concurring:
I concur in the result. I agree as to defendant’s first counterclaim. As to the second, I think the court should have adopted the trial judge’s analysis of the False Claims Act in part III A of his opinion, except for the last three sentences thereof. These I would strike, and substitute a flat statement that plaintiffs acts as asserted by defendant did not constitute false claims under the statute, 31 U.S.C. §§ 231-235. This would render the discussion in part III B moot.
As to the removal of 226 unmarked trees, this, if wrongful, was simple larceny. Plaintiff misused his right to go into the forest for the marked trees, to steal others he found there. No false assertion was made by word or act. As regards the 52 falsely marked trees, analysis in more depth is required, but essentially larcenous conduct is likewise revealed. False marking may be the basis of a False Claims Act assessment, as it was in United States v. Bornstein, 423 U.S. 303 (1976), where the false markings supported false invoices. If the false markings in this case had been devised to deceive Government inspectors in checking out the logs, before plaintiff was allowed to remove them from the forest, there might be a different and closer case. Here, however, their use was only to deceive the forest rangers making a post audit of the stumps after the cutting was over. This is comparable to a jewel thief leaving a paste gem behind so that his theft of a real one will not be so soon discovered. It is still larceny.
The Bornstein opinion, in characteristic present day style, has its most important statement, for our purpose at least, in a footnote. This is footnote 8, at 313, reading:
This Court has noted that in construing § 5438 [of the Revised Statutes] "we are actually construing the provisions of a criminal statute. Such provisions must be carefully restricted, not only to their literal terms but to the evident purpose of Congress in using those terms, *438particularly where they are broad and susceptible [of] numerous definitions.” United States v. McNinch, 356 U.S., at 598. See also Rainwater v. United States, 356 U.S. 590, 592-593.
It is explained earlier and in the references that the original statute was split up by the codifiers into civil and criminal sections, now entirely separate, but having been originally one. The definitions of the penalized acts must receive the strict construction of a criminal statute. An alleged offense, to generate a penalty, must pass both halves of a dual test. It must meet the literal language, and it must conform to the purpose judges suppose the Congress had in mind. The alleged liability of Mr. Hageny utterly fails to satisfy either part of this standard, or standards.
The defendant apparently would have us hold that the above analysis is superseded by the dictum in United States v. Neifert-White Co., 390 U.S. 228, 232 (1968) "that the Act was intended to reach all types of fraud, without qualification, that might result in financial loss to the Government.” This statement one might say cannot be of the highest authority, because it is not in a footnote, but in any case the later footnote in Bornstein shows it cannot have been intended to overrule prior authority in the premises, or if it wás, it is now overruled in its turn.
In United States v. McNinch, 356 U.S. 595, 599 (1958), the Court of Appeals for the Third Circuit is quoted with approval as saying
[T]he concept of a claim against the government normally connotes a demand for money or for some transfer of public property.
Mere larceny does not meet that standard, whether or not associated with an effort to disguise the theft or defer its discovery by false marking. It does not meet the literal language, nor does it come within the legislative purpose so far as the record as to that has come down to our time.
I am uncomfortable with the trial judge’s analysis of the facts in his part III B. I am compelled to admit that our Rule 147(b) has a special application to a case such as this, where the credibility of witnesses is so large a factor. Moreover, the "clear and convincing evidence” rule, that was rightly applied, imposes on the defendant, which seeks *439to assess the penalties, more than the ordinary burden of proof. Indeed, when our trier of fact has rejected the proof that a penalty has been incurred, as insufficient, to reverse him would be almost tantamount to reversing an acquittal by a jury in a criminal case, which we all know cannot be done. And we are construing what is virtually a criminal statute here.
I think the trial judge has failed to give proper weight to the rule that demonstrated false statements by an accused, when his conduct is questioned, are to be taken as evidence of a consciousness of guilt. United States v. Strickland, 509 F.2d 273 (5th Cir. 1975, op. by Nichols, J., sitting by designation), and cases cited.
In Finding 15(d) (adopted but not printed by the court), I read:
At the meeting on December 11, plaintiff was aware that the Marvins had painted the three trees in question because the Marvins had told him they had done so. However, plaintiff did not tell Keppen this fact at any time. Instead, plaintiff told Keppen that the trees were painted by someone out to get him. Indeed plaintiff advised Keppen he (Keppen) could have painted the trees. * * *
Keppen was the forest ranger who first discovered the false painting of the trees. The trial judge also found that plaintiff lied about tree marking procedure in Finding 19(b). In Finding 19(g) the trial judge found that plaintiff testified that no complaints were ever made against him respecting his logging operations, whereas the record showed the Wisconsin State Division of Forestry and Recreation had made such a complaint and had debarred him from bidding on future sales of timber from state forests.
I would have been comfortable with a finding that whatever otherwise was deficient in defendant’s proofs was supplied by these evidences of consciousness of guilt.
The trial judge in my view greatly overemphasizes the inferences to be drawn from the fact that defendant failed to offer the testimony of two witnesses it said at pre-trial it would produce. It may be a legitimate inference that, if put on the stand, their testimony would have been adverse to *440defendant, but it is not legitimate to infer that such testimony would have been true. The case cited, Estate of Ridgely v. United States, 180 Ct. Cl. 1220 (1967), is a decision by Trial Judge Maletz (now of the U.S. Customs Court) and I concurred in its adoption per curiam. The holding relied on is in a footnote, which, as always, may be supposed of higher authority than the text. The witnesses not produced, though promised, would have testified as to their expert opinion of the value of a parcel of real estate. It was a tax case. They were not, like the missing witnesses here, involved in the res gestae. Defendant was not required to produce witnesses not connected with it or under its control, and presumably hostile, whose testimony, if favorable to defendant, would have incriminated themselves. In general, a party represents to the court that the witnesses it calls will give veracious testimony which it cannot attack. The special exceptions to this rule includes chiefly those whom a party by force of circumstances must produce. The court can, at its discretion, treat such witnesses as hostile, allowing the party calling them to cross-examine them as if the adverse party had called them. Normally, a party need not call hostile witnesses, and if he does, he adopts them as his own.
Defendant accepts the finding of 278 misappropriated trees for the purposes of its first counterclaim, but attacks it under the second, solely for the purpose of sustaining its witnesses. The trial judge discredits them on the ground the total number of trees they claimed to have mismarked greatly exceeded the numbers found, only 52. Defendant explains this by saying that when making his count, the forest ranger did not know that the miscreants who mismarked the trees simulated old paint by mixing motor oil with it. This seems to me a sufficiently plausible explanation why more mismarked trees were not found, to avoid discredit to the witnesses. At any rate, we all know it is human nature to exaggerate our sins once we start confessing any of them. This exaggeration does not prove we are free of sin.
The entire set of circumstances convinces me that plaintiff was privy to the mismarking. He was the principal beneficiary of it. It is hardly believable that the cutter*441skidder crews would mismark without his knowledge, since he could readily discover, disown, and expose their misdeeds if not in complicity. He falsified when the forest ranger first tumbled to what was going on. I think the defendant made a much stronger case than the trial judge allows. On a preponderance of evidence test, I think defendant would have won its second counterclaim, supposing the statute covered the case it tried to prove. I have already explained the reasons, as things are, that possibly would cause me to suppress my disagreement with the trial judge, if I had to rule on the fact issues. But they are moot in view of my construction of the statute.
Further, I think defendant’s counsel is entitled to this much acknowledgement of the strength of his case, in view of plaintiffs attack on him as conducting a witch hunt or vendetta. It is asserted against him as an offense, that he traveled up into the Wisconsin woods, looking for witnesses. As a taxpayer, I would hope all Government counsel were so zealous. But there are easier ways of winning a lawsuit, than to persuade rural characters to testify against a rural claimant.
Since I wrote the above and circulated it to my colleagues on the panel, my attention was invited, in a different context entirely, to the recommended decision of Trial Judge Schwartz, filed August 16, 1977, in O’Brien Gear & Machine Co. v. United States, No. 105-72, in which he holds the "claim,” as he calls it, of the plaintiff for redetermination of its Renegotiation Act liability, to be forfeit for fraud in the prosecution under 28 U.S.C. § 2514. He gives a broad construction to the word "claim” as used in that statute, which, as he shows, has been part of the statutory framework of Court of Claims jurisdiction since 1863. He emphasizes that the "claim” is "a word of many meanings, to be determined in the context of the purpose of the statute in which it is found.”
Since the plaintiff has noted its intent to except, and the case will come before a panel of this court at some future date, it would be inappropriate for me to express either agreement or disagreement with Trial Judge Schwartz, and I do not do so. But I deem it necessary to notice his opinion to this extent: I wish to make explicit what was only *442implicit in my concurring opinion, as previously written, that the meaning of the word "claim” in the False Claims Act, 31 U.S.C. §§ 231-235, is made narrow by special considerations applicable to that statute and, so far as I am aware, no other in which the word is used. Therefore, I do not consider that my views about the False Claims Act commit me to any particular construction of any other Act or Regulation in which the word "claim” is used.
CONCLUSION OF LAW
Upon the findings of fact and the foregoing opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that defendant is entitled to recover on its first counterclaim the sum of three thousand four hundred eighty-eight dollars and eighty-four cents ($3,488.84) and that defendant is not entitled to recover on its second counterclaim and special plea in fraud and said second counterclaim and special plea in fraud are herein dismissed. The court further concludes, implementing its judgment order of January 9,1976, in this case, that plaintiff is not entitled to recover on the claims asserted in his petition and that said petition is herein dismissed.