(concurring, and dissenting in part):
I concur with the disposition of the several appeals as ordered in the majority opinion. Cheff v. Sehnackenberg, 348 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), plainly permits appellate revision of sentences in contempt cases, and remand for resentencing within the Cheff limitation is a proper exercise of our supervisory power.
I am unable to concur in the conclusion of the majority that because the offense is punishable “by fine or imprisonment” [emphasis added] the district court may not place the defendant on probation and impose a fine as one of the conditions of the probationary sentence. We are not presented with the question of whether payment of the fine required by the terms of a probationary sentence would exhaust the district court’s power under this unusual criminal statute to thereafter activate a suspended prison sentence for violation of other terms of probation. See Hollandsworth v. United States, 34 F.2d 423 (4th Cir. 1929). If we assume that such payment would exhaust the court’s power of punishment, the district court is still left with a sentencing tool of some practical value: the power to encourage a good faith effort to pay the fine by suspending an active sentence on condition that such an effort is made. See United States v. Taylor, 321 F.2d 339 (4th Cir. 1963). If the district court is denied that power, and if the person to be sentenced is a pauper but one who has substantial earning capacity, the district judge may be encouraged, unfortunately it seems to me, to impose an active prison sentence rather than run the risk of the prisoner escaping payment of the fine. See 18 U.S.C. § 3569.
Provision for imprisonment or fine (not both) in 18 U.S.C. Section 401 is unusual but not unique.1 The majority rule even with respect to an unusual statute seems to me a step in the wrong direction. Trial judges need all of the latitude allowed them by the Congress in order to fashion appropriate and enlightened sentences.
The probation statute, 18 U.S.C. Section 3651, contains general authorization to place the defendant on probation upon such terms and conditions “as the court deems best” and specifically provides that “[w]hile on probation and among the conditions thereof, the defendant [m]ay *801be required to pay a fine in one or several sums.” I do not believe use of this statute is irreconcilable with a provision for punishment “by fine or imprisonment.” If the trial judge is allowed to sentence the prisoner to a term of imprisonment and suspend the sentence on condition that he pay a fine, it seems to me that he has given the prisoner the choice of which punishment he shall accept and has not effectively imposed imprisonment and a fine in violation of 18 U.S.C. Section 401.
Where the trial judge’s choice of criminal sanctions is narrowed, it is the prisoner who generally loses. I respectfully dissent from this portion of the opinion.
. More frequently federal statutes provide for a fine up to a stated maximum or imprisonment up to a stated maximum, or both. But 18 U.S.C. § 401 is not alone in providing for either fine or imprisonment. See, e.g., 18 U.S.C. § 2076 (willful neglect of district court clerk); 18 U.S.C. § 2234 (willful exceeding of authority in executing search warrant); 18 U.S.C. § 2235 (malicious procurement of search warrant).