*2 GRAAFEILAND, preparation New York on the basis NEW- Before VAN and acts of evasion KEARSE, Judges. of the tax returns other Circuit MAN and provides: or where an Internal Revenue Code 1. Section 3237 offense involves use of the mails and is an expressly provided (a) Except as otherwise in offense described section or Congress, any offense enactment (whether (5) or of such Code or not the begun in dis- the United States one provision another, also in offense is described another completed in or committed trict and law), district, begun judicial may inquired ain more than one judicial district other district district in which such continued, resides, completed. may upon begun, which the defendant he offense was or mails, Any involving pros- filed offense motion district in which the transportation foreign begun, in interstate or com- ecution is elect be tried merce, and, continuing except residing ais he the time district in which expressly provided by otherwise enactment alleged Provid- offense was committed: Congress, inquired prose- ed, twenty That the motion is filed within from, through, cuted in or into upon days arraignment after of the defendant such commerce mail matter moves. indictment or information. (b) Notwithstanding (a), where an subsection described again Though in that District.2 moved to counts. accounting contended that Clemente’s firm motion, Judge having granted the Sand the returns in the Southern prepared Dis- previously ap- indicated that § to his trict and mailed them residence in the plicable even if a was not signing, represented District for Eastern the indictment. The Government seeks a *3 that neither the of the returns nor writ of mandamus to test the trial court’s any other items will be used to establish construction. venue in the District. Southern Section was to the added Criminal permit Government read § 1958, 85-595, Code in P.L. 72 Stat. 512 in his to elect trial of tax counts (1958). is an exception 3237(a), to § only district of when a residence permits prosecution which continuing of- used to establish venue elsewhere. fenses in district in which the offense (Hon. The District B. Court Leonard continued, completed. begun, Sec- Sand, Judge) granted Clemente’s motion 3237(a) specifically provides also transfer venue for the tax counts involving any offense use of mails Eastern District Judge of New York. Sand continuing category offenses within concluded that the tax counts fall within from, any district may the statutory definition of an which the mail moves. through, or into “involves use of the mails” because in fact the mails were used in the activity course of that for cer provides Section alleged to be broad, unlawful. This though option has an tain offenses a defendant arguably literal, reading of the statute has district of require prosecution in the accepted been courts, other district Unit in which the residence. The circumstances ed DeMarco, States v. F.Supp. (D.D. 394 611 is de option an offense applies are “where C.1975); United Youse, States v. 387 Reve scribed in 7203 of the Internal F.Supp. (E.D.Wis.1975); see also United 1954, nue an offense Code of or where Turkish, States v. 874, 458 F.Supp. 878 n.5 involves use of the mails and is an offense (S.D.N.Y.1978); Dalitz, United States v. 7206(1), (2), described in section 7201 or F.Supp. (S.D.Cal.1965), though the issue (5) of such Code . the tax . .” Since appear does not to have been considered counts of pending charge any appellate court.3 The Government re Clemente with violations of 7201 and sponded §§ superseding indictment, with a availability of the residence Clemente with all of the offenses, option depends 200-209, upon same whether these including, in Counts offenses; redrafted, charge the income tax counts an offense that “involves use how ever, the tax counts omitted reference the mails” meaning within the of a tax 3237(b). return. Clemente 3237(b) applies case, Unless to this it is the time of the offense. United properly clear venue for tax Slutsky, 832, offenses is (2d States v. 487 F.2d 839 n.9 Cir. laid in the district in which 1973), denied, 937, the returns were cert. 416 U.S. 94 S.Ct. prepared. Gross, United States v. 276 F.2d (1974); Gross, 40 L.Ed.2d 287 United States v. (2d Cir.), denied, 819-20 cert. 363 U.S. (2d Cir.), denied, 276 F.2d 820 n.1 cert. (1960). S.Ct. L.Ed.2d 1525 Since the U.S. 80 S.Ct. 4 L.Ed.2d 1525 seeks to establish venue in the Slutsky upheld Both and Gross venue in the allegedly Southern District because the fraudu prepared, district where the tax returns were prepared there, lent returns were we have no rejecting contentions that venue could be laid point occasion at this to consider what other only in the district where the return was either might acts of evasion also suffice to establish signed (Gross) (Slutsky). and sent or received venue. sought Neither defendant to invoke the transfer 3237(b), and thus this Court had no opinions 3. On two occasions footnotes scope occasion to consider taxpayer charged this Court have stated that a qualifying phrase nor to construe the “involves with income tax evasion outside his district of use of the mails.” 3237(b), residence elect virtue § residing be tried in the district in which he was 3237(b), Judiciary came Sub- told House possible interpre- There are at least three of re- phrase hearing use of the of the unfairness tations of the “involves committee Savannah, in broadly, phrase ap- could quiring mails.” Most defendant from of which a ply Georgia, to an offense in the course to defend District of Southern narrowly, mailing occurred. More Geor- Atlanta, District of the Northern phrase to an offense which a apply could office gia, solely because Collector’s only an mailing not occurred but also Hearings on H.R. Atlanta. located in nar- charged.4 Most element the crime of the House No. 4 Before Subcommittee rowly, apply could Cong., 2d Judiciary, 85th on the Committee in which a occurred but is (unpublished). 25, 1958) (Apr. 10-12 Sess. also the basis on which the com- heard similar also Subcommittee seeks to establish venue. of Columbia plaints on behalf District District required to taxpayers defend statutory language does Since *4 their returns were Maryland of because require unambiguously any not one of these Reading 27. Baltimore. Id. at mailed to appropriate is to interpretations, three it prosecu- the apply only the to when statute legislative resort to available indications of establish venue in a tion uses a to is among intent. Chief these the “mischief of the de- district other than the district corrected,” important guide to be an to problem fully meets the fendant’s residence statutory Jus interpretation and one that Congress. that concerned upon reading tice to a Cardozo relied avoid closely the letter” would “stick too to that Con- There are additional indications Goltra, aof statute. Warner v. 293 U.S. gress not occurrence did intend the 155, 48, 158-59, 46, 79 L.Ed. 254 S.Ct. pro- an to mailing in the course of (1934); Rogatory, see also re Letters option to trans- vide defendant with 1017, (2d 1967) (“The F.2d Cir. amend Con- fer to district of residence. venue his interpreted ment must be in terms of the gressman told the subcommittee Preston rectify.”). it mischief was intended to situa- hearing, “The not cover bill would not the mails is an tions where the use of be corrected mischief to Id. charged.”5 ingredient of the taxpayer was the Moreover, 6. the House and Senate both at a great his sim distance from residence type “in of case observed that reports ply because his tax return had been mailed bill, for which the by this the acts covered to an Internal Revenue office locat Service generally are really being is tried ed taxpayer’s in a district remote from which he re- in the district in Congressman district of committed residence. Prince bill, certainly little or no relation- Preston, H. sides and bear who introduced the H.R. 8252, Cong., (1958), place where his tax return ship 85th 2d Sess. that be- to the 5. This means alleged residence, nal version of H.R. was in fact were offense but also those where the ment, was made to ment ment is thus clude element of the offense occurred there. This second Treasury Department laid problems not point e. solely g., submission in the district of residence even if no to transfer the indictment as an element of the only rather accomplished by was made in reference to the subject answer in the district of the category would be encountered if venue offenses where the attempted that district. The com- affording a fraudulent would expressed interpretation that Sixth Amend- willful evasion which established presumably objection the return. taxpayer’s taxpayer return, that it origi- ele- See in- the bill was amended to offenses Congressman 2d Sess. 4 tified, this district of residence objection, mails,” teners that H.R. and amended letter from Dan Cong. Secretary, 1958), & reprinted Cong.Rec. is identical to Admin.News, in which a he was nonetheless (1958), reprinted to the enacted his bill did versions of construed, Preston Hon. Emanuel Throop S.Rep.No. Congressman Preston tes- mailing occurred. While both pp. version. The not Smith, Deputy make the transfer H.R. 8252 are “involves the initial responding to optional, broadly Celler ^[1958] assuring 85th version of (Apr. U.S.Code cover all Even if set out his lis- Cong., key to against in the event that H.R.Rep.No. Cong., received.” 85th either all counts (1958); Cong., only 2d the tax counts S.Rep.No. Sess. 85th Clemente or 2d Code Sess. Cong. Admin.News, (1958), & reprinted pp. ^[1958] U.S. the statute him were transferred. A broad also leads to unintended results reading That surely prosecu- observation excludes a involving only one defendant. cases tion like Clemente’s since unreport- earns Consider the defendant who undertaking prove his criminal A, ed income in District has his tax return conduct, item, not receipt mailed A, prepared in District and files his return occurred the Southern District of New in District A because an I.R.S. service cen- York. There is no that Congress indication reading ter there. a broad is located Under give taxpayer intended statute, he a transfer could obtain tried in his district of residence when it is B, residence, simply District because his his criminal not conduct and the use of the signa- accountant mailed him his return for mails that upon Government relies ture, though filing accomplished even establish venue elsewhere. delivery. could hand Or a defendant he obtain the same result whenever could Furthermore, when selected allege the mails used in some were subsections of Internal Reve- income, obtaining with even connection nue Code which apply, though item the tax mailed was (1), (2) included subsections Thus interpreted, return.6 statute which are the ones the mailing where aof virtually would cover all violations of might *5 return otherwise used to a force Congress have could not intended taxpayer § to defend far from his of district phrase, the “in- result because used residence. Omitted (3) were subsections mails,” (4); volves of the a modifier to and these use subsections cover offenses limit occur, which use the 7201 violations to which might § some of the mails a 3237(b) applies. but not mailing § to some distant I.R.S.

office where a return is to filed. We conclude that the “involvement” of a

Finally, 3237(b) the Congress construction of that mails that intended not upon any relies mailing mailing during in the the course of an bare occurrence of a the rejected should be because it course alleged leads of the offense. to bizarre results to unlikely have legislating been in- was an to a venue exception by Congress. tended aIn permitted multi-defendant statute the Government to this, case such as the where Government use the of a into a distant fact alleges the evidence of defendant’s district far from prosecute taxpayer to a racketeering is also evidence of his receipt exception residence. The is a of § income, unreported a transfer of governmental power. the tax shield counts to district of residence would enabling taxpayer not a sword mean that the witnesses would bear prosecution transfer district of to his resi- inconvenience public and the would bear dence where in cases such as this trials, substantially cost two similar wholly Government seeks to establish venue suggests 6. The dissent covers the district of and whose residence I.R.S. residence, least case a like Clemente’s where the office item is located within the district of a mailed was mailing originated tax return sent to the I.R.S. That the ones who mailed the tax return could de- prosecution ended Clemente’s mand residence, to the dis- transfer district of residence, postage trict of and neither it nor other while the ones who saved upon by by nearby relied and delivered the return hand to a prosecution. prosecution venue establish in the district office would face in the district If simply the statute’s were available where their acts of evasion occurred. This anomaly taxpayer triggers because a mailed his return what to an further indicates that residence, I.R.S. office within his district of fact of a is not the then a further anomalous distinction but a nor the nature what is mailed mailing whether by by prose- have been created taxpayers, the statute. Of those is used the Government to Clemente, taxpayer away like who are accused of cute a from his district of resi- committing acts of evasion a district other dence. ferring 200-209 of indictment. Counts stat- any use of mails. The apart from trial, mandate impending has view of taxpayer a who enable ute does not forthwith. other shall issue in a the law district means violated prosecution escape of the mails than use (dissenting): KEARSE, Judge letter. simply by a Circuit

in that district most, apply, We construe § thicket in the lost Lest we remain prosecutions that involve tax planted results hypothetical “bizarre” mailing, sense that whether mails the facts us recall majority, let indictment, is basis not before, us. case prosecution seeks establish on which the has been which Clemente counts on taxpayer’s venue other than in district knowingly counts of five include indicted Under this construc- district of residence.7 re- false income making signing statute, motion to Clemente’s tion of of 26 U.S.C. § in violation turns tax counts should transfer venue of the re- using those false five counts have been denied. taxes in violation evade income turns to of 7201. ap this is conclude that We also writ of a the first

propriate for the issuance government, relying case 3237(a),1 the District Court’s mandamus to correct 18 U.S.C. § paragraph 3237(b). The construction of District or not mails whether (irrespective of discretion, district purport Court did exercise used) allows are counts. committed, the tax obliged but felt to transfer continued where a crime power created beyond This transfer was commenced completed, York, by Congress. Correction mandamus of New District in the Southern prepared the United especially appropriate here since were returns where Clemente’s appellate re secure cannot otherwise by his accountant. ruling. Cf. view District Court’s has submitted Clemente Meanor,-U.S.-,-, Helstoski v. stating that he believes court an affidavit (1979); United 99 S.Ct. 61 L.Ed.2d *6 filed were with question the returns in (2d Cir.), Weinstein, 622 511 F.2d States by mail.2 the IRS denied, 45 cert. 95 S.Ct. U.S. “Notwithstanding 3237(b) says Section (1975). L.Ed.2d 693 of- . where an (a), . subsection an mails is of the involves use directing fense A mandamus will issue writ of or section described in trans- offense vacate its the District Court to order expressly Although government nowhere the not 7. Since in this case the Government does relies, provision is it rely any it venue states on what item to on the of establish paragraph of first taxpayer’s on the clear that relies the venue in a district other than First, support the residence, 3237(a). of venue in unnecessary in § to decide district of it is prepared, the returns were district in which the available when whether the statute would be only upholding such government cases cites to on the seeks establish venue n.*), g., 3237(a) (Brief e. at 8 any mailing only under § basis of venue the basis or on the of (2d Slutsky, F.2d a I.R.S. latter an office the The denied, 1973), by Congress, 94 S.Ct. contemplated 416 U.S. cert. is Cir. situation the one ap (1974). does not It place 40 L.Ed.2d in the and is the one which the where supports any by venue pear other section that conve- is received is determined Second, government’s single locating fact. I.R.S. this nience of the Government in the Govern offices, instant case by states: “[I]n in brief rather than the defendant’s choice paragraph rely second selecting on the ment does wishes to corre- those whom he (Brief 3237(a) If, spond. 3237(a), for venue pursuant Section could §to 9; emphasis added.) by mailing a mail- be established other than office, ques- ing open an an it remains I.R.S. by 3237(b), Congress enacting given affidavit tion whether in is to Clemente’s 2. Credence prosecu- avoid intended let tax defendants fact for they into mailed as means in a district which used tion distant mails were violating I.R.S. item not addressed statutes. Provided, 7206(1),” ted : That the filed has the motion is defendant days having twenty arraignment within after venue of those offenses transfer- upon red to the in indictment or infor- district which he resided at defendant added.) (Emphasis time of the offense. mation.” At the time the in question returns were present In the case there context filed, in Clemente lived the Eastern Dis- nothing about ambiguous Subsec- York, trict of New and he has moved to (a) government cer- plainly gives have venue of the tax counts transferred choosing the district tain latitude in to that district. any of- to commence view, my majority’s decision begun in one fense that was venue must remain Southern District The continued or concluded another. by warranted the language neither (a) paragraphs two of subsection ensure statute, legislative nor history. regardless latitude whether or not offense use of the mails. Equally involves I. The Language of the Statute plainly, if the did involve use of offense question commonly statute in here is enumerated, mails and of those sub- is one “continuing statute, known as the offense” (b) gives a limited provides U.S.C. supersede the choice of district follows: (a). given the under government subsection “(a) Except expressly as otherwise pro- (b), The introductory of subsection vided Congress, enactment of any of- (a),” per- “Notwithstanding subsection fense the United begun in fectly requires provisions that the clear: it one completed another, district and or (b) conflicting applied spite district, may committed in more than one (a). provision apparent or obstacle found in be inquired prosecuted of and dis- government argues that since it trict in which begun, such venue, not relied on we establish continued, completed. should be- merely not allow “Any involving the use of the way.” cause mailing is “involved some mails, or transportation in interstate or (Brief 9-10.) Since it is clear that the foreign commerce, is a continuing offense government rely on the para- does first and, except as expressly otherwise pro- graph venue,3 3237(a) argument vided of Congress, enactment may be is, effect, option given defend- inquired of in any district (b) ant in is not available if the from, through, into which such com- (a). relies paragraph on the first merce or mail matter moves. Thus, *7 “Notwithstanding sub- instead of “(b) Notwithstanding (a), subsection (a),” section have us government where an is described in section 3237(b) read provided if it “Notwith- as 7203 of the Internal Revenue Code of standing paragraph the second of subsec- 1954,or where an offense involves use of (a).” (b)’s introductory Subsection the mails and is an offense described in written, phrase however, obviously as con- (2), (5) or or of such tains no such limitation. (whether Code not the offense is also provision described in law), another majority equivalent The achieves prosecution begun judicial is in a by amendment contended for means district judicial other phrase district in different First it finds the route. resides, the defendant he may upon “where an offense involves use of motion filed in the district in which the mails” because it ambiguous is broad begun, is elect enough hypothetical tried in to cover a number of the district in which he residing Then, legis- was relying constructs. on certain the time the alleged offense below, was commit- lative history, it elects to discussed supra.

3. See note 1 re- Judiciary The committee Committees. pro- reading it phrase, it if narrow that recommending passage focused ports involves use of the vided “where an offense distance.4 problem for establish- principally such use is basis mails and . ing . .” “Testimony a subcommittee before Judiciary revealed on the the Committee Clemente, Given the claimed procedures, defend- current that under use of applicability of “involves and tax-fraud tax-evasion ants certain While the word hardly is unclear. mails” judicial prosecuted in a often cases are broad, is the use of the mails “involves” distant from the dis- substantially district quite obviously encompassed here is causes a they reside. This in which trict interpretation: the income tax reasonable which is more upon them heavy burden vio returns which the contends easily borne and more appropriately 7206(1) 7201 and were mailed to lated §§ the prosecution. alleged tax the IRS. Without doubt the return to offenses fense involves use of the Indeed, contended not be difficult to fails at least the case sive return mailed unnecessary. defendant’s DeMarco, means the ification of order to 1975) Given legislative history (emphasis present justify in other cases the countermand all that the lack of here “involved” use of the mails. IRS.” mailing by imagine allegedly Even that case, F.Supp. language confronting added). majority’s E. phrase that it does not include ambiguity the transfer of venue. g., fraudulent of the section majority’s the IRS. of subsection history, While this government has “ mails’ taxpayer 614-15 ‘where the of effective mod- us, means, where the and eva however, resort (D.D.C. of his (b) 2d Sess. (1958); H.R.Rep.No. Code mended content no both too to the district but siderable home.” brought in the defendants’ nue. “Therefore, geographic “The language of Cong. rather in the congressional ^[*] frequently accord, S.Rep.No. Often that 1-2 (and all committee recommend distance & defendants: (1958), ^[*] the committee enacted), Admin.News, director proximity subsection district most 85th reprinted ^[*] prosecutions is of the from the defendant’s committees giving however, contained Cong., 2d of internal ^[*] may pp. restrictions, as home districts (b) as recom- opinion that 85th ^[1958] convenient ^[*] be a con- appeared are not Sess. Cong., reve- view U.S. ^[*] II. cuted in a district remote from his home taxpayer simply to that district. Section duced as H.R. As the enactment of stated because Legislative he had mailed his tax return majority, History to avoid 85th Cong., was to being prose- was intro- chief 1st Sess. give goal Admin.News H.R.Rep.No. to be tried in resided at supra at should committed, if the defendant should the time the p. be a the district ^[1958] supra at he matter of discretion.” so U.S.Code chooses, alleged offense have the 2; in which he S.Rep.No. Cong. & right report in either suggestion by Rep. Georgia. Prince Preston There was no *8 option to transfer It the defendant’s was enacted in the form recommended that govern- the exercisable unless Representatives the Senate House of would and Judiciary, Cong., congressmen 2d Sess. 4. mittee on the 85th The distances which the dis- 11, 12, 1958) (unpublished). (Apr. One the cussed in House subcommittee varied con- Texas, siderably, great representative not a that distance was the in observed from distances imagined Georgia, problem and another the in in California intermediate distances problem Id. Washington, New York. at not a in scant 40 miles between D.C. and that was Baltimore, Maryland. Hearings on H.R. 15-16. Before 4 of Com- Subcommittee No. the House district, changed ment relied on his home made venue in establish venue.5 mandatory. his home district only elaboration the “in- volves use was description of the mails” the statement, At above the time of the H.R. permitting of the bill as the defendant to provided where an in- offense have transferred to his home district mails, certain volves the use of offenses, with the statement that “The of- (1) only “the bemay offense fenses the covered are use of the mails to in the the district in which defendant was commit acts in described sections 7201 . the was com- residing at the time 7206(1),(2), (5) and . . . .” H.R. mitted if such mail matter has moved 1; Rep.No. 1890, supra S.Rep.No. at through . . . .” that district supra News at at p. ^[1958] U.S.Code (Emphasis Cong. added.) & Admin. Hearings, supra (1958). (Emphasis at 26; see 104 added.) This was Cong.Rec. a vital Amend- difference because Sixth Notwithstanding support this in the com- gives ment to the Constitution a defendant mittee reports interpreting “involves right in the district in which to be tried use of the apply mails” to to Clemente’s use allegedly the crime was committed. Since offenses, mails to commit the original required venue H.R. 8252 the majority into (b) reads subsection district, in the the Trea- defendant’s home condition option that the transfer is availa- sury Department had attacked bill as ble only to a defendant if the constitutionally expressly It was flawed.7 venue, uses mailing to establish relying aon response Represent- attacks that to these statement Representative Preston as fol- ative Preston his view that stated lows: ingredient would be an essential of the of- “The bill would not cover situations charged, repeatedly fense cited that where the the mails is not an portion expressly bill which ingredient of charged.” the offense conditioned movement of the mail venue on Hearings on H.R. Before Subcommit- through home the defendant’s district. For tee No. 4 of the House Committee on the example, Representative the text of Pre- Judiciary, Cong., 85th 2d (Apr. Sess. 6 surrounding language ston’s statement 1958) (unpublished) (hereinafter “Hear- majority relied on is as follows: ings”).6 statement, however, This bill, drafted, H.R. “[T]his made in support Representative Pre- provide that where use of the mails is which, ston’s original merely bill instead of ingredient of an un- giving a to have der venue the sections of Internal Revenue 6. The the bill following offense is another ant has the venue transfer “whether or not the offense is also ment to Indeed, Congress 26.) sixth where the sis mails are where the rely “Article “ Section therein, quoting Hearings, ‘. Treasury Department’s government’s on 26 pointed amendment provision escape . .” statement “described *9 III, used 3237(b) provides (Government U.S.C. out: of law.” effect of § brief in addition by Representative is an essential element did not allow the §§ 7201 or in” offenses under the Constitution secure occurs one of those brief at involved where the clause letter 3237(b) by failing in his district’ 7206(1), (2), whenever the supra described objecting the defend- 16, empha- quotes sections, Preston: and the statutes govern- at 25- Letter from Dan 3264. Secretary, ^[1958] 1958), possibility in the district rather such crime not would be held dence and in which district been contravene instances, some persons judicial reprinted been returned legislation.” performed. committed. U.S.Code instances, State and district to Hon. Emanuel Celler shown to accused these null proposed in which the accused resides Throop Cong. S.Rep.No. Consequently, and void with of crimes provisions. is not have been committed in under which the would seem to & Smith, Deputy proposed legislation Admin.News clear which a crime has defendant’s that, unlawful authority right respect Indeed, there is a supra legislation (April does not in some be laid to trial resi- to a act p.

85 Preston’s view. bill, Representative hint specified in the of 1954 as Code 1890, supra; S.Rep.No. H.R.Rep.No. prosecuted must be in the dis- resides, the constitutional supra. importantly, Most if the mail mat- trict which he Representative Preston ad- passed through that dis- that ter involved has flaw eliminated, congress- as the dressing was trict to make home district men decided situations “The bill would not cover mandatory (Hearings, optional rather not an of the mails is where the use underpin- 23-24), linguistic supra at t charged. If ingredient the offense the constitu- cure for ning of the Preston attempted to cover such the bill [sic] flaw, e., that original condition i. situations, defend- tional by requiring tha [sic] through the has moved matter of their the “mail ants be residence, district,” although part was deleted. no of the there, the bill would occurred view of constitutionality Statute Interpretation doubtful Judicial sixth amendment Constitu- plain, light surprisingly, Not tion.” history language of § broád added); Hearings, supra (emphasis 6 see before and amendments descriptions 3-6, also id. at 25-26. dealt enactment, which has every court to transfer motion why Representa- timely with a many There are reasons or 7201 mailing described §§ that must the offenses tive Preston’s statement where (5), granted the transfer 3237(b) to or has ingredient be an for § essential by the defend was claimed implication may be use of the mails apply8 whatever —and ant, or not regardless of whether found therein that must of the mails relied on use rely ap- government for that subsection v. De First, venue. See United States ply sway.9 Repre- establish not hold —should (D.D.C.1975),peti Marco, imputed F.Supp. 394 611 sentative Preston’s view cannot opinion denied without tion for mandamus as a Even before the whole. Youse, 387 v. (D.C.Cir.); United States bill was the Preston view was amended (E.D.Wis.1975); United States rejected 132 F.Supp. at least one member of the Dalitz, (S.D.Cal.1965); F.Supp. 238 he testi- v. 248 House Subcommittee before which Rosenberg, F.Supp. 226 sup- v. Representative Dowdy, fied. who United States Wort (S.D.Fla.1964); States v. ported bill, said, United “I not consider 199 do 10 man, (E.D.Ill.1960); 26 192 mailing an in this F.R.D. element offense.” Kimble, F.Supp. 616 addition, v. neither the House nor the Senate United States Judiciary any (S.D.N.Y.1960).11 reports Committee contained them, go they value, “They prepare supposition Taken at face in their own and mail them the Post Office essential element the offenses tax district.” fraud tax evasion is meritless. Mail- may Hearings, supra ing not be the means of commit- certainly ting legally offense. Indeed, supra Representa- Hearings, at 8. essential to its See United States commission. suggested Dowdy that reference to tive Kimble, F.Supp. (S.D.N.Y.1960). v. Id. be omitted. majority Representative 9. The concludes Preston, although responding conspiracy to the constitu- charge been 11. Where objection, assuring taxes, tional was nevertheless his held that a have some courts evade colleagues charges did all of- bill not cover is not of such right, fenses in which a occurred. Whether discretion lies within the matter of but correct, Representative court, conspiracy or not this conclusion is is not one since See, g., Preston mail- 3237(b). seemed certain at least e. United listed in § crimes ing (S.D.N.Y. Ostrer, F.Supp. a defendant of his tax return would be v. Turkish, F.Supp. covered: 1978); contrary “[Tjhis (S.D.N.Y. 1978). view large bill to serve Rosenberg, majority su people re- taken in United States who mail their F.Supp. pra, at 201. turns.

86 rejected just

These Illinois was 9 unanimously cases have miles from court- Illinois, the arguments urged government of house the Eastern District Kimble, here. In United v. for ex- forum; States original venue as that defendant contended, ample, inter District transferred Southern alia, 3237(b) had defendant a § Illinois in the courthouse was 100 if “the alleges indictment felt it had miles from his home. The court the mails and residence of the defendant “no alternative” but to transfer: a district other than which the in- Congress apparently provide “The did not dictment is at F.Supp. found.” determining the courts with discretion government’s court found the conten- the facts under which or circumstances rather, justified; be Con- “obviously Charges unsound. given gress intended that defendants of the nature here involved can suffi- right alleged for the absolute to be tried ciently alleging without either the violation enumerated of the sections means which the acts were accom- (b) of in the dis- paragraph Section 3237 plished or the residence of the defendant regardless trict of their residence at time they were accomplished. distance involved.” These matters are not elements of these Id. allowed Transfers have been offenses and consequently they need not charges many to some one of not likely are included Tarnopol, defendants. United v. See States indictment or information.” 1977) (86-count, (3d F.2d Cir. Id. at 618. charging seven-defendant mail Some required transfers crimes; fraud and other court noted have, regrettably, § resulted in inef- against one tax evasion counts For example, ficiencies. venue as two pursuant had been transferred defendants falsifying, with or aid- Newark, Jersey, from New Southern ing another to falsify, the same income York). District New return been separate transferred passed More than two decades have since home districts of each defendant. United Congress 3237(b), and until now enacted Rosenberg, supra, v. F.Supp. all uniformly courts have felt com- 200; DeMarco, United States supra, 394 pelled to apply statute accordance F.Supp. at 614-18. Transfers have been plain language. with Al- breadth its though allowed even the distance between though binding none of these decisions defendant’s residence and the us,12 they significant, are nonetheless forum is Kimble, small. United States v. during period Congress no has evinced supra, F.Supp. (transfer at 616-17 from straightfor- dissatisfaction with the courts’ (Southern York) Manhattan District of New application of the language. ward While to Brooklyn (Eastern District of New many congressional circumstances inaction York)); v. Wortman, supra, significance, be of since it little (transfer 26 F.R.D. at 191-93 from East St. permissible Congress has been infer (Eastern Illinois) Louis District of to St. completely engrossed in matters other than (Eastern Louis Missouri)). District question, the section in no inference such Transfer though has been allowed even warranted here. greatly enlarged the distance from defend- ant’s abode to the eight years courthouse: one after enactment defend- ant’s 3237(b), residence in the again Southern District of turned atten- Supreme denying dismissing appeal Court has never addressed the in and mandamus Abrams, F.Supp. issue. In the one case in which the issue from United States presented Court, (S.D.N.Y.1958) (holding to this it was not reached. motion un- McGohey, Cir.), (2d timely). Abrams v. 260 F.2d 892 *11 subsection, it amending to add to SIMS, W. Sims and R. Trustee to a defendant W. another offense as R. Trust, Appellants Nos. to in the district opt could be 78-2517/18/19/20, 1966, Between 1958 and his residence.13 held, alia, use of the had inter courts alleged (United be States v.

mails need not Mack CORPORATION MACK TRUCK Kimble, (I960)); the distance supra Inc., 78-2516. Appellant in No. Trucks, between the defendant’s residence and Nos. 78-2516 —78-2520. government need not district chosen Appeals, United States Court great (id.); may even that the transfer Third Circuit. enlarge a de- greatly the distance between Argued Aug. and the situs of trial fendant’s residence Wortman, (United (I960)); supra 16, 1979. Decided Oct. with tax that co-defendants respect

fraud with to the same return sep- districts for transferred different

arate, (United duplicative trials States v. had, (1964)). They

Rosenberg, supra it

short, applied broadly, the statute as was

written. early applying

If these decisions § terms

in accordance with breadth intent, contrary surely

were Congress’

Congress could have been relied in 1966 simple adjustment necessary

to make the statutory language

narrow the when was

amending very subsection. foregoing

For all of the reasons I

deny petition for mandamus. prosecutions 85-595, amended the statute As enacted 72 Stat. 512. Act for tax evasion under 26 U.S.C. fraud under 26 U.S.C. Aug. § 3237(b) applied extend its 6, 1958, coverage Pub.L.No. reprinted in scribed S. Rep.No. failure Pub.L.No. 3680-81. 26 U.S.C. ^[1966] file 89-713, 89th a tax U.S.Code Cong., return, Cong. 2d Sess. Act of Stat. which is & Ad.News 1108; Nov. (1966), pro- see