UNITED STATES of America, Appellee,

v.

Richard STEELHAMMER, Appellant.

UNITED STATES of America, Appellee,

v.

Andrew GALLAGHER, Appellant.

561 F.2d 539

Nos. 75-2178, 75-2179.

United States Court of Appeals, Fourth Circuit.

Argued March 15, 1977.

Decided Aug. 31, 1977.

Counsel

Roger W. Tompkins, Charleston, W. Va. (Stone, Bowles, Kauffelt & McDavid, Charleston, W. Va., on brief), for appellants.

Jack C. Landau, Washington, D. C., The Reporters Committee for Freedom of the Press (Laura Kalman, University of California at Los Angeles Law School, Allan Adler, George Washington University Law Center, Legal Researchers on brief), for amicus curiae.

Wayne A. Rich, Jr. and Frank E. Jolliffe, Asst. U. S. Attys., Charleston, W. Va. (John A. Field, III, U. S. Atty., Charleston, W. Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and WINTER, CRAVEN,[FN*] BUTZNER, RUSSELL and WIDENER, Circuit Judges, sitting in banc.

FN* Circuit Judge Craven died before the preparation of an opinion in this case. He voted, however, as described in the text.

PER CURIAM:

A panel of the court decided this case by a split vote. United States v. Steelhammer, 539 F.2d 373 (4 Cir. 1976). The majority opinion was written by Judge Bryan and concurred in by Judge Kunzig of the United States Court of Claims who was sitting by designation. Judge Winter dissented and filed a separate statement of his views.

We granted rehearing in banc to determine whether, under the facts and circumstances set forth in the panel opinions, the reporters could properly be held in contempt of court for their refusal to testify. On this issue, Chief Judge Haynsworth, Judge Winter, Judge Russell and Judge Widener are of the view that they may for the reason sufficiently stated in Judge Winter's dissenting panel opinion. Judge Bryan, Judge Craven and Judge Butzner are of the contrary view for the reasons sufficiently stated in Judge Bryan's majority panel opinion.

The underlying proceeding in which the reporters were held in contempt has now been terminated, but the punishments imposed on the reporters have been stayed pending the outcome of these appeals. However, Judge Winter, Judge Russell and Judge Widener think that the reporters were held in civil contempt and they may not now legally be punished since the underlying proceeding has terminated.

It thus appears that a majority of the court concludes that the district court properly required the reporters to answer and therefore their convictions for contempt should be affirmed, but that, for differing reasons, the reporters may not now be further punished for their refusals to answer. The majority therefore joins in a judgment affirming the judgments of contempt, but vacating the unserved portions of the sentence imposed thereon.

JUDGMENT OF CONTEMPT AFFIRMED; UNSERVED SENTENCE VACATED.