(concurring):
I concur in the majority’s disposition, but not without grave reservations.
On this appeal, Weir has contended that his refusal to answer the questions asked him by the grand jury was justified because the questions were based on a statement forced from him by torture in Mexico. He unsuccessfully presented the same claim to the majority of another panel of our court as he appealed his first judgment of contempt. In re Weir, 495 F.2d 879 (9th Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974) (hereinafter referred to as “Weir I”). As I interpret the majority’s opinion in the present appeal, my Brothers Koelsch and Carter have considered Weir’s arguments but have concluded to adhere to the majority opinion in Weir I.
Without intervention by our court sitting en banc, I am, of course, bound by the majority’s holding in Weir I. Nevertheless, I wish to state that I wholly disagree with that holding, and it is difficult for me to accept the fact that the cogent reasoning of Judge Goodwin’s Weir I dissent (495 F.2d at 881-82) was rejected. In my view, Weir’s uncontradicted allegations that Mexican officers held his head under water until he lapsed into unconsciousness and that they also beat, stabbed, and hanged him in order to extract his statement raise serious questions touching due process and the “imperative of judicial integrity.” Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). See United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). Were it not for Weir I, I would here dissent, as vigorously as I could.
As to the majority’s conclusion that the Government was not required to obtain a new immunity order before taking Weir before the second grand jury, I am somewhat dubitante. It is clear I think, that on the particular facts of this case, Weir could not reasonably have doubted that he would have been immunized had he testified before the second grand jury. He stipulated that he would continue to refuse to testify even after the District Court had clearly ruled that no new immunity order was necessary. Whether, as a matter of precedent, the Government should be required to obtain a new immunity order is, I believe, a question that turns wholly on policy considerations. As to that, the legislative history of the new immunity statutes is silent. If the Government were required to obtain a new order before taking a witness before a second grand jury, I suspect that potential witnesses might be better protected, at least to some extent, from conceivable attempts by local prosecutors to abuse the grand jury system. Futhermore, the Government might be better protected from unnecessary and improvident continuation of immunity granted to witnesses who have already refused to testify before earlier grand juries. Nevertheless, the majority has' chosen its course, and since I cannot believe that Weir has suffered prejudice, I concur in the result that my Brothers have reached.