dissenting:
I dissent.
I agree with all of Judge Kearse’s thorough and comprehensive opinion except the conclusion reached in Part III that Chanie Weiss’s recalcitrance, which amounted to a refusal to testify, was not established by clear and convincing evidence.
As Judge Kearse’s opinion demonstrates, Congress, in 1970, codified into law the prevailing views on the power of the courts to deal with witnesses whose conduct illegally obstructs grand jury investigations. Thus, we all agree that 28 U.S.C. § 1826(a) (1976) does not “limit the court’s powers to deal with conduct that may in essence constitute both a contumacious refusal to testify and a perjurious effort at evasion.”
Here the government, in order to expedite an investigation of misuse of government funds, seeks the remedy of § 1826(a) with summary sanctions imposed by the court. The purpose of the sanctions imposed by Judge Platt is to secure, if possible, the testimony of the witness who has been given immunity. I agree that in this case the burden is on the government to establish by clear and convincing proof that the witness’s conduct is contemptuous.
Judge Kearse’s detailed recitation of the facts amply demonstrates that the witness’s testimony was a deliberate and calculated evasion which amounted to a refusal to testify. My colleagues agree that the testimony appears evasive but nevertheless conclude that the record is lacking in extrinsic evidence that shows that the witness’s claimed lack of memory is not credible. In our recent decision in In re Bongiorno, 694 F.2d 917, 922 (2d Cir.1982), we said that evidence that the witness’s claimed lack of memory is not credible “may [also] be found in the witness’s demeanor and his answers, if the pattern and substance of those answers convinces the court that the answers are inherently incredible.” Judge Platt was so convinced. Reading this record and Judge Kearse’s detailed recital of it, I do not see how we can disagree with the assessment of the district judge.
If, on as clear a record as this, any extrinsic evidence is necessary, it is certainly present here. There are at least two items of extrinsic evidence in the record which to me are relevant. The first is a series of five salary checks, made out to Weiss by “Project Joint, adult work experience,” which were dated from March 18, 1977 to June 30, 1978. She did admit, after attempting to evade answering, that the checks, all of which were indorsed by her, were for salary and that she cashed the checks and received the money. Although these salary checks, as Judge Kearse suggests, may be suspect in terms of showing that Weiss actually worked at Project Joint, they obviously establish a tangible relationship between Weiss and Project Joint during the period when she was allegedly employed by that organization. Similar, therefore, to the circumstances in the three cases illustratively cited by Judge Kearse, United States v. Appel, 211 F. 495 (S.D.N.Y. 1913); United States v. McGovern, 60 F.2d 880 (2d Cir.), cert. denied, 287 U.S. 650, 53 S.Ct. 96, 77 L.Ed. 561 (1932); Howard v. United States, 182 F.2d 908 (8th Cir.), vacated and remanded as moot, 340 U.S. 898, 71 S.Ct. 278, 95 L.Ed. 651 (1950), the questioning of Weiss with respect to the operations of and Weiss’s connections with Project Joint did in fact proceed from the “unimpeachable premise” that Weiss knew something about the organization and her own involvement with it.
I would also classify as extrinsic evidence the manner in which Weiss, as Judge Kearse’s opinion states, “profusely punctuated” her testimony by leaving the grand jury room to consult counsel. On her first appearance, Weiss left to consult counsel on 23 separate occasions which consumed more than 28 minutes. On November 10, she left four times for an absence of at least 20 minutes. And on her last appearance, eight *671legal consultations took at least 21 minutes. Considering the negligible results of any advice in terms of responsive testimony and the resulting delay and waste of the grand jury’s time, I think that the nature of such conduct evidences a calculated and deliberate pattern of evasion and refusal.
Rather than deal with the logic of the testimony and the existing extrinsic evidence, Judge Kearse instead suggests the probability that Weiss, contrary to her sworn testimony, never worked at Project Joint and thus reasons that there is no clear evidence that Weiss must know the details surrounding her purported employment. Accordingly, Judge Kearse stresses that what we really have is a case of perjury, and she concludes that since such testimony, if it be perjury, does not appear to be evasive, equivocal, or uninformative, it “cannot be characterized as a refusal to answer.”
I do not quarrel with the suppositions that Weiss may never have worked at Project Joint and that she may have committed perjury. Nevertheless, even a strong likelihood that Weiss did not do any work at Project Joint only emphasizes the inherent absurdity of any claim that she cannot remember. Whether she worked there or not is precisely what the grand jury is entitled to know from the one person who must know, and that person is Chanie Weiss.
Under Judge Kearse’s analysis, however, Weiss, by perjuring herself on the predicate question of whether she actually worked at Project Joint and then responding to follow-up questions with answers stating a failure to remember, has been able deliberately to obstruct the grand jury process while, simultaneously, circumventing the very sanctions that were enacted to secure the compliance and cooperation of a witness with that process. Such a result is not warranted either by logic or by case law; in short, it makes no sense.
As previously noted, we all agree that Congress, in enacting § 1826(a), “did not intend to curtail the courts’ existing practice with respect to the imposition of civil contempt sanctions on obdurate witnesses.” Judge Kearse acknowledges that a court traditionally had the power to hold a witness in civil contempt “[i]f the witness’s false testimony has obstructed the court in the performance of its duty... . ” See also Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919); Howard, supra, 182 F.2d at 913. In McGovern, supra, Judge Chase, speaking generally of the contempt power, said: “[A] witness who obstructs the course of justice by so acting that the court’s performance of its duty is frustrated is not beyond the reach of the contempt power because he chooses false swearing as the means to his end in so doing.” 60 F.2d at 889, quoted in Howard, supra, 182 F.2d at 913. The key factor necessary to justify a holding of civil contempt in such a situation is that obstruction beyond the mere elements of perjury be shown. Ex parte Hudgings, supra, 249 U.S. at 383, 39 S.Ct. at 339; Howard, supra, 182 F.2d at 913. Such obstruction may be found where a witness’s answers are “evasive, fantastic, and untrue” and their effect and purpose are to “ ‘thwart the process of inquiry, and to turn a trial [here, a Grand Jury investigation] into a futile form.’ ” Howard, supra, 182 F.2d at 914 (bracketed material in original) (quoting Clark v. United States, 289 U.S. 1, 10, 53 S.Ct. 465, 467, 77 L.Ed. 993 (1933)).
It seems to me that Weiss’s testimony, when viewed as a whole and in conjunction with the extrinsic evidence, amounted to a transparent refusal to testify. If Weiss did not commit perjury and actually worked at Project Joint, she must have known the details surrounding her employment. Thus, a claim of lack of memory as to such details would be evasive. If, on the other hand, she did perjure herself with respect to her predicate testimony concerning the question of employment, she must have known that she never did any work for Project Joint, and thus her answers claiming an inability to remember the details of her work would again be evasive. My colleagues seem to acknowledge that by responding to these questions with answers stating a failure of *672memory, Weiss has been able deliberately and perjuriously to cover her earlier perjury and still evade any meaningful testimony on the subject of Project Joint. I do not see how such conduct, which acts to “thwart the process of inquiry” and turn the investigation into a “futile form,” can amount to anything less than an intentional obstruction of the grand jury process.
Judge Kearse asserts that a holding of civil contempt is inappropriate in this situation on the ground that if Weiss did not actually work at Project Joint she will never be able to terminate her confinement by answering the many questions concerning the details of her employment. I do not find this argument persuasive, however. Weiss had, and still has, the ability to answer these questions by stating simply that she never performed any work for Project Joint.
Accordingly, I do not see how anyone can read this record and reach any conclusion other than the one reached by Judge Platt: that Weiss has refused to answer questions which she obviously is capable of answering.
There has been mounting concern over the increase in white collar crime and the obstructions encountered in investigating and prosecuting those who commit it. Gathering evidence of such crime is time-consuming and difficult for law enforcement agencies and it strains their limited facilities. To enable law enforcement agencies to get the necessary evidence, Congress has provided two essential weapons: the power to secure grants of immunity to witnesses so that they cannot evade testifying by a claim of self-incrimination, and the power to seek sanctions against those witnesses who, despite grants of immunity, refuse to give eyidence about matters within their knowledge. Under our system of law, the courts must play their part to see that these powers are effectively and properly used according to law.
But the courts must leave it to the prosecuting authorities to determine how those powers to get evidence are to be used. It is not within the province of judges, and seldom within, their knowledge, to determine how evidence may best be secured. Anyone with any experience of law enforcement knows that prosecutions for the crime of perjury are especially difficult. More to the point, such prosecutions invariably fail to produce evidence, and they always result in excessive delay of any investigation. We have no business to tell the prosecutor that he can proceed with a perjury case or even to suggest that he can, alternatively, seek the punitive sanction of criminal contempt. Our business is to determine whether there is a basis for the district court’s finding of contempt under § 1826(a). In Brown v. United States, 356 U.S. 148, 153-54, 78 S.Ct. 622, 625-26, 2 L.Ed.2d 589 (1958), the Supreme Court cautioned: “We are not justified in sliding from mere disagreement with the way in which a trial court has dealt with a particular matter [of obstruction of justice] . . . into a condemnation of the court’s action as an abuse of discretion.” I must conclude that my colleagues’ judgment, and the procedure their opinion obviously suggests to witnesses who do not wish to answer questions, will make it even more difficult for federal law enforcement agencies to prosecute white collar crime.
I would affirm the order of the district court and direct that our mandate issue forthwith.