concurring and dissenting:
I concur in all but parts III and IV of Chief Judge Feinberg’s opinion. I agree with my colleagues that however clear and convincing the evidence of a refusal to testify may be, the district court was required to hear the defendant, upon his request to be heard, before adjudging him in contempt. I also agree that the court should have permitted the defendant to make an offer of proof and should have accepted any relevant evidence the defendant proffered. For these reasons, I concur in reversing the judgment.
However, because the proceedings before the district court were fatally incomplete, I do not believe it worthwhile to decide whether there is sufficient evidence in the record currently before us to justify a finding of civil contempt. I cannot say that, were the district court to follow proper procedures and accept Kitchen’s testimony, the record would not establish by clear and convincing evidence that Kitchen had given “obviously false evasive and equivocal answers in an effort to avoid providing information.” In Re Chanie Weiss, 703 F.2d 653 at 667 (2d Cir.1983).
The majority seems to explain that it cannot reject Kitchen’s alleged failure to recall any of the details of the February meeting, because “[i]t is quite possible that a bribe was discussed at the meeting in cryptic terms so that Kitchen did not understand what was meant until B told him afterwards.” Although this story might *1277explain why Kitchen claims that no one expressly discussed a bribe at the meeting, it fails to explain why he cannot remember any of the “cryptic comments” or unusual circumstances of the meeting, the significance of which, by Kitchen’s own testimony, should have become clear to him when B told him the “shocking” truth about what had gone on. Certainly there is clear evidence that Kitchen remembered these details at one point. He signed a statement to the effect that “during the course of the meeting” he surmised that a bribe was to be paid. He apparently described the suspicious circumstances of this meeting to C. It seems incredible to me that a witness of Kitchen’s intelligence and position of responsibility can now remember nothing of the meeting except the discussion of a tax liability. I do not believe that we can now foreclose the possibility that, after listening to any testimony Kitchen might choose to give as well as any additional evidence the government might offer, the district court could find evasive and unworthy of belief Kitchen’s habit of forgetting anything that might implicate his superiors. Such a pattern of incredible statements would provide adequate grounds for a finding of contempt when supported by the government’s clear and convincing extrinsic evidence that at one time Kitchen had recalled the meeting with considerably greater clarity. We should not forget that the grand jury’s investigation of the alleged bribe has been resisted and delayed in every possible way by the company’s officers, including Kitchen.