The opinion
KALODNER, Circuit Judge
(dissentjng) _
x ,, , ,, . . , „ ,, I would vacate the judgment of the ^ ,, District Court for these reasons:
The District Court failed to explicitly caution the defendant that since he was granted immunity from Federal prosecution under the Narcotic Control Act of 1956 that circumstance alone exposed , . , , , • , • , • , him to a contempt adjudication and pen-a]tieg ghould he refuge to comply with the order directing him to testify before the federal grand jury. The District Court should further have advised the defendant that the Narcotic Control Act of 1956 purported to extend immunity against prosecution in the State courts to one testifying before a federal grand jury *100 under a federal court’s order, but irrespective as to whether the Act actually did so, the defendant was nevertheless required to testify.
The record establishes that the defendant did not understand that he would be subject to a contempt adjudication by reason of his failure to testify before the federal grand jury irrespective of the state immunity aspects of the Naroctie Control Act of 1956; further, that his refusal to testify was his “fear” that his testimony would afford a basis for state prosecution, and not a wanton contemptuous disregard for the District Court’s order.
As was pointed out in Nilva v. United States, 1957, 352 U.S. 385, 395 , 77 S.Ct. 431, 437 , 1 L.Ed.2d 415 , Rule 17(g) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., requires that failure to comply with a subpoena to testify must be “without ‘adequate excuse.’ ”
. , „ in the instant case adequate excuse . , , , „ ,, . „ , ,, existed by reason of the defendant s “fear” of state prosecution and the District Court’s failure to advise the defendant of his compulsion to testify irrespective of the state immunity aspects of the Narcotic Control Act of 1956.
That the District Court was aware that it was “fear” of state prosecution that motivated defendant’s refusal to testify is apparent from the following colloquy between the Court and the defendant •
“The Court: Well sit down. You have said that what you most fear was that what you might answer to these questions would cause you to undergo a State prosecution. That is correct isn’t it?
“The Defendant: Yes.”
The ends of ^ justice would be better served by vacation of the District Court’s judgment and remand with instructions to proceed in accordance with this dissent.