(dissenting):
Lest we remain lost in the thicket of “bizarre” hypothetical results planted by the majority, let us recall the facts of the case before, us.
The counts on which Clemente has been indicted include five counts of knowingly making and signing false income tax returns in violation of 26 U.S.C. § 7206(1), and five counts of using those false returns to evade income taxes in violation of § 7201.
The government, relying on the first paragraph of 18 U.S.C. § 3237(a),1 which (irrespective of whether or not the mails are used) allows venue in any district where a crime was committed, continued or completed, has commenced prosecution in the Southern District of New York, where Clemente’s returns were prepared by his accountant.
Clemente has submitted to the district court an affidavit stating that he believes the returns in question were filed with the IRS by mail.2
Section 3237(b) says “Notwithstanding subsection (a), . . . where an offense involves use of the mails and is an offense described in section 7201 or *827206(1),” the defendant has the option of having venue of those offenses transferred to the district in which he resided at the time of the alleged offense.
At the time the returns in question were filed, Clemente lived in the Eastern District of New York, and he has moved to have venue of the tax counts transferred to that district.
In my view, the majority’s decision that venue must remain in the Southern District is warranted neither by the language of the statute, nor by its legislative history.
I. The Language of the Statute
The statute in question here is commonly known as the “continuing offense” statute, 18 U.S.C. § 3237 (1976). It provides as follows:
“(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
“Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves.
“(b) Notwithstanding subsection (a), where an offense is described in section 7203 of the Internal Revenue Code of 1954, or where an offense involves use of the mails and is an offense described in section 7201 or 7206(1), (2), or (5) of such Code (whether or not the offense is also described in another provision of law), and prosecution is begun in a judicial district other than the judicial district in which the defendant resides, he may upon motion filed in the district in which the prosecution is begun, elect to be tried in the district in which he was residing at the time the alleged offense was committed : Provided, That the motion is filed within twenty days after arraignment of the defendant upon indictment or information.” (Emphasis added.)
In the context of the present case there is nothing ambiguous about § 3237. Subsection (a) plainly gives the government certain latitude in choosing the district in which to commence prosecution of any offense that was begun in one district and continued or concluded in another. The two paragraphs of subsection (a) ensure this latitude regardless of whether or not the offense involves use of the mails. Equally plainly, if the offense did involve use of the mails and is one of those enumerated, subsection (b) gives the defendant a limited option to supersede the choice of district given the government under subsection (a). The introductory phrase of subsection (b), “Notwithstanding subsection (a),” is perfectly clear: it requires that the provisions of (b) be applied in spite of any conflicting provision or apparent obstacle found in (a).
The government argues that since it has not relied on mailing to establish venue, we should not allow the transfer merely because mailing is “involved in some way.” (Brief at 9-10.) Since it is clear that the government does rely on the first paragraph of § 3237(a) for venue,3 the argument is, in effect, that the option given a defendant in (b) is not available if the government relies only on the first paragraph of (a).
Thus, instead of “Notwithstanding subsection (a),” the government would have us read § 3237(b) as if it provided “Notwithstanding the second paragraph of subsection (a).” Subsection (b)’s introductory phrase as written, however, obviously contains no such limitation.
The majority achieves the equivalent of the amendment contended for by means of a different route. First it finds the phrase “where an offense involves use of the mails” ambiguous because it is broad enough to cover a number of hypothetical constructs. Then, relying on certain legislative history, discussed below, it elects to *83narrow that phrase, reading it as if it provided “where an offense involves use of the mails and such use is the basis for establishing venue . . . .”
Given the mailing claimed by Clemente, the applicability of “involves use of the mails” is hardly unclear. While the word “involves” is broad, the use of the mails here is quite obviously encompassed in any reasonable interpretation: the income tax returns which the government contends violated §§ 7201 and 7206(1) were mailed to the IRS. Without doubt the alleged tax offenses here “involved” use of the mails. Indeed, in other cases the government has contended that the phrase “ ‘where the offense involves use of the mails’ . means the mailing by the taxpayer of his return to IRS.” E. g., United States v. DeMarco, 394 F.Supp. 611, 614-15 (D.D.C.1975) (emphasis added). While this may not be all that the phrase means, it is difficult to imagine that it does not include at least the case confronting us, where the defendant’s allegedly fraudulent and evasive return is mailed to the IRS.
Given the lack of ambiguity of § 3237(b) in the present case, the majority’s resort to the legislative history of the section was unnecessary. Even that history, however, fails to justify the majority’s effective modification of the language of subsection (b) in order to countermand the transfer of venue.
II. The Legislative History
As stated by the majority, the chief goal of the enactment of § 3237(b) was to give a taxpayer an option to avoid being prosecuted in a district remote from his home simply because he had mailed his tax return to that district. Section 3237(b) was introduced as H.R. 8252, 85th Cong., 1st Sess. (1957), by Rep. Prince Preston of Georgia. It was enacted in the form recommended by the Senate and House of Representatives Judiciary Committees. The committee reports recommending its passage focused principally on the problem of distance.4
“Testimony before a subcommittee of the Committee on the Judiciary revealed that under current procedures, defendants in certain tax-evasion and tax-fraud cases are often prosecuted in a judicial district substantially distant from the district in which they reside. This causes a heavy burden upon them which is more appropriately and more easily borne by the prosecution.
* * * * * *
“The committee is of the opinion that too frequently prosecutions are not brought in the defendants’ home districts but rather in the district most convenient to the district director of internal revenue. Often that district may be a considerable distance from the defendant’s home.”
H.R.Rep.No. 1890, 85th Cong., 2d Sess. 2 (1958); accord, S.Rep.No. 1952, 85th Cong., 2d Sess. 1-2 (1958), reprinted in [1958] U.S. Code Cong. & Admin.News, pp. 3261, 3262. The language of subsection (b) as recommended (and enacted), however, contained no geographic or proximity restrictions, as both congressional committees appeared content to recommend giving the transfer option to all defendants:
“Therefore, the committee is of the view that the defendant should have the right to be tried in the district in which he resided at the time the alleged offense was committed, if he so chooses, and that this should not be a matter of discretion.”
H.R.Rep.No. 1890, supra at 2; S.Rep.No. 1952, supra at 2, [1958] U.S.Code Cong. & Admin.News at p. 3262.
There was no suggestion in either report that the defendant’s option to transfer would not be exercisable unless the govern*84ment relied on mailing to establish venue.5 The only elaboration on the phrase “involves use of the mails” was the description of the bill as permitting the defendant to have transferred to his home district certain offenses, with the statement that “The offenses covered are the use of the mails to commit acts described in sections 7201 . and 7206(1), (2), and (5) . . . .” H.R. Rep.No. 1890, supra at 1; S.Rep.No. 1952, supra at 1, [1958] U.S.Code Cong. & Admin. News at p. 3261. (Emphasis added.)
Notwithstanding this support in the committee reports for interpreting “involves use of the mails” to apply to Clemente’s use of the mails to commit the alleged offenses, the majority reads into subsection (b) the condition that the transfer option is available to a defendant only if the government uses mailing to establish venue, relying on a statement by Representative Preston as follows:
“The bill would not cover situations where the use of the mails is not an ingredient of the offense charged.”
Hearings on H.R. 8252 Before Subcommittee No. 4 of the House Committee on the Judiciary, 85th Cong., 2d Sess. 6 (Apr. 25, 1958) (unpublished) (hereinafter “Hearings”).6 This statement, however, was made in support of Representative Preston’s original bill which, instead of merely giving a defendant the option to have venue changed to his home district, made venue in his home district mandatory.
At the time of the above statement, H.R. 8252 provided that where an offense involves use of the mails,
“the offense may be prosecuted (1) only in the district in which the defendant was residing at the time the offense was committed if such mail matter has moved through that district . . . .”
Hearings, supra at 26; see 104 Cong.Rec. 13064 (1958). (Emphasis added.) This was a vital difference because the Sixth Amendment to the Constitution gives a defendant the right to be tried in the district in which the crime was allegedly committed. Since the original H.R. 8252 required venue to be in the defendant’s home district, the Treasury Department had attacked the bill as constitutionally flawed.7 It was expressly in response to these attacks that Representative Preston stated his view that mailing would be an essential ingredient of the offense charged, and repeatedly cited that portion of the original bill which expressly conditioned venue on movement of the mail through the defendant’s home district. For example, the text of Representative Preston’s statement surrounding the language relied on by the majority is as follows:
“[T]his bill, H.R. 8252, as drafted, would provide that where the use of the mails is an ingredient of an offense charged under the sections of the Internal Revenue *85Code of 1954 as specified in the bill, the defendant must be prosecuted in the district in which he resides, if the mail matter involved has passed through that district
“The bill would not cover situations where the use of the mails is not an ingredient of the offense charged. If t [sic] the bill attempted to cover such situations, by requiring tha [sic] defendants be prosecuted in the district of their residence, although no part of the offense charged occurred there, the bill would be of doubtful constitutionality in view of the sixth amendment to the Constitution.”
Hearings, supra at 6 (emphasis added); see also id. at 3-6, 25-26.
There are many reasons why Representative Preston’s statement that mailing must be an essential ingredient for § 3237(b) to apply8 — and whatever implication may be found therein that the government must rely on mailing for that subsection to apply — should not hold sway.9 First, Representative Preston’s view cannot be imputed to Congress as a whole. Even before the bill was amended the Preston view was rejected by at least one member of the House Subcommittee before which he testified. Representative Dowdy, who supported the bill, said, “I do not consider mailing an element in this offense.” 10 In addition, neither the House nor the Senate Judiciary Committee reports contained any hint of Representative Preston’s view. H.R.Rep.No. 1890, supra; S.Rep.No. 1952, supra. Most importantly, the constitutional flaw that Representative Preston was addressing was eliminated, as the congressmen decided to make home district venue optional rather than mandatory (Hearings, supra at 23-24), and the linguistic underpinning of the Preston cure for the constitutional flaw, i. e., the original condition that the “mail matter has moved through the district,” was deleted.
Judicial Interpretation of the Statute
Not surprisingly, in light of the plain, broád language of § 3237(b) and the history of its descriptions and amendments before enactment, every court which has dealt with a timely § 3237(b) motion to transfer the offenses described in §§ 7201 or 7206(1), (2), or (5), has granted the transfer where use of the mails was claimed by the defendant, regardless of whether or not the government relied on use of the mails to establish venue. See United States v. DeMarco, 394 F.Supp. 611 (D.D.C.1975), petition for mandamus denied without opinion (D.C.Cir.); United States v. Youse, 387 F.Supp. 132 (E.D.Wis.1975); United States v. Dalitz, 248 F.Supp. 238 (S.D.Cal.1965); United States v. Rosenberg, 226 F.Supp. 199 (S.D.Fla.1964); United States v. Wortman, 26 F.R.D. 183, 192 (E.D.Ill.1960); United States v. Kimble, 186 F.Supp. 616 (S.D.N.Y.1960).11
*86These cases have unanimously rejected the arguments urged by the government here. In United States v. Kimble, for example, the government contended, inter alia, that the defendant had a § 3237(b) option only if “the indictment alleges use of the mails and residence of the defendant in a district other than that in which the indictment is found.” 186 F.Supp. at 617. The court found the government’s contention
“obviously . . unsound. Charges of the nature here involved can be sufficiently alleged without alleging either the means by which the acts were accomplished or the residence of the defendant at the time they were accomplished. These matters are not elements of these offenses and consequently they need not and are not likely to be included in the indictment or information.”
Id. at 618.
Some of the transfers required by § 3237(b) have, regrettably, resulted in inefficiencies. For example, venue as to two defendants charged with falsifying, or aiding another to falsify, the same income tax return has been transferred to the separate home districts of each defendant. United States v. Rosenberg, supra, 226 F.Supp. at 200; United States v. DeMarco, supra, 394 F.Supp. at 614-18. Transfers have been allowed even though the distance between the defendant’s residence and the original forum is small. United States v. Kimble, supra, 186 F.Supp. at 616-17 (transfer from Manhattan (Southern District of New York) to Brooklyn (Eastern District of New York)); United States v. Wortman, supra, 26 F.R.D. at 191-93 (transfer from East St. Louis (Eastern District of Illinois) to St. Louis (Eastern District of Missouri)). Transfer has been allowed even though it greatly enlarged the distance from defendant’s abode to the courthouse: one defendant’s residence in the Southern District of Illinois was just 9 miles from the courthouse in the Eastern District of Illinois, the original forum; venue as to that defendant was transferred to the Southern District of Illinois in which the courthouse was 100 miles from his home. The court felt it had “no alternative” but to transfer:
“The Congress apparently did not provide the courts with discretion in determining the facts or circumstances under which a transfer would be justified; rather, Congress intended that defendants be given the absolute right to be tried for alleged violation of the sections enumerated in paragraph (b) of Section 3237 in the district of their residence regardless of the distance involved.”
Id. at 192. Transfers have been allowed as to some of the charges against one of many defendants. See United States v. Tarnopol, 561 F.2d 466, 469 (3d Cir. 1977) (86-count, seven-defendant indictment charging mail fraud and other crimes; court noted that tax evasion counts against one defendant had been transferred pursuant to § 3237(b) from Newark, New Jersey, to the Southern District of New York).
More than two decades have passed since Congress enacted § 3237(b), and until now all of the courts have uniformly felt compelled to apply the statute in accordance with the plain breadth of its language. Although none of these decisions is binding on us,12 they are nonetheless significant, for during this period Congress has evinced no dissatisfaction with the courts’ straightforward application of the language. While in many circumstances congressional inaction may be of little significance, since it is permissible to infer that Congress has been completely engrossed in matters other than the section in question, no such inference is warranted here.
In 1966, eight years after enactment of § 3237(b), Congress again turned its atten*87tion to this subsection, amending it to add another offense as to which a defendant could opt to be prosecuted in the district of his residence.13 Between 1958 and 1966, courts had held, inter alia, that use of the mails need not be alleged (United States v. Kimble, supra (I960)); that the distance between the defendant’s residence and the district chosen by the government need not be great (id.); that the transfer may even greatly enlarge the distance between a defendant’s residence and the situs of trial (United States v. Wortman, supra (I960)); and that co-defendants charged with tax fraud with respect to the same return may be transferred to different districts for separate, duplicative trials (United States v. Rosenberg, supra (1964)). They had, in short, applied the statute broadly, as it was written.
If these early decisions applying § 3237(b) in accordance with the breadth of its terms were contrary to Congress’ intent, surely Congress could have been relied on in 1966 to make the simple adjustment necessary to narrow the statutory language when it was amending that very subsection.
For all of the foregoing reasons I would deny the petition for mandamus.
. Although the government nowhere expressly states on what venue provision it relies, it is clear that it relies on the first paragraph of § 3237(a). First, in support of venue in the district in which the returns were prepared, the government cites only cases upholding such venue under § 3237(a) (Brief at 8 n.*), e. g., United States v. Slutsky, 487 F.2d 832, 839 (2d Cir. 1973), cert. denied, 416 U.S. 937, 94 S.Ct. 1937, 40 L.Ed.2d 287 (1974). It does not appear that any other section supports venue on this single fact. Second, the government’s brief states: “[I]n the instant case the Government does not rely on the second paragraph of Section 3237(a) for venue . (Brief at 9; emphasis added.)
. Credence is given to Clemente’s affidavit by the fact that the original indictment charged that the mails were used as the means for violating the tax statutes.
. See note 1 supra.
. The distances which the congressmen discussed in the House subcommittee varied considerably, from the great distances in Texas, to the intermediate distances in Georgia, to the scant 40 miles between Washington, D.C. and Baltimore, Maryland. Hearings on H.R. 8252 Before Subcommittee No. 4 of the House Committee on the Judiciary, 85th Cong., 2d Sess. 11, 12, 27 (Apr. 25, 1958) (unpublished). One representative observed that distance was not a problem in California and another imagined that it was not a problem in New York. Id. at 15-16.
. Indeed, Congress did not allow the government to escape the effect of § 3237(b) by failing to rely on 26 U.S.C. §§ 7201 or 7206(1), (2), or (5). Section 3237(b) provides that the defendant has the venue transfer option whenever the offense is “described in” one of those sections, “whether or not the offense is also described in another provision of law.”
. The government’s brief in addition quotes the following statement by Representative Preston:
“ ‘. . this is only involved where the mails are used in offenses under statutes where the mailing is an essential element and where the mailing occurs in his district’ . . .” (Government brief at 16, emphasis therein, quoting Hearings, supra at 25-26.)
. The Treasury Department’s letter objecting to the bill pointed out:
“Article III, section 2, clause 3, and the sixth amendment of the Constitution secure to persons accused of crimes the right to trial in the State and district in which a crime has been committed. It is not clear that, in some instances, the proposed legislation does not contravene these provisions. Indeed, in some instances, venue would seem to be laid in the district in which the accused resides rather than that in which the unlawful act was performed. Consequently, there is a possibility that the proposed legislation would be held null and void with respect to a crime not shown to have been committed in the judicial district of the defendant’s residence and in which district the indictment has been returned under the authority of such legislation.”
Letter from Dan Throop Smith, Deputy to the Secretary, to Hon. Emanuel Celler (April 23, 1958), reprinted in S.Rep.No. 1952, supra at 4, [1958] U.S.Code Cong. & Admin.News at p. 3264.
. Taken at face value, the supposition that mailing is an essential element of the offenses of tax fraud or tax evasion is meritless. Mailing may or may not be the means of committing the offense. It certainly is not legally essential to its commission. See United States v. Kimble, 186 F.Supp. 616, 618 (S.D.N.Y.1960).
. The majority concludes that Representative Preston, although responding to the constitutional objection, was nevertheless assuring his colleagues that his bill did not cover all offenses in which a mailing occurred. Whether or not this conclusion is correct, Representative Preston seemed certain that at least any mailing by a defendant of his tax return would be covered:
“[Tjhis bill . . is to serve the large majority of people who mail their tax returns.
“They prepare them, and they would go to the Post Office and mail them in their own district.”
Hearings, supra at 27.
. Hearings, supra at 8. Indeed, Representative Dowdy suggested that reference to mailing be omitted. Id.
. Where the charge has been conspiracy to evade taxes, some courts have held that a § 3237(b) transfer of such charges is not a matter of right, but lies within the discretion of the court, since conspiracy is not one of the crimes listed in § 3237(b). See, e. g., United States v. Ostrer, 458 F.Supp. 540 (S.D.N.Y.1978); United States v. Turkish, 458 F.Supp. 874, 878 (S.D.N.Y.1978). The contrary view was taken in United States v. Rosenberg, supra, 226 F.Supp. at 201.
. The Supreme Court has never addressed the issue. In the one case in which the issue was presented to this Court, it was not reached. Abrams v. McGohey, 260 F.2d 892 (2d Cir.), denying mandamus in and dismissing appeal from United States v. Abrams, 166 F.Supp. 509 (S.D.N.Y.1958) (holding § 3237(b) motion untimely).
. As enacted in 1958, § 3237(b) applied only to prosecutions for tax evasion under 26 U.S.C. § 7201 and tax fraud under 26 U.S.C. § 7206(1), (2), or (5). Act of Aug. 6, 1958, Pub.L.No. 85-595, 72 Stat. 512. In 1966, Congress amended the statute to extend its coverage to the failure to file a tax return, which is proscribed by 26 U.S.C. § 7203. Act of Nov. 2, 1966, Pub.L.No. 89-713, § 2, 80 Stat. 1108; see S. Rep.No. 1625, 89th Cong., 2d Sess. (1966), reprinted in [1966] U.S.Code Cong. & Ad.News 3676, 3680-81.