreover, having specifically rejected the filing of the criminal complaint as the starting point for a “prosecution” within the CVRA’s venue provision, OLC refuses to consider the implications of its alterative starting point: the formal filing of an indictment. OLC states that “a prosecution of a felony must commence with the return of an indictment by a grand jury,” citing the Federal Rules of Criminal Procedure.169 Yet OLC does not pause to recognize that, while felonies proceed by way of indictment, misdemeanors can proceed not only by indictment but also by complaint.170 The CVRA draws no distinction between misdemeanor and

165 OLC CVRA Rights Memo, supra note 2, at 14 (quoting 18 U.S.C. § 3771(d)(3) (2012)).
166 Id.
167 Id. (citing United States v. Alvarado, 440 F.3d 191, 200 (4th Cir. 2006)).
168 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 1.2(g), at 11 (5th ed. 2009) (emphasis added).
169 OLC CVRA Rights Memo, supra note 2, at 14 (citing FED. R. CRIM. P. 7(a)(1)).
170 FED. R. CRIM. P. 58(b)(1) (“The trial of a misdemeanor may proceed on an indictment, information, or complaint.” (emphasis added)).

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