(dissenting).

I respectfully dissent. Granted, an appellate court reviewing a conviction must view the evidence in a light most favorable to the government [Glasser v. United States, 315 U.S. 60, 80 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942);] but this record reveals no evidence, substantial or otherwise, tending to prove the conclusion, let alone prove beyond a reasonable doubt, appellant’s scienter.

Knowledge can, of course, seldom be proven directly, and in the great majority of counterfeiting cases, the prosecution offers circumstantial proof from which the jury can infer the requisite knowledge. See, e. g., United States v. Bean, 443 F.2d 17, 18-19 (5th Cir. 1971); United States v. Knight, 426 F. 2d 818 (4th Cir. 1970); Ruiz v. United States, 374 F.2d 619 (5th Cir. 1967). “Of course either direct or circumstantial evidence may fail to prove the fact in issue — direct evidence because thg credibility of the witness is destroyed; circumstantial evidence for that reason, or because the inference from the proven circumstances to the fact in issue is too speculative, or remote.” United States v. Nelson, 419 F.2d 1237, 1240 (9th Cir. 1969). When reviewing evidence for sufficiency the question is “whether the jurors could reasonably arrive at [their] conclusion.” Id. at 1243 . On this record the question should be answered in the negative.

The government adduced circumstantial evidence on the following matters to prove that appellant possessed the required guilty knowledge — the fact that he negotiated the counterfeit bills under the name Anderson rather than his true name; the manner in which appellant carried the bills in his wallet; and the manner in which the bills were negotiated. While proof of such nature can provide the necessary element of knowledge in a proper case, it is clear that no inferences could have reasonably been drawn from the government’s evidence as it appears in this record.

First: Appellant had been known as Anderson in the Newberg, Oregon area, for several months before he passed the bills there. He was not a transient. He had come to Newberg and, together with his “girl friend,” had taken up residence under that name. He signed the lease on the premises where they lived under that name. And he had consistently used that name in his business dealings. His transactions with the local bank and garage under that name could not suggest an attempt at deception. It is irrelevant what the jurors may have thought of appellant for living with his girl friend under an assumed name; the significant issue is whether the jurors could infer that he used the name to conceal his identity when passing counterfeit money. On the facts as developed, they could not.

Second, the government emphasized in its closing argument to the jury (and again in its brief on appeal) that when the Secret Service agents searched appellant’s wallet, they found that the counterfeit 20-dollar bills were somehow separated from the genuine currency: “They were segregated so that they were all together in a compartment of the wallet.” This assertion simply was not true. The agent who searched the wallet testified only that the counterfeit bills, which were the only 20’s in the wallet, were “all together between $162 *1142 worth of genuine currency. There was a hundred-dollar bill, several tens and a five, and two one’s, I believe.” (emphasis added). In other words, if the bills were segregated, it was by denomination only. If this is sufficient to suggest an inference of criminal knowledge, then “. . . men in this country must change their ways of carrying money.” Paz v. United States, 387 F.2d 428, 431 (5th Cir. 1967).

Third, the government suggests that the appellant’s pattern of passing the counterfeit bills suggests an inference that he knew the bills were not genuine. Its theory was that there was no other explanation for appellant’s first obtaining a $250 money order at the local bank before he went to the nearby garage to pay a $363 bill. On closing argument, the United States Attorney went so far as to state that appellant purchased the $250 money order, with twelve counterfeit twenties and a genuine ten, to “test” the quality of the bills before attempting to pass any more bills at the garage. This argument assumed, without any evidentiary support, that appellant knew that the amount of the repair bill would be larger than the value of the money order appellant purchased at the bank. In fact, the garage employee who testified for the government stated that the garage had given appellant an estimate for repair work of $250. The need for additional work was discovered later, and none of the government’s evidence shows that appellant was made aware that the actual repair bill would exceed the estimate by more than one-hundred dollars. With these facts in mind, appellant’s purchase of a money order for $250, rather than for some larger amount, lends absolutely no support to the government’s theory, or to an inference of illegal behavior. Moreover, it seems incredible that appellant, if he wished to test the bills, as the government contends, would attempt to pass twelve of them for that purpose at a single establishment in his home community.

In short, the government took evidence of essentially innocent behavior and magnified it far beyond its probative significance (both by speculation and by outright misrepresentation of the evidence in closing argument) to prove an essential element of the offenses charged. None of the three matters, alone or in combination, as they are developed in this record, provide a sufficient evidentiary foundation for a guilty verdict.

The final matter to be considered is appellant’s account of how he came into possession of the counterfeit bills. The government argued that because appellant gave only a vague description of the hitchhiker, because he “refused” to name his source of marijuana which he allegedly sold to the hitchhiker, and because the story was generally incredible, the jury could have rejected it as a fabrication and drawn the contrary inference that appellant knew the money was counterfeit. Again the record does not support the government’s position. Both Secret Service agents who interrogated appellant, after his arrest, testified that he did provide them with a physical description of the hitchhiker, and one of the agents specifically disclaimed any suggestion that appellant was evasive or uncooperative when questioned. And, there is no evidence in the record to suggest that appellant refused to identify his marijuana source. Neither Secret Service agent testified that appellant was ever asked about his source, and at the trial the prosecutor so much as foreclosed the issue of the source’s identity when he asked appellant: “Now, again, I don’t want you to implicate anybody, but I want you to tell the jury how and under what circumstances you obtained the marijuana.”

What remains is the government’s assault on the credibility of the story in general. Of course, the jury did not have to believe appellant’s story. However, even if the story were disbelieved, I cannot agree that, absent some significant evidence of knowledge, the jury *1143 could infer the fact in issue merely because it rejected appellant’s story. The burden of proving guilty knowledge is on the government; it is not up to the appellant to disprove it. See Murray v. United States, 403 F.2d 694 (9th Cir. 1968). And, as I have attempted to portray above, there was no other sufficiently probative evidence upon which the jury could have reasonably found knowledge. Compare United States v. Cisernos, 448 F.2d 298 (9th Cir. 1971).

The conviction should be reversed.