(dissenting).
While I share the view of the majority that the indictment was not fatally defective, I would reverse and remand to the trial court with instructions to it to grant the defendants a new trial. See, United States v. Lewis Food Company, 366 F.2d 710 (9th Cir. 1966).1 At this new trial, the principal question would be whether, in the light of all the evidence, the contributions to the federal candidates were made from funds which could fairly be said to have been voluntarily contributed by members and nonmembers with knowledge of the fact that all or part of their contribution would be used for political purposes. See, *1126United States v. International Union United Auto Aircraft and Agricultural Implement Workers, 352 U.S. 567, 592, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957); 93 Cong.Rec. 6437-6440 (1947).
There is evidence in this record indicating that the contributions to the Pipe-fitters’ fund were, in the above sense, knowingly and voluntarily made. There is also substantial evidence to the contrary. But the jury was specifically instructed that it could find the defendants guilty even if it believed all of the contributions were voluntarily made.* Such an instruction was, in my view, erroneous.
The government acknowledges in its brief that a union acting through its officers, agents and members may form a political organization parallel to the union and use union personnel to solicit and spend direct voluntary contributions for federal elections. It concedes that COPE and countless other political action groups have been so organized and operated. The difficulty with this acknowledgement is that it comes too late. The trial court, although requested to, refused to give an instruction embodying this concept. Indeed, the thrust of its direction was that the very participation of union officers and agents in the organization and operation of the political fund was evidence of impropriety. Compare, International Association of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961).
The government contends in its brief that the contributions to the fund were in fact assessments, were in fact part of the general dues’ structure and were in fact involuntarily made. These may indeed be the facts and if the jury had made such a finding, a violation of Section 610 would have been made out. But again, this the jury was not requested to so find. It was instructed to answer the broader question of whether the contributed funds constituted a part of the Union funds. Nineteen facts and circumstances were listed as bearing on the answer to this question.2 3 Some of the *1127facts and circumstances were relevant to the issue of knowledge and voluntariness and others, irrelevant. One example of the latter was the instruction that the jury could consider whether the payments to the fund were routinely collected by the Union Stewards and agents of the Union at the job site.
The government further contends that the political funds were spent by the individual defendants arbitrarily and without consultation with the contributors. There is some evidence in the record to support this contention. Although such a practice is of questionable legality and is undesirable and undemocratic, it constitutes no violation of Section 610.
The argument is also made by the government that at least one official of the fund diverted a portion of the funds collected for political purposes to his personal use. While this act may also have been illegal and reprehensible, it was not a violation of the statute.
Finally, the government contends on appeal that the fund was used to provide benefits to some of the members of the Union. There is again evidence in the record to support this contention, but the fact of the matter is that the fund was established for educational, legislative, charitable and defense as well as political purposes. And as I read Section 610, there is nothing in it which prohibits a union, its officers and agents from soliciting voluntary contributions for political and other purposes so long as those contributing know that all or part of the funds will be used in support of political candidates.
Nothing I have said in this opinion should be taken to indicate that a union or its officers and agents can evade the prohibitions of Section 610 by obtaining contribution cards from contributors indicating that the contributions were voluntarily made for political purposes. The test is whether the contributions are in fact so made.
Because I would remand for a new trial, I find it unnecessary to pass on the First Amendment validity of Section 610. This issue can be reached if the defendants are convicted under proper instructions.
I likewise express no view on the question of whether the jury’s finding that a willful violation of Section 610 was not contemplated by the defendants required a reversal on the conspiracy charge. I am confident that on retrial, the verdict forms would eliminate this ambiguity.
. “All that is required of an indictment is that it be a plain, concise and definite written statement of essential facts constituting the offense charged. Rule 7(c), Federal Rules of Criminal Procedure; Rood v. United States, 8 Cir., 340 F.2d 506, 510. With respect to the use of general corporate funds this indictment meets these requirements. Entry of the plea of not guilty, therefore, gave rise to a question of fact as to the source of the corporate funds. When the Supreme Court, in the Auto Workers case, asked (352 U.S. at 592, 77 S.Ct. at 542) : ‘[W]as the broadcast paid for out of the general dues of the union membership or may the funds be fairly said to have been obtained on a voluntary basis?’ The Court was referring to questions of fact which must be resolved at the trial level and was not referring to any inadequacies in the indictment.”
United States v. Lewis Food Company, 366 F.2d 710, 713 (9th Cir. 1966).
. “A great deal of evidence has been introduced on the question of whether the payments into the Pipefitters Voluntary Political Educational, Legislative, Charity and Defense Fund by members of Local 562 and others working under its jurisdiction were voluntary or involuntary. This evidence is relevant for your consideration, along with all other facts and circumstances in evidence, in determining whether the fund is a union fund. However, the mere fact that the payments into the fund may have been made voluntarily by some or even all of the contributors thereto does not, of itself, mean that the money so paid into the fund was not union money.”
. “1. Whether or not payments to the fund were routinely made at regular intervals at job sites,
“2. Whether or not payments to the fund were routinely collected by union stewards, foremen, area foremen, general foremen, or other agents of the union,
“3. Whether or not the payment to the fund was determined by a formula based upon the amount of hours or overtime hours worked upon a job under the supervision of the union,
“4. Whether or not payments to the fund were at one rate for 562 members and at a different rate for members of other unions,
“5. Whether or not payments to the fund began, continued and terminated with employment on a job under the jurisdiction of the union,
“6. Whether or not monies of the fund were used to provide benefits to union members in their capacity as members,
“7. Whether or not payments to the fund by members of other unions were in lieu of payments to the union in the form of travel card dues in the amount of eight dollars per month,
“8. Whether or not monies of the fund were used in part to promote activities properly permitted to the union pursuant to Section 2.05 of its Constitution and by-laws,
“9. Whether or not payments to the fund were made by those affiliated with the union to the general exclusion of other classes of persons or organizations,
“10. Whether or not contributions to the fund were required as a condition of employment or continued employment of membership in Local 562,
“11. Whether or not the individuals who contributed to said fund signed a voluntary contribution agreement,
“12. Whether or not the contributions to said fund were made voluntarily or involuntarily,
*1127“13. Whether or not the monies contributed to said fund were kept separate and distinct from the funds of Local 562,
“14. Whether or not some persons who worked under the jurisdiction of Local 562 did not contribute to said fund,
“15. Whether or not the monies of said fund were used in part to promote activities which were prohibited to Local 562 by its Constitution and By-Laws,
“16. Whether or not said fund was established and maintained pursuant to the advice of counsel,
“17. Whether or not the monies of said fund were reported to the Department of Labor on the LM-2 forms, which required the reporting monies of Local 562,
“18. Whether or not expenditures from the fund were under the control of the union and its officers,
“19. Whether or not records used in the collection of the payments to the fund are similar to those employed from time to time by the union in the collection of its regular dues and assessments.”