dissenting:

I respectfully dissent. I believe that the district court should have denied the motion for summary judgment because the Government did not present evidence to establish that the machines in question were within either of the statutory definitions of “gambling device.” 1 At the very least, the affidavits presented to the district court raise a genuine issue of material fact as to whether each machine meets each element of either of the definitions.

I

To come within the definition of “gambling device” under § 1171,-a machine must, as an initial matter, be either a “slot machine” (§ 1171(a)(1)) or “any other machine or mechanical device . . . designed and manufactured primarily for use in connection with gambling” (§ 1171(a)(2)). The district court, in granting the motion for summary judgment, stated that “there can be no question that these machines are gambling devices,” without indicating under which definition it so found. 2 The majority, however, apparently finds, that the *702 machines are “gambling devices” within definition (a)(1). 3

The first element of § 1171(a)(1) is that a “so-called ‘slot machine’ or any other machine” must have, as an “essential part,” a “drum or reel with insignia thereon.” The Affidavit of Special Agent Leahy states that each machine has “reels which are marked with numbers or symbols.” Although affidavits submitted by Austin J. Shelton II and John Pangelinan challenge the alignment of the reels, they do not deny the presence on each machine of reels with insignia. Therefore, it is uncontroverted that the machines satisfy the threshold requirement of § 1171(a)(1). 4

II

For a “slot machine” to be a “gambling device,” however, it must, in addition, fall within one of two statutory alternatives. 5 The statute requires that the machine either “(A) ... when operated may deliver, as the result of the application of an element of chance, any money or property,” or “(B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property.” 15 U.S.C. § 1171 (a)(1), (a)(2) (1976).

An action brought by the United States for forfeiture is subject to a motion under Federal Rule of Civil Procedure 56. See 6 Moore’s Federal Practice 156.17[26], at 56-863 to 64 (2d ed. 1980). As such, the burden is on the moving party to establish that there is no triable issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 , 90 S.Ct. 1598, 1608 , 26 L.Ed.2d 142, 154 (1970). In reviewing the grant or denial of a motion for summary judgment, this Court applies the same test that is employed initially by the trial court. Great Western Bank & Trust v. Kotz, 532 F.2d 1252, 1254 (9th Cir. 1976). Summary judgment is proper “only when there is no genuine issue of any material fact or when 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.” Gaines v. Haughton, 645 F.2d 761, 769 (9th Cir. 1981), citing Smith v. Gross, 604 F.2d 639, 641 (9th Cir. 1979). Therefore, the Government had the burden of establishing that there was no genuine issue of fact as to whether the machines were “gambling devices” and, in evaluating whether the Government carried that burden, the Court must examine the materials presented in the manner most favorable to the claimant.

A

As to alternative (A), there is nothing in the Government affidavits, nor elsewhere in the Record, that would indicate, nor do the photographs of the machines demonstrate, that the machines could operate so as to actually deliver, or pay out, coins or awards, which would be “money or property.” The district court found that the machines have “reels or drums and are designed to collect and payout coins,” and that the photographs show that “each of the nine machines do contain such slots and jackpot trays,- along with reels or drums. 6 That finding, as well as the statement in the Affidavit of Special Agent Green that “[e]ach machine contains a pay-out tray for the return of jackpots or other awards,” merely restate that which is evident from the photographs themselves: that the machines have trays in which jackpots could be received, if the machines, when operated, *703 could deliver money or property. The mere presence of slots and trays does not establish that the internal operation of the machines would make them capable of dispensing coins or other property therein as winnings. 7 The Government, therefore, failed to carry its burden of showing that the machines are within alternative (A) of either definition (a)(1) or (a)(2). 8

B

Consequently, the majority appears to concede that the Government must have relied on alternative (B), which requires that "a person may become entitled to receive ... money or property” by operating the machine. 9 Where, as here, the machines do not have the capability of actually delivering money or property, but award only free games, there must be mechanisms whereby the number of free games accumulated can be recorded by a meter. As Special Agent Leahy’s Affidavit explains, it is through the operation of total plays meters, replays meters, and replay registers, which enable a proprietor to calculate total plays, replays awarded, and free plays played off, for purposes of recordation and cancellation of free games, that makes possible the redemption of free plays for money.

The legislative history of the Gambling Devices Act of 1962, which substituted the present § 1171(a)(2) for its predecessor, 10 makes clear that a machine must be capable of having free plays redeemable in cash. 11 In H.R.Rep. No. 1828, which explained the committee bill that became the 1962 Act, the House Committee focused on the need to subject to the provisions of the Johnson Act new sorts of gambling devices, possibly controlled by syndicated crime, which were not coin-operated, did not pay off directly or indirectly, and did not have drums or slots. See H.R.Rep. No. 1828, 87th Cong., 2d Sess., reprinted in [1962] U.S.Code Cong. & Ad.News 3809, 3811. Those machines were principally “pinball machines” that afforded the players an opportunity to “register a great number of free games,” and which usually had a mechanism whereby the odds could be changed or the number of balls played could be increased by inserting more money. The free games could be *704 played off or eliminated from the machine. When the accumulation of free games eliminated can be recorded by meters, “payment” for the canceled games could be made to the player by the proprietor or owner of the establishment where the machine was located. The Report made clear that “machines” that were “intended for amusement only, which award a limited number of free plays that are not convertible to money or other things of value are not covered by this legislation.” U.'S.Code Cong. & Ad.News, supra, at 3811.

Thus, the machines in this case would not be “gambling devices” that can create an entitlement, within the meaning of alternative (B), unless they have meters that record accumulated free plays and free plays played off, along with a mechanism that allows the proprietor to calculate the number of free games that have been eliminated from the machine without actually having been played off. The Leahy Affidavit states that each of the machines has a “total plays meter,” “replays meter,” and “replay register” and that free games can be eliminated, without having been used in play, either by using buttons that control the increase of free games awards so as to decrease the number showing on the replay register, or with an apparatus that clears the replay register. Special Agent Leahy states that, through these meters, the number of free games so eliminated can be calculated. These facts, if uncontroverted, would have been sufficient to find that the Government carried its burden of demonstrating that the machines were within alternative (B).

However, the Affidavit of Austin J. Shelton II states that none of the machines have “total plays meters,” that none of the machines have “replays meters,” that the method of calculation to determine the number of free games eliminated without having been played off, as explained by the Leahy Affidavit, is “wholly false and no-existent [sic],” and that only some of the machines have “replay registers.” This Affidavit, then, controverts material facts as to each and every machine. 12 There remains, therefore, a genuine issue of material fact as to whether all the machines have the meters that are requisite for the capability of creating an entitlement to money or property within the meaning of alternative (B) of either definition. 13

Ill

The Government did not carry its burden of establishing that there were no triable issues as to whether each and every machine satisfies either alternative (A) or (B) of definition § 1171(a)(1) or (a)(2). Because summary judgment was, therefore, inappropriate, I would reverse.

. The statutory definitions of § 1171(a)(1) and § 1171(a)(2) are set forth at Majority Opinion at 698.

. The district court’s failure to so indicate may have resulted from the Government’s vacillation between definitions (a)(1) and (a)(2) in contending that the machines were “gambling devices.” In the Complaint for Forfeiture, the Government was apparently proceeding under § 1171(a)(2)(B). It alleges that the machines are “gambling devices,” within the meaning of § 1171(a), “because they have been designed and manufactured primarily for use in connection with gambling and are devices by the operation of which a person may become entitled to receive ... money or property.”

In Special Agent Leahy’s Affidavit in support of the Complaint, he states that the machines are in violation of § 1171 and avers certain characteristics of “[ejach machine” that would place them within either (a)(1) or (a)(2).

In its Motion for Summary Judgment, the Government states that all of the machines are within definition (a)(1), arguing, however, from the Gambling Devices Act of 1962, Pub.L. No. 87-840, 76 Stat. 1075, which only affected definition (a)(2).

In its Reply memorandum, the Government apparently was contending that the machines fell within definition (a)(1). It pointed out that each machine contained a “slot,” a pay-off or jackpot tray for the return of coins, and a drum or reel pivotal to its operation and underscored for emphasis certain portions of (a)(1).

. The majority discusses “slots” and “trays for payouts or jackpots” on the machines and cites § 1171(a)(1)(B). See Majority Opinion at 699.

. There is, therefore, no need to reach the issue of whether the machines in question were “designed and manufactured primarily for use in connection with gambling,” so as to fall within § 1171(a)(2).

. This additional requirement is also necessary for machines to be “gambling devices” under definition § 1171(a)(2).

. The majority, too, apparently relies, in part, on the photographs to conclude that the machines are “gambling devices.” See Majority Opinion at 699.

. The Supplemental Affidavit of John Pangelinan, moreover, states that “ ‘[e]ach machine’ does not have a ‘return of jackpots or other awards.’ ” [emphasis in original]. At the very least, this controverts Special Agent Green’s averment that the machines, as a group, all have the capability of returning jackpots.

. It appears from the affidavits that winnings are awarded solely in the form of free plays and that, therefore, the machines could not, in any event, be within alternative (A). Both the legislative history of the Gambling Devices Act of 1962 and the cases make clear that devices that award a few free games do not “deliver” money or property. See H.R.Rep. No. 1828, 87th Cong., 2d Sess., reprinted in [1962] U.S. Code Cong. & Ad.News 3809, 3811; cf. United States v. Korpan, 354 U.S. 271, 276 , 77 S.Ct. 1099, 1102 , 1 L.Ed.2d 1337, 1341 (1957) (distinguishing, in context of tax statute, “slot-machines” from “machines played purely for amusement which offered the player no expectation of receiving ‘cash, premiums, merchandise, or tokens’ ”); Hannifin v. United States, 248 F.2d 173, 175 (9th Cir. 1957) (machine is within § 1171(a) if owner pays player for points accumulated).

. See Majority Opinion at 699.

. Prior to its amendment, § 1171(a)(2) had defined “gambling devices” as machines operable by means of “insertion of a coin.” 15 U.S.C. § 1171 (a)(2) (1951) (amended 1962).

. The discussion in the legislative history of how a machine could be capable of creating an entitlement is in the context of definition § 1171(a)(2) and not § 1171(a)(1). The language of alternative (a)(2)(B) is, however, identical to that of (a)(1)(B). It is a well-established principle of statutory construction that “the same words or phrases are presumed to have the same meaning when used in different parts of a statute.” Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 725 (9th Cir. 1978), citing United States v. Gertz, 249 F.2d 662, 665 (9th Cir. 1957); Sampsell v. Straub, 194 F.2d 228, 230 (9th Cir. 1951); cert. denied, 343 U.S. 927 , 72 S.Ct. 761 , 96 L.Ed. 1338 (1952). This general presumption may be rebutted only if the same phrases are used in “different parts of the statute with manifestly different intent.” [emphasis in original]. Id. at 726. There is no showing that Congress intended alternative (B) in (a)(1) to have a meaning different than that in (a)(2)(B). Therefore, congressional intent as to what is required to satisfy (a)(2)(B) must be read to apply to (a)(1)(B).

. The Pangelinan Supplemental Affidavit states that three of the four models, comprising four of the nine machines seized, do not have replay registers, or any other similar device. It appears, therefore, that the machines should not have been grouped for the purposes of finding, as did the district court, that “there can be no question that these machines are gambling devices under the purview of 15 U.S.C. 1171 et seq.”

. The majority holds that there is no genuine issue of fact because the Shelton and Pangelinan Affidavits set forth, at best, experts’ opinions, and not “specific facts,” as contemplated by Fed.R.Civ.P. 56(e). Because the majority concludes that neither “expert” stated facts to support his opinion that the machines were not “gambling devices,” it holds that there is no “genuine issue as to any material fact,” within the meaning of Fed.R.Civ.P. 56(c). Although I decline to express any view as to whether an expert opinion unsupported by facts can create a genuine issue of fact, the majority approach, along with that of the district court, ignores the clearly factual dispute as to the presence or absence of the requisite meters and registers on each machine.