dissenting.
If, as the majority contends, the issue on appeal turns on whether Gahagan had record title to the Jaguar when he filled out the financial statement for the probation department, then the majority is correct in reversing this conviction. In my opinion, however, the majority views the issue and the applicable statute too narrowly.
The government contends Gahagan failed to list a 1974 Jaguar or the proceeds of sale therefrom as an asset, and that this omission was part of a plan to conceal assets so that the court would not impose a $20,000 fine and forfeiture of assets would not be pursued.1
There is no dispute that as of August 7, 1987, when defendant filed his financial statement, he did not have record title to the Jaguar. Gahagan had originally acquired the car in 1981. He was indicted on the drug charge on May 21, 1987, and on July 10,1987, he transferred title to the car to his girlfriend, Rosemary Tongish. Defendant was sentenced in November 1987 and the Jaguar was sold the same month for $4,500, which sum was deposited in Tongish’s bank account. Defendant does not frame the issue on appeal to be that he was charged with conduct that could not constitute a crime. Rather, the issue as he states it concerns whether the evidence was sufficient to convict him of the crime charged.
Defendant’s claim as to the sufficiency of the evidence at trial has two components. He first alleges that since he did not own the Jaguar or have an interest in the sale proceeds on the date he filled out his financial statement he had no duty to list the car as an asset. Defendant claims that the car was given to his girlfriend, *1386with whom he was living, to repay her for a loan of $1,000 she made to him so he could go.skiing, and to compensate her for his half of their household expenses which he had not been paying.2 The government contends that the entire transaction between Gahagan and Tongish was a sham designed to hide or otherwise insulate assets. Defendant then counterargues that his motives in disposing of the car are not an issue and that the only relevant fact is that he did not own the vehicle. I would reject this contention. Whenever one seeking benefits from the government, which benefits depend in whole or part on the applicant’s financial condition, intentionally places himself in a position so that his written submission under oath gives a false impression of his true financial position, then he violates the statute. A convicted felon supplying financial information to his probation officer for the presentence report is seeking “benefits” in any number of ways including the two implicated here— fines and forfeiture.3 The avoidance of a penalty is the functional equivalent of the seeking of a benefit. Under the evidence submitted here, the jury could reasonably have concluded that the transfer of title to the Jaguar was a sham designed to hide assets.
The second component to defendant’s sufficiency of the evidence argument is really the same as the second issue he raises on appeal; i.e., the “other acts” evidence should not have been admitted and without such evidence there would not have been enough evidence to sustain a conviction. In order to properly consider this issue, it is first necessary to detail the nature of the “other acts” evidence introduced.
Government exhibit three was a financial aid form (GAPSFAS) that Gahagan filed with the Denver University Law School on February 2, 1987. This form was filed three months prior to defendant’s indictment on drug charges, which was also five months after the execution of the search warrant that preceded defendant’s indictment. The significance of the form was that defendant indicated he was debt free at that time and did not indicate that he owned any real estate. The “debt free” representation is inconsistent with defendant’s contention that he transferred the Jaguar to his girlfriend to pay off antecedent debts. The significance of the real estate omission is that there is no reference to any mortgage indebtedness. By contrast, on the financial report given to the probation officer, Gahagan claimed that one of his real estate holdings was subject to two mortgages, one of which was for $65,000. Under these circumstances I find no Federal Rule of Evidence 404(b) implications. Exhibit three was offered simply to show that at another time and another place defendant had said or done something arguably inconsistent with his representations to the probation officer. Under Federal Rule of Evidence 613(b), such evidence is admissible against a party opponent. Even if a Rule 404(b) analysis is made, the exhibit was properly admitted. If the jury believed that the $65,000 mortgage was a sham, then the fact that Gaha-gan listed the sham debt on his financial report to the probation office was relevant evidence admissible under Rule 404(b) to show that Gahagan had falsified that financial report with regard to matters other than his interest in the Jaguar. The jury could then in turn properly consider the false statement that one of Gahagan’s real estate holdings was subject to a $65,000 mortgage as evidence of Gahagan’s intent to conceal his true financial situation as part of his scheme to avoid forfeiture and a fine. Although exhibit three is an out-of-court declaration in writing, there are no hearsay problems because it is offered neither for its truth nor falsity but, rather, its inconsistency.
Exhibit four is a certified copy of an alleged $20,000 mortgage given by defendant to his mother on July 31, 1987, one *1387week before he filed his financial statement with the probation officer. It was defendant’s contention that the mortgage was given to secure an antecedent debt. However, this contention came only from the lips of defense counsel in his argument to the trial judge and not from any witnesses. The government contended that the mortgage was a sham and, like the car transfer, it was all part of defendant’s plan to appear destitute so as to avoid fines or forfeitures. Clearly this is evidence admissible under Rule 404(b) to show a plan. In or of itself it is not the least bit prejudicial to defendant unless the factfinder believes it was a sham. This is exactly the purpose of the government in introducing the exhibit, and is not the kind of prejudice implicated by Federal Rule of Evidence 403. The government spends considerable time arguing why the mortgage should have been viewed as a sham transaction. This is not the issue before us, however. If the mortgage was relevant and otherwise admissible, the weight to be given to it is for the factfinder to decide. The rule of Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), which states that the government must make a threshold showing by a preponderance of the evidence that the defendant committed the prior act, is not implicated. Here, it was the defendant himself who submitted the mortgage. The question is not whether he executed it or not but what significance to attach to this conduct in light of other contemporaneous conduct by the defendant. This is a jury question.
Exhibit five is a copy of an application for financial aid that Gahagan submitted to the Denver University Law School dated February 25, 1988. This was subsequent to his conviction and sentencing on the drug charge and while he was on bail pending appeal.4 In this application Gahagan claims no equity in his home, no real estate, and no assets beyond $300 in cash. The government argues that in the financial statement that Gahagan submitted to the probation officer he indicated that he had a half ownership interest in one piece of real estate worth $112,000 and another worth $16,000 for a total of $128,000. If one accepts as true that this property was subject to $85,000 in mortgages, this would still leave Gahagan with $21,500 in equity. From this the government argues that exhibit five shows the continuation of a plan to conceal and lie about assets. The problem is, however, that Gahagan was not charged with a general plan to conceal assets but was charged with making a false statement to a government agency. I would conclude that exhibit five should not have been admitted under Rule 404(b) because its primary purpose was to show the character of the defendant and that in filing the statement with the probation department he acted in conformity therewith. This is exactly what Rule 404(a) prohibits. I would find the error harmless, however, since the central focus of this case was on the only act charged in the indictment which was the statement relative to the Jaguar. Since the defendant did not testify, the only real evidence on this issue came from defendant’s girlfriend, Rosemary Tongish. If the jury believed her version of the car transfer, they would have had no choice but to acquit the defendant. There was plenty of room to find her testimony not credible, however, and that is what the jury did. I do not see the “character” evidence resulting from the law school financial aid application playing any significant role in the jury’s decision. This is particularly true relative to “character” evidence where the jury knows, as they did here, that the defendant was a convicted felon.5
In sum, I would conclude that the defendant’s trial was primarily a credibility battle, with the defendant putting his credibility at issue through surrogates whom the jury found not credible.
I would affirm defendant’s conviction.
. The court did not impose a fine and it is not clear from the record if any forfeiture proceedings have been instituted.
. Defendant did not testify at trial, therefore his version of what occurred comes from other witnesses who did testify and the opening statement and closing argument of his attorney.
. False statements to a probation officer made in the context of information gathered for a presentence report are within the purview of 18 U.S.C. § 1001. United States v. Gonzalez-Mares, 752 F.2d 1485 (9th Cir.), cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985).
. Gahagan’s drug conviction was affirmed by this court in United States v. Gahagan, 865 F.2d 1490 (6th Cir.1989).
. The jury did not know it was a drug conviction, however.