author: MULLIGAN, Circuit Judge: IRVING R. KAUFMAN, Chief Judge

text:
    Joyce SHIRLEY, Plaintiff-Appellant, v. STATE NATIONAL BANK OF CONNECTICUT, Defendant-Appellee.
    No. 222, Docket 73-1783.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 10, 1973.
    Decided Feb. 14, 1974.

      Neal Ossen, Hartford, Conn. (Mary R. Hennessey, Robert Dombroff, Hartford, Conn., on the brief), for plaintiff-appellant.
    Francis J. McNamara, Jr., Stamford, Conn. (John F. Spindler, Robert W. Worley, Jr., Fredric H. Weisberg, and Cummings & Lockwood, Stamford, Conn., on the brief), for defendant-appellee.
    Before KAUFMAN, Chief Judge, and MANSFIELD and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the District of Connecticut, Hon. Jon O. Newman, Judge, granting defendant’s motion to dismiss the complaint for failure to state a claim pursuant to 42 U.S. C. § 1983 upon which relief can be granted. We agree with the district court that the alleged conduct does not constitute state action and therefore affirm.

The plaintiff, Joyce Shirley, commenced this action on September 12, 1972, seeking money damages, as well as a judgment declaring the Connecticut Retail Instalment Sales Financing Act, Conn.Gen.Stat.Rev. § 42-83 et seq., and, in particular, section 42-98, unconstitutional. Section 42-98 provides that upon default by a purchaser under a retail instalment contract, the holder of the contract may repossess the goods without the requirements of any prior hearing or of notice to the purchaser, if the contract expressly makes the default a ground for retaking the property.

The complaint alleged that on or about October 7, 1971, the plaintiff entered into a contract of conditional sale with Hart Volkswagen Corp. of West Hartford for the purchase of a Ford Thunderbird. The contract provided for 24 monthly instalment payments by the plaintiff starting on November 1, 1971. In the contract, plaintiff acknowledged receipt of an exact copy of the completed and executed instrument. The contract on its face warned the buyer not to sign if there were any blank spaces and advised the purchaser that she had the right to pay in advance the full amount due and to obtain a partial refund of the finance charge. The contract further advised that the purchaser had the right to redeem the property if it was repossessed for default, as well as the right to require, under certain conditions, a resale of the property. The contract defined defaults, which included the failure to pay any part of the purchase price when due. The plaintiff agreed to return the automobile in the event of default and further acknowledged the right of the seller in such event, with or without previous notice, to repossess the vehicle. On or about October 7, 1971, the seller assigned the conditional sales contract to the defendant bank, State National Bank of Connecticut. After seven instal-ments, the plaintiff defaulted and made no payments for June, July or August, 1972. On or about August 23, 1972, the defendant repossessed the automobile.

On November 30, 1972, the defendant moved to dismiss the complaint for failure to state a claim pursuant to 42 U.S. C. § 1983 upon which relief could be granted and for lack of subject matter jurisdiction under 28 U.S.C. § 1343. On April 2, 1973, Judge Newman, having heard the parties, dismissed the complaint on the former ground, finding “no action under color of state law.” On April 3, 1973, the judgment appealed from was entered.

The initial, and here the key question is whether or not the defendant Bank’s peaceful repossession of the plaintiff’s automobile on August 23, 1972, constitutes “state action” so as to support a claim under 42 U.S.C. § 1983. Since the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed.2d 835 (1883), it has been recognized that the Fourteenth Amendment applies only to actions of the “States” and not to actions which are “private.” The “under color of state law” provision in section 1983 is equivalent to the state action requirement of the Fourteenth Amendment. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 n. 7, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; United States v. Price, 383 U.S. 787, 794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966).

The existence of state action appears significantly in prejudgment seizures where a state official participates in the action which is the subject of complaint. Thus, in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), a court clerk’s ex parte issuance of a summons, pursuant to a Wisconsin statute authorizing prejudgment garnishment of wages, provided a sufficient intrusion of the State to constitute state action. In Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), state statutes authorized creditors to initiate replevin procedures by summary writs issued by state courts and executed by state officials. The seizure complained of here, on the other hand, was by a private individual without the intrusion of state process or state officials.

Nevertheless, it is established that a private person may act under col- or of law. “ ‘To act “under color” of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.’ United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966).” Adickes v. S. H. Kress & Co., supra 398 U.S. at 152, 90 S.Ct. at 1606.

Has there been any joint activity between the State of Connecticut and the Bank in the repossession of the plaintiff’s car? When the plaintiff purchased the Thunderbird on credit, she agreed to make monthly payments over a two-year period and on default agreed that the seller “may, with or without legal process, and with or without previous notice or demand for performance, enter any premises wherein the chattels may be, and take possession of the same . . . .” The plaintiff agreed in advance to the seizure of her vehicle. There was therefore no conspiracy between the defendant and the State of Connecticut, but rather a contract between the plaintiff and the defendant.

How then has the State of Connecticut become sufficiently implicated so that the seizure can be interpreted as state action? Plaintiff argues that Conn.Gen.Stat.Rev. § 42-98 (a) authorizes the retaking. But if the peaceful repossession of the chattel authorized by the contract is valid in any event, how does the statute constitute a state involvement? The first inquiry must be, whether, absent a state statute, a Connecticut creditor would have the self-help remedy complained of. There is no dispute but that under the common law of Connecticut, the right of peaceful repossession without a hearing was recognized. See Sager v. Schmidt, 98 Conn. 736, 120 A. 504 (1923) ; Cromp-ton v. Beach, 62 Conn. 25, 25 A. 446 (1892); Swift’s Digest of Laws of Connecticut 376-77, 468-69 (Dutton & Cow-drey Rev.1864). The statute in Connecticut, therefore, does not create any right otherwise unavailable. But the appellant argues that there is more than codification here; Connecticut now has a detailed statutory scheme — the Retail Instalment Sales Financing Act — which displays a strong concern for consumer protection. See Keyes v. Brown, 155 Conn. 469, 232 A.2d 486 (1967).

While Connecticut legislation unquestionably exists, we do not believe that this in any way constitutes such a significant state involvement as to constitute state action. The injury complained of here is the seizure of the plaintiff’s car. Paragraph 5 of the complaint, entitled “Statement of Claim,” alleges that the Act, “§ 42-83 et seq., and in particular § 42-98, enables creditors and their agents to obtain immediate possession of goods from those lawfully in possession thereof, without the requirement of any prior hearing or of notice to those in said lawful possession.” But the statute did not authorize the seizure, as we have pointed out. Actually, the statute made the seizure more difficult. Since the passage of the Act, seizure can only be had if the seller has accorded the purchaser all of the protection set forth in the statute. Thus, the State does not encourage seizure, nor does it in any way aid or abet the seller. The partnership, if any, is with the purchaser and not the defendant. See Adickes v. S. H. Kress & Co., supra.

We see nothing in Coleman v. Wagner College, 429 F.2d 1120 (2d Cir. 1970), relied upon by appellant, contrary to our position here. In Coleman, the State of New York had moved into the field of private college disciplinary procedures and enacted legislation, one purpose of which was “to deter student disturbances by the clear announcement of rules of conduct and of the penalties for disobedience.” 429 F.2d at 1126 (Friendly, J., concurring). It was the imposition of the disciplinary policy by the State which created the mischief complained of and allegedly constituted state action (a proposition not determined in that case). But here the State is not a “joint participant in the challenged activity.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L.Ed.2d 45 (1961). The state enactment was amelioratory not regressive; it did not “move in” on the plaintiff or other buyers, but rather on the instalment sellers. See Fairfield Credit Corp. v. Donnelly, 158 Conn. 543, 264 A.2d 547 (1969), striking down waiver of defense clauses in consumer goods conditional sales contracts.

We are reduced then to the proposition that the mere fact that the State has legislated in the area of peaceful repossession constitutes sufficient participation to be appropriately denominated “state action.” As Chief Judge Kaufman pointed out in Male v. Crossroads Associates, 469 F.2d 616, 621 (2d Cir. 1972): “Although the mere existence of a state or federal regulatory scheme standing alone with nothing more is not sufficient to bring those regulated within the scope of the Fourteenth Amendment, [see Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972)], the regulation and its extent must be considered in weighing the circumstances of each case.” In Crossroads, we found that the State’s “demonstrated intention to regulate the tenant selection procedures” (469 F.2d at 622), which there was the “challenged activity,” constituted state action. But here the decision to repossess is entirely that of the seller; it is authorized by the agreement and the State, in our view, plays no significant role.

The point is made decisively in Moose Lodge No. 107 v. Irvis, supra, where the Pennsylvania Liquor Control Board, in licensing the Moose Lodge to serve liquor, subjected the private club to detailed and extensive state regulation. The Court there held that “[h]owever detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise.” 407 U.S. at 176-177, 92 S.Ct. at 1973. As we have indicated, since peaceful repossession existed at common law in Connecticut, the mere codification of that right does not, in our view, constitute state action. No delegation of traditional state power has been granted to any private person.

Most of the States have passed and continue to enact legislation codifying and defining the common law in the commercial law area. New York has a Law Revision Commission, for example, which is charged with this responsibility. Were the mere codification of common law sufficient to constitute significant state involvement, then, of course, the door to Fourteenth Amendment intrusion would be opened wide to continuing federal scrutiny. We find no support for this proposition in the precedents which bind us. On the contrary, the Connecticut statute under attack (section 42-98) is substantially the same as section 9-503 of the Uniform Commercial Code which permits peaceful repossession by a secured party upon default. The attack on this section of the Code has already been mounted, and the same authorities have been discussed and the same issues decided. The only federal courts of appeals which have faced the problem have failed to find the significant state action required. Bichel Optical Laboratories, Inc. v. Marquette Nat’l Bank, 487 F.2d 906 (8th Cir. 1973); Adams v. Southern Cal. First Nat’l Bank, 492 F.2d 324 (9th Cir. 1973). Moreover,. the vast majority of state and federal district courts, where repossession of chattels by creditors has been challenged, have reached the same conclusion.

The appellant here relies upon Reit-man v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). That case involved an amendment to the California State Constitution, which barred the State from placing any limitation on the right of a person to dispose of his real property. The amendment, in effect, created a State Constitutional right to discriminate, repealing prior acts of the state legislature which had regulated racial discrimination in housing. The Supreme Court held that this effectively constituted state action which encouraged racial discrimination. The distinction is clear. The State of California by express Constitutional Amendment permitted what was formerly prohibited. Here the right to private repossession always existed. Codification did not encourage the practice one whit. As we have pointed out, the legislation made it less attractive by providing greater safeguards to the consumer in the conditional sales contract.

Although we believe that this sufficiently distinguishes Reitman, as the court noted in Adams v. Southern Cal. First Nat’l Bank, swpra, at 333, “we are not convinced that the resolution of the state action question involving prejudgment self-help repossession of secured property is controlled by a case involving racial discrimination.” Judge Friendly has also argued “that racial discrimination is so peculiarly offensive and was so much the prime target of the Fourteenth Amendment that a lesser degree of involvement may constitute ‘state action’ with respect to it than would be required in other contexts . ” Coleman v. Wagner College, supra, 429 F.2d at 1127 (concurring opinion); see Friendly, The Dartmouth College Case and the Public-Private Penumbra 26 (1968). See also United States v. Wiseman, 445 F.2d 792, 795 n.3 and cases cited (2d Cir.), cert. denied, 404 U.S. 967, 92 S.Ct. 346, 30 L.Ed.2d 287 (1971).

We see no other theory of state involvement here which is possibly applicable. We recognize that the problems involved in determining whether “state action” is present are not susceptible of solution by facile formulae. Our examination of the Supreme Court decisions, as well as those of our own and other circuits, compels the conclusion, however, that none is present here.

Finding no state action, we affirm, without reaching the due process question.

IRVING R. KAUFMAN, Chief Judge

(dissenting):

On or about August 23, 1972, the State National Bank of Connecticut seized a Ford Thunderbird in the possession of Joyce Shirley without so much as notifying her in advance, affording her an opportunity to abort the seizure at a prior hearing, or, by any other means, obtaining her meaningful consent. My brothers dp not reach the question whether the Bank’s conduct was in conflict with the fundamental safeguards provided by due process because they, like the court below, cannot discern the “state action” requisite to establishing a violation of the Due Process Clause of the Fourteenth Amendment. Since I am of the view that the lawful non-eonsen-sual taking of property is a uniquely governmental function, I consider its exercise, whether by state officials or by private individuals so empowered, subject to the due process constraints functionally required to avoid arbitrary deprivations. Accordingly, I must respectfully dissent.

The linchpin of the majority’s reasoning is that

since peaceful repossession existed at common law in Connecticut, the mere codification of that right does not, in our view, constitute state action. No delegation of traditional state power has been granted to any private person.

Indeed, this reliance on the creditor’s right to repossess at common law is highlighted by comparison of the instant holding with our recent decision in Hernandez v. European Auto Collision, Inc., 487 F.2d 378 (2d Cir. 1973). In Hernandez, we did not hesitate to reverse the dismissal of a complaint in an action where plaintiff challenged the constitutionality of the sale provisions of New York State’s garageman’s lien statute on the ground that the lienor’s power to sell the automobile without an opportunity for a prior hearing violated due process. Yet, the only distinction, frail indeed, between this case and Hernandez is that the private power to repossess existed at common law while in Hernandez the lienor’s right to sell the encumbered chattel did not. It is inconceivable that the fundamental right to be free of arbitrary deprivations of property should turn on the now disfavored theory of title passage upon which the differing rights of the conditional seller and the lien holder rested at common law. Instead, as one commentary aptly noted:

The fact that the law under attack is new and creates, rather than codifies, common law rights should not change the inquiry. The focus for state action purposes should always be on the impact of the law upon private ordering, not the law’s age or historical underpinnings. Unless the law in some fashion significantly interferes with private ordering, the challenged conduct should not be attributed to the state. To make state action turn upon whether the statutory right being asserted has common law origins would lead to anomalous results. The identical private conduct, pursuant to the identical state statutory or judicial law, would be state action in some states while not in others depending solely upon the fortuitous and unimportant circumstance of the age and history of the law.

W. Burke & D. Reber, State Action, Congressional Power and Creditors’ Rights: An Essay on the Fourteenth Amendment, 47 S.Cal.L.Rev. 1, 47 (1973); Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Accordingly, unlike the majority, my analysis of the “state action” question begins rather than ends with the observation that the right of peaceful repossession without a hearing was recognized under the common law of Connecticut.

In merely codifying the common law right of reposséssion, Conn.Gen.Stat. Rev. § 42-98(a) faithfully incorporated the common law limitation on self-help, namely, that it be “without breach of the peace.” If peaceful repossession were the equivalent of retaking with the consent of the property holder then I would applaud the wisdom of our forefathers in recognizing that negotiation is a far superior method of dispute resolution than is recourse to governmental disposition. But, the private right of repossession under common law, and as duly reflected by Conn.Gen.Stat.Rev. § 42-98(a), was not so narrowly defined. Peaceful repossession could also be effected, as indeed it was in this case,by silence and stealth. It is this private, non-consensual taking, clothed in legitimacy first at common law and now by statute, which I find utterly inconsistent with and a total abdication of, the state’s obligation to provide the minimal safeguards of procedural due process before an individual can be lawfully deprived of his property without his consent.

Why, after all, is the concept of due process considered so fundamental in our American constitutional system? Justice Harlan, in speaking for a majority of the Court in Boddie v. Connecticut, 401 U.S. 371, 374-375, 91 S.Ct. 780, 784, 28 L.Ed.2d 113 (1971), eloquently opined:

Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. Without such a “legal system,” social organization and cohesion are virtually impossible; with the ability to seek regularized resolution of conflicts individuals are capable of interdependent action that enables them to strive for achievements without the anxieties that would beset them in a disorganized society. Put more succinctly, it is this injection of the rule of law that allows society to reap the benefits of rejecting what political theorists call the “state of nature.”
American society, of course, bottoms its systematic definition of individual rights and duties, as well as its machinery for dispute settlement, not on custom or the will of strategically placed individuals, but on the common-law model. It is to courts, or other quasijudicial official bodies, that we ultimately look for the implementation of a regularized, orderly process of dispute settlement. Within this framework, those who wrote our original Constitution, in the Fifth Amendment, and later those who drafted the Fourteenth Amendment, recognized the centrality of the concept of due process in the operation of this system. Without this guarantee that one may not be deprived of his rights, neither liberty nor property, without due process of law, the State’s monopoly over techniques for binding conflict resolution could hardly be said to be acceptable under our scheme of things. Only by providing that the social enforcement mechanism must function strictly within these bounds can we hope to maintain an ordered society that is also just. It is upon this premise that this Court has through years of adjudication put flesh upon the due process principle.

To be sure, Justice Harlan added that “private structuring of individual relationships and repair of their breach is largely encouraged in American life. . . . ” Id. at 375, 91 S.Ct. at 785. The crucial point, however, is that our system of laws is bedrocked in the principle that the State has a “monopoly over techniques for binding conflict resolution.” Moreover, the decisive difference between “binding conflict resolution,” on the one hand, and “private structuring and . . . repair,” on the other, is the element of voluntary, mutual consent, the presence of which permits the latter just as its absence requires the former. Accordingly, where, as here, the creditor is empowered, whether by common law or by statute, to unilaterally resolve a conflict, he is acting within a sphere reserved for the state alone and, therefore, his power, like state power, must be fettered by the restraints of due process.

Under the so-called “public function” test, then, self-help repossession is infused with the requisite “state action” because the creditor acts pursuant to a grant of the state’s monopoly power to lawfully seize a significant property interest without the consent of the holder. I would reach the same conclusion by applying the “state action” analysis proffered by my brother Friendly in his oft cited lecture, The Dartmouth College Case and The Public-Private Penumbra (1968) at 18, since the “ . . . private action [self-help repossession] has resulted in a general and serious denial of values the [Fourteenth] Amendment was meant to protect. . . . ” Accordingly, finding the Bank’s summary seizure of plaintiff’s auto permeated with the necessary “state action,” I would reverse.

      . Section 42-98 (a) provides :
      When the retail buyer is in default in the payment of any sum due under the retail instalment contract or instalment loan contract, or in the performance of any other condition which such contract requires him to perform, or in the performance of any promise, the breach of which is by such contract expressly made a ground for the retaking of the goods, the holder of the contract may retake possession thereof. Unless the goods can be retaken without breach of the peace, it shall be retaken by legal process, but nothing herein contained shall be construed to authorize a violation of the criminal law. In the case of repossession of any motor vehicle without the knowledge of the instalment buyer, the local police department shall be notified of such repossession immediately thereafter. In the absence of a local police department or if the local police department cannot be reached for notification, the state police shall be promptly notified of such repossession.

      . The right of a holder of a conditional sales contract to exercise self-help repossession had general recognition at common law. See McCall, The Past as Prologue: History of the Right to Repossess, 47 S.Cal.L.Rev. 58 (1973), tracing the history of self-help repossession back to Greek and Roman Law. The remedy existed even absent a contractual provision granting the right. L. Jones, The Law of Chattel Mortgages and Conditional Sales § 1337 (6th ed. R. Bowers 1933). The principal limitation on its exercise was that the property had to be retaken without a breach of the peace. W. Prosser, The Law of Torts § 22, at 119 (4th ed. 1971).

      . Thus section 42-84 of the Retail Instalment Sales Financing Act sets forth a number of provisions which must be included in all retail instalment contracts and which are clearly calculated to make the consumer a more knowledgeable purchaser and to provide him with contractual protections that would probably be otherwise unavailable because of his lack of bargaining power. Section 42-85 places limitations on finance charges where the sale involves a motor vehicle. Delinquency and finance charges are collectible only in accordance with section 42-91. Glauses providing for confession of judgment are void under section 42-88. Section 42-96 provides for prepayment and refunds of finance charges notwithstanding contrary contractual provisions. Finally, section 42-98 provides for extensive and restrictive regulation of the creditor upon default of the purchaser.

      . See generally note 3, supra. See also Keyes v. Brown, 155 Conn. 469, 232 A.2d 486 (1967), regarding non-compliance with the Act and sections 42-99 and 42-100 providing penalties for willful violations.

      . We do not overlook Conn.Gen.Stat.Rev. § 14^-181 (which is identical to section 16 of the Uniform Motor Vehicle Certificate of Title and Anti-Theft Act), relied upon by appellant as evidence of state action. That section requires that where a secured creditor transfers an automobile repossessed under a security agreement, either he or the transferee deliver to the Commissioner of Motor Vehicles the last certificate of title, an application for a new certificate, and an affidavit by the creditor that the vehicle was repossessed and that the interest of the owner was lawfully terminated. Aside from the fact that this section is not even mentioned in the complaint, it has nothing to do with the seizure which is the challenged activity here. It comes into play only after the seizure. The purpose of the statute is to protect innocent purchasers of motor vehicles, to protect the public by affording identification of vehicles and to keep records current. If this constitutes state action then the recording of all real property deeds and new motor car registrations would be the basis for Fourteenth Amendment state action subject to review in the federal courts. See Burke & Reber, State Action, Congressional Power and Creditors’ Rights: An Essay on the Fourteenth Amendment, 47 S.Cal.L.Rev. 1, 19-23 (1973).

      . District court cases holding that self-help repossession is state action include: Boland v. Essex County Bank & Trust Co., 361 F. Supp. 917 (D.Mass.1973) ; James v. Pinnix, 4 CCH See.Tr.Guide ¶ 52,172 (S.D.Miss. 1973) ; Gibbs v. Tifelman, 369 F.Supp. 38 (E.D.Pa.1973) ; Michel v. Rex-Noreco, Inc., 12 UCC Rep.Serv. 543 (D.Vt.1972). Representative of reported district court cases finding no state action are: Johnson v. Associates Finance, Inc., 365 F.Supp. 1380 (S.D.Ill. 1973) ; Nichols v. Tower Grove Bank, 362 F.Supp. 374 (E.D.Mo.1973) ; Shelton v. General Elec. Credit Corp., 359 F.Supp. 1079 (M.D.Ga.1973) ; Colvin v. Avco Fin. Serv., 12 UCC Rep.Serv. 25 (D.Utah 1973) ; Pease v. Havelock Nat’l Bank, 351 F.Supp. 118 (D.Neb.1972) ; Kirksey v. Theilig, 351 F.Supp. 727 (D.Colo.1972) ; Greene v. First Nat’l Exch. Bank, 348 F.Supp. 672 (W.D.Va. 1972) ; Oller v. Bank of America, 342 F.Supp. 21 (N.D.Cal.1972) ; McCormick v. First Nat’l Bank, 322 F.Supp. 604 (S.D.Fla. 1971). The two state supreme courts which have considered the question have also found an absence of state action. Northside Motors v. Brinkley, 282 So.2d 17 (Fla.1973) ; Brown v. United States Nat’l Bank, 509 P.2d 442 (Or.1973). See also Burke & Reber, State Action, Congressional Power and Creditors’ Rights: An Essay on the Fourteenth Amendment, 47 S.Cal.L.Rev. 1, 8 n. 490 (1973), for a compilation of lower state court and unreported district court cases where the state action argument has been rejected.

      . As in Fuentes v. Shevin, 407 U.S. 67, 94-96, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the fact that the plaintiff signed a form contract which authorized self-help repossession will not immunize a seizure, under a waiver theory, where it is otherwise defective because the property is seized without prior notice and an opportunity for a hearing. The absence of consent in the taking itself cannot be cured by resorting to the meaningless ritual of utilizing a contract of adhesion in which the fine print, even if read, fails to mention that the debtor has any right to a pre-seizure hearing.

      . The majority’s holding in Adams v. Southern Cal. First Nat’l Bank, 492 F.2d 324 (9th Cir. 1973), similarly rests on the premise that “mere codification” of the common law cannot supply the requisite “state action.”

      . N.Y. Lien Law § 200 et seq. (McKinney’s Consol.Laws, c. 33, Supp.1972).

      . L. Hall, Possessory Liens in English Law 67 (1917).

      . See Uniform Commercial Code § 9-202.

      . Although I agree with the authors’ reasoning, I cannot accept their resolution of this anomaly — to consider both self-help repossession and the sale of liened goods outside the purview of the Due Process Clause. W. Burke & D. Reber, supra, 47 S.Cal.L.Rev. at 46. Rather, in rejecting the attenuated subtleties that dictated the respective rights of debtors and creditors at common law, I would follow our holding in Hernandez v. European Auto Collision, Inc., supra, and demand that the requirements of due process must be met here as well.

      . Although we have before us only the bare bones of the complaint, it is undisputed that the plaintiff was not notified in advance that her car would be taken. Indeed, the car had been brought to a garage for repair and the plaintiff was outside the state at the time of the repossession, according to the complaint.

      . See Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) ; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) ; Smith v. Allwright, 321 U. S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944) ; Hall v. Garson, 430 F.2d 430 (5th Cir. 1970) ; cf. Coleman v. Wagner College, 429 F.2d 1120 (2d Cir. 1970).

      . By adopting this functional approach, one can easily distinguish the instant case from Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). Although the Fourteenth Amendment was not intended to interfere with the private ordering of interpersonal relationships and indeed, the tension between the First and Fourteen ch Amendments in this respect is well-recognized, see, e. g., id. at 179, 92 S.Ct. 1965 (Douglas, J. dissenting), it was clearly designed “to protect [an individual’s] use and possession of property from arbitrary encroachment — to minimize substantively unfair or mistaken deprivations of property . ” Fuentes v. Shevin, supra, 407 U.S. at 81, 92 S.Ct. at 1994, 32 L.Ed.2d 556. Self-help repossession, without consent of the debtor whose property is seized, cannot fairly be characterized in any other way.


source: Caselaw Access Project

author: GEE, Circuit Judge:

license: Public Domain

text:
    Dan Hubert PEAVY, Plaintiff-Appellant, v. John W. WARNER, Secretary of the Navy, and Captain Dean Webster, Commanding Officer, Naval Air Station, Albany, Georgia, Defendants-Appellees.
    No. 73-3718
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 8, 1974.
    Joseph M. Beck, George B. Haley, Jr., Atlanta, Ga., Jesse W. Walters, Albany, Ga., for plaintiff-appellant.
    Elliot L. Richardson, U. S. Atty. Gen., U. S. Dept, of Justice, Washington, D. C., William J. Schloth, U. S. Atty., Earl W. Carson, Jr., Asst. U. S. Atty., Macon, Ga., for defendants-appellees.

      Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   GEE, Circuit Judge:

Peavy appeals from the district court’s denial of his writ of habeas corpus in which he sought cancellation of his two year enlistment extension in the Navy. Concluding that the court below applied the wrong standard of review and seemingly failed to make findings as to the most important aspect of Peavy’s claim, we reverse and remand for further proceedings.

October 20, 1969, Peavy joined the Navy. On November 6, 1969 in exchange for advanced training in a technical field, Peavy agreed to extend his original four year enlistment for two additional years. The relevant clause of Peavy’s extension agreement provided:

I understand that this Extension Agreement becomes binding upon successful completion of basic training (Phase I) and upon enrollment in advanced training (Phase II) and thereafter may not be cancelled except. . . . (emphasis added)

Peavy testified that after the Navy assigned him to a type of advanced training other than his first choice but before enrollment in the training program he attempted to secure information from various sources including Naval personnel officers on the manner in which to cancel the extension agreement. Peavy stated that the sources answered uniformly — impossible. The Navy now concedes that the contract did provide for cancellation prior to enrollment in advanced training.

Immediately before enrollment in advanced training Peavy executed an “automatic advancement agreement” that purported to make the extension agreement binding. Peavy contended that he executed the advancement agreement and accepted the concomitant promotion to E-4 because he was faced with no other choice. Both a Naval personnel officer and a Naval legal officer advised him at that time that he could not cancel the extension, thus the automatic advancement agreement was immaterial.

Later in his tour of duty, Peavy submitted formal requests for cancellation to the Chief of Naval Personnel and to the Board of Correction of Naval Records. Naval Personnel denied the cancellation saying that Peavy had received the training and personnel were not normally disenrolled at their own request. The letter of denial failed to address Peavy’s contention that he was denied the option to cancel the extension prior to enrollment. The Board also denied Peavy’s request and failed to address the issue of the option to cancel prior to enrollment.

The district court concluded that both Peavy’s extension and the Navy’s subsequent refusals to cancel comported with regulations. The court also relied in denying Peavy’s habeas corpus on the automatic advancement agreement and the benefits (training, promotion, pay raise) which flowed from the extension agreement.

The federal courts have habeas corpus jurisdiction over claims of unlawful detention by members of the military, In re Kelly, 401 F.2d 211 (5th Cir. 1968). The standard of review varies with the military decision or action complained of. Habeas corpus review of convictions by court-martial is limited to questions of jurisdiction, O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), and the limited function of determining whether the military has given fair consideration to petitioners’ claims, Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). A challenge to a discretionary decision will be reviewed under an abuse of discretion or failure to exercise discretion standard. Nixon v. Secretary of Navy, 422 F.2d 934 (2d Cir. 1970); Bluth v. Laird, 435 F.2d 1065 (4th Cir. 1970). Discretionary decisions on conscientious-objector applications are reviewed under the same standards as are decisions by draft boards — the “any basis in fact for the decision” test, Pitcher v. Laird, 421 F.2d 1272 (5th Cir. 1970); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968). In reviewing claims that a branch of the military failed to comply with its own regulations the courts will look simply for a showing by the claimant that the regulation was not followed and for a showing of prejudice to the petitioner. Friedberg v. Resor, 453 F.2d 935 (2d Cir. 1971); Nixon v. Secretary of Navy, supra; Bluth v. Laird, supra. Finally, claims that enlistment contracts are invalid or have been breached are decided under traditional notions of contract law. Shelton v. Brunson, 465 F.2d 144 (5th Cir. 1972); Johnson v. Chafee, 469 F.2d 1216 (9th Cir. 1972); Chalfant v. Laird, 420 F.2d 945 (9th Cir. 1969).

If Peavy’s enrollment in advanced training was valid and binding, Naval regulations precluded cancellation of his two-year extension. The essence of Peavy’s claim is that the Navy breached the original extension agreement by failing to allow him to cancel the extension before enrollment in advanced training. Additionally, he insists that the automatic advancement agreement (referred to by the district court as a reaffirmation of the extension agreement) was invalid because he was induced to execute it by the misrepresentations of Navy authorities. The Navy concedes that Peavy could have cancelled the original extension prior to enrollment, but contends that Peavy made no cognizable efforts to cancel it and that the executed automatic advancement agreement conclusively showed that Peavy intended to fulfill the extension agreement and negates his contention that he sought to cancel the extension.

The district court either failed to consider or failed to make findings regarding this contractual dispute. Although evidence in the record — Peavy’s testimony and letters written by Peavy’s father corroborating Peavy’s statements —supports Peavy’s position, we cannot say as a matter of law that Peavy sought cancellation and that the Navy invalidly refused or ignored his requests during the period in which it is now conceded the extension could have been cancelled. Therefore, on remand the district court should make appropriate findings. If the court concludes: (1) that the Navy refused Peavy’s requests for cancellation; or (2) that the Navy through misrepresentation induced Peavy to execute the “reaffirmation” agreement, then he is entitled to cancellation of the remainder of his extension.

Reversed and remanded.

      . Peavy stated that at the time he extended his enlistment the recruit counselor represented to Peavy that he could be 99% assured of assignment to his first choice of training. Whether that representation actually was made and whether it was a misrepresentation is not essential in light of the contract language which contemplated an opportunity for cancellation prior to enrollment in any advanced training.

      . Of course, an affected individual may challenge the constitutionality of military regulations and procedures, Sims v. Fox, 492 F. 2d 1088 (5th Cir. 1974) [No. 73-2707, April 19, 1974],


author: COLEMAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edward Grady PARTIN, Defendant-Appellant.
    No. 73-2295.
    United States Court of Appeals, Fifth Circuit
    May 6, 1974.
    Rehearing Denied June 5, 1974.

      William H. Jeffress, Jr., Washington, D. C., for defendant-appellant.
    John W. Stokés, Jr., U. S. Atty., Atlanta, Ga., Howard E. Shapiro, Bruce B. Wilson, U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   COLEMAN, Circuit Judge:

On a change of venue to the Northern District of Georgia, a jury convicted Edward Grady Partin of conspiracy to violate the Hobbs Act, 18 U.S.C., § 1951, interfering with interstate commerce by threats or violence. Partin has appealed. After prolonged, painstaking analysis and reflection, we are constrained to hold that the conviction must be reversed and remanded despite the fact that the case, along with others intimately connected with it, has been around for a long time.

On June 20, 1969, a grand jury em-panelled in the Eastern District of Louisiana, Baton Rouge division, returned a five count indictment against two individuals, Ted Dunham, Jr., and Edward Grady Partin, and against three corporate defendants, Dunham Concrete Products, Inc., Louisiana Ready-Mix Company, Inc., and Anderson-Dunham, Inc. Three of the five counts were for Sherman Act violations, 15 U.S.C. § 1 et seq., and two counts were for Hobbs Act violations, 18 U.S.C., § 1951.

I

Originally, this case was assigned to the Chief Judge, but he reassigned it first to Judge Lansing L. Mitchell, also of the Eastern District, then to a visiting judge, Honorable William D. Murray, United States District Judge for the District of Montana.

On October 1, 1969, Partin and Dun-ham filed a series of motions asking for dismissal of the indictment or for a change of venue. In his motion to dismiss Partin claimed that by virtue of his testimony under subpoena before a grand jury in Nashville, Tennessee, and because of his deposition testimony in a private antitrust suit prior to return of the indictment, he was entitled to transactional immunity, 15 U.S.C. § 32. Dun-ham also based his immunity claim on depositional testimony in the private lawsuit. A hearing was held on the motions, and in a written opinion by Judge Murray they were denied. The defendants were granted a change of venue to the New. Orleans Division, with a severance for Partin. From the adverse ruling on the motion to dismiss, Partin took an immediate appeal to this Court, which was dismissed for want of jurisdiction, 28 U.S.C. § 1291, United States v. Partin, 5 Cir., 1970, 432 F.2d 556. On December 4, 1970, Judge Murray transferred Partin’s case to the District of Montana, Butte Division.

Partin’s trial on all five counts began in Butte on June 14, 1971. After twenty-four days in trial, the jury reported that it was hopelessly deadlocked on all counts, and a mistrial was declared. The Court immediately set the case for retrial in November of that year. In August, the case was reassigned to Judge James F. Battin, of the District of Montana, and was transferred to the Billings Division.

Thereafter, upon motion by the defendant and with the agreement of the government, Judge Battin granted a change of venue to Atlanta, Georgia, for the convenience of witnesses and counsel. Partin’s second trial, again on all five counts, began in Atlanta on January 31, 1972. At the close of the government’s case, Judge Battin dismissed Count 4 and took under advisement defendant’s motion for a mistrial as to the other counts. After eighteen days in trial and two days of deliberation, the jury returned a verdict of guilty on the four remaining counts.

In an opinion and order dated March 24, 1972, Judge Battin granted the defendant’s motion for a judgment of acquittal notwithstanding the verdict on Counts 1, 2, and 3 for the reason that the evidence was insufficient to sustain convictions under these counts. This left only Count 5 of the original indictment. The Court granted the defendant’s motion for a new trial on that Count because the testimony admitted to prove Count 4 had been so prejudicial that its effect could not have been cured by an instruction to the jury to disregard it.

On June 26, 1972, Judge Battin entered an order stating that Judge Manuel L. Real of the Central District of California had accepted assignment of the case. Judge Real presided over the trial now under review.

Statement of the Facts Concerning the Hobbs Act Violation [Stated in the light most favorable to the verdict]

In January, 1968, W. O. Bergeron, the owner and president of a construction company bearing his name, was awarded a street improvement contract at the Ju-monville Subdivision in Plaquemine, Louisiana. Prior to this time, Bergeron had purchased his pipe solely from Anderson-Dunham Company, the largest producer of concrete pipe in the Baton Rouge area; but in an effort to diversify his suppliers, he decided to divide his orders equally between Dunham and its only competitor, Stevens Concrete Pipe and Products, Inc. Dunham, through its president, Ted Dunham, Jr., decided that it did not like the competitive market and that something had to be done about Stevens. Ted Dunham decided to enlist the aid of a longtime friend, Edward Grady Partin. Partin, the business manager of the Teamsters Local No. 5 in Baton Rouge, was in an excellent position to influence contractors in the area by simply calling a strike or sending a group of visitors to try persuading an employer to act differently. This latter course of action was taken in an effort to persuade Bergeron to revert to his former purchasing methods.

Dunham discovered Bergeron’s change in practice when he sent one of his salesmen, Billy Rogers, by the worksite to determine if anything was needed. Before entering Bergeron’s premises, Rogers noticed that Stevens had already delivered several loads of pipe. He immediately returned to Baton Rouge and informed Dunham of his observations. Becoming highly perturbed, Dunham called Partin and demanded action.

McClanahan, Partin, and another teamster first drove to Plaquemine and visited with the sheriff for approximately twenty minutes. Upon their return to the union hall, Partin ordered Mc-Clanahan to effect a “shut down” at Bergeron’s site. This was accomplished, and Bergeron was forced to cut short his work day.' Later that night Mc-Clanahan, Partin, and Dunham again returned to Plaquemine and the sheriff’s office. Later, there was talk that no matter what happened at the Bergeron site there would be no interference by the police.

The next day McClanahan and an associate returned to the site. Without identifying himself, or justifying his presence, McClanahan warned Bergeron not to go to work and threatened to return with enough men to effect another shut down. His words fell upon deaf ears.

In an effort to determine what their next course of action would be, Mc-Clanahan consulted Partin by telephone. Directing him to return to the union hall, Partin stated that he would gather enough men in the interim to teach Ber-geron a lesson. Upon his return, Partin instructed McClanahan to take a machine gun with him to “shoot up” Berge-ron’s equipment. This course of action was abandoned on advice of Partin’s counsel [not the one here] and shotguns were chosen instead. Accompanied by thirty or forty men armed with bats and chains, McClanahan returned to the site and “put a beating on Bergeron and his employees”. During the fracas, Berge-ron, his brother, and his sixty-three year old father were hit by shotgun pellets. For his leadership in this incident, Mc-Clanahan received $1,000 in cash from Partin and he also received two years in the penitentiary from the State of Louisiana. As will later be seen, Mc-Clanahan did not serve that sentence at Angola.

Along with evidence establishing the corpus delicti, the government was also allowed to present evidence to show that Partin had received over $21,000 from Dunham and that he aided Dunham in another effort quite similar to the incident at bar.

The foregoing evidence on behalf of the government, if believed by the jury, reflects a highly calloused contempt for the law and an equal disrespect for the rights of others. It is such that no court could, or would, condone. Yet, the law guarantees those accused of the most reprehensible behaviour a fair trial according to law. The question in this appeal is whether Partin had such a trial.

II

We consider it necessary to discuss only four of the assignments of error, as follows:

A. Did the defendant receive transactional immunity from prosecution for the Hobbs Act violation pursuant to former 15 U.S.C. § 32 by virtue of his testimony under subpoena before a Nashville, Tennessee, grand jury?

B. Was the defendant entitled to introduce evidence as to the total sums paid by the government to Rogers and McClanahan as material witnesses?

C. Was the defendant erroneously denied instructions as to the testimony of impeached witnesses ?

D. Was the defendant entitled to introduce evidence either by cross-examination or collateral witnesses to show Rogers’ past mental condition ?

A. Immunity

Collaterally to the Hobbs Act violation, Partin was still embroiled in the Hoffa case. In 1964, James Hoffa, President of the International Brotherhood of Teamsters, and others were tried and convicted for endeavoring to bribe members of a jury trying Hoffa for violating the Taft-Hartley Act. “A substantial element in the Government’s proof that led to the convictions of [Hoffa and other defendants] was contributed by a witness named Edward Partin, who testified to several incriminating statements which he said petitioners Hoffa and King had made in his presence during the course of the Test Fleet trial [the trial of the Taft-Hartley Act charge]”, Hoffa v. United States, 385 U.S. 293, 295, 87 S.Ct. 408, 410, 17 L.Ed.2d 374.

Following that testimony, Partin complained to federal officials of alleged efforts to intimidate, bribe, and corrupt him as part of a continuing and concerted attempt to have him recant his testimony. These reports resulted in the assignment of United States Marshals to protect him.

Partin’s allegations were investigated by the Department of Justice, through its Criminal Division, and by two federal grand juries. It is upon the testimony given to one of these grand juries that Partin rests his claim of transactional immunity.

On October 4, 1968, eight months before the return of the indictment in this case, Partin was subpoenaed to testify before a Nashville, Tennessee, grand jury. During the course of the inquiry, he was asked about the “Bergeron incident”.

The apparent purpose of this inquiry was to determine if the arrests made during the incident were related to the attempts to get Partin to change his testimony about Hoffa. In essence, was this an attempt to bargain with the arrested parties to exchange testimony against Partin for dismissal of the charges against them ?

The substance of the testimony related to why the teamsters picketed Berge-ron’s worksite — the use of non-union1 employees — and that Bergeron actually started the violence. According to Par-tin, the Bergeron Company had a contract to construct a large sewage project and was hiring non-union workers. McClanahan and another were ordered to picket the site but were threatened by Bergeron and warned not to come back. When the two returned the next day, an armed crew of Bergeron’s construction workers threatened them. The visitors then returned to the union hall to ask for more pickets. Partin’s attorney, who was present, told them not to take any weapons with them and to report any trouble to the authorities. Partin repeated this advice and then left for the courthouse before the pickets left the union hall. While Partin was in the courthouse speaking with his lawyer arid a judge, he heard over the radio that there had been a shooting at the Berge-ron site. Partin then testified about the shooting, essentially that Bergeron’s crew started shooting at the teamster pickets and that one of the teamsters returned the fire. The remainder of his testimony was to the effect that the teamsters were charged and arrested as a result of the incident; that bail was deliberately made difficult for them; that the bonding company cancelled the bonds as a part of an effort “to bust the local”; and that the Governor of Louisiana and the local judge, among others, were part of that effort. He ended his testimony on the point that W. O. Ber-geron admitted to him and others that members of his crew had fired on the teamster pickets first.

We find no merit in defendant’s contention that this testimony entitled him to immunity in this prosecution. A specific factor is fatal to his claim; the statute expressly limits itself to prosecutions arising under Title 15. This, however, is a prosecution for a violation of the Hobbs Act, 18 U.S.C. § 1951, which by its own language is neither a part of, nor amendatory to, Title 15. Therefore, 15 U.S.C. § 32, confers no immunity in this case.

B. Benefits Paid to Material Witnesses

The defendant’s second assignment is directed toward the trial court’s exclusion of evidence relating to the total benefits paid the witnesses Rogers and McClanahan while they were in protective custody.

McClanahan, a star witness for the prosecution, testified that after his trial and conviction in state court for his participation in the Bergeron incident, he decided to turn state’s evidence against Partin, although for the previous two years he had continually denied Partin’s participation. Fearing for their newly acquired witness’ life and safety, the United States Attorney and the Antitrust Division sought and received a writ of habeas corpus from Judge Chris-tenberry directing the warden of the Louisiana State Penitentiary to turn the person of Wade McClanahan over to the Attorney General of the United States. McClanahan, his wife, and four children were then placed in protective custody and moved to the United States Army post at Fort Sill, Oklahoma. Once in custody, the government furnished the witness with living quarters and a subsistence allowance. This consisted of rent payments of $107 per month and subsistence payments of $2.11 per person per day.

In mid-summer of 1972, for the first time since he was taken into custody, efforts were made by outsiders to contact McClanahan. For security reasons, the family was then moved from Fort Sill to a place known only to the United States Marshal. Due to the lack of commissary and housing benefits after the move, the cost of maintaining the McClanahans increased. Accordingly, for the last few months before the trial below, the government paid rent of $188 per month and a subsistence allowance of $4.17 per person per day. In total, McClanahan received $26,000.

Rogers, on the other hand, was taken into custody only for brief periods around the time of each of appellant’s earlier trials. He was also placed in protective custody for a short period after having been severely beaten by two men. He was paid approximately $8 to $12 per day subsistence; and when necessary, a motel room or other lodgings were furnished. In total, Rogers received approximately $5,000.

Both sides agree that the government derives its authority to pay the maintenance costs of material witnesses in protective custody from 28 U.S.C. § 524. Subsequent to the return of the indictment against Partin, Congress enacted the Organized Crime Control Act of 1970, Pub.L. 91-452. Section 501 et seq. of that Act, 18 U.S.C. prec. § 3481, codified what had previously existed as Justice Department regulations promulgated under 28 U.S.C. § 524. In essence, § 501 et seq. provide the Attorney General with the authority to protect and maintain any witness whose life and limb may be in jeopardy because of his testimony; and as a means of implementation, the government is authorized by § 502 to provide shelter and subsistence.

The controversy here arises over whether the defense counsel should have been allowed on cross-examination to elicit the total amounts paid to the two witnesses pursuant to 28 U.S.C. § 524. After allowing counsel to draw testimony from both Rogers and McClanahan about the rent and subsistence payments, the Court cut him short when the subject turned to the totals. Holding such irrelevant, the Court stated:

“[T]he Court finds — at least, the payments made to Mr. Rogers and to Mr. McClanahan- were within the statutory provisions for protective custody of material witnesses and would not be in the nature of any reward or compensation for their services to the government in any capacity; and, therefore, would not be a subject of questions of cross-examination to them for the purposes of impeachment of their testimony on the basis of reward.”

The defendant questions this ruling and likens the situation to the cases holding that evidence of total payments to informers is admissible to cast doubt upon their credibility.

Following the trial court’s reasoning, the government contends that this is not a case of gratuitous benefaction or reward as to be found in the informer cases ; but instead, is a matter of necessity, pure and simple. The payments were means to the end, preservation of the witnesses’ testimony. Too, the introduction of the totals could lead to potentially prejudicial sideroads in an attempt to rehabilitate the witnesses. For example, what was the danger or other circumstances which necessitated taking the witnesses into protective custody so that the payments do not appear to be gratuitous? Why was the trial delayed so as to cause the amounts to increase to their present levels? What were the circumstances surrounding the efforts to contact McClanahan in mid-summer, 1972, which necessitated increased payments?

The admissibility of evidence in a criminal trial is governed by Rule 26 of the Federal Rules of Criminal Procedure. This rule requires the application of the common law as interpreted by the federal courts in light of reason and experience, except where Congress or any of the other criminal rules provide otherwise, O’Brien v. United States, 5 Cir., 1969, 411 F.2d 522- This Court has on numerous occasions held that in ruling on evidentiary questions the trial court has wide latitude and its rulings thereon should not be disturbed in the absence of an abuse of discretion, O’Brien v. United States, supra; United States v. Garr, 5 Cir., 1972, 461 F.2d 487, cert. denied, 409 U.S. 880, 93 S.Ct. 170, 34 L.Ed.2d 135 (1972).

As to the exercise of that discretion in this case, it was certainly not improper for the government, in compliance with the statute, to take the action it did for the protection of McClanahan and Rogers in order to insure their availability as witnesses.

The cause for concern, however, is that by changing his former statements and agreeing to become a government witness McClanahan not only escaped the service of his sentence at Angola but over a period of two or more years he was allowed to serve that sentence in “protective custody” with his family, was shown such special privileges as being allowed to leave Fort Sill to drive racing cars at Lawton, under the proteetion of federal bodyguards, and received $26,000 in financial benefits for himself and family. Under the circumstances of this case, and we decide no other, we are of the opinion that the defense, without cavil, should have been entitled to show the total financial benefits received. They were unusually high and Mc-Clanahan would never have received them had it not been for his agreement to testify for the government. Its impact, if any, on his credibility was for the jury, not for the prosecutors or the Court.

In response to this situation, we are well aware that the trial record shows the jury to have been informed of every facet of this matter except the total of the money the government spent on behalf of McClanahan and his family. Additionally, it is true that on cross-examination counsel for Partin extracted from McClanahan that on at least three occasions he had sworn falsely, in writing, that Partin was not involved in the Ber-geron incident. Moreover, he was compelled to admit that he had been convicted of forgery on one occasion and of theft on another. Consequently, Mc-Clanahan stood before the jury as a devastatingly impeached witness, both as a self confessed perjurer and as a thrice convicted criminal.

The general reaction would be that although McClanahan was thus unclothed of veracity in general, the jury nevertheless believed that he was telling the truth about Partin’s connection with the Bergeron affair. This would lead to the conclusion that specific jury knowledge of the $26,000 item would not have turned the tide.

As will be seen infra, the Judge, at the close of the trial, expressly declined to charge the jury as to the credibility of witnesses. In that context, we cannot hold this to be harmless error and should McClanahan testify in another trial the full facts surrounding this $26,000 expenditure should be submitted to the jury.

C. Was the Defendant Erroneously Denied Instructions as to the Testimony of Im/peached Witnesses

It is fundamental that for purposes of impeachment a litigant may show, among other things, that a witness against him has made prior inconsistent statements, that he has a motive for giving false testimony, or that he has in the not too remote past been convicted of a felony. It necessarily follows that the trial jury, certainly upon request, should be informed of the purpose for which such evidence has been admitted, else the right of impeachment is in danger of impermissible dilution.

We note, for example, that in the case of Hoffa v. United States (Fn. 1), where the defendant here, Partin, was a witness for the government, the jury was instructed as follows:

“You should carefully scrutinize the testimony given and the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether the witness is worthy of belief. Consider each witness’ intelligence, his motives, state of mind, his demeanor and manner while on the witness stand. Consider also any relation each witness may bear to either side of the case * * *. All evidence of a witness whose self-interest is shown from either benefits received, detriments suffered, threats or promises made, or any attitude of the witness which might tend to prompt testimony either favorable or unfavorable to the accused should be considered with caution and weighed with care.” 87 S.Ct. at 418.

In connection with that instruction the Supreme Court commented, “The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury. * * * The trial judge instructed the jury, both specifically and generally, with regard to assessing Par-tin’s credibility”.

The Supreme Court has recognized that where the government’s case in a criminal prosecution may stand or fall on the jury’s belief or disbelief of one witness, that witness’s credibility is subject to close scrutiny, Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953). This Court so stated in McConnell v. United States, post, 5 Cir., 1968, 393 F.2d 404.

Government witness McClanahan had been convicted of forgery, had been convicted of aggravated assault, and had been convicted of theft. He had made prior statements under oath, and in writing, which were altogether inconsistent with his trial testimony. He admitted committing acts of vandalism.

Billy Rogers had been convicted of forgery; had been dishonorably discharged from the Marines; admitted that during the events about which he testified he contemplated stealing $20,000 from Dunham; and had also made statements under oath quite inconsistent with his trial testimony.

Here, there were two witnesses, instead of one, but they were “two of a kind” — both ex-convicts of felony and both self admitted perjurers, committed on more than one occasion.

What makes this all the more critical is that without these witnesses the prosecution had no case on Count 5.

It has been held that where an admitted perjurer testified in a criminal prosecution, the trial court must charge that the testimony of that witness is to be scrutinized with care, United States v. Margolis, 3 Cir., 1943, 138 F.2d 1002.

This brings us to the fatal trial blemish which, as we understand the law, leaves no alternative to a new trial.

On February 21, before testimony began, the trial judge made the following statement to the jury:

“ . . •. You should in your evaluation of the testimony of witnesses carefully scrutinize all of the testimony given, consider the circumstances under which each witness testifies and whether there is a matter in evidence which tends to indicate whether a witness is worthy of belief. You should consider each witness’s intelligence, motive, state of mind, demeanor and manner while on the stand.”
[Nothing said about the assessment of credibility of witnesses convicted of felony and guilty of perjury as to the very subject matter then on trial].

Six days later, at the charge conference, the defense insisted that the jury be instructed as to the credibility of interested witnesses, the impeachment of witnesses by prior inconsistent statements, and impeachment of witnesses by proof of felony convictions. Counsel for the defendant stated, “[0]ur case, of course, stands or falls on the credibility of Rogers and McClanahan”. The Judge responded, “No question about that, Mr. Neal” [Trial transcript, 1115].

When defense counsel continued to insist on these instructions, the Court responded, “I may make this a test to see whether or not the primary instructions have any value * * * I haven’t been able to test them since I’ve been on the Bench,with the permanent instructions. Maybe they ought to be tested”.

After some further discussion the Court said, “Well, I don’t propose to instruct the jury again on the credibility of witnesses. I think I’ve done that adequately” [referring to the statement made to the jury at the beginning of the case].

In the formal jury charge, the Court made no reference whatever to these credibility factors, that is, testimony of interested witnesses, impeachment of witnesses by prior inconsistent statements, and impeachment of witnesses by proof of felony convictions. The defense objected to the omission and the objection was overruled.

In United States v. Megna, 5 Cir., 1971, 450 F.2d 511, this Court wrote that “Nearly fifty years ago the Circuit Court of Appeals for the Fifth Circuit laid down the rule that ‘Where the evidence presents a theory of defense, and the court’s attention is particularly directed to it, it is reversible error for the court to refuse to make any change on such theory’ ”.

In Strauss v. United States, 5 Cir., 1967, 376 F.2d 416 cited in Megna, supra, it was said:

“The judge must, therefore, be cautious and unparsimonious in presenting to the jury all of the possible defenses which the jury may choose to believe. We hold that where the defendant’s proposed charge presents, when properly framed, a valid defense, and where there has been some evidence relevant to that defense adduced at trial, then the trial judge may not refuse to charge on that defense. In Tatum v. United States, 1950, 88 U.S.App.D.C. 386, 190 F.2d 612, 617, the D. C. Circuit said:
“ ‘We do not intend to characterize the case for the defense as either strong or weak. That is unnecessary for ‘in criminal cases the defendant is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility. He is entitled to have such instructions even though the sole testimony in support of the defense is his own’ ” .
“The proper standard was not met here. The jury did not have to believe the defenses, but it should have been given the opportunity. This is true even if the defense is fragile. A defendant cannot be shortchanged nor his jury trial truncated by a failure to charge.”

Partin’s defense was that the testimony of all the indispensable witnesses against him was false. If accepted by the jury this, of course, was a valid defense. That is what the jury, under the proper instructions, was there to decide. It received and decided the case with no guidance on the evaluation of McClanahan’s and Rogers’ testimony. Consequently, the failure to charge on this subject, especially when requested, denied, and that denial objected to, not only had the effect of cutting off Par-tin’s defense, but upon request he would have been entitled to the instructions in any event. Despite the impeaching testimony, the jury obviously believed the witnesses, but the question’ remains: Would it have done so had it been properly instructed along the lines requested? We do not know, but the defendant was entitled to the chance that it might do so. We cannot paper this over with the doctrine of harmless error.

One additional comment is required. Rule 30 of the Federal Rules of Criminal Procedure directs that the court shall instruct the jury after the arguments are completed. There are several reasons for the rule, among which is the fact that at this juncture the evidence is in and the issues have been fully developed. There is the distinct possibility that the remarks of the court at the opening of the trial may not be clearly recalled many days later. At the close of the case, counsel must have a chance tp object to any errors of omission or commission in the charge. We see nothing wrong, of course, in making the preliminary statement which the trial judge made at the opening of this case and upon which he chose to rely in sending the case to the jury. In the circumstances of this ease, however, that cannot serve as substitute for the procedure specifically directed by Rule 30.

D. The Admissibility of Rogers’ Hospital Records and Expert Testimony as to his Past Mental Condition

The first federal decision in this field [impeachment for psychiatrical reasons] seems to have occurred in the noted case of United States v. Hiss, 88 F.Supp. 559 (S.D., N.Y., 1950). There, as here, the defendant sought to introduce psychiatric testimony to discredit the government’s key witness, Whittaker Chambers. Holding evidence of insanity or mental derangement to be admissible for credibility purposes, the Court stated that such evidence not only went to the preliminary question of competency but also to the jury question of credibility.

The basic precepts of the Hiss ruling have been followed in at least three Circuits: Sinclair v. Turner, 10 Cir., 1971, 447 F.2d 1158, cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); Ramseyer v. General Motors Corporation, 8 Cir., 1969, 417 F.2d 859; United States v. Allegretti, 7 Cir., 1964, 340 F.2d 254, cert. denied, 381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433 (1965). Interestingly enough, except for Florida and Louisiana, all of the states comprising the Fifth Circuit have confronted this issue. Of the four, three follow Hiss, with Texas comprising a distinct minority of one, Bonner v. State, 59 Ga. App. 737, 1 S.E.2d 768 (1939); Walley v. State, 240 Miss. 136, 126 So.2d 534 (1961); Brown v. State, 45 Ala.App. 391, 231 So.2d 167 (1970); Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App., 1972).

The readily apparent principle is that the jury should, within reason, be informed of all matters affecting a witness’s credibility to aid in their determination of the truth, Walley v. State, supra. It is just as reasonable that a jury be informed of a witness’s mental incapacity at a time about which he proposes to testify as it would be for the jury to know that he then suffered an impairment of sight or hearing. It all goes to the ability to comprehend, know, and correctly relate the truth.

This Court recently had occasion, McConnell v. United States, 5 Cir., 1968, 393 F.2d 404, to reiterate its policy of broad scoped cross-examination of witnesses on matters going to their credibility. McConnell was convicted by a jury of having passed and uttered a forged United States postal money order. His conviction was reversed because the defendant had not been allowed fully to probe the credibility of the government’s handwriting expert. The Court said, “It is well established that in criminal cases great latitude is generally permitted in the cross-examination of a prosecution witness in order to test his credibility * * *. Cross-examination is a right and its availability is essential to a fair trial; accordingly, cross-examination of a witness in matters pertinent to his credibility ought to be given the largest possible scope. * * * It is improper for a trial judge to restrict the cross-examination of a Government witness where counsel for defendant attempted to ask an impeaching question and was endeavoring to explore the possibility that the testimony of the witness may have been in some way influenced by suggestions or statements made to him. * * * Where the Government’s case may stand or fall on the jury’s belief or disbelief of one witness, its credibility is subject to close scrutiny”, 393 F.2d at 406. See, also, United States v. Greenberg, 5 Cir., 1970, 423 F.2d 1106; United States for Use of Tennessee Valley Authority v. Robertson, 5 Cir., 1966, 354 F.2d 877.

In simple language, the defendant has the right to explore every facet of relevant evidence pertaining to the credibility of those who testify against him, United States v. Greenberg, supra; United States for Use of Tennessee Valley Authority v. Robertson, supra.

Partin had the right to attempt to challenge Rogers’ credibility with competent or relevant evidence of any mental defect or treatment at a time probatively related to the time period about which he was attempting to testify.

On cross-examination, Rogers admitted that in June, 1967, a few months prior to the events in November and December which constituted the time focus of his testimony, he had himself admitted as a patient at the Veterans Administration Hospital in Houston, Texas. He was then asked, “You were in there for mental illness; were you not”? He replied, “No, Sir”.

The defense then offered a duly certified copy of Rogers’ Veterans Administration hospital records as received from the Chief of the Medical Admissions Division of the hospital. No objection was raised to the admissibility of the records under the Business Records Act. The Court declined to admit the records on the ground that they were not “admissible for purposes of impeachment of Mr. Rogers’ testimony”. Defense counsel stated he was not “talking about impeachment” but about “cross-examination of his ability to hear, see, remember, relate”. The Court observed that this was impeachment “under another name” and adhered to its ruling.

It appears that the records were admitted in a previous trial before another judge. The hospital record rejected in the trial now under review shows that upon admission Rogers stated that he was having auditory hallucinations and that at times he thought he was some other person. It also shows that he was pronounced “competent” upon release, but was told to come back for further checks, which he did not do.

The law on this subject in this Circuit is, we believe, well settled and that by cases of comparatively recent origin. It is undoubtedly true that the part of a hospital record containing an opinion of the attending physician or physicians may not be admitted under the Business Records Act unless that physician is available for cross-examination, Birdsell v. United States, 5 Cir., 1965, 346 F.2d 775; United States v. Harper, 5 Cir., 1971, 450 F.2d 1032; United States v. Davila-Nater, 5 Cir., 1973, 474 F.2d 270. Rogers’ Veterans Administration doctor could not recall anything of his case, so he could not testify, and not testifying he could not be cross-examined.

That portions of a hospital record showing statements of the patient-witness, notation of symptoms, and treatment rendered are admissible as factual data, United States v. Minor, 5 Cir., 1972, 459 F.2d 103, citing Kuklis v. Hancock, 5 Cir., 1970, 428 F.2d 608 and Birdsell, supra.

Moreover, although medical reports containing expert opinions as to sanity may not be admitted directly into evidence, they may be used by other experts' in arriving at a conclusion as to an individual’s sanity, upon which the expert is open to cross-examination as to the weight he gave the reports and why, United States v. Davila-Nater, supra, 474 F.2d at 283.

Defense counsel offered the records as a predicate for cross-examination, not as evidence in chief, and such cross-examination could easily have been confined within the bounds hereinabove set forth.

In the following words the Court declined to permit the offer of the records for purposes of cross-examination:

“The records, either as part of the cross-examination of the witness, Billy Rogers, or for any purposes to impeach the testimony of Billy Rogers are not relevant or material, at least for the purposes of this ruling in their present form without testimony to support that the condition set forth —if it was a condition — was such a disability as to prevent the witness from perceiving, understanding, and remembering the events in October and November of 1967 to which he testified.”

In the light of the cases above cited, the Court there fell into error. It was not harmless because the jury was entitled to know and consider that a few months before the alleged occurrence of the crime charged in the indictment, Rogers voluntarily committed himself to a hospital, reporting auditory hallucinations [hearing things that were not there] and also complaining that at times he thought he was some other person. Moreover, this was a direct refutation of Rogers’ prior denial that he entered the hospital for mental treatment.

The defendant then called Dr. Otto Billig, a psychiatrist from Nashville, Tennessee. Basing his testimony upon the Veterans Administration record, Dr. Billig testified, out of the presence of the jury, that he could state to a reasonable degree of medical certainty that (1) Rogers did suffer from schizophrenic reaction, undifferentiated type, in June, 1967, and (2) that such would have a tendency to affect his ability to see and hear in October and November of that year. By way of explanation, the doctor stated that this particular type of schizophrenia was a serious mental illness which tended to become chronic if the patient went untreated. He further stated that in his opinion, the condition diagnosed in June of 1967 would have a tendency to affect Rogers’ ability to see and hear accurately in October and November and that such would definitely affect his ability to report actual facts. During this time, according to the doctor, Rogers would seem confused and would tend to distort reality.

Because Dr. Billig could not state to any degree of medical certainty that Rogers could not perceive or understand what was happening around him in October and November, the jury was not allowed to hear the expert opinions above described. The cited cases teach that this, too, was erroneous. Based on the hospital records he should have been allowed to state his expert opinions, he should have been subjected to cross-examination, and the weight of his testimony, if any, should have been left to the assessment of the jury.

Numerous other errors are assigned, some of them critically approaching error if not actually reaching it. We assume, we think justifiably, that there is little likelihood of their recurrence at another trial, so we do not prolong this opinion with further discussion.

Conclusion

Upon a retrial of this case, the defendant, within reasonable bounds, should be allowed, if he so desires, to develop by competent evidence all facts which might reasonably be calculated to show a motive for false testimony on the part of McClanahan and Rogers, including special privileges enjoyed by Mc-Clanahan while in protective custody and including proof of the $26,000 received by McClanahan and his family. The jury must be given adequate guidance in the assessment of witness credibility. If offered, to the extent herein indicated, Rogers’ hospital records and the testimony of expert witnesses will not be rejected.

The judgment of the District Court is Reversed and remanded.

      . See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

      . 15 U.S.C. § 1 provides as follows:
      “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal: Provided, That nothing contained in sections 1 to 7 of this title shall render illegal, contracts or agreements prescribing minimum prices for the resale of a commodity which bears, or the label or container of which bears, the trademark, brand, or name of the producer or distributor of such commodity and which is in free and open competition with commodities of the same general class produced or distributed by others, when contracts or agreements of that description are lawful as applied to intrastate transactions, under any statute, law, or pub-lie policy now or hereafter in effect in any State, Territory, or the District of Columbia in which such resale is to be made, or to which the commodity is to be transported for such resale, and the making of such contracts or agreements shall not be an unfair method of competition under section 45 of this title : Provided further, That the preceding proviso shall not make lawful any contract or agreement, providing for the establishment or maintenance of minimum resale prices on any commodity herein involved, between man-; ufacturers, or between producers, or between wholesalers, or between brokers, or between factors, or between retailers, or between persons, firms, or corporations in competition with each other. Every person who shall make any contract or engage in any combination or conspiracy declared by sections 1 to 7 of this title to be illegal shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.”
      15 U.S.C. § 2 provides as follows:
      “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.”

      . 18 U.S.C. § 1951 provides as follows:
      “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
      “(b) As used in this section—
      (1) The term ‘robbery’ means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
      (2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
      (3) The term ‘commerce’ means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.
      “(c) This section shall not be construed to repeal, modify or affect section 17 of Title 15, sections 52, 101-115, 151-166 of Title 29 or sections 151-188 of Title 45.”

      . Count Fire

      “The charges contained in paragraphs one through nine of this indictment are hereby incorporated in this count with the same force and effect as if those paragraphs were here set forth in full.
      XIII Offense Charged

      “Beginning at the time of the initial stages of construction of a City Streets Sewerage Project, Plaquemine, Louisiana, on or about January, 1968, and continuing thereafter through the construction of said project, the exact dates being to the Grand Jurors unknown, in the Baton Rouge Division of the Eastern District of Louisiana and within the jurisdiction of this Court, defendants did willfully, unlawfully, and feloniously conspire and agree, each with the other, to obstruct, delay, and affect commerce, as that term is defined in Section 1951 of Title 18, United States Code, and the movement of cement and other building materials in such commerce, by attempting extortion (as defined in said section of United States Code), that is to say, said defendants attempted to obtain property in the value of the profits to be realized by defendant Anderson Dun-ham, Inc. from the sale of concrete pipe to W. O. Bergeron as agent and representative of the W. O. Bergeron Construction Company, Inc. with his consent, induced by the wrongful use of fear, force and physical violence in that defendant Edward Grady Par-tin, acting in furtherance of the aforesaid conspiracy and agreement threatened to cause and did cause strikes, work stoppages and physical violence by members of the General Truckdrivers, Warehousemen and Helpers Local Union No. 5 at the site of the aforesaid project, unless and until such time as said W. O. Bergeron Construction Company agreed to purchase the total requirements of concrete pipe for said project from defendant Anderson-Dunham, Inc.”

      . “No person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit, or prosecution under sections 1-7 of this title and all Acts amendato-ry thereof or supplemental thereto, and sections 8-11 of this title: Provided, That no person so testifying shall be exempt from prosecution or punishment for perjury committed in so testifying.” [Emphasis added]. 15 U.S.C. § 32.
      This section has, since Partin’s indictment, been repealed and in its stead Congress enacted 18 U.S.C. § 6001 et seq. This section is still binding upon us in this action as a result of Pub.L. 91-452, § 260.

      . 28 U.S.C. § 524 provides as follows:
      “Appropriations for the Department of Justice are available for payment of—
      (1) notarial fees, including such additional stenographic services as are required in connection therewith in the taking of depositions, and compensation and expenses of witnesses and informants, all at the rates authorized or approved by the Attorney General or the Assistant Attorney General for Administration; and
      (2) when ordered by the court, actual expenses of meals and lodging for marshals, deputy marshals, or criers when acting as bailiffs in attendance on juries.”

      . “Protected Facilities for Housing Government Witnesses

      “See. 501. The Attorney General of the United States is authorized to provide for the security of Government witnesses, potential Government witnesses, and the families of Government witnesses and potential witnesses in legal proceedings against any person alleged to have participated in an organized criminal activity.
      “Sec. 502. The Attorney General of the United States is authorized to rent, purchase, modify, or remodel protected housing facilities and to otherwise offer to provide for the health, safety, and welfare of witnesses and persons intended to be called as Government witnesses, and the families of witnesses and persons intended to be called as Government witnesses in legal proceedings instituted against any person alleged to
      have participated iu an organized criminal activity whenever, in his judgment, testimony from, or a willingness to testify by, such a witness would place his life or person, or the life or person of a member of his family or household, in jeopardy. Any person availing himself of an offer by the Attorney General to use such facilities may continue to use such facilities for as long as the Attorney General determines the jeopardy to his life or person continues.
      “Sec. 503. As used in this title, ‘Government’ means the United States, any State, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, any political subdivision, or any department, agency, or instrumentality thereof. The offer of facilities to witnesses may be conditioned by the Attorney General upon reimbursement in whole or in part to the United States by any State or any political subdivision, or any department, agency, or instrumentality thereof of the cost of maintaining and protecting such witnesses.
      “Sec. 504. There is hereby authorized to be appropriated from time to time such funds as are necessary to carry out the provisions of this title.”
      Pub.Law 91-452, § 501 et seq.

      . Evidence

      “In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an act of Congress or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”
      Fed.R.Crim.P. 26.