concurring in-part and dissenting in part:
Although I concur in the decision that Barnette’s civil contempt should be upheld, I respectfully dissent from the affirmance of his criminal contempt conviction.
The defendant technically complied with the district court’s order, but ran afoul of its purpose in receiving back from various employees part of the money paid to them. Citation for civil contempt, with an opportunity to purge one’s self, is little more than a method of enforcement. Lewis v. S. S. Baune, 534 F.2d 1115 (5th Cir. 1976); Norman Bridge Drug Co. v. Banner, 529 F.2d 822 (5th Cir. 1976). Only action and not specific intent or willfulness need be shown to trigger the civil contempt enforcement procedure to obtain compliance with the decree. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949). Criminal contempt is entirely different. The court order becomes a criminal statute and the conduct required for conviction requires willfulness and intent to violate the order. In re Joyce, 506 F.2d 373 (5th Cir. 1975).
While the order was clear in requiring the defendant to pay back wages, it is not clear in declaring that receiving funds back from the employees would constitute prohibited conduct. When this uncertainty is combined with the equivocal testimony which each witness gave on the stand, it does not seem to me that a trier of fact could find beyond all reasonable doubt that Barnette had willfully engaged in conduct that he could reasonably know was criminally prohibited. A court order, like a criminal statute, must be certain enough so that a person can know precisely the conduct which could land him in jail. Longshoremen v. Marine Trade Assn., 389 U.S. 64, 76, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967). I do not think that' situation existed in this jail-term criminal conviction,