author: JAMESON, District Judge:

text:
    George L. STANSIFER, dba Lakewood Sports Cars, Plaintiff-Appellant, v. CHRYSLER MOTORS CORPORATION, and J. O. Fisher Corporation (Jim Fisher Motors), Defendants-Appellees.
    No. 71-2460.
    United States Court of Appeals, Ninth Circuit.
    Oct. 30, 1973.

      C. R. Lonergan (argued), Ray Sider-ius, Siderius, Lonergan & Crowley, Seattle, Wash., for plaintiff-appellant.
    Carl H. Hagens (argued), Skeel, Mc-Kelvy, Henke, Evenson & Betts, Richard L. Prout, Mullavey, Hageman, Prout & Kirkland, Seattle, Wash., for defendants-appellees.
    Before MERRILL and KOELSCH, Circuit Judges and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   JAMESON, District Judge:

This appeal is from an order granting summary judgment for defendants-appellees, Chrysler Motors Corporation and J. 0. Fisher Corporation (Jim Fisher Motors), in an action by plaintiff-appellant, George L. Stansifer, d/b/a Lakewood Sports Cars, for injunctive, relief and damages, based upon alleged violations of the Federal and Washington State Automobile Dealer's Day in Court Acts, 15 U.S.C. § 1221 et seq. and R.C. W. 46.70.180 et seq.

Statement of Facts

Based upon the pleadings, depositions, affidavits, and other discovery, the relevant facts may be summarized as follows:

On February 1, 1964 Stansifer entered into a written dealer agreement with J. O. Fisher Corporation, then wholesale regional distributor for foreign made Rootes automobiles in the States of Washington and Oregon. On March 15, 1965 a similar agreement was executed with respect to foreign made Simca automobiles. In October, 1965 the J. O. Fisher Corporation was dissolved, and Jim Fisher Motors, a sole proprietorship, became successor to the corporation’s business.

In early 1966 Chrysler Corporation acquired controlling interests in the foreign corporations which manufactured Rootes and Simca automobiles. On February 7, 1966, Chrysler Motors Corporation, a wholly owned subsidiary of Chrysler Corporation, entered into written non-exclusive distributor agreements with Jim Fisher Motors under which Fisher was to operate as distributor and wholesaler of Rootes and Simca automobiles in Washington and Oregon. On February 23, 1966 Fisher entered into dealer agreements with Stansifer, - appointing him non-exclusive dealer of Rootes and Simca automobiles in the City of Tacoma, Washington, and Pierce County and vicinity. Stansifer operated under these agreements from 1966 through 1969.

Following negotiations initiated by Fisher, on December 23, 1969 Fisher and Chrysler agreed to terminate Fisher’s distributorship, effective December 5, 1969, with Chrysler assuming certain repurchase obligations of Fisher to its dealers and agreeing to indemnify Fisher for losses resulting from claims by Fisher’s dealers arising out of Chrysler’s failure to reappoint such dealers.

Under the terms of Fisher’s dealer agreements, the termination of the relationship between Fisher and Chrysler automatically terminated all of Fisher’s dealer agreements, including those with Stansifer. On January 1, 1970, Stansi-fer received a letter from Fisher notifying him that his “dealer agreements were automatically terminated effective December 5, 1969”.

On January 15, 1970 Nigel Burn, Chrysler’s import representation manager, and R. J. Ozburn, regional manager of Chrysler-Plymouth, called on Stansi-fer, presented him with two documents, and requested that he sign one of them. The first was a one-year dealer direct term agreement for the sale of Rootes and Simca automobiles. The second was a letter acknowledging notice of the termination of the Fisher distributor agreements with Chrysler and reading in part:

“On this date, (a) representative(s) of Chrysler Motors Corporation offered this company a twelve (12) month Term Sales Agreement for the purpose of allowing us time during which to qualify for regular Simca (and) Rootes Dealer Agreements with Chrysler Motors Corporation.
“This letter is to advise you that, upon consideration, we hereby decline the opportunity to qualify for Simca (and) Rootes Dealer Agreements with you.”

Stansifer declined to sign either agreement. This action was filed on February 3, 1970.

Proceedings in District Court

Appellant’s complaint alleged violations of the Federal and Washington State Dealer’s Day in Court Acts, based upon his version of what occurred during the January 15 negotiations with the Chrysler representatives. Specifically he alleged that the “defendants conspired to unlawfully terminate [his] non-exclusive dealership”, attempted to coerce him to accept unwanted automobiles, threatened to cancel his dealership if he refused to accept the unwanted automobiles, and threatened to refuse to compensate him for his capital investment in new cars, equipment, tools and parts.

Separate answers were filed by the defendants, followed by a joint motion for summary judgment of dismissal. In support of the motion Chrysler contended that the absence of a written franchise with Stansifer precluded,any recovery under the Federal Dealer’s Day in Court Act. Fisher contended that there was no allegation or proof of any wrongdoing on his part and that any wrongdoing on the part of Chrysler’s representatives would not be attributable to him. Both appellees argued that under the Washington Act no claim may be stated if a claim under the Federal Act is dismissed with prejudice.

At the close of a hearing on March 12, 1971 the court announced that the defendants’ motion for summary judgment would be granted. A formal order was entered June 14, 1971, the court concluding that the claim of appellant “cannot come within the purview of either the federal or state Dealer’s Day in Court Act”.

Summary Judgment

Summary judgment of course is proper only where there is no genuine issue of any material fact or where viewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law. Where, however, “on the basis of the materials presented by his affidavits, the moving party, if at trial, would be entitled to a directed verdict unless contradicted, it rests upon the opposing party at least to specify some evidence to show that such contradiction is possible. * * * The burden of coming forward with specific controverting facts shifts to the opponent. * * * It is his duty to expose the existence of a genuine issue which will prevent the trial from being a useless formality.” Doff v. Brunswick Corporation, 372 F.2d 801, 805 (9 Cir. 1967), cert, denied, 389 U.S. 820, 88 S. Ct. 39, 19 L.Ed.2d 71 (1967). In determining whether the summary judgment was proper under these rules we accept the testimony of appellant as set forth in his affidavit and deposition, even though contradicted in part by other testimony.

Claim against Chrysler under Federal Act

The Automobile Dealer’s Day in Court Act (also referred to as The Automobile Dealer’s Franchise Act), 15 U.S.C. §§ 1221-1225, created a new cause of action in favor of a franchised automobile dealer against an automobile manufacturer for damages sustained “by reason of the failure of said automobile manufacturer * * * to act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, canceling, or not renewing the franchise”. It is obvious that the Act does not apply until a manufacturer-dealer relationship has been created.

The term “franchise” is defined in 15 U.S.C. § 1221(b) as “the written agreement or contract between any automobile manufacturer engaged in commerce and any automobile dealer which purports to fix the legal rights and liabilities of the parties to such agreement or contract.” It is clear that without a written franchise there can be no claim or cause of action under the Act.

There was no written agreement between Chrysler and Stansifer. The written agreements were between Chrysler as manufacturer and Fisher as distributor and between Fisher as distributor and Stansifer as dealer. Nor is there any evidence that Chrysler had any direct dealings with Stansifer prior to the termination of the dealer agreement between Fisher and Stansifer.

Appellant contends that Fisher was a “straw man” or agent of Chrysler, and that the agreements between Fisher and Stansifer were in fact between Chrysler and Stansifer. It is true, as appellant argues, that Chrysler could not “avoid requirements of the Dealer Franchise Act relating to manufacturers by merely setting up a ‘straw man’ between it and the dealer and then stating that it had no franchise with any dealer * * *.” The district court found as a matter ofiaw, however, that “the facts in this case in no way support a claim that Jim Fisher was a straw man or an agent of the Chrysler Motors Corporation * * We agree.

Was Fisher the Agent of Chrysler?

Restatement of the Law of Agency, 2d (1958) defines “agency” in § 1 as follows:

“Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.”

This definition of agency has been accepted and followed by the Supreme Court of Washington in numerous cases, including McCarty v. King County Medical Service Corp., 26 Wash.2d 660, 175 P.2d 653, 664 (1946), where the court emphasized that control of the conduct of the agent is “the vitally essential element in the relationship of principal and agent”.

§ 14 J of the Restatement relating to “Agent or Buyer” reads:

“One who receives goods from another for resale to a third person is not thereby the other’s agent in the transaction: whether he is an agent for this purpose or is himself a buyer depends upon whether the parties agree that his duty is to act primarily for the benefit of the one delivering the goods to him or is to act primarily for his own benefit.”

§ 15 of the Restatement relating to “Manifestations of Consent” reads:

“An agency relation exists, only if there has been a manifestation by the principal to the agent that the agent 'may act on his account, and consent by the agent to act.”

Paragraph 24 of the distributorship agreements between Chrysler and Fisher reads in part:

“DISTRIBUTOR IS NOT AGENT
“This Agreement does not create the relation of principal and agent between MOTORS and DISTRIBUTOR, and under no circumstances is either party to be considered the agent of the other.”

Appellant contends that notwithstanding this express provision in the distributorship agreements, other provisions of the agreements and the conduct of the parties under the agreements manifest the control necessary to establish an agency, and that in effect Fisher was merely a “straw man” in a franchise agreement between Chrysler as manufacturer and Stansifer as dealer.

In resolving this question it may be noted at the outset that J. 0. Fisher Corporation became wholesale regional distributor for Roo.tes automobiles in 1958, over seven years prior to Chrysler acquiring control of (or any interest in) the foreign corporation which manufactured Rbotes automobiles. The Fisher Corporation entered into dealer agreements with Stansifer for Rootes automobiles in February, 1964 and for Simca automobiles in March, 1965. The distributorship agreements between Chrysler and Fisher and the dealer agreements between Fisher and Stansifer were not executed until February, 1966.

In contending that Chrysler reserved substantial control over the dealer’s method of operation, appellant relies upon provisions in the distributorship agreements that (1) the form of dealership agreements would be furnished to Fisher by Chrysler; (2) Fisher was obliged to use these forms in appointing dealers; (3) Chrysler could terminate the distributorship if sales volume was insufficient; (4) Chrysler could veto prospective appointments of dealers; (5) Fisher’s method of distribution and location of dealers was subject to the approval of Chrysler; (6) Chrysler could give directives to Fisher’s dealers, and Fisher agreed to enforce compliance; and (7) Chrysler required Fisher to maintain minimum inventories of parts and automobiles.

It is clear from the testimony of J. 0. Fisher, Jr., which is uncontradicted, that in conformity with the distributorship agreements Fisher purchased the automobiles and parts from Chrysler, obtained title thereto, could resell at wholesale to any automobile dealer or to any person at retail, could resell at any price, and dealt with its purchasers in its own name. Fisher could decide which dealers to appoint if the prospective dealer had the necessary capital requirements, facilities and services. Fisher assumed the credit risks for any automobiles it sold, at wholesale and retail, and carried liability insurance- for various risks of loss.

Contractual provisions of the type here involved are not uncommon. In construing similar contracts the courts have held consistently that controls of the kinds reserved by Chrysler do not create a relationship of agency, but rather one of buyer and seller. The leading case, cited in numerous subsequent cases, is S. B. McMaster, Inc. v. Chevrolet Motor Co., 3 F.2d 469 (E.D.S. C.1925), where the contractual provisions in a manufacturer-dealer contract were essentially the same as the provisions of the distributorship agreements upon which appellant relies. Recognizing that the two distinctive elements of an agency relationship are that (1) the agent acts on behalf of his principal and (2) the agent has the power to bind the principal (3 F.2d at 474), the court held that the acts which the dealer performed were not the acts of the seller (manufacturer) nor for the seller, but his own acts and for himself, and that the contract contained no provision authorizing the dealer to bind the seller. The same is true of the provisions of the distributorship agreements upon which appellant relies. The district court correctly held as a matter of law that no agency relationship was created by the distributorship agreements between Chrysler and Fisher, and that Fisher was not a “straw man” for Chrysler.

“As I view this contract, the case is simply this: The manufacturer desires to sell his products in such manner only that his interests may be promoted. He therefore demands as a part of the price in the making of the contract that the person to whom Ise sells his goods shall submit to certain restrictions. The person desiring to buy the manufacturer’s goods is anxious to purchase them, and, in order to purchase them is willing to submit to the conditions and restrictions named. A consideration of the whole contract and all its terms shows that the parties were studiously careful to make a contract of sale and not a contract of agency. They certainly had a right to do this, and if that was their real intention it is the duty of this court to give effect to that intention.” 3 F.2d at 475.

Claim against Fisher under Federal Act

Appellant contends that in the January 15, 1970 negotiations with Stansifer the' Chrysler representatives were acting as Fisher’s agent “pursuant to the indemnity agreement”. He relies upon the provisions in the agreement terminating the Chrysler-Fisher agreement whereby Chrysler agreed to assume Fisher’s repurchase obligations to Fisher’s dealers and to indemnify Fisher for any losses resulting from Chrysler’s failure to reappoint the dealers.

Appellant has presented no proof or authority in support of this rather novel theory of agency. Clearly the repurchase obligations and indemnity provisions would not in themselves establish an' agency. Fisher did not participate in the January 15 negotiations between Chrysler representatives and Stansifer and did not discuss those negotiations at any time with any Chrysler representative. Nor did Fisher or his agents participate in any repurchase by Chrysler of automobiles and parts. From an examination of . the entire record we find no evidence to support appellant’s contention that Chrysler was acting as Fisher’s agent.

Appellant also alleged in his complaint that appellees “conspired to wrongfully terminate plaintiff’s non-exclusive dealership”. No proof was offered to support this claim. The deposition of J. 0. Fisher, Jr., taken at the instance of appellant, shows that Fisher initiated the termination of his distributorship, that the motive for termination was Fisher’s inability to sell and distribute Rootes and Simca automobiles at a profit, and that there was no intention to harm Stansifer. The district court properly concluded that “There is absolutely no evidence in the record to show that this termination resulted from any compulsion by the manufacturer, but was purely a voluntary arrangement prompted by Fisher’s desire to end the arrangement which he contended was not to his financial benefit.”

In the absence of proof that Chrysler was acting as Fisher’s agent or other evidence of any wrongdoing on the part of Fisher, there is no basis for recovery from Fisher.

Claims under State of Washington Act

R.C.W. 46.70.190 provides that “Any person * * * whose claim has been dismissed with prejudice under said Federal Automobile Dealer Franchise Act shall have no cause of action under this section for alleged violation of ROW 46.70.180(5) (b) * * It is clear accordingly that any claims arising under 46.70.180(7) (b) relating to the cancellation or failure to renew the “franchise or selling agreement” are barred by the dismissal with prejudice of the claims under the Federal Act.

Appellant contends also that appellees violated R.C.W. 46.70.180(7) (a) in that they “endeavored to coerce appellant into ordering Simca and Rootes motor vehicles which he did not wish to order”. This contention was not argued further in appellant’s brief or orally and was not referred to in either the district court’s memorandum decision or appellee’s brief.

Under 46.70.180 “Each of the following acts or practices is hereby declared unlawful: * * *

“(7) Being a manufacturer, distributor, or factory representative or branch to:
“(a) Coerce or attempt to coerce any motor vehicle dealer to order or accept delivery of any motor vehicle or vehicles * * * which shall not have been voluntarily ordered by the said motor vehicle dealer.”

While subdivision (7) (a) makes no express reference to a franchise agreement, as do the Federal Act and subdivision (7)(b), it is clear that'it relates to acts of a manufacturer or distributor with respect to an existing agreement with a dealer. Here, however, the dealer agreements between Fisher and Stansifer, as well' as the distributor agreements between Chrysler and Fisher, had terminated prior to the alleged coercion. Accepting as true Stansi-fer’s statements relative to his negotiations with Chrysler’s representatives on January 15, 1970, the requirement for the purchase of additional cars was a condition for a new direct dealer agreement between Chrysler and Stansifer rather than attempted coercion with respect to an existing dealer agreement.

Viewing the evidence and the inferences to be drawn therefrom in the light most favorable to appellant, the district court was correct in holding as a matter of law that appellant “cannot come within the purview of either the federal or state Dealer’s Day in Court Act”.

Affirmed.

      . This Act provides in pertinent part:
      “An automobile dealer may bring suit against any automobile manufacturer engaged in commerce, in any district court of the United States in the district in which said manufacturer resides, or is found, or lias an agent, without respect to the amount in controversy, and shall recover the damages by him sustained and the cost of suit by reason of the the failure of said automobile manufacturer from and after August 8, 1956 to act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, canceling, or not renewing the franchise with said dealer * * 15 U.S.C. § 1222.

      . R.C.W. 46.70.180(7) (a) and (b) provide: “Each of the following acts or practices is hereby declared unlawful:
      * * * * *
      “(7) Being a manufacturer, distributor, olfactory representative or branch to:
      “(a) Coerce or attempt to coerce any motor vehicle dealer to order or accept delivery of any motor vehicle or vehicles, parts or accessories, or any other commodities which shall not have been voluntarily ordered by the said motor vehicle dealer: Provided, That recommendation, endorsement, exposition, persuasion, urging, or argument shall not be deemed to constitute coercion;
      “(b) Cancel, or, fail to renew the franchise or selling agreement of any motor vehicle dealer doing business in this state without fairly compensating the dealer at a fair going business value for his capital investment * * * if * * * [s]aid cancellation or nonrenewal was not done in good faith.”

      . Paragraph 21 of Stansifer’s dealer agreements with Fisher provides that “this Agreement will terminate automatically without notice from either party on: * * * (6) the termination for any reason of DISTRIBUTOR’S Rootes [and Simca] Distributor Agreement with Chrysler Motors Corporation.”

      . Stansifer stated in his affidavit that Oz-burn told him that under the twelve month dealer-agreement he would be required to purchase eight or nine 1969 model automobiles to bring his inventory to the required minimum; that he “had no desire to purchase 1969 models * * * at a time when Chrysler had already announced the 1970 models were coming out six days later”; and that Ozburn said that if he refused to sign either agreement, “Chrysler would refuse to honor the provisions in [his] dealer agreement relating to the obligation of the distributor to repurchase new cars and parts which [he] had in inventory as of the time of the termination”.

      . Subsequently the court by letter invited counsel to bring to his attention any further facts to establish the “straw man” theory upon which appellant relies. Counsel did not respond to the letter.

      . Appellant’s motion for reconsideration and/or a new trial and for “entry of findings of fact, conclusions of law and judgment” was denied.

      . See Consolidated Electric Co. v. United States, 355 F.2d 437, 438 (9 Cir. 1966); United States v. Western Electric Co., 337 E.2d 568, 572 (9 Cir. 1964); 6 Moore’s Federal Practice, para. 56.15(3) (1972).

      . See also First Nat. Bank v. Cities Service, 391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Town House, Inc. v. Paulino, 381 F.2d 811, 814 (9 Cir. 1967).

      . See, e. g., Reliable Volkswagen v. WorldWide Auto, 216 F.Supp. 141 (D.N.J.1963); Alfieri v. Willys Motors, Inc., 227 F.Supp. 627 (E.D.Pa.1964); Lawrence Chrysler Plymouth, Inc. v. Chrysler Corp., 461 F.2d 608, 613 (7 Cir. 1972) ; York Chrysler Plymouth, Inc. v. Chrysler Credit Corporation, 447 F.2d 786, 791 (5 Cir. 1971).

      . See Barney Motor Sales v. Cal Sales, Inc., 178 F.Supp. 172, 175 (S.D.Cal.1959) and Volkswagen Interamericana, S. A. v. Rohlsen, 360 F.2d 437, 441 (1 Cir. 1966). Although these cases hold merely that a distributor can be a “manufacturer” under the Federal Act, they do suggest, as the district court recognized, “that a distributorship contract between a manufacturer of automobiles and certain distributors and a contract between a distributor and a dealer would not bar an action by a dealer against the manufacturer if it appears that the distributor was in fact a straw man or an agent of the manufacturer.”

      . See also Turnbull v. Shelton, 47 Wash, 2d 70, 286 P.2d 676, 677 (1955).

      . Most of the terms of the contract in McMaster are identical to those which Stan-sifer argues create an agency relationship between Chrysler and Fisher. For example, in McMaster the dealer contracted with had the power to appoint associate dealers, but the appointments could be vetoed by the manufacturer; the appointment of associate dealers was to be made, on printed forms supplied by the manufacturer; the dealer was obliged to maintain a place of business, a sales room, and service station satisfactory to the manufacturer; the dealer was required to carry a stock of new repair parts, in an amount and of such kind as determined by the manufacturer; and the dealer was required to comply with the manufacturer’s directions relating to advertising, sale, and servicing of new automobiles and parts.

      . The court said further:

      . Cases involving distributorship agreements where the court cited and followed McMaster include Jeffrey-Nichols Motor Co. v. Hupp Motor Car Corporation, 41 F.2d 767, 773 (D.Mass.1930) and Quijada Corp. v. General Motors Corp., 253 A.2d 538 (D.C.Ct. App.1969).

      . In his affidavit Stansifer states that the two Chrysler representatives “were acting both on behalf of Chrysler and on behalf of Jim Fisher Motors under the indemnity agreement”. However, this mere legal conclusion, unsupported by sepecific facts which support Stansifer’s theory of agency, is not sufficient to raise an issue of material fact. “More is required from an affiant than mere * * * legal conclusion.” Doff, supra, at 804 of 372 F.2d.

      . Fisher testified that “once we signed our termination with the factory as a distributor I was not concerned with what they were doing. That was their business then and not mine, so I didn’t really pursue it.” He knew nothing of what transpired at the January 15 meeting except what he heard from Stansifer.

      . Fisher testified that “We remained out of it. We were not involved.”

      . This obviously refers to 46.70.180(7) (b), quoted in Note 2. R.C.W. 46.70.180 was amended in 1969 and former subdivision (5) was renumbered (7). A corresponding amendment was not made in 46.70.190.

      . Appellant couples his claim of attempted coercion with bis claim that appellees wrongfully “cancelled and failed to renew his dealer agreement”.

      . As noted supra, the dealer agreement between Fisher and Stansifer expressly provided that it would automatically terminate upon termination of the distributor agreement between Chrysler and Fisher.

      . Appellant complains further that the Chrysler representatives told him Chrysler would refuse to honor the repurchase obligation if appellant did not sign one of the offered agreements. There is no evidence, however, that Chrysler in fact failed to comply with this obligation, which it assumed in the agreement terminating the Fisher distributorship.


source: Caselaw Access Project

author: INGRAHAM, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arthur R. MAYR, Jr., and Carl L. Windham, Defendants-Appellants.
    No. 72-3615.
    United States Court of Appeals, Fifth Circuit.
    Nov. 15, 1973.
    Rehearing Denied Jan. 17, 1974.

      William A. Meadows, Miami, Fla., for Mayr.
    Robert J. Randolph, Stuart, Fla., for Windham.
    Robert W. Rust, Charles O. Farrar, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM, GODBOLD and INGRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

Arthur R. Mayr, Jr. and Carl L. Wind-ham were convicted by a jury of violating 18 U.S.C. § 371 by conspiring to commit the following offenses: (1) willfully and knowingly making a false entry in the books of the First Bank of Indiantown, Indiantown, Florida, with the intent to injure and defraud such bank; and (2) willfully and knowingly misapplying funds of the bank with the same intent. ****The defendants’ principal allegation of error is that the evidence developed at trial is insufficient to convict them of the offenses charged in the indictment. We affirm.

“Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, national bank or insured bank, or a receiver of a national bank, or any agent or employee of the receiver, or a Federal Reserve Agent, or an agent or employee of a Federal Reserve Agent or of the Board of Governors of the Federal Reserve System, embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank, or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $5,000 or imprisoned not more than five years, or both; but if the amount embezzled, abstracted, purloined or misapplied

The evidence revealed without contradiction that on January 4, 1972, Mayr, president of the First Bank of Indian-town, caused two checks, one for $31,000 and the other for $58,000, to be entered on the bank’s books as deposits to two overdrawn accounts of the defendant Windham. The signed blank checks had been left at the bank by Windham in mid-December; Mayr was to complete and use them as needed. Mayr held the cheeks until the morning of January 4, 1972, when the bank examiners were due to arrive. Prior to the time the examiners froze all accounts, Mayr filled in the checks, made out deposit slips to Windham’s two overdrawn accounts, and began processing the checks by regular banking procedures. These deposits were sufficient to remove the overdraft status of the accounts. The two checks were drawn on a Canadian bank in which Windham had previously maintained an account. Both Windham and Mayr knew that this account did not contain sufficient funds to cover the checks.

The jury would have been warranted in concluding that the defendants’ actions amounted to nothing more than a sham transaction designed to conceal from the bank examiners the true condition of the bank and Windham’s accounts in particular. Although this was not the violation of § 1005 charged in the indictment, we hold that these facts are adequate to support a finding of an intent to injure and defraud the bank.

As a result of the sham deposits, Windham and Mayr were able not only to deceive the bank examiners, but also to relieve for another month a possible confrontation with the bank’s board of directors had the status of Windham’s accounts been specifically called to their attention by the examiners. Since the checks were not returned from the Canadian bank until February 3, 1972, almost one month after the bank examination, Windham’s accounts remained in the black for this period of time. We agree with the observation made in a similar situation by the court in Richardson v. United States, 181 F. 1, 7-9 (3rd Cir., 1910).

“It is further said . . . that there was a variance as to the purpose with which the falsification of the reports to the Comptroller was made, which was to deceive that officer, and and not to injure the bank or to deceive the directors or the agents appointed to examine it as charged.
“. . . The purpose of such reports being to enable the Comptroller and the examiners acting under him the better to supervise, and, if necessary, to correct the administration by its officers of the bank’s affairs, it is most obvious, that a misrepresentation, the effect of which is to mislead and deceive either of them, could hardly fail to operate to the injury of the bank. And those therefore who change and falsify the entries in such-reports in the way charged, having committed themselves to this possible result, must be regarded as having intended that it should come about. The intent to injure and defraud the bank in the present instance, was thus rightly charged, and it was for the jury to say whether it had been made out, as to which they had the right to judge by the nature of the items falsified, their relation to the condition and conduct of the bank’s affairs, and the circumstances under which the falsification was done.” does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.”

Although the evidence leads to the conclusion that Mayr and Windham primarily intended to deceive the bank examiners, it is also adequate to support the jury’s conclusion that they intended in some manner to injure and defraud the bank as a part of the same activity. See Harrison v. United States, 279 F.2d 19, 24 (5th Cir., 1960), cert, den., 364 U.S. 864, 81 S.Ct. 105, 5 L.Ed.2d 86; Baiocchi v. United States, 333 F.2d 32, 35 (5th Cir., 1964). See generally United States v. Corbett, 215 U.S. 233, 30 S.Ct. 81, 54 L.Ed. 173 (1909).

It is unnecessary to review in detail the remainder of the evidence developed at trial. We are aware that the case was hardly cut and dried and agree with the trial court that Mayr’s actions were not as egregious as they might have been. Nonetheless, the final decision was for the jury. In the closing arguments the issues were sharply drawn and the jury’s attention focused on the crucial elements of the case. The jury was thoroughly and fairly instructed on the defendants’ theories of defense. That the existence of overdrafts are not, in and of themselves, a foundation for criminal liability was clearly explained. Finally, the court gave more than adequate instructions on the necessary elements of the offense charged under § 1005 and emphasized that a specific intent to injure and defraud the bank had to be proved beyond a reasonable doubt. In these circumstances the jury’s decision that the false entries were made with the intent to injure and defraud the bank cannot be overturned.

We turn briefly to that part of the conspiracy count which charged defendants with conspiring to misapply the funds of the bank. Our previous discussion of defendants’ argument on the false' entry element of the conviction illustrates the basis for the conclusion that the defendants conspired to misapply the bank’s funds. By making the false entries Mayr, in effect, extended to Windham $88,000 of the bank’s credit without interest or security. The basis for finding misapplication does not arise from the fact that Mayr allowed Wind-ham to accumulate $88,000 of overdrafts prior to December 1, 1971, but from the activities the men undertook to conceal this status from the bank examiners and the bank directors until at least February 3, 1972. In short, there is a sufficient evidentiary foundation to support the jury’s decision that Wind-ham and Mayr conspired to misapply bank funds.

The defendants’ other assertions of error are without merit, and the convictions are therefore affirmed.

      . Defendant Windham was charged only in the conspiracy count, Count One, of the indictment. Mayr was acquitted of the substantive violations of 18 U.S.C. § 656 (see note 3, infra), which went to the jury under Counts Four through Ten. Counts Two and Three related to alleged substantive violations by Mayr of 18 U.S.C. § 1005, but were dismissed at trial.

      . 18 U.S.C. § 1005 provides in pertinent part as follows:

        “Whoever malees any false entry in any boole, report, or statement of such bank with intent to injure or defraud such bank, or any other company, body politic or corporate, or any individual person, or to deceive any officer of such bank, or the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank, or the Board of Governors of the Federal Reserve System—
      “ Shall be fined not more than $5,000 or imprisoned not more than five years, or both.” (Emphasis added.)
      The indictment charged solely a violation of the italicized portion of this paragraph.

      . 18 U.S.C. § 656 reads :


author: RONEY, Circuit Judge: PER CURIAM:

text:
    Fay Lewis BERMAN, Executrix of the Estate of Joseph Emile Berman, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 73-1922
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 9, 1973.
    Rehearing Denied Oct. 31, 1973.

      Joseph E. Brown, Jr., Asst. U. S. Atty., Robert E. Hauberg, U. S. Atty., Jackson, Miss., Scott P. Crampton, Asst. Atty. Gen., Ernest J. Brown, Acting Chief, Appellate Section, Tax Div., U. S. Dept. of Justice, Washington, D. C., for defendant-appellant.
    James P. Knight, Jr., Jackson, Miss., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 431 F.2d 409, Part I, (5th Cir. 1970).

   RONEY, Circuit Judge:

Before boarding an airplane at the Jackson, Mississippi, airport, Joseph Emile Berman, a 67 year old food broker and lawyer, purchased a $30,000 flight insurance policy on his life for one dollar, naming his son as beneficiary. The ownership of the policy was immediately assigned to the son. The plane crashed shortly thereafter and Berman was killed.

The question is whether the proceeds of the life policy are includable in Ber-man’s estate for tax purposes. Since the assignment to the son was made within three years of the date of death, the decision turns on whether the estate could prove that the assignment was not made in contemplation of death. Finding that the District Court erred as a matter of law in deciding that the estate carried its burden of proof in this regard, we reverse the judgment which gave the taxpaying estate a refund, and hold that the Government properly collected estate taxes on the proceeds of the policy.

The assignment of the life insurance policy by Berman to his son was a transfer of property. The value of property transferred in contemplation of death is included in a donor’s gross estate for estate tax purposes. 26 U.S.C.A. § 2035. In the case of an insurance policy, the entire death benefit is the policy’s fair market value to be included, not merely the amount of the premiums paid. Bel v. United States, 452 F.2d 683 (5th Cir. 1971), cert, denied, 406 U.S. 919, 92 S.Ct. 1770, 32 L.Ed.2d 118 (1972); Rev.Rul. 71-497, 1971-2 Cum.Bull. 329. Transfers made within three years of the donor’s death are deemed to have been made in contemplation of death “unless shown to the contrary.” 26 U.S.C.A. § 2035(b). The statute creates a rebutta-ble presumption. The essence of a three-year contemplation of death case, lies in the estate’s ability to prove a negative, i. e., that the subject transfer was not in contemplation of death. This is seldom a light burden, and where the property transferred is so inherently death-oriented as life insurance, it is even heavier. The burden is generally carried by producing substantial evidence that the decedent’s dominant motive for making the transfer was to accomplish some specific lifetime purpose.

It appears to us that the District Court confused expectation of death with contemplation of death. There is little doubt that Berman expected to live. He was a vigorous man leading an interesting and useful life with great plans for the future. His death was a tragic event.' The finding that he did not expect to die on the plane flight is almost compelled by the record, let alone immune under the clearly' erroneous standard of review. But the question is not whether he expected to die, but whether the assignment of the policy was motivated by the thought that he might die. To be precise, the estate’s burden was not to prove that Berman expected to live or intended to live, as the estate argues, but that the assignment was dominantly motivated by that expectation of continued life.

Recognizing the function Congress intended to be served by the statutory burden imposed by Section 2035, this Court in Bel v. United States, supra, affirming a finding that a life insurance policy was transferred in contemplation of death, stated:

[T]he statutory presumption casts upon the taxpayer the burden of proof as to the dominant, controlling, and impelling motive of the decedent in making a transfer. This means that the taxpayer has the task of persuading a court that in transferring property the decedent was not motivated by purposes associated with the distribution of property in anticipation of death.

452 F.2d at 687. See also Bintliff v. United States, 462 F.2d 403, 406 (5th Cir. 1972). Shortly thereafter, this Court again explicitly pointed out the estate’s burden in a Section 2035 case in First National Bank at Lubbock v. United States, 463 F.2d 716 (5th Cir. 1972), cert, denied, 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973). We there reversed the District Court’s refusal to take the contemplation of death issue from the jury where there was no specific evidence of life motives, noting

We only hold that under the particular circumstances here presented, taxpayer was unable to present specific evidence of life motive.

463 F.2d at 721.

It is not enough for the estate to show that decedent was in good-health and did not anticipate immediate death. Section 2035 is not limited to gifts causa mortis made in anticipation of a certain event. United States v. Wells, 283 U.S. 102, 51 S.Ct. 446, 75 L.Ed. 867 (1931); Treas.Reg. § 20.2035-l(c). Rather, the estate has the task of persuading the court that the decedent had specific life motives in assigning this insurance policy to his son.

We agree with the Government that the evidence, construed most favorably to the estate, falls short of any proof of a dominant life motive in transferring the policy. The only argument the estate makes as to life motive for the transfer involves the disability benefits of the policy. Pointing to the participation of Berman in his son’s business venture, the estate asserts that Berman felt a sense of moral obligation to his son and if he were disabled and unable to continue his support, he wanted to provide otherwise. By the assignment, the son would come into full control of the disability benefits. In effect, the estate argues that in making the assignment Berman contemplated that the plane would crash and he would be physically disabled, but he did not contemplate that he would be killed. But all the evidence submitted by the estate to prove that Berman did not intend to die also proves that he did not intend to be disabled. The argument was not relied upon by the District Court and it is unpersuasive here. There is no evidence that Berman differentiated between the possible disability benefits of the policy and the possible death benefits in making the assignment.

The Government argues that the only plausible motive for the transfer of the policy is death-oriented because (1) the policy would only have value in the event of a disaster which would likely result in death and (2) the decedent was a lawyer presumably aware of the includability of the proceeds in his estate if he did not transfer the policy. We need not go this far. The District Court used an erroneous standard in deciding that Berman’s expectancy of life controlled the application of Section 2035. Under the correct standard that there be a dominant life motive for the transfer, there was insufficient evidence to find that Ber-man did not make the transfer in contemplation of his death.

Reversed.

ON PETITION FOR REHEARING

PER CURIAM:

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied. The decision of this Court obviously reverses only that portion of the District Court judgment which was appealed.


author: AINSWORTH, Circuit Judge:

text:
    Curtis E. OWENS, Plaintiff-Appellant, v. DIAMOND M DRILLING COMPANY, Defendant-Appellee.
    No. 73-1658.
    United States Court of Appeals, Fifth Circuit.
    Nov. 8, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 17, 1973.
    Wm. Henry Sanders, Jena, La., for plaintiff-appellant.
    Leonard Fuhrer, Alexandria, La., individually and representing La. Trial Lawyers Association, amicus curiae.
    John A. Jeansonne, Jr., Raymond Morgan Allen, Lafayette, La., for defendant-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   AINSWORTH, Circuit Judge:

In this suit brought under the Jones Act (46 U.S.C. § 688) and the general maritime law, the sole question for decision is whether plaintiff, an offshore oil field worker, was a member of the crew of a vessel, the ST 65, at the time he was allegedly injured in an accident. The district judge granted defendant’s motion for a summary judgment on the status issue and dismissed the suit for lack of jurisdiction. We affirm.

Plaintiff Curtis E. Owens brought this suit against Diamond M Drilling Company for injuries alleged to have been sustained while in the employ of defendant in an accident on January 3, 1972. Claimant was employed several months prior thereto, during October 1971, though he had been employed on prior occasions by Diamond M. He was employed as a member of a drilling crew on Diamond M’s Rig No. 55 as a motorman, and was stationed aboard the defendant’s tender, the ST 65, a support vessel to the drilling activity. The defendant’s drilling rig was located on. a stationary drilling platform in the Gulf of Mexico on the Outer Continental Shelf off the Louisiana coast. The platform was owned by Texaco and Diamond M was drilling a well for it at the time. The drilling rig on the platform and the tender ST 65 were owned by Diamond M. Plaintiff alleges that while so employed as a motorman, and while physically present on the drilling rig situated on the platform, he was struck on the head by a falling board and sustained injuries.

Diamond M had two drilling crews and one roustabout crew, all of whom lived, ate and slept aboard the tender, the ST 65. The drilling crews worked 12-hour shifts in 7-day “hitches,” and their work was principally on the platform where the rig was situated. The roustabout crew was the crew for the tender and responsible for keeping the tender up and repairing it when it needed repairs. This crew was also in charge of unloading supplies from work boats and assisted in lifting supplies from the tender to the adjacent Texaco platform. The tender was not moored to the fixed platform but was secured with numerous anchors and access was had by a device known as the widowmaker which was let down from the drilling platform onto the deck of the tender. Plaintiff’s principal duty as motorman required that he take care of the diesel engines which powered the rotary and draw works of the drilling rig, which were situated on the platform. There were other miscellaneous duties which he performed occasionally on the tender. On infrequent occasions, in rough weather, the tender broke loose from its anchor chains and pulled away from the Texaco platform. If plaintiff happened to be working at the time on the platform he remained there until the tender was returned. However, if he happened to be aboard the tender he was given some miscellaneous duties such as chipping, painting, washing, cleaning up and tying down supplies until the tender returned. He occasionally left the drilling platform to fetch tools and supplies situated on the tender. Sometimes he assisted in mixing mud on the tender though that duty was primarily the responsibility of the pump man assisted by the roustabouts.

In denying seaman’s status to plaintiff the district judge in detailed, written reasons held that “plaintiff’s work activities on board the ST 65 were irregular and fortuitous in nature.” He found that claimant’s activities on the vessel were “minimal in nature and in no way justify his contention that he served as a member of the crew of the tender.” He found that Owens did not perform a significant part of his work aboard the tender, and “certainly performed no work aboard the ship with any degree of regularity and continuity.”

We think the district judge’s ruling was correct. Plaintiff’s principal duties as a motorman on Diamond M’s Rig No. 55 were to take care of the diesel engines situated on Texaco’s fixed stationary platform. Here he was allegedly injured. His' attempt to establish seaman’s status on the basis of a miscellany of incidental and occasional duties aboard the drilling tender ST 65 is unconvincing. Though stationed aboard the ST 65 for living purposes and some incidental miscellaneous duties, his employment was essentially that of a motorman on the Diamond M’s Rig No. 55 situated on the fixed platform. It cannot properly be said that he was permanently assigned to the tender when in fact he was assigned to the drilling rig on the platform. See Offshore Company v. Robison, 5 Cir., 1959, 266 F.2d 769. Nor did he perform a substantial part of his work on the tender. In our recent decision in Keener v. Transworld Drilling Company, 5 Cir., 1972, 468 F.2d 729, we affirmed the dismissal of a suit of a claimant under the Jones Act who, like plaintiff here, worked on a stationary drilling platform in the Gulf but ate, slept and performed miscellaneous duties aboard a tender which serviced the drilling platform. Keener spent several days scraping paint and painting in the engine room of the tender while the drilling platform equipment was inoperative and he contended that a substantial part of his duties were performed aboard the tender and that he was a seaman. We denied seaman’s status because “[s]uch incidental and temporary duty aboard the tender” was insufficient to make him a seaman. We further stated in Keener that to meet the requirements that a workman perform a substantial part of his work on the vessel in order to have the status of a seaman “it must be shown that he performed a significant part of his work aboard the ship with at least some degree of regularity and continuity.” 468 F.2d at 732. That is not the case here.

Plaintiff contends that this case was inappropriate for determination by summary judgment though he concedes that in a proper case summary disposition is proper. The district judge had before him lengthy depositions of the driller, derrick man, pump man, a petroleum engineer, and plaintiff himself, in which every facet of plaintiff’s employment was fully explored. All information pertaining to plaintiff’s status was before the court and was undisputed for purposes of the motion. This was accordingly a proper case for summary judgment for we cannot say with reason that the conclusion may be drawn that claimant was a member of a crew of a vessel so as to present a jury question. See Offshore Company v. Ro-bison, supra at 780. The issue of status is not necessarily a question for the jury in every ease. Producers Drilling Com-pány v. Gray, 5 Cir., 1966, 361 F.2d 432, 435, and eases cited therein. The law applicable to maritime oil workers has developed to the point where in the appropriate case a legal determination may be made rather than submit the matter to a jury. Marine Drilling Company v. Autin, 5 Cir., 1966, 363 F.2d 579, 580. Ordinarily, whether claimant is a seaman is a factual dispute to be resolved by the jury, but if there is ho genuine factual dispute to be resolved, the district court may properly refuse to submit an issue to the jury where the only rational inference to be drawn from the evidence is that the claimant was not a seaman. See Jenkins v. Aquatic Contractors & Engineers, 5 Cir., 1971, 446 F.2d 520, 521.

The district judge held that none of the miscellany of tasks performed on the tender was done on a regular basis and that plaintiff did not satisfy the requirements of our recent holding in Keener. This holding was not erroneous.

Affirmed.

      . Defendant contended that plaintiff’s sole remedy was under the Longshoremen’s & Harbor Workers’ Compensation Act (33 U. S.C. § 901 et seq.), as applied by the Outer Continental Shelf Lands Act (43 U.S.C. § 1333(c)).


author: WEBSTER, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Jeffrey Allan OLSEN, Appellant.
    No. 73-1193.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided Nov. 6, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 13, 1973.
    Certiorari Denied March 25,1974.
    See 94 S.Ct 1594.

      David G. Roston, Minneapolis, Minn., for appellant.
    J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

Jeffrey Allan Olsen was convicted of receiving and concealing coins and currency that had moved in interstate commerce, knowing same to have been stolen, and was acquitted of a second count which alleged that he transported this property in interstate commerce. Olsen appeals, asserting as error: (1) the admission of a 1969 New York conviction for the same offense to show knowledge; (2) the admission of evidence obtained as a result of an arrest warrant issued without probable cause and (3) the refusal to strike testimony elicited by the prosecution that he had displayed a pistol to a former employer.

Defendant was arrested on a complaint charging him with fraud by wire. The information upon which this complaint was based is as follows: one Kay Sterzinger complained to Northwestern Bell Telephone Company that she had been billed for a number of long-distance calls in April, May and June, 1972 which she had not made. She also had received a bill from the Goodyear Tire Company for four tires and extra services, totalling $114.62, addressed to John Sterzinger. Investigation disclosed that the automobile to which the- tires were affixed was registered in the name of Jeffrey Allan Olsen. One of the long-distance calls complained of was made to the Richard Eggert residence in Quogue, New York. Mrs. Eggert advised the investigator that she had received a call for her father from a person identifying himself as Jeff Olsen.

At the time of defendant’s arrest in Minneapolis, he was carrying a brief ease which contained some antique currency and other collector’s items. He also had a rolled up newspaper in which were found envelopes of the type used by currency and coin collectors and small sticker labels which had “A & A Coin Shop, Iowa City, Iowa” printed on them. The A & A Coin Shop had been robbed by two armed men on August 2, 1972, and over $26,000 worth of coins and currency had been taken. As a result of this information, investigators learned that appellant had a safe deposit box at National City Bank. Shirley Holbrook, a receptionist at the bank, informed the FBI agent that Olsen had come into the bank on August 28, 1972 and had signed for entrance into the safe deposit box area. She assisted him in obtaining the safe deposit box and in returning it. When the box did not return into its slide because the lid was not closed properly, she observed Olsen open the box and saw that it was completely filled with currency, except for a small box containing coins. On the basis of this information, a search warrant was obtained and the contents of the box were seized. Some of these coins and currency were subsequently identified as having been stolen from the A & A Coin Shop.

The Prior Conviction

The trial lasted seven days. The government produced 26 witnesses and introduced 223 exhibits. At the close of its case, a certified copy of a 1969 New York conviction for transporting coins in interstate commerce, knowing them to have been stolen, was introduced. The court reserved ruling on defendant’s objection until the following morning, when it ruled the exhibit admissible for the limited purpose of showing defendant’s knowledge that the coins and currency in his possession had been stolen. Appellant argues that the admission of the prior conviction was reversible error since appellant did not testify on his own behalf and the prior conviction was far removed in time and place from the charge under indictment.

The general rule is that evidence of past crimes is inadmissible and incompetent for the purpose of showing commission of the particular crime charged unless the prior conviction is an element of or is legally connected with the crime for which the accused is on trial, [citations omitted]

The general rule that evidence of prior criminal conduct is not admissible against a criminal defendant, is subject to well-recognized exceptions. In Atwell v. Arkansas, 426 F.2d 912 (8th Cir. 1970), the court said:

At the conclusion of the session yesterday, members of the jury, Plaintiff’s Exhibit No. 223 was offered and I have received it as it may bear on or relate to the knowledge of the defendant. The exhibit is received for that purpose only.

But recognized exceptions to the rule are that such evidence “is usually competent and admissible to prove the accused’s identity, knowledge, intent and motive, to show a common criminal scheme or plan, and in negation of the likelihood that the crime was committed as a result of inadvertence, accident, or mistake.” 29 Am.Jur.2d, Evidence § 321 (1967).

426 F.2d at 914.

The authority for these exceptions is legion: United States v. Cochran, 475 F. 2d 1080 (8th Cir. 1973); United States v. Bessesen, 433 F.2d 861 (8th Cir. 1970), cert, denied, 401 U.S. 1009, 91 S. Ct. 1254, 28 L.Ed.2d 545 (1971) ; Von Feldt v. United States, 407 F.2d 95 (8th Cir. 1969); Koolish v. United States, 340 F.2d 513 (8th Cir.), cert, denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965); Williams v. United States, 272 F.2d 40'(8th Cir. 1959); Wiley v. United States, 257 F.2d 900 (8th Cir. 1958); see also Parker v. United States, 400 F.2d 248 (9th Cir. 1968), cert, denied, 393 U.S. 1097, 89 S.Ct. 892, 21 L. Ed.2d 789 (1969); United States v. Deaton, 381 F.2d 114 (2d Cir. 1967); Herman v. United States, 220 F.2d 219 (2d Cir. 1955); United States v. Walker, 176 F.2d 564 (2d Cir.), cert, denied, 338 U.S. 891, 70 S.Ct. 239, 94 L.Ed. 547 (1949).

Appellant urges, however, that his case does not fit this well-recognized exception because the previous conviction for possession and concealment of stolen coins bears no reasonable relationship to his knowledge that the coins and currency in his possession at the time of his arrest were stolen, citing Davis v. United States, 370 F.2d 310 (9th Cir. 1966), cert, denied, 386 U.S. 1024, 87 S. Ct. 1381, 18 L.Ed.2d 463 (1967). In Davis, defendant was convicted of knowingly transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. § 2312. The prosecution introduced a certified copy of defendant’s prior conviction for auto theft and the court admitted it to show intent and knowledge. The Ninth Circuit held that this evidence did not fit the exception to the general rule and was therefore erroneous, stating 370 F.2d at 312-313:

In this ease we believe that the general rule is applicable and that the admission of the record of appellant’s conviction was error. It-was an isolated occurrence more than a year before the act in question and the crime was not the same as the present prosecution. We hold that there was not a sufficient connection, either in time or conduct, to justify its admission.even though the court in its instruction limited its consideration by the jury. Its admission was not justified by any of the well known exceptions to the general rule. (Emphasis added)

A close connection between the conduct for which the defendant was previously convicted and that for which he is standing trial was clearly established in this case. We do not suggest that a prior conviction for possession of stolen goods standing alone would be sufficient to prove that a defendant knew of goods o'f like kind currently in his possession were stolen, but it does tend to show a propensity for such knowledge when considered with the strong corroborating evidence present in this case.

Appellant contends that the three-year-old conviction was stale and too remote in time to satisfy the close connection requirement. Appellant relies on United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970), where the arresting officer testified that the defendant had been convicted previously of violating the same statute. However, the conviction was reversed not because the prior conviction was too remote in time (as time was not established in the record), but rather because the evidence of that conviction was hearsay and no instruction limiting its use could cure the absence of authenticated evidence even where a prior conviction might be otherwise admissible to show a consistent pattern of conduct. In this case, however, the evidence in issue was authenticated, reflected the means by which appellant committed the prior act, and the court properly limited the jury’s consideration thereof as it might relate to the knowledge of the defendant.

In Miller v. United States, 397 F.2d 272 (5th Cir. 1968), a five-year-old forgery conviction was held admissible to show intent in a forgery trial. Similarly, in Von Feldt v. United States, 407 F.2d 95 (8th Cir. 1969), this court held that evidence of a similar criminal transaction which occurred some four years prior to trial was admissible to establish intent and guilty knowledge. We hold that the introduction of the three-year-old conviction for an identical offense for the limited purpose of showing Olsen’s knowledge that the coins and currency in his possession were stolen, with proper limiting instructions at the time of its admission and again during the final charge, was not error.

The Arrest Warrant

Appellant next argues that the arrest warrant was not issued upon a sufficient showing of probable cause that appellant committed wire fraud. The underlying facts disclosed in the complaint show: (1) a Mrs. Sterzinger was billed for seven long distance phone calls which she did not make; (2) the Sterzingers were billed for four tires and certain repairs by the Goodyear Tire Company; (3) Goodyear had performed these services on appellant’s car at the request of a person using John Sterzinger’s name; (4) one of the long-distance calls had been placed to the Eggert residence in Quogue, New York, and Eggert stated that a long-distance call had been received from a “Jeff Olsen” on April 17, 1972. The first three paragraphs of the complaint apply these facts to the charge and include the statement that appellant placed the long-distance call to New York on April 17, 1972.

Appellant contends that we cannot consider the first three paragraphs in determining probable cause and, under this view, the complaint is fatally defective because it contains no allegation or reasonable inference that appellant made any of the calls charged to the Sterzin-gers’ phone. Since this essential link is missing, appellant argues, the complaint is invalid, thereby rendering the arrest invalid, the subsequent search unlawful, and the evidence seized inadmissible as fruits of the unlawful arrest. The government concedes that if the arrest was invalid, the evidence seized in the subsequent search must be suppressed, but contends that the complaint was valid. We find it unnecessary to reach the search and seizure issue since probable cause appears on the face of the complaint.

While the complaint presented to the magistrate was no model of clarity, as was noted by Judge Larson in his Memorandum Order, we cannot say that an adequate basis for finding probable cause does not appear on the face of the complaint. Jaben v. United States, 381 U.S. 214, 223-224, 85 S.Ct. 1365, 14 L. Ed.2d 345 (1965). We can discern no rule enunciated in the cases relied on by appellant which would require the magistrate to ignore those paragraphs of the complaint which apply the facts to the charge in determining whether probable cause exists. The magistrate is entitled to read the complaint as a whole and is not prevented from applying his own common sense and drawing reasonable inferences from the facts he finds there. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). By so reading this complaint, the magistrate could reasonably conclude that the telephone company was being defrauded by someone placing long-distance calls and charging them to the Sterzingers’ phone number, and that appellant had probably placed one of those calls. The probability that appellant was the person making the calls is buttressed by the fact that appellant or someone, using his automobile charged tires and other services to the same Sterzingers. We find the magistrate’s finding of probable cause entirely reasonable and note that considerable deference should be given his determination. McCreary v. Sigler, 406 F.2d 1264 (8th Cir.), cert, denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969).

The Pistol

During the trial the government produced several of appellant’s former employers in an attempt to establish his ■ financial situation. With one of these witnesses, a Mr. Grosz, appellant sought to establish his independent means and elicited testimony that during his employment he had displayed to Grosz various collector’s items, including paintings, etchings, sketches and coins of substantial worth. On redirect, the prosecutor asked what else appellant had shown Grosz. Appellant objected to the question as irrelevant and as raising new matters. The court overruled the objection, holding that the matter had been opened up on cross-examination. Grosz then testified that appellant had shown him a pistol. On recross-examination appellant sought to establish that the gun was an inoperative antique which was brought into the office for protection purposes. Appellant then moved that the jury be instructed to disregard any reference to the pistol. The motion was denied. Appellant contends that the failure to strike this testimony was prejudicial error and requires reversal.

Appellant relies on a line of cases which supports the general proposition that in a trial for a crime involving violence or a weapon, the introduction of another weapon, unrelated to the crime charged, is reversible error. In this case, however, appellant was not on trial for a crime which involved a weapon. The government’s questions directly related to a line of inquiry initially opened by appellant, and we have consistently held that the scope of this type examination is within the discretion of the trial court. United States v. Vaughn, 486 F. 2d 1318 (8th Cir. 1973); United States v. Brown, 482 F.2d 1226 (8th Cir. 1973) ; Wright v. United States, 389 F.2d 996 (8th Cir. 1968); Davis v. United States, 229 F.2d 181 (8th Cir.), cert, denied, 351 U.S. 904, 76 S.Ct. 706, 100 L.Ed. 1441 (1956).

While a calculated attempt by the prosecutor to prejudice or inflame the jury by the injection of testimony of a weapon unconnected to the offense would be reprehensible, the record of the trial does not warrant an inference of such motivation: The disclosure of the gun came in response to a question about other items shown to the witness by the defendant, and the trial judge properly overruled an objection based on relevancy. While we think the judge should have sustained the motion to strike such testimony when its irrelevancy became apparent, we consider the error to be harmless. United States v. Mancino, 468 F.2d 1350 (8th Cir. 1972); Tarvestad v. United States, 418 F.2d 1043 (8th Cir. 1969), cert, denied, 397 U.S. 935, 90 S.Ct. 944, 25 L.Ed.2d 116 (1970); Miller v. United States, 410 F. 2d 1290 (8th Cir.), cert, denied, 396 U.S. 830, 90 S.Ct. 81, 24 L.Ed.2d 80 (1969) ; Wright v. United States, 389 F.2d 996 (8th Cir. 1968).

Pro se Contentions

Appellant submitted a letter supplementing his court-appointed attorney’s brief and raising numerous purported errors generally based upon his belief that he was the persecuted victim of a conspiracy by the court, the prosecuting attorney and his own court-appointed legal advisor. The record discloses these fears to be wholly unfounded. Judge Larson and the assistant United States Attorney demonstrated uncommon restraint in the face of appellant’s unorthodox trial “tactics”, and appellant’s court-appointed legal advisor commendably served appellant’s legal interests in spite of appellant’s insistence that he represent himself. One of appellant’s contentions requires comment. Appellant argues that he was denied a fair trial because the .United States Attorney asserted in final rebuttal that appellant was a participant in the robbery of A & A Coin. No objection was made at the time or at the conclusion of closing argument. Failure to object would ordinarily preclude our consideration of appellant’s argument, but since appellant’s uncounselled comment at the close of the government’s final argument might be liberally construed as an objection, we have reviewed appellant’s assertion and find it to be without merit. The prosecutor is entitled to comment on arguments raised by the defense in its closing argument and may “comment on the evidence and the reasonable inferences that [can] be drawn therefrom.” United States v. Lawson, swpra, 483 F. 2d at 539. The trial court properly instructed the jury to consider comments by the attorneys only as they may reflect their own recollections of the evidence.

We find no prejudicial error and the conviction is affirmed.

      . 18 U.S.C'. § 2315.

      . 18 U.S.C. § 2314.

      . The appellant defended himself at trial with the assistance of a court-appointed legal advisor. On this appeal, he has submitted a memorandum specifying errors and arguments supplemental to those raised by his attorney which are discussed, infra.

      . The Court stated to the jury:

      . The impact of this holding is somewhat diminished by the fact that the court found the error not sufficiently prejudicial to cause a reversal. 370 F.2d at 313.

      . See note 4 supra.

        . At the conclusion of the case, the court charged the jury as follows:
      The fact that an accused may have committed an offense at some time is not any evidence or proof whatever that at a later time the accused committed the offenses charged in the Indictment, even though both offenses may be of a like nature. Evidence as to an alleged earlier offense of a like nature may not therefore be considered by the jury in determining whether the accused did the act charged in the Indictment. Nor may such evi-denee be considered for any other purpose whatever, unless the jury first finds that other evidence in the case, standing alone, establishes beyond a reasonable doubt that the accused did the act or acts charged in the Indictment.
      If the jury should find beyond a reasonable doubt from the other evidence in the case that the accused did the act charged in the Indictment, then the jury may consider evidence as to an alleged earlier offense of a like nature in determining the state of mind or knowledge with which the accused did the act or acts charged in the Indictment.

      . Appellant was sentenced for the prior offense as a Youth Offender under the Youth Corrections Act, 18 U.S.C. § 5010(b). This presents no problem because the past criminal conduct and not criminal status was the purpose for which the evidence was introduced and admitted.

      . The defendant is correct in noting that several facts could have been made clearer and their relevance set out much more cogently with little effort on the part of the Government. This contention is further buttressed by the affidavits which the Government attaches to its memorandum opposing defendant’s motions. Therein the Government provides the ‘missing links’ listed in the defendant’s memorandum. If the Government had access to this information when it sought the arrest warrant, this Court is at a loss as to why it was not included in the affidavit accompanying the application for the warrant. (Memorandum Order, Larson, J„ United States v.

      . United States v. Kwitek, 433 F.2d 18 (7th Cir. 1970) (display and discussion of defendant’s guns before jury when neither offered nor received into evidence); United States v. Reid, 410 F.2d 1223 (7th Cir. 1969) (testimony concerning weapon where no independent evidence tying weapon to crime); Long v. State, 240 Ark. 687, 401 S.W.2d 578 (1966) (introduction of weapon taken from prisoner prior to placement in cell where he murdered his cellmate); State v. Wallace, 259 Iowa 765, 145 N.W.2d 615 (1966) (no showing that gun found in defendant’s car was used in kidnapping); State v. Kehr, 133 Iowa 35, 110 N.W. 149 (1907) (admission of defendant’s gun not identified as gun used in burglary); State v. Krebs, 341 Mo. 58, 106 S.W.2d 428 (1937) (testimony that gun was in defendant’s possession at time of arrest but not shown to have been one used in armed robbery); State v. Harrison, 253 Or. 489, 455 P.2d 613 (1969) (admission of gun unconnected to robbery) ; State v. Thompson, 228 Or. 496, 364 P.2d 783 (1961) (admission of defendant’s gun not identified as gun used in or linked to robbery); State v. McCreary, 82 S.D. 111, 142 N.W.2d. 240 (1966) (introduction of gun not used in burglary).

      . Neither of the parties at oral argument recalled the statement and appellant did not have the record. We assume it was the following statement by Mr. Cudd in his final rebuttal:
      With respect to the robbery, Mr. Bag-well, if I recall — I may be wrong — said he didn’t identify anybody, but if he did he said he identified the first man who came in and put the ski mask on his face. The second man he never saw. I submit to you, and I look him right in the eye, that that was the man and I think the evidence supports it bedause at 5:30 on August 2 he was making a withdrawal from his hank account in the amount of $3,000. I would suggest that the inference drawable from that is that that was the payoff to the man who was with him on the robbery.

      . The following colloquy did occur at the conclusion of the government’s rebuttal:
      MR. OLSEN: Just remember none of the things he said are in evidence. Any mention—
      THE COURT: You have finished, Mr. Olsen. You had your opportunity to make your closing statement.
      MR. OLSEN: I’d like an opportunity right now to explain a few things to the jury. This is ridiculous.
      THE. COURT: Just be quiet.
      The court then proceeded with the instructions to the jury without further interruption.

      . See United States v. Lawson, 483 F.2d 535 (8th Cir. 1973) ; United States v. Gold-enstein, 456 F.2d 1006 (8th Cir. 1972); Petschl v. United States, 369 F.2d 769 (8tli Cir. 1966).


author: DUNIWAY, Circuit Judge: ZIRPOLI, District Judge

text:
    In the Matter of Sylvin S. PERRY, Bankrupt. FRANCHISE TAX BOARD of the State of California, Petitioner-Appellant, v. Curtis B. DANNING, Trustee-Appellee.
    No. 71-1675.
    United States Court of Appeals, Ninth Circuit.
    June 8, 1973.
    Rehearing Denied Nov. 2, 1973.
    Certiorari Denied March 18, 1974.
    See 94 S.Ct. 1565.
    Rodney Lilyquist, Deputy Atty. Gen. (argued), Evelle J. Younger, Atty. Gen., Mark W. Jordan, Philip C. Griffin, Deputy Attys. Gen., Los Angeles, Cal., for petitioner-appellant.

      Bruce H. Spector (argued), of Quitt-ner, Stutman, Treister & Glatt, Los An-geles, Cal., for trustee-appellee.
    Before DUNIWAY and HUFSTEDLER, Circuit Judges, and ZIRPOLI, District Judge.

       Honorable Alfonso J. Zirpoli, United States District Judge, Northern District of California, sitting by designation.

   DUNIWAY, Circuit Judge:

OPINION

This case presents a question of first impression — whether the California Franchise Tax Board’s claim for unpaid California personal income taxes, recorded as provided in the California Code, is a perfected lien upon personal property of a bankrupt taxpayer, and entitled to priority under 11 U.S.C. § 107(c)(3), or is insufficiently perfected and thus not good against the trustee or creditors under 11 U.S.C. § 107(c)(1)(B). The referee and the district court held that the lien was not sufficiently perfected. We affirm.

The stipulated facts are as follows: The bankrupt incurred a California personal income tax liability for 1962 which was never satisfied. On December 15, 1966, some two-and-one-half months before the petition in bankruptcy was filed, the Franchise Tax Board (FTB) recorded a tax certificate with the Los Angeles County Recorder pursuant to Cal.Rev. & Tax.Code §§ 18881, et seq. (West 1970). Section 18882 of that Code provides:

“From the time of filing for recording the amount of tax, interest, and penalty set forth .constitutes a lien upon all property of the taxpayer in the county, owned by him or afterward and before the lien expires acquired by him. The lien has the force, effect, and priority of a judgment lien and continues for 10 years from the date of the recording unless sooner released or otherwise discharged.”

We agree with the FTB that it did acquire a lien upon both the real property (if any — -here there was none), and the personal property of the taxpayer. The phrase “all property” is broad enough to cover both types of property, and we see no reason to give it a narrower meaning.

That conclusion, however, does not solve our problem. The lien must be “perfected or enforceable at the date of the bankruptcy against one acquiring the rights of a bona fide purchaser on that date, whether or not such purchaser exists” (11 U.S.C. § 107(c)(1)(B)). The California statute provides that “[the] lien has the force, effect, and priority of a judgment lien” (§ 18882). In California, a recorded judgment creates a lien, good against bona fide purchasers, only upon the debtor’s real property; the levy of a writ of execution is required to bind the debtor’s personal property in a manner that is effective against bona fide purchases. C,al. Code Civ.Proc. § 674 (West Supp.1972); Miller v. Bank of America, 9 Cir., 1948, 166 F.2d 415, 417-419. Without such a levy, the lien of the judgment on personal property has no “force, effect [or] priority” against bona fide purchasers. Thus the California definition of the lien, and particularly of its “force, effect and priority,” makes it clear that, so far as personal property is concerned, the lien is not “perfected or enforceable” at the date of bankruptcy as required by 11 U.S.C. § 107(e)(1)(B). The FTB could have perfected its lien by going further and issuing and levying a warrant for the collection of the tax, which has the force and effect of a writ of execution. Cal.Rev. & Tax.Code § 18907 (West 1970). This the FTB did not do.

To counteract this seemingly obvious result, the FTB points to certain other California statutes, arguing that they show that, in enacting § 18882, the legislature intended to create a lien on the taxpayer’s personal property that is good against bona fide purchasers.

First, FTB points to Cal.Rev. & Tax. Code § 6757 (West 1970) relating to delinquent sales and use taxes. Before 1957, this section provided for the recording of a lien, which would attach to “all the real property” of the taxpayer. In that year the language was changed to read “all property,” as does'§ 18882. Both sections retain the same definition of’the “force, effect, and priority” of the lien as that of a judgment lien. However, there was added at the end of the section:

“The lien imposed by this section shall not be valid insofar as personal property is concerned as against a purchaser for value without actual knowledge of the lien.”

Nothing comparable appears in § 18882.

Cal.Unemp.Ins.Code § 1703 (West 1972) has a similar history and similar language, including a proviso reading:

' “[Ejxcept that with respect to personal property the lien shall not be valid against a purchaser for value without actual knowledge of the lien.”

In 1969, the California legislature enacted the following provision as Cal. Unemp.Ins.Code § 1703.5 (West 1972), Cal.Rev. & Tax.Code § 6757.5 (West 1970), and Id. § 18882.5:

“The board may also file a certificate of state tax lien with the Secretary of State.....From the time of filing of the certificate with the Secretary of State, the amount required to be paid, together with interest and penalty constitutes a lien upon all personal property in the state owned by the person or afterwards acquired by him until the certificate of state tax lien lapses. The lien has the force, effect and priority of a judgment lien.”

Again, a proviso was added to the sales and use tax (§ 6757.5) and unemployment compensation tax (§ 1703.5) Code sections, but not to the one applicable to personal income tax (§ 18882.5):

“A lien imposed by this section shall not be valid “as against a purchaser for value without actual knowledge of the lien.”

The FTB urges that we should conclude from this history, first, that “all property” was intended to and does mean both real and personal property, and second, that the exceptions in the sales and use tax and in the unemployment compensation tax sections indicate that the legislature believed that, without them, the liens would be good against bona fide purchasers of personal property, and that the absence of such an exception in §§ 18882 and 18882.5 indicates that the liens under those sections were meant to be, and are, good against bona fide purchasers of personal property.

The first argument, we can and do accept. The second, however, does not persuade us. Each of the statutes that the FTB cites defines the “force, effect, and priority” of the lien as that of a judgment lien. As we have seen, such a lien, until enforced by levy, is not good against bona fide purchasers of personal property. Thus the provisos in favor of such purchasers in the sales tax and unemployment compensation tax sections are perfectly consistent with the defined “force, effect, and priority” of the liens. The provisos are unnecessary and redundant. They may well have been added out of an abundance of caution; there is no legislative history to tell us why they are there. We cannot translate the absence of such provisos in §§ 18882 and 18882.5 into a determination by the legislature that the definition of the “force, effect, and priority” of the liens in those sections means something different from what it says.

Affirmed.

ZIRPOLI, District Judge

(dissenting) :

Appellant seeks review of an order of the District Court denying its Petition for Writ of Review from an adverse decision of a Referee in Bankruptcy. The parties have filed an agreed statement of facts, and they agree that the issues presented by this appeal are: (1) whether pursuant to state law, California Revenue and Taxation Code § 18882 creates a tax lien on personal property for purposes of § 67c(3) of the Bankruptcy Act [11 U.S.C. § 107(c)(3)]; and (2) if § 18882 does create a lien on personal property, whether the lien is valid against one acquiring the rights of a bona fide purchaser, as required by § 67c(l)(B) of the Bankruptcy Act [11 U.S.C. § 107(c)(1)(B)]. Because the bankrupt had no real property, these issues greatly affect the status of appellant’s tax claims. If, as the Referee and District Court concluded, § 18882 does not create a lien on personal property enforceable against a bona fide purchaser, appellant would be relegated to the status of a general creditor, because the tax debt involved became due more than three years preceding bankruptcy. See §§ 64a(4) [11 U.S.C. § 104(a)(4)]; 17a(l) [11 U.S.C. § 35(a)(1)]. But if a lien satisfying the requirements of § 67c(3) was created, appellant would be entitled to a priority, subject only the claims of § 64a(l) and (2) creditors [11 U.S.C. § 104(a)(1) and (2)].

I.

The statute that governs this dispute, Revenue and Taxation Code § 18882, at the time of the bankruptcy provided:

From the time of the filing for recording [of a tax certificate described in § 18881 with any county recorder] the amount of the tax, interest, and penalty set forth constitutes a lien upon all property of the taxpayer in the county, owned by him or afterward and before the lien expires acquired by him. The lien has the force, effect, and priority of a judgment lien and continues for 10 years from the date of the recording unless sooner released or otherwise discharged.

The finding of the Referee, which was summarily affirmed by the District Court, was that this statute does not create a lien on personal property. The reasoning, as explained to the parties in a letter opinion, was that the second sentence of § 18882, giving the lien “the force, effect and priority of a judgment lien,” made the tax lien the same as a judgment lien. Pursuant to California Code of Civil Procedure § 674, a judgment lien attaches only to the real property of the debtor; the Referee therefore concluded that a § 18882 lien was similarly limited. The Referee also noted that in 1969 — after the present bankruptcy was filed — the legislature enacted § 18882.5 of the Revenue and Taxation Code, which provides that the Franchise Tax Board may also file a certificate with the Secretary of State, and from the date of the filing the tax constitutes a lien on all personal property in the state owned or thereafter acquired by the debtor. The Referee argued that this provision was added to extend the tax lien to personal property, and was evidence that § 18882 did not create a lien on personal property.

Appellant argues that the Referee has misinterpreted the statute. In appellant’s view, the scope of the lien is governed by the words “all property” in the first sentence of the statute, and thus a lien on personal as well as real property is created. The second sentence was not intended to limit the breadth of the preceding sentence, but only to define the characteristics of the lien created.

There is, unfortunately, no state court decision interpreting the breadth of the lien created by § 18882. The only reported opinion that discusses the issue, Schriber v. Alameda County-East Bay Title Ins. Co., 156 Cal.App.2d 700, 707, 320 P.2d 82 (1958), expressly leaves the question unresolved. Thus, the court is faced with the uncomfortable task of interpreting an ambiguous state statute without guidance from the state courts.

There appears to be little doubt that were it not for the second sentence of § 18882, the statute would create a lien on personal property. Not only is this the most reasonable interpretation of the words “all property,” but it is consistent with the California legislature’s use of these words in other analogous statutes. In two situations where it is clear that the legislature intended to extend tax lien statutes formerly applicable to real property to include personal property, the change was affected by striking the word “real” and leaving the phrase “a lien upon all property” in one case and “a lien upon all the property” in the other. See Cal.Stats.1957, Ch. 1188, at 2479, amending Cal.Stats.1945, Ch. 566, § 2, at 1103 (codified at Cal.Unemp.Ins. Code § 1703); Cal.Stats.1965, Ch. 863, § 2, at 2464, amending Cal.Stats.1935, Ch. 57, § 14, at 1262 (codified at Cal.Rev. and Tax.Code § 6757). Interpreting “all property” to include personal property is also consistent with Revenue and Taxation Code § 103’s definition of “property” as “all matters and things, real, personal, and mixed, capable of private ownership.”

The issue is, then, whether the second sentence of § 18882 limits the scope of the lien suggested by the first sentence to real property, or whether it merely defines the characteristics of the lien. Similar tax lien provisions that expressly apply to personal property use words identical to those in the second sentence of § 18882 to describe the nature of the lien on personal property created. See Cal.Rev. and Tax.Code §§ 6757; 6757.5; 18882.5; Cal.Unemp.Ins.Code §§ 1703; 1703.5. It is, therefore, most reasonable to conclude that in § 18882, as in these analogous provisions, the words of the second sentence were not meant to prevent the statute from creating a lien on personal property.

It is not inconsistent with this view that in 1969' the legislature enacted Revenue and Taxation Code § 18882.5. As initially enacted, § 18882.5 provided:

The board may also file a certificate of state tax lien with the Secretary of State pursuant to Chapter 14.5 (commencing with Section 7220) of Division 7 of Title 1 of the Government Code. From the time of the filing of the certificate with the Secretary of State, the amount required to be paid, together with interest and penalty constitutes a lien upon all personal property in the state owned by the person 'or afterwards acquired by him until the certificate of state tax lien lapses. The lien has the force,- effect and priority of a judgment lien.

The legislature’s intent in enacting this provision was probably not, as the Referee believed, to extend the tax lien of § 18882 to personal property. At the same time that it enacted § 18882.5, the legislature enacted provisions nearly identical to it, which provide for filing certificates with the Secretary of State in connection with unemployment insurance compensation tax liens and sales and use tax liens. Cal.Unemp.Ins.Code § 1703.5; Cal.Rev. and Tax.Code § 6757.5. Yet, before these new sections were added, both unemployment insurance compensation tax liens and sales use tax liens clearly attached to personal property. See Cal.Unemp.Ins.Code § 1703; Cal.Rev. and Tax.Code § 6757.' Thus, it is most likely that, as appellant argues, the purpose of the new tax lien provisions was to provide, as an alternative to county-by-county filing, a central filing that would create a lien encompassing all personal property throughout the state. Thus, the enactment of § 18882.5 is not evidence that § 18882 does not create a lien on personal property.

II.

The second issue is whether a § 18882 tax lien on personal property is valid against one acquiring the rights of a bona fide purchaser, as required by § 67c(l) (B) of the Bankruptcy Act. Although Judge Duniway agrees that the lower court cannot be affirmed for the reasons it relied upon, he nevertheless would uphold the judgment, because, in his view, § 18882 does not create a lien that satisfies § 67c(l)(B). I believe that this conclusion is based upon a failure to properly distinguish between a judgment lien and an execution lien, and therefore, I respectfully dissent.

The difficulty in deciding whether the lien created by § 18882 is valid as against a bona fide purchaser stems from the manner in which the legislature defined the lien. Rather than directly provide what priority it would have, the legislature simply provided that it would have the “force, effect and priority of a judgment lien.” In California a “judgment lien” is that lien defined in California Code of Civil Procedure § 674, which provides, in part:

An abstract of the judgment or decree of any court of this State may be recorded with the recorder of any county and from such recording the judgment or decree becomes a lien upon all the real property of the judgment debtor. .

As the language of § 674 expressly states, this lien encompasses only real property. See Summerville v. Stockton Milling Co., 142 Cal. 529, 538, 76 P. 243 (1904); Arnett v. Peterson, 15 Cal. App.3d 170, 173, 92 Cal.Rptr. 913 (1971). This is true whether there is a levy of a writ of execution or not; no provision of California law ever permits that a judgment lien attach to personal property. If a writ of execution is properly levied, however, an execution lien will arise. Unlike a judgment lien, an execution lien can encompass “[a] 11 goods, chattels, moneys or other property, both real and personal, or any other property.” Cal.Code of Civ.Proc. § 688. While, like a judgment lien, an execution lien can issue only after the entry of a judgment, the two liens differ greatly. For example, a judgment lien lasts for ten years, whereas an execution lien generally lasts for only one year. Compare Cal.Code of Civ.Proc. § 674 with id. § 688. California courts have always carefully distinguished the two liens, see, e. g., Lean v. Givens, 146 Cal. 739, 741, 81 P. 128 (1905), as have commentators. E. g., compare 4 B. Witkin, California Procedure 3286 (2d ed. 1971) with 5 Id. 3447-48.

Only by erroneously considering an execution lien to be the same thing as a judgment lien is it possible to argue that § 18882 creates a lien that is perfected as against a bona fide purchaser of personal property by levying a writ of execution: Section 18882 creates a lien with the'same characteristics as a judgment lien, and a judgment lien is always perfected under California law by filing. It is a California execution lien that is perfected by levying a writ of execution.

If this distinction is not to be forgotten, § 18882 must be interpreted to mean that a tax lien is created which has the same “force, effect and priority” as compared to other’s interests in a delinquent taxpayer’s real and personal property that a judgment lien has as compared to other’s interests in a judgment debtor’s real property. Because a judgment lien is valid as against the rights of a bona fide purchaser, see Page v. Rogers, 31 Cal. 293, 312-313 (1866), a tax lien with the same characteristics is also valid as against the rights of a bona fide purchaser.

The California legislature seems to have shared this belief. In other tax lien statutes, where the legislature desired to protect bona fide purchasers of personal property from tax liens with the “force, effect and priority of a judgment lien,” it has expressly provided an exemption. See Cal.Rev. and Tax.Code §§ 6757; 6757.5; Cal.Unemp.Ins.Code §§ 1701; 1701.5. The omission of this exemption in § 18882 is indicative of a legislative intent that this tax lien would be valid as against a bona fide purchaser.

I, therefore, conclude that the lien created by § 18882 attaches to a delinquent taxpayer’s personal property and upon filing it becomes perfected as against one acquiring the rights of a bona fide purchaser. Thus, I would reverse the judgment of the court below.

On Petition for Rehearing

On Petition for Rehearing California contends that its claimed lien falls within the second proviso of § 67(c)(1)(B) (11 U.S.C. § 107(c)(1)(B)). We conclude that it does not. It was not valid against judgment creditors at the date of bankruptcy. In re Century Vault Co., 3 Cir., 1969, 416 F.2d 1035, 1038 n. 10. State law does not require seizure to “perfect” the lien; rather, seizure is to enforce the lien. In re J. R. Nieves & Co., 1 Cir., 1971, 446 F.2d 188, 194. The proof of secured claim filed by the Board is not the equivalent of the notice contemplated by the proviso.

Rehearing denied.

ZIRPOLI, J., would grant a rehearing.