concurring.
Gahagan was not charged with the offense, or the wrongful act, of transferring title to the Jaguar in question for the purpose of defeating the valid claims of the United States as a potential judgment creditor or as a potential fine recipient. He was charged instead with making a false and fraudulent statement through his failure to report that he owned a 1974 Jaguar when it is clear that at the time at issue he no longer owned that vehicle but has transferred its title to his female companion. The alternative charge that he concealed his assets by failing to report “the proceeds of the sale of the above described vehicle” is also not borne out by the uncontested proof. Even if, as the government asserts, the sale or transfer of title was a “sham”, because it was without valid consideration, Gahagan did not actually ever receive any “proceeds” therefrom. The supposed consideration was cancellation of indebtedness, and in any event, the friend, Rosemary Tongish, received and appropriated, as far as the record reflects, the money paid for the car.
That Gahagan’s role in these transactions is suspicious and even calculated to “do the government in” does not, in my view, justify conviction under 18 U.S.C. § 1001 under the circumstances.
The government may be able to prove some wrongful, or even criminal, conduct in respect to Gahagan’s actions. As Judge Guy notes in his dissent, defendant’s GAPSFAS statement and mortgage constitute extremely suspect representations; these items, however, were not the object of the § 1001 action. The government is limited to the charge in this case — respecting the automobile,1 and although the government had the right to inquire into defendant’s financial position, I am not satisfied that a § 1001 conviction was established here. I must concur in Judge Brown’s decision to reverse the conviction for the reasons stated in his opinion despite my agreement with Judge Guy that Gaha-gan was untruthful in his statements to the law school and evasive in his dealings with the government.
. It may have been wiser for the government to charge Gahagan with fraud in respect to his purported real estate and mortgage transactions.