Circuit Judge (dissenting):
Although the full import of United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), is not yet evident, I do not believe that it requires us to hold that a witness before a grand jury can be held in civil contempt for refusing to answer questions which were the product of statements coerced from him through torture.
The record contains Weir’s uncontro-verted allegations that Mexican soldiers obtained statements from him after holding his head under water until he gagged and lapsed into unconsciousness, sticking knives into his legs, buttocks and neck, beating him until he was unconscious, and hanging him from a tree limb by a rope around his neck until he lost consciousness.
In Calandra the Supreme Court balanced the potential injury to the historic role and functions of the grand jury against the potential deterrent effect of the judicially created exclusionary rule *882of the Fourth Amendment. Here we have no mere hierarchical contest between the Fourth and Fifth Amendments as the majority asserts; rather, we have the government making use of evidence obtained in a manner that cannot be countenanced by a United States court.
I would permit a grand jury witness to refuse to answer questions based upon his confession, if he can show it was obtained through torture. In this way we would refuse to lend judicial sanction to conduct “too close to the rack and the screw to permit of constitutional differentiation.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952). Whereas the Supreme Court was willing to accept judicial entanglement with a technical violation of the Fourth Amendment as the price for the effective and expeditious discharge of the grand jury’s duties, I am far from convinced that it would be equally willing to pay the higher price of permitting a grand jury to exploit evidence obtained through conduct that “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Brown v. Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464, 80 L.Ed. 682 (1936).
Nearly nine months elapsed between Weir’s first appearance before the grand jury and the contempt adjudication, ample time for a hearing on the coerced confession issue, which Weir estimated would take at most a whole day. A hearing on the coerced confession issue could easily have been held without disrupting the grand jury proceedings any more than they already were delayed by other circumstances. The incremental delay which this hearing would have provided to the effective and expeditious discharge of the grand jury’s duties would seem a modest price to pay if in the final result we could put an early end to the use of a coerced confession in a federal court. I trust it is not too rhetorical to suggest that we may rue the day we permitted our own officers to accomplish through foreign proxies a kind of business that is not permitted on our own soil.
I would vacate the contempt judgment and remand for a hearing on Weir’s allegations.